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

There's a gap in the law, but there are legal grounds that authorities can use to possibly close it. But is this more political than legal?

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. 77966 – 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."

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 deadline of December 31, 1994 to apply for a franchise.

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

"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."

"cannot operate because of that decision by SC," Puno added.

Puno said that the grace period given to the likes of GMA-7, 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.

https://www.rappler.com/newsbreak/iq/252692-explainer-legal-grounds-can-abs-cbn-air-after-may-4-2020

Kalinga voters OK new village in Tabuk City

TABUK CITY, Kalinga – A new village called Lacnog West has officially been carved out of Barangay Lacnog after residents voted for its creation in a Feb. 22 plebiscite.

Lawyer Reyman Solbita, Tabuk City election officer, said Lacnog West joined 42 barangays when a majority of voters ratified Republic Act No. 11328 separating the sub villages of Guina-ang, Madopdop, Mallango, Lanlana, and San Pablo from Barangay Lacnog to form the new village.

The law was sponsored by Kalinga Rep. Allen Jesse Mangaoang and was signed into law by President Rodrigo Duterte on April 17, 2019.

The Tabuk board of canvassers declared that 2,381 Lacnog residents voted in favor of the separation, against 51 nay votes.

The law allows the governor to appoint the first set of officials of the new village who would hold office until successors are elected.

https://newsinfo.inquirer.net/1233261/kalinga-voters-ok-new-village-in-tabuk-city

Speaker Cayetano seeks sober discussion of ABS-CBN franchise renewal

House Speaker Alan Peter "Compañero" Cayetano on Monday maintained that the House of Representatives will weigh the merits of the renewal of the franchise of media giant ABS-CBN in "a sober discussion through a committee hearing."

The Speaker vowed that the hearing will be organized and that issues to be raised  will be made clear even before the hearing begins.

Speaker Cayetano maintained that the House is committed to impartially weigh the merits of the ABS-CBN franchise renewal.

"We want ABS to get or not get their franchise based on the merits and we can only go to the merits if we have a sober discussion through a committee hearing," he said.

The Speaker further clarified that the discussion includes "abuses" by the media of press freedom. "On trial here is not only ABS. Yes, the politicians vis-a-vis press freedom but also the journalists vis-a-vis press freedom. We all know that there are abuses on the politicians' side. But there are also abuses on the media side. So when can we think about that soberly? When can we discuss kailan mali na gamitin mo ang  media for specific business interest or for a specific political interest? When is it fake news? When is it opinion? There is so much to discuss," he said.

He added that "truth and all, management, employees, and viewers will be given an opportunity to be heard."   

"So I'm confident pag nakita nila ang takbo ng hearing dito sa House you will say, 'This is the way to do it,'" he said during a press conference.

Earlier in the day, House Committee on Legislative Franchises Chairperson Rep. Franz Alvarez (1st District, Palawan) stated that the panel will start accepting position papers from various stakeholders for or against the franchise renewal of ABS-CBN.

The Speaker also lauded ABS-CBN President and Chief Executive Officer Carlo Katigbak for expressing openness to discuss all the allegations posed against the media giant.

"It is obvious to us and we expected na sasabihin niya na ipaglalaban n'ya ang ABS-CBN and that ABS-CBN is about service. So that's well taken.  But also it is well taken na sinabi n'yang 'We're not perfect,' and that they're willing to correct mistakes or listen if there are mistakes. That's the kind of discussion we need," the Speaker said.
 
In the meantime, Speaker Cayetano enjoined the parties involved, including Members of the House, to adopt the willingness of Katigbak to acknowledge and correct mistakes.

"I'm hoping when we come back in May, malamig na ang ulo ng lahat. I advise all of us to take the mindset of President Carlo Katigbak, President of ABS-CBN Corporation, na ipaglalaban niya ang values ng kanyang organization… but yung openness to hear where they can be better. At ganoon din sa amin sa Kongreso," he said. 

http://www.congress.gov.ph/press/details.php?pressid=11826

ABS-CBN may operate sans franchise with congressional nod

By Vann Marlo M. Villegas and Charmaine A. Tadalan
Reporters

A BROADCASTING giant critical of President Rodrigo R. Duterte may continue operating pending its application for a franchise renewal, the Justice department told senators on Monday.

Congress can file a resolution authorizing the National Telecommunications Commission (NTC) to issue a provisional authority to ABS-CBN Corp., whose franchise is expiring on May 4, Justice Secretary Menardo I. Guevarra said at a hearing on alleged violations of its franchise.

