Ex-SC justice refutes DOJ: ABS-CBN needs franchise, not permit, after May 4

MANILA, Philippines – A retired Supreme Court justice said on Thursday, February 27, that without a franchise, ABS-CBN will have to cease operations after May 4, contrary to the informal opinion of Justice Secretary Menardo Guevarra that a provisional permit would be enough for the media giant to operate. 

"An expired franchise can't be extended by a mere Joint Resolution by both houses. There should be a law granting a new franchise," retired justice Angelina Sandoval-Gutierrez told Rappler in a message on Thursday.

Guevarra has sent a "legal guidance" to the National Telecommunications Commission, (NTC) saying that it can issue a provisional permit to ABS-CBN after May 4.

"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," Guevarra said in his 6-page letter to the NTC sent on Wednesday, February 26.

The letter is just a guidance, and not a formal legal opinion – a document that carries weight and is sometimes used as defense by executive agencies when they are brought to court.

Gutierrez is among the justices who concurred with a 2003 ponencia of then-Chief Justice Reynato Puno saying that the NTC does not have any power to issue provisional permits to broadcasters.

The only way for ABS-CBN to continue operating is a franchise, said Gutierrez, citing  the 2003 case G.R. No. 144109 ACWS vs NTC.

"In sum, it's up to Congress now to enact a law granting a new franchise to ABS-CBN. Unless there is that law, it ceases to operate upon expiration of its franchise," said Gutierrez.

The clash

The network's franchise woes show an apparent clash between legal jurisprudence and executive command. All this while Congress – the authority on the issue – drags its feet on the matter.

ABS-CBN's problems would be solved if Congress just signs a law renewing its franchise. But the House of Representatives is refusing to move all while clock ticks on ABS-CBN, whose franchise expires May 4.

The NTC is the regulatory body tasked to give permits and licenses to broadcasters. However, Republic Act No. 3846 requires that broadcasters obtain a franchise from Congress first before they can operate.

That's why in every franchise law, there is a clause that says the franchise grantee must obtain permits from NTC.

Because the franchise is expiring soon, the NTC – at a loss on what to do – sought a legal opinion from the Department of Justice (DOJ). This is also what happened in the 1990s when broadcasters were confused about a similar situation.

But this time, Guevarra refused to issue the formal legal opinion saying that "the questions presented to us are better addressed to Congress itself."

Nevertheless, Guevarra wrote a legal guidance that he said should serve as "signal to everyone concerned."

His guidance is this: If granting a franchise is a legislative act, then Congress, by a concurrent resolution, can authorize the NTC to issue the provisional permit.

Gutierrez said that is not allowed by law because the existing jurisprudence is the 2003 Supreme Court case in which she, together with former justices Artemio Panganiban, Renato Corona and Conchita Carpio Morales, concurred in.

"An SC Decision is also a law binding on Congress and the Executive – on every Filipino, unless overcome by a law passed by Congress providing that an expired franchise can be extended by Joint Resolution of both houses," said Gutierrez.

Asked to react to Gutierrez's statement, Guevarra said, "See my letter to the NTC."

Senator Panfilo Lacson agreed with the SC decision, saying, "So whether it’s a joint or concurrent resolution, hindi ito puwede gamitin ng NTC para mag-issue ng (the NTC cannot use it to issue a) provisional permit because a provisional permit comes after a legislative franchise is issued to the corporation."

Asked about this on Thursday, Speaker Alan Peter Cayetano seemed inclined toward the DOJ solution, which is for Congress to authorize the NTC to issue a provisional permit.

Letter to the NTC

Guevarra said in the letter that "there is nothing in our existing laws which declares that the franchisee can continue to operate pending the renewal of its franchise."

Despite the 2003 Supreme Court decision, Guevarra said "neither is there anything in these laws which prohibits the franchisee from operating until Congress acts on the bill for the renewal of the franchise."

In the 2003 decision, the Supreme Court clearly said not to do away with a legislative franchise.

"That the legislative intent is to continue requiring a franchise for the operation of radio and television broadcasting stations is clear from the franchises granted by Congress after the effectivity of E.O. No. 546 in 1979 for the operation of radio and television stations," said the Supreme Court, as reiterated by Gutierrez.

The NTC was created under Executive Order 546. (We discuss all of those laws and legal grounds here in this explainer.)

Guevarra said he was only following the principles of equity.

"Equity is the principle by which substantial justice may be attained in cases were the prescribed or customary forms of ordinary law are inadequate," said Guevarra.

The Supreme Court already had an answer to that in 2003: "The call to dispense with the requisite legislative franchise must, however, be addressed to Congress as the lawmaker of the land for the Court’s function is to interpret and not to rewrite the law. As long as the law remains unchanged, the requirement of a franchise to operate a television station must be upheld." – With a report from Aika Rey/Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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