EXPLAINER: What are legal grounds for ABS-CBN to air after May 4?

MANILA, Philippines – As Congress and the Supreme Court tackle the franchise issues of ABS-CBN, there's a more pressing question for the TV giant – what will happen after May 4?

"There is a gap in the law," said Justice Secretary Menardo Guevarra at a Senate hearing on Monday, February 24.

And if there's a gap in the law, Guevarra said, one must follow the principle of equity.

What would that equitable solution be?

For Guevarra, it is a provisional permit that would come from the National Telecommunications Commission (NTC) but only if Congress allows it.

For opposition lawmakers both from the House and Senate, it would be for Congress to grant ABS-CBN a provisional franchise of up to 4 years.

Standing in the middle of those two opinions is a Supreme Court precedent – a case from 2003 that prohibits the NTC from giving a provisional permit without a franchise.

Which will prevail?

First let us explain the significance of May 4.

While the law that gave ABS-CBN its 25-year franchise – Republic Act No. 7966 – was enacted on March 30, 1995, it was published only on April 19. It took effect 15 days later or May 4.

That much is clear, according to Guevarra, who authoritatively told the Senate that the franchise will expire on May 4, and not March 30. This gives ABS-CBN a one-month breather and a longer lifeline.

Martial law background

Before we go into the issue of provisional permits, a historical background first.

In 1963, RA 3846 was passed into law requiring broadcasters to obtain a franchise from Congress before they can operate.

In 1974, or two years after proclaiming Martial Law, former president Ferdinand Marcos signed Presidential Decree No. 576-A that terminated all broadcasting franchises to make way for new ones. Broadcasters were required to comply with the dictator's stringent rules.

In 1979, Executive Order No. 546 was passed, creating the NTC and giving the Commission the power to give broadcasters a permit to operate.

RA 3846 and EO 546 created a clash – do broadcasters need a legislative franchise, or is NTC's permit to operate sufficient?

Fast forward to 1994.

A 1994 MOU

Broadcasters felt the brunt of that clash in the '90s. 

In 1994, the House of Representatives, the NTC, and the Kapisanan ng mga Brodkaster ng Pilipinas (KBP) entered into a Memorandum of Understanding (MOU) which said the NTC would give two-year provisional permits to broadcasters, provided that all of them apply for franchises before 1994 ended. 

The MOU said it was an interim solution to the "pervading confusion in the state of affairs of the broadcast industry brought about by conflicting laws, decrees, executive orders and other pronouncements promulgated during the Martial Law regime."

LOOK: Bayan Muna Rep Carlos Zarate shows copy of a 1994 memorandum of understanding among the House, the Kapisanan ng mga Brodkaster sa Pilipinas, and NTC allowing the latter to issue a temporary permit to operate to broadcast companies with pending franchise bills @rapplerdotcom pic.twitter.com/GyoZrvpOY1 — Mara Cepeda (@maracepeda) February 25, 2020

Bayan Muna Representative Carlos Zarate said on Tuesday, February 25, that this MOU is actually sufficient for the NTC to give ABS-CBN a two-year provisional permit now without a need for a concurrent resolution.

However, the language of the MOU was time-bound; it gave broadcasters at the time the deadine of December 31, 1994 to apply for a franchise.

"In my opinion (the MOU) may have to be refreshed or replaced by a formal resolution of the House," said Guevarra.

Provisional permit as equity

Guevarra's solution is this: if the franchise is a legislative act, then why not just have a congressional resolution authorizing the NTC to provide a provisional permit?

"It is therefore respectfully submitted that the Congress, by a concurrent resolution, may authorize the National Telecommunications Commission to issue a provisional authority subject to such terms and conditions as the NTC may deem fit to ABS-CBN and other entities similarly situated," Guevarra told the Senate.

It would follow the law that franchises must be legislative, and also be equitable.

"Considerations of equity have apparently been applied in previous similar situations presented earlier, namely, among others, Smart Communications Inc, CBCP Inc, all of whom were allowed to operate despite expired franchises as long as applications for the renewal of their franchises were lodged with the Congress before the lapse of their term," said Guevarra.

2003 Supreme Court case

Former chief justice Reynato Puno, however, pointed to a 2003 Supreme Court (SC) case that says NTC cannot give a provisional permit to a broadcaster if it does not have a legislative franchise.

The Supreme Court, via a Puno ponencia, said that in the case ACWS vs NTC: "As long as the law remains unchanged, the requirement of a franchise to operate a television station must be upheld."

Explaining his ponencia, Puno told CNN Philippines' The Source: "We were unanimous in holding that there is need for a franchise before the NTC can grant a provisional permit. Without a franchise, the TV station concerned has to seize operations."

"(ABS-CBN) cannot operate (after May 4) because of that decision by SC," Puno added.

Puno said that the grace period given to the likes of GMA7, wherein they were allowed to continue operating while waiting for renewal, was just "mere tolerance."

"That practice cannot be sustained if you have a decision by SC, and you have a law saying you need a franchise," said Puno.

Puno, however, conceded that Guevarra's solution of a congressional concurrent resolution to authorize the NTC might work. "Certainly," the former chief justice said.

Legal or political?

But it seems Guevarra's solution is a workaround.

For former Supreme Court spokesperson Ted Te, the workaround is "superfluous."

"If Congress can come up with a joint resolution, why can't it immediately grant or extend the franchise in the interim?" Te said.

Te added that the best way would be for Congress to just extend ABS-CBN's franchise temporarily. This is also the suggestion of Senate Minority Leader Franklin Drilon, who feared that if the NTC is allowed to give a provisional permit, it can also withdraw the permit at any time.

And is a concurrent resolution really the most equitable, given that the House and Senate are clashing – the lower house stalling and the upper chamber being accused of holding unconstitutional hearings?

"I cannot speculate on that. As long as both Houses come out with the proper resolution, whether jointly or separately, that’s sufficient affirmation for the NTC to issue a provisional authority. Better than mere customary practice based on equity," said Guevarra.

Te said that equity is resorted to only when the law provides for nothing. 

"The authority is legal – Congress has the sole authority – but the solution is political—as may be seen from the House’s foot dragging," Te said. 

As for Guevarra, he is insistent on his solution, but would not put it down in a formal legal opinion, a document that carries great weight for executive agencies because it would be like the government lawyer signing off on a decision.

What he could provide, Guevarra said, is "guidance." The justice secretary also called it a "signal to everyone concerned."

With gaps in the law, and clashes in the legislative branch, will guidance and signals from President Rodrigo Duterte's alter ego command the course of action?

With the future of broadcasting and the media at stake, ABS-CBN holds its breath. – with a report from Mara Cepeda/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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