“Congress, by a concurrent resolution, may authorize the NTC to issue a provisional authority — subject to such terms and conditions the NTC may deem fit — to ABS-CBN,” he said.

Mr. Guevarra said the law is silent on whether a franchise holder can operate pending a congressional hearing on the renewal of its permit. “When there is a gap in the law, equity comes in to fill the gap,” he added, citing the need for “substantial justice.”

The NTC last week sought a legal opinion from the Justice department on whether ABS-CBN can operate once its franchise expires.

Mr. Guevarra said the agency was not inclined to issue an opinion when a private company is involved, adding that legal opinions usually cover only government agencies.

“Our legal opinion will not be binding on a private company, which may actually go to court to have the matter resolved,” he told reporters after the Senate committee on public services hearing.

Mr. Guevarra also corrected earlier news reports that said the media network’s franchise was expiring on March 30.

The law that authorized ABS-CBN to operate for 25 years was enacted on March 30, 1995, but it only took effect 15 days after it was published in a newspaper.

“The franchise was published on April 19, 1995. For that reason, the franchise will expire on May 4, 2020,” he said.

Several bills seeking to renew the network’s franchise have been filed in both Houses of Congress.

Solicitor General Jose C. Calida has asked the Supreme Court to revoke ABS-CBN’s franchise, accusing it of “highly abusive practices.”

The broadcaster allegedly used an “elaborately crafted corporate veil” to allow foreign investors to take part in its ownership.

The company allegedly violated the ownership restriction when it issued Philippine depositary receipts to foreigners. The financial instruments allow foreign funds to buy into the company, allowing it to raise funds globally.

ABS-CBN also went beyond the scope of its legislative franchise by “broadcasting for a fee,” Mr. Calida said. The company allegedly launched and operated a pay-per-view channel in ABS-CBN TV Plus, the KBO Channel, without regulatory approval.

Unit ABS-CBN Convergence, Inc. had also resorted to an “ingenious corporate layering scheme” in order to transfer its franchise without congressional approval, he said.

It also failed to list its shares on the Philippine Stock Exchange within five years, which was a condition of its franchise, Mr. Calida said.

The media network, which Mr. Duterte accused in 2017 of swindling after it allegedly refused to run political ads he had paid for during the 2016 presidential campaign, has denied the allegations.

NO VIOLATIONS

At yesterday’s Senate hearing, regulators cleared ABS-CBN of alleged violations of its franchise.

NTC, Bureau of Internal Revenue and Securities and Exchange Commission (SEC) officials told senators the network had no pending violations or complaints from third parties.

NTC Commissioner Gamaliel Cordoba noted that in the past, franchise holders whose permits have expired had been allowed to continue operating even without a provisional authority.

He noted, however, that given the solicitor general’s quo warranto lawsuit against ABS-CBN, they deemed it prudent to seek advice from the Justice department.

SEC Commissioner Ephyro Luis B. Amatong also cleared the network, saying he was not aware of any violations or complaints against the network.

“As far as the ABS-CBN account is concerned, they are regularly filing and paying their taxes for the past number of years,” said Roberto A. Baquiran, chief of the BIR’s National Investigation Division.

The broadcaster has paid P14.4 billion from 2016 to 2019, covering all national revenues except the 2019 corporate income tax due in April, he said.

Senator Ralph G. Recto said the broadcaster should have been fined if it had violated the law instead of forcing its shutdown.

“You are the regulator and you are not complaining of any penalty,” he told telecommunication officials. “And here we are talking of the possibility of closing ABS-CBN.”

At the hearing, ABS-CBN President and Chief Executive Officer Carlo L. Katigbak admitted that of the P65 million worth of local ads placed by Mr. Duterte during the 2016 presidential campaign, the network had failed to broadcast P7 million worth of ads for lack of time.

“Of the P7 million, we refunded approximately P4 million and that was accepted,” Mr. Katigbak said. “We were delayed in refunding the P2.6 million and that was no longer accepted.”

Also at yesterday’s hearing, the Philippine Competition Commission (PCC) said shutting down ABS-CBN, leaving the three other major media companies to control the market, might be a cause for concern.

PCC Commissioner Johannes Benjamin R. Bernabe said 89% of the market is controlled by ABS-CBN, GMA Network, TV5 and Nine Media. ABS-CBN has a market share of 31-44%, while GMA has 34-46%.

GMA Network could end up swallowing a portion of ABS-CBN’s market share, he said.

“In other jurisdictions, an increasing market share of at least 10% raises a red flag in terms of competition,” he said. “We will have to assess it in a case-to-case basis in the context of the Philippine market.”

