Zarate: 1994 MOU could save ABS-CBN from closure

RG Cruz, ABS-CBN News

Posted at Feb 25 2020 08:31 PM | Updated as of Feb 25 2020 09:04 PM

Bayan Muna representative Carlos Zarate Mark Demayo, ABS-CBN News

MANILA - A 1994 agreement of the National Telecommunications Commission (NTC), the Kapisanan ng mga Brodkaster sa Pilipinas (KBP), and the House of Representatives could save the day for ABS-CBN, Bayan Muna Rep. Carlos Zarate said Tuesday.

Zarate shared a copy of the Memorandum of Understanding signed by then Speaker Jose de Venecia, then House Committee on Legislative Franchises chair Jose Ma. Zubiri Jr., Andre Kahn for the KBP, and Simeon Kintanar for the NTC.

According to the three-page document, “The NTC shall continue to issue and grant permits or authorizations to operate radio and television broadcast stations within their mandate under Section 15 of Executive Order 546, provided that such temporary permit or authorization to operate shall be valid for 2 years within which the permittee shall be required to file an application for legislative franchise with Congress not later than December 31, 1994."

It added, "Provided further, if the application for franchise remains unacted by Congress without further being approved or disapproved or denied, such temporary permit or authorization to operate shall be extendable for another two year period."

Zarate believes this means NTC can already issue a provisional authority to ABS-CBN upon the expiration of its franchise with no further action from Congress. The current broadcast franchise of ABS-CBN expires on May 4.

“Based dito sa MOU, dahil ‘di pa naman ito superseded by a different document, the NTC can already before May 4 issue a provisional authority. Meron na siya mandato na pwede siya mag issue ng provisional authority (valid) for 2 years,” said Zarate.

(Based in this MOU, which has not yet been superseded by a different document, the NTC, before May 4, can already issue a provisional authority. It has the mandate to issue provisional authority (valid) for 2 years.)

Incumbent KBP President Herman Basbano expressed a contradicting view, saying that the MOU cannot apply in the current issue hounding ABS-CBN because it only caters to companies that never had any franchise yet.

"This was purposely for those operating stations before na problematic, walang franchise. Kasi, nung Martial Law, if you can recall, may mga stations na pinasara," he said.

(This was purposely for those operating stations before that were problematic, and had no franchise. Because, during Martial Law, if you can recall, there were stations that were shut down.)

During the hearing of the Legislative Franchises Committee on Monday, Zarate tried to force the issue of clarifying with the NTC representative if ABS-CBN can keep operating past the effectivity of Republic Act 7966, which granted ABS-CBN's current franchise.

Annaliza Buenviaje, NTC Engineer 3 for Broadcast Division, explained that there is indeed an MOU among Congress, NTC and the KBP to keep companies operating past franchise expiration while a congressional franchise is pending.

“Isang basis kasi natin, Cong. Zarate, may precedent tayo sa last Congress like yung sa franchise renewal ng CBCP (Catholic Bishops Conference of the Philippines) na hindi natin sila na-hear agad, nag-lapse din yung kanilang franchise, (pero) hindi naman sila pina-stop ng kanilang operations until may final action yung committee," Committee Chair Franz Alvarez said at the hearing.

(One basis is that we have a precedent during the last Congress in the franchise renewal of CBCP, which we did not hear until its franchise lapsed, but they continued to operate until the committee was able to make its final action.)

Palawan Rep. Gil Acosta said the MOU is subject to attack. 

“Although it has a precedent last Congress, Mr. Chair, it is still subject to attack, collateral and direct, as to the validity of the contract. Though tayo, sa franchise, nagsabi na ang chairman na we will abide by the precedent. Pero, sa NTC, subject pa for DOJ opinion,” Acosta pointed out.

(Although the chairman already said that there is a precedent on the franchise, but for the NTC, it's still subject for opinion of the Department of Justice.)

Justice Secretary Menardo Guevarra, who admitted being aware of the MOU, said it depends on the House of Representatives to appreciate the sufficiency of the agreement.

"But in my opinion, it may have to be refreshed or replaced by a formal resolution of the House," he said.

"If it’s the Congress itself, the sovereign power in the matter of franchise grants, (that) authorizes the NTC to issue a provisional permit in the interim between the expiration of the original franchise and congressional action on its renewal, who is there to question that authorization?"

Zarate insists that the MOU stands unless struck down by court or superseded by the House. He said it is clear there’s presumption of regularity of the MOU which he said was in fact invoked by the NTC.

“Sinabi nila, may MOU. Habang on the table ito at ‘di naman sinasabi ng NTC or ng House, especially the Committee on Legislative Franchise, dahil ito ang may primary jurisdiction sa question ng franchise at habang wala ring sinasabi ang korte this is void or this is illegal or unconstitutional, this can be invoked,” he said.

(The NTC or the House, especially the Committee on Legislative Franchises which has primary jurisdiction over the question of franchise, and while the court has yet to say this is void or illegal or unconstitutional, this can be invoked.)

There are 11 bills pending in the 18th Congress seeking a fresh franchise for ABS-CBN. Separate franchise bills have been lodged for Sky Cable, Amcara Broadcasting Network, which carries ABS-CBN Sports and Action and ABS-CBN Convergence.

“Sabi ko nga, this could be a temporary solution doon sa napipintang alanganin dahil nga, by May 4, matatapos na yung original franchise ng ABS-CBN,” Zarate said.

(I said this could be a temporary solution because the original franchise of ABS-CBN will end on May 4.)

House Speaker Alan Peter Cayetano said Monday he is prepared to personally make sure ABS-CBN stays on the air past its franchise expiration date. 

“So, yung sinabi naming hindi magsasara, ‘yan ang paninindigan namin. Kung kailangang physically ako mag-on ng transmitter o pumunta doon, gagawin ko ‘yan, gagawin ni Chairman Chikoy ‘yun,” he said.

(We stand by our statement that it will not close down. If I need to physically be there to turn on the transmitter or go there to do that, Chairman Chikoy and I will do that.)