DOJ chief: NTC can give ABS-CBN provisional permit

The National Telecommunications Commission (NTC) can allow broadcast companies like ABS-CBN to continue operating while waiting for Congress to renew their franchise, Justice Secretary Menardo Guevarra said in a letter to NTC Commissioner Gamaliel Cordoba.

But Guevarra also said it would be legally “more stable” if a congressional resolution would authorize the NTC to issue a provisional license pending the renewal of ABS-CBN’s franchise, which will expire on May 4.

On Wednesday, the House of Representatives “enjoined” the commission to issue a “provisional authority” for ABS-CBN to continue operating while Congress deliberated on the renewal of the network’s franchise.

Palawan Rep. Franz Alvarez, who heads the House committee on legislative franchises, conveyed this advice in a letter to Cordoba, with acknowledgment by Speaker Alan Peter Cayetano, on Wednesday.

Legal ‘guidance’

In his Feb. 26 letter to the NTC chief, copies of which were obtained by reporters on Thursday, Guevarra noted “sufficient equitable basis to allow broadcast entities to continue operating while the bills for the renewal of their respective franchise remain pending with Congress.”

He said, however, that “a more stable legal environment could be created if Congress, by a concurrent resolution, would authorize the NTC to issue a provisional authority to these broadcasting companies, under such terms and conditions as it may deem necessary, until Congress’ final disposition of their franchise renewal.”

Although his six-page letter provided legal “guidance” to the NTC, it still fell short of a formal legal opinion sought by the agency on Feb. 12.

Guevarra said the Department of Justice could not issue the legal opinion because the issue involved the rights of a private company and that Congress would be the better body to tackle it.

Guevarra also pointed to the “established practice” in Congress of allowing a franchisee to continue operations pending renewal of its franchise.

Several companies, including Philippine Telegraph and Telephone Corp., Smart Communications Inc. and the Catholic Bishops’ Conference of the Philippines (CBCP), were allowed to operate so long as the applications for the renewal of their franchises had been filed.

“It is imperative that the same treatment be extended to all entities seeking the renewal of their franchises which are about to expire. Otherwise, it runs afoul of the basic principles of fairness and justice,” Guevarra said.

He said “there is nothing” in existing laws that declares a franchisee can either continue to operate pending the renewal of the franchise, or must be prohibited from operating until Congress acts on a bill for franchise renewal.

“When there is a gap in the law, equity comes in to fill the gap,” Guevarra said. “It is our hope that Congress will apply principles of equity in dealing with a situation where no fault or negligence may be attributed to entities seeking the renewal of their respective franchise.”

Guevarra cited as legal bases Republic Act No. 7925, or the Public Telecommunications Act of 1995, as well as the NTC’s Memorandum Circular No. 08-09-95.

Under the circular, he said, “an applicant who has been previously granted a franchise by Congress could be considered a qualified applicant … and could accordingly be issued a provisional authority to operate, subject to Congress’ eventual disposition of the franchise renewal bill.”

Puno’s contrary position

Former Chief Justice Reynato Puno had earlier said that ABS-CBN could not continue operating without a new franchise.

“We were unanimous in holding that there is a need for a franchise before the NTC can grant a provisional permit,” Puno told CNN Philippines, referring to a 2003 decision of his, unanimously affirmed by the full court, regarding a case between a broadcaster and the NTC.

In defending that view, Puno also cited RA 7925.

ABS-CBN on Thursday said it was “grateful and humbled by President Rodrigo Duterte’s acceptance of our apology.”

“We will coordinate with the President’s office as it relates to his guidance on donating the refund to a charitable institution,” the network said in a statement, referring to the balance of P2.6 million from Mr. Duterte’s unaired campaign ads in 2016.

Mr. Duterte has accepted the network’s apology, advising it to donate the refund to “any charitable institution of their choice.”

His spokesperson, Salvador Panelo, on Thursday said “the President has already given them blanket authority, just donate it to your favorite charitable organization.”

Rep. Joey Salceda, in an interview on Thursday, expressed confidence that the House would renew the ABS-CBN franchise, citing the case of the renewed broadcasting franchise of CBCP.

“The renewal of the franchise of CBCP [would] have been more problematic given the more antagonistic relationship between the administration and the Church,” said Salceda, who heads the House ways and means committee.

Ping: ‘House won’t act…’

The CBCP franchise was effectively extended for another 25 years after the bill granting its renewal lapsed into law.

Asked if he had talked to his colleagues about this matter, Salceda said he had read their “body language.”

But for Sen. Panfilo “Ping” Lacson, “the House will not act unless (the President) said, ‘Go on. You discuss and pass it.’”

“Whether they admit it or not, that’s the reality. And that’s a reality we have to live with in the House. In the Senate, we are 24 republics here,” Lacson said at a forum in the Senate on Thursday.

Asked if Mr. Duterte’s approval was needed before the House hearings could begin, he said: “You can say that. That’s obvious.”

“That’s [a] no-brainer because of the [President’s] oft-repeated pronouncements against ABS-CBN. It’s too telling.” —WITH REPORTS FROM ROY STEPHEN C. CANIVEL, PATRICIA DENISE M. CHIU, MARLON RAMOS, JULIE M. AURELIO AND MELVIN GASCON