Meanwhile, Palawan Rep. Franz E. Alvarez, chairman of the House committee on legislative franchises, said formal hearings on ABS-CBN’s franchise may start either in May or August.

“Maaaring sa May na po ito o sa August na talaga kasi maraming marami po talaga. Hindi po ito kayang matapos agad (We may start in May or August because we have a lot of work. We cannot finish this immediately),” he said in a radio interview on Monday. — with inputs from Genshen L. Espedido

https://www.bworldonline.com/abs-cbn-may-operate-sans-franchise-with-congressional-nod/

Congress holds key to ABS-CBN franchise

CONGRESS could come up with a resolution authorizing the National Telecommunications Commission (NTC) to issue a temporary permit so that ABS-CBN Corp. could continue operating if lawmakers fail to renew its franchise this year, Justice Secretary Menardo Guevarra said on Monday.

Guevarra made the point during the Senate inquiry to determine if the media giant violated its franchise. He clarified that the franchise expires on May 4, not on March 30, as was widely believed.

He said based on the principle of equity or fairness, ABS-CBN could still operate even after its 25-year franchise expires.

This can happen if the Senate passes a concurrent resolution authorizing the NTC to issue a provisional permit to ABS-CBN based on “equitable considerations.”

Guevarra pointed this out after Sen. Mary Grace Poe, chairman of the Senate Committee on Public Services, enumerated instances when the NTC allowed franchise holders to continue to operate after the expiration of their permits.

She said the franchise of another broadcast network, GMA, lapsed on March 20, 2017, but the renewal was signed on April 21, 2017.

Similarly, TV5’s franchise expired in December 2019, but the network ran under a temporary permit until April 2019.

Poe said the radio franchise of the Catholic Bishops’ Conference of the Philippines expired in 2017, but the renewal was signed only in 2019.

Interviewed after the hearing, Guevarra said the NTC has no basis in granting provisional authority, but it has long been the practice.

The practice was merely rooted in equitable considerations “that’s why it would be better to have a basis,” he added.

He said it does not matter if the resolution is a joint one or not. “The important thing is there is a basis.”

During the hearing, Guevarra made it clear that “when there is a gap in the law, equity comes in to fill the gap. Equity is the principle by which substantial justice may be attained in cases where the prescribed and customary forms of ordinary laws are inadequate.”

In explaining that ABS-CBN’s franchise will expire on May 4, Guevarra noted that Section 15 of Republic Act 7966, the law that approved the franchise, provides that the approval became effective 15 days from date of publication in at least two newspapers of general publication.

“Based on facts available to us, the franchise was published on April 19, 1995. For that reason the franchise will expire on May 4, 2020,” he said.

During the hearing, Sen. Ana Theresia “Risa” Hontiveros urged the network’s leadership to prioritize the welfare of its workers by regularizing their contractual employees.

“We need a pro-worker franchise,” she said as she compelled ABS-CBN to commit to improving labor practices, settling contractualization issues and providing job security to workers once the franchise is renewed.

Only 300 of ABS-CBN’s 7,000 regular employees are union members. The rest, classified as confidential employees, enjoy wages that are 50 percent higher than union members.

Jobs

Mario Carlo Nepomuceno, head of the ABS-CBN Corporate Services Department, said apart from the regular employees, other workers such as those under the ABS-CBN Foundation and the ABS-CBN Global would lose their jobs once ABS-CBN ceases operations.

“Kapag nawala po ang funding at donasyon mula sa ABS-CBN foundation, malamang po ang 400 employees ng ABS-CBN Foundation ay mawawalan na ng trabaho, ganun din po ang nasa ABS-CBN Global that transmit through its Filipino Channel abroad the various programs of the network,” he continued.

Carlo Katigbak, ABS-CBN president and chief executive officer, who was also at the hearing, said during the period of its franchise, the network delivered a service that was meaningful and valuable to the Filipino people.

“Our TV shows entertain, inform and inspire our audience, and, in a recent Pulse Asia survey, 70 percent of all Filipinos tuned in to ABS-CBN last year. That to us is a validation that the shows we produce remain important and relevant to the public,” he added.

“While our commitment to serve is genuine, we also acknowledge that we are not a perfect organization. Where we have shortcomings, we acknowledge them, and we work to correct them,” he said.

Katigbak stressed that ABS-CBN did not break the law or violated any of the provisions of its franchise. WITH JAVIER JOE ISMAEL

https://www.manilatimes.net/2020/02/25/news/headlines/congress-holds-key-to-abs-cbn-franchise/695963/