By Rey Panaligan
The Supreme Court (SC) was asked on Thursday (March 5) to stop the National Telecommunications Commission (NTC) from issuing ABS-CBN Corporation a provisional authority to operate once the television firm’s franchise expires on May 4 and Congress has not acted on its renewal.
Lawyer Lorenzo "Larry" Gadon (RIO DELUVIO / FILE PHOTO / MANILA BULLETIN)
In a taxpayer’s petition for prohibition, lawyer Lorenzo G. Gadon also pleaded the SC to order House Speaker Alan Peter S. Cayetano and Rep. Franz E. Alvarez as chair of the House committee on legislative franchises to withdraw their Feb. 26, 2020 letter sent to NTC Chairperson Gamaliel A. Cordova.
Gadon said Cayetano and Alvarez’s letter-directive to Cordova on the issuance of a provisional authority to operate violates the doctrine of separation of powers “and issued with grave abuse of discretion amounting to lack or excess of jurisdiction.”
He asked the SC to issue a temporary restraining order (TRO) that would stop the NTC from complying with the letter-directive from the two legislators.
He explained that he was constrained to file his petition “to preserve the independence of the three branches of government, which is zealously guarded in a democratic system of government.”
At the same time, he pointed out that “the legislative branch is authorized to make laws, alter, and repeal them through the power vested in the Philippine Congress, which includes the granting of franchises for radio and television broadcasting, while the executive branch carries out laws – including the regulations of those holding legislative franchises.”
Timeline of the ABS-CBN franchise and related events
Citing the chronology on the ABS-CBN franchise, Gadon said the franchise of the television firm was granted on March 30, 1995 and valid for 25 years until March 30, 2020 under Republic Act No. 79666. But since the law was published only on April 19, 1995, the franchise became valid and enforceable until May 4, 2020.
He said the Office of the Solicitor General (OSG) filed a quo warranto case against ABS-CBN and its subsidiary, ABS-CBN Convergence, Inc., on Feb. 10, 2020 seeking the forfeiture of the television firm’s franchise. The petition is still pending with the SC.
Then came the letter-directive to NTC of Cayetano and Alvarez on Feb. 26, 2020, he said.
Gadon’s arguments
Gadon pointed out that “the NTC has neither authority nor jurisdiction to issue a permit to operate to ABS-CBN when the latter’s franchise expires on May 4, 2020.”
He said: “The functions of the NTC are merely regulatory and supervisory. The supposed authority of the NTC to extend an existing broadcast franchise, or to issue a provisional permit to operate sans a valid franchise, is nowhere in the said mandate.”
Citing a 2003 SC decision, Gadon said the High Court ruled that the NTC “is not clothed with any authority to issue such permits to any radio or television broadcast network without an existing and valid legislative franchise.”
Also, he said, the SC had also ruled that “a congressional franchise is required for the operation of radio and television broadcasting stations….”
Thus, he stressed, “Congress, not Cayetano or Alvarez, has the exclusive jurisdiction to grant, modify, renew, or repeal a legislative franchise.”
At the same time, he said “there is no showing that neither respondent Cayetano nor Alvarez was authorized by Congress to issue the letter-directive to the NTC relative to the ABS-CBN’s franchise as they cannot show any Journal of the Lower House to prove that their actions were approved by the majority of the Members of the House.
“Albeit any showing of such Journals, or any approval by the majority of the Members of the House, then Cayetano and Alvarez’s acts are ultra vires (beyond the limit of one’s authority) in nature. Thus, it smacks of illegality and, without any doubt, respondents Cayetano and Alvarez acted in excess of their authorities and jurisdiction.”
Gadon on franchise
He also said:
“In the case of ABS-CBN, the legislative franchise was granted by Congress alone and the franchisee is regulated by the NTC. The regulation of radio and television communications, including that of ABS-CBN, is a function assigned to and performed by the NTC.
“However, such regulation does not go unabated but recognized the requirement of a congressional franchise for the operation of a radio or television station.
“Without a valid legislative franchise, the NTC cannot regulate the franchisee, in this case ABS-CBN. NTC cannot usurp the power of Congress to grant or extend ABS-CBN’s legislative franchise.
“It is only Congress, which can extend ABS-CBN’s franchise. This power cannot be passed on or delegated to an administrative agency, such as NTC, under the executive branch.
“Evidently, as clearly shown by their letter dated February 26, 2020 addressed to respondent Cordova, respondents Cayetano and Alvarez are enjoining respondent Cordova to grant ABS-CBN Corporation a provisional authority to operate effective May 4, 2020.
”This is tantamount to extending the franchise of ABS-CBN, through an undue delegation of powers.”
OSG’s quo warranto case, others
The OSG’s quo warranto case against ABS-CBN will be tackled by the SC on March 10.
Aside from the main issue on the quo warranto that seeks to forfeit the franchise of the television company, also reset for deliberation are the pleas for a temporary restraining order (TRO) and a gag order sought by the OSG.
A TRO was sought by the OSG to stop ABS-CBN “from further operating its Kapamilya Box Office (KBO) channel and offering it to the general public.”
ABS-CBN’s KBO is a channel subscription where viewers can watch their favorite movies for a fee.
If a gag order is issued by the SC, the parties in the quo warranto petition – OSG and ABS-CBN and its subsidiary and their representatives – are barred from commenting on or discussing the merits of the case, particularly through the media, and directly to the public.
Under the rules, a violation of a court’s gag order is punishable with a fine or imprisonment or both.
READ MORE: SolGen files quo warranto petition vs. ABS CBN
SC asks ABS-CBN for comments
Earlier, the SC had required ABS-CBN and its subsidiary to comment on the quo warranto and the plea for TRO filed by the OSG.
Later, the SC also required the television company to file its comment on the gag order sought by government lawyers.
The comments on the quo warranto as the main case and the pleas for TRO and gag order have been filed by the ABS-CBN which sought the dismissal of all the OSG’s pleas.
On the day the quo warranto petition was filed, ABS-CBN Corporation said it did not violate the law to warrant the forfeiture of its franchises.
“We reiterate that everything we do is in accordance with the law. We did not violate the law. This case appears to be an attempt to deprive Filipinos of the services of ABS-CBN,” the corporation said in a statement.
READ MORE: ABS-CBN: We did not violate the law
The media network said it complied with all the pertinent laws governing its franchise and secured all the necessary government and regulatory approvals for its business operations.
READ MORE: House to finally tackle ABS-CBN franchise renewal bills on March 10