Supreme Court decision on mandatory franchise ‘not applicable’ to ABS-CBN case – Drilon

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The fate of ABS-CBN remains unclear as past and present officials give contrasting views on the media giant’s bid for continued operations. (FILE PHOTO)

Metro Manila (CNN Philippines, February 27)— A Supreme Court decision which would supposedly rule out ABS-CBN’s bid for continued operations sans a franchise is not applicable to the media giant’s case, a senator said Thursday.

Disagreeing with the sentiment of former Chief Justice Reynato Puno, Senate Minority Leader Franklin Drilon said the 2003 ruling (Associated Communications & Wireless Services versus National Telecommunications Commission) does not directly apply to the network, as the petitioner in the case did not have an existing franchise nor had a pending franchise application before the legislature.

“The case cited by Chief Justice Puno, with all due respect, is not squarely applicable here,” Drilon told CNN Philippines’ The Source.

“After that Congress expired and no franchise was issued, and no application was made in the next Congress, the SC said yes, you need a franchise… In the case of ABS-CBN, it's a different situation. There is a pending application, it is being debated upon actively,” he added.

The high court’s unanimous decision— penned by Puno himself— stated that there is a need for an existing license before a corporation can operate.

The former top magistrate, in a separate interview, said even Congress’ order for a provisional permit from the NTC would not be executory if the Lopez-owned network fails to renew its 25-year franchise, which is set to lapse on May 4.

RELATED: ABS-CBN cannot operate without a franchise – ex-Chief Justice

Gaps in the law?

While the lawmaker respects Puno’s view, Drilon emphasized the interpretation of the Constitution is “not the exclusive monopoly” of the high court.

He said the opinions of other government agencies—including Congress and the Justice Department— should also be given due consideration.

“Both houses of Congress all said the franchise can continue to be valid while we are deliberating on the application. (Justice) Secretary (Menardo) Guevarra concurred with that view. Here, we have two branches of government who are co-equal to the Supreme Court saying yes, we can do it,” added Drilon, who filed Wednesday a concurrent resolution seeking the issuance of a provisional permit for ABS-CBN.

The Justice Department meanwhile stressed there is "sufficient equitable basis" to allow media companies to operate while their measures are being tackled in Congress, as the practice has been done in the past.

In its legal guidance sent to NTC, the department admitted there may be "gaps" in the Constitution, as our laws do not indicate whether or not a company should be prohibited to run pending judgment on its franchise renewal.

"This practice of Congress is not merely a matter of procedure, as it significantly affects substantial rights. For such reason, it is imperative that the same treatment be extended to all entitities seeking the renewal of their franchises which are about to expire. Otherwise, it runs afoul of the basic principles of fairness and justice," DOJ said in its opinion dated February 26 and released Thursday.

Action for provisional permit

The House committee on legislative franchises formally asked Wednesday the NTC to grant ABS-CBN a provisional authority so it can continue operating pending legislative action on the 12 bills currently filed before the lower chamber.

House Speaker Alan Peter Cayetano earlier said the House may only tackle the pending measures by May at the earliest, as “more urgent” bills are still on the table for lawmakers.

Resolutions seeking to prolong the validity of the network’s existing franchise until 2022 have also been filed in both houses of Congress. Drilon said the move would give lawmakers the platform to dissect ABS-CBN’s case more “dispassionately.”

A 1994 agreement between the House of Representatives, the NTC, and the media group Kapisanan ng mga Brodkaster ng Pilipinas provides a mechanism for media entities with expiring Congressional franchises.

The memorandum of understanding states that the NTC "shall continue to issue and grant permits or authorizations to operate" for radio and TV stations for a two-year period as long as there is a pending bill seeking to renew their franchise.

ABS-CBN’s franchise renewal was highlighted earlier this month following the quo warranto petition of Solicitor General Jose Calida. Calida had cited “highly abusive” practices by the network— including foreign ownership and operational issues— allegations that ABS-CBN itself had debunked.

READ: Duterte accepts ABS-CBN apology, silent on franchise support