The Office of the Solicitor General (OSG) has assailed as unconstitutional pending bills in both the House of Representatives and the Senate that will, in effect, grant a “hold-over franchise” notwithstanding the expiry of such license previously granted by Congress.
Identically worded, House Bill 7923 authored by Parañaque City Rep. Joy Myra Tambunting and Senate Bill. No. 1530 filed by Senator Franklin Drilon propose to amend Section 18, Book VII, Chapter 3 of the Administrative Code of the Philippines.
Solicitor General Jose Calida aired the OSG’s strong opposition to the legislative proposal in a letter to National Telecommunications Commission Commissioner Gamaliel A. Cordoba.
Being NTC’s statutory counsel, the OSG’s legal opinion on the issue was sought by Cordoba after he received a letter from the House Committee on Legislative Franchises asking NTC’s position on Tambunting’s bill.
Cordoba informed Palawan Rep. Franz Alvarez, legislative franchises chairman, that the NTC adopted the OSG’s position paper on the pending bill.
After reviewing the bills and taking into consideration NTC’s mandate, the OSG assailed the proposals, pointing out that the measures “violate the Constitution.” According to the OSG the proposed bills disregard the legislative nature and origin of a franchise in contravention of the Constitution.
“The proposed bills seek to provide a ‘holdover franchise” to be enjoyed by an entity which has applied for a renewal while Congress is still deliberating on the merits of such renewal,” the NTC counsel pointed out.
It stressed that by institutionalizing the system of “hold over franchise” in the broadcast industry, the legislative measures already violate the ‘settled rule that the privilege to operate a broadcasting station requires a legislative franchise in the form of a law.”
The OSG explained that the practice of “hold-over franchise” poses the danger of allowing a broadcasting entity with an expired franchise to continue using its assigned frequency without a definitive legislative finding that it remains qualified to retain such privilege.
The said policy is also open to abuse because it paves the way for “shrewd broadcasting entities the incentive to delay an impending denial of application for franchise renewal.”
“Furthermore, to allow an expired franchise holder to continue its operations thereby extending its use over the free signals granted by the State is akin to promoting 'exclusivity' which the Constitution abhors,” continued the OSG.
The government legal counsel noted that Article XII, Section 10 of the Constitution provides that no such franchise, certificate are exclusive.
This is to support and encourage equity participation in public utilities by the general public also provided in Section 11.
“By allowing the select few to use these privileges despite having an expired franchise limits the public to apply for these privileges. This promotes exclusivity which will run counter to the true intention of the Constitution,” the OSG said.
Certain lawyers of the OSG noted that since the bills were filed on the same date and contained identical wordings, it can be “reasonably” hypothesized that the legislative move was aimed at granting the reinstatement of the legislative franchises of ABS-CBN and the Amcara Broadcasting Network, whose franchises have both expired and had been the subject of cease-and-desist order issued by the NTC.
Tambunting, it was gathered, used to work for the ABS-CBN as producer. She was among the vocal supporters of the network’s bid for extension of legislative franchise that the Lower House did not grant.
On the other hand, ABS-CBN critic and Cavite Rep. Jesus Crispin Remulla had been insistent in his claim that Amcara was a mere “dummy’ of ABS-CBN.