OSG opposes for being ‘unconstitutional’ pending bills that may revive ABS-CBN franchise

THE Office of the Solicitor General opposed — for being unconstitutional — the passage of pending bills in both the Senate and House of Representatives that effectively grant a “hold-over franchise” to ABS-CBN Corporation, despite the expiration of such license previously granted by Congress.

In a position paper submitted to the House Committee on Legislative Franchises chaired by Representative Franz Alvarez, Solicitor General Jose Calida assailed House Bill 7923 authored by Parañaque City Rep. Joy Myra Tambunting and Senate Bill. No. 1530 filed by Senator Franklin Drilon, which seeks to amend Section 18, Book VII, Chapter 3 of the Administrative Code of the Philippines, as “unconstitutional and illegal.”

“Both bills suffer from legal infirmities which may render the subsequent law as void and unconstitutional,” OSG said, warning that “these issues should be raised before Congress lest these bills become law which could lead to grave consequences later on.”

Calida’s position paper strongly opposing the two controversial legislative measures was submitted by National Telecommunications Commission Commissioner Gamaliel A. Cordoba to the House Committee on Legislative Franchises, which the agency adopted as its own position against SB 1530 and HB 7923.

Cordoba informed the House Committee on Legislative Franchises that the NTC adopted the OSG’s position paper on the pending bill.

Commenting on the two bills, the OSG rejected the proposals for being violative of 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 chief state lawyer stressed.

The Solicitor General lamented 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 emphasized 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 an 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,” the chief state lawyer said.

The OSG noted that Article XII, Section 10 of the Constitution provides that no such franchise certificates 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 limit the public to apply for these privileges. This promotes exclusivity which will run counter to the true intention of the Constitution,” the OSG said.

According to the OSG, 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 a cease-and-desist order issued by the NTC.

It was learned that Tambunting used to work for the ABS-CBN as a producer. She was among the vocal supporters of the network’s bid for an extension of the 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.

“Therefore, the OSG urges Congress to further review and study Senate Bill No. 1530 and House Bill No. 7923 as they both raise constitutional and legal questions and issues that are not to be taken lightly. Should the bills be passed into law, the OSG stands ready to raise the constitutionality of the law passed before the Highest Court of the land,” Calida warned.