ABS CBN – the only sure remedy (legislative franchise) is indeed in the halls of Congress

Duterte Supreme Court NTC OSG Calida – Since 2014, the ball has always been in the hands of Congress (House of Representatives and Senate)
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ABS-CBN blame game
AS A MATTER OF FACT – Sara Soliven De Guzman (The Philippine Star)
May 11, 2020

Back in January this year, I said that ABS-CBN needed no less than magic to get out of a real tight fix with the expiration of its franchise to operate. Expire it did, and the blame game has begun.

Understandably, most fingers point to the House of Representatives for sitting on the bills filed for the extension or renewal of the legislative franchise, as early as 2014. Then there is this suggestion that the owners of the most influential TV and Radio network were just too confident on the chances of their “perceived” 2016 presidential bet, that they did not aggressively push for the extension during the incumbency of P-Noy.

Yet, I read somewhere that even the past administration would not have allowed the extension allegedly because of some political displeasure involving a top anchor of the TV giant. Then there is one who blames us all for electing those Honorable Congressmen, who failed to approve the pending bills for franchise extension or renewal. Now the Congressmen are angry at the National Telecommunications Commission (NTC), for what they claim was an ambush, in issuing the Cease and Desist Order (CDO) against ABS-CBN, instead of the Provisional Authority to operate allegedly promised by no less than the head of the agency during a public hearing.

In the midst of it all, the primary suspect is no less than the President of the Republic, who has repeatedly made known his wish against the renewal of the ABS-CBN franchise in disgust for what it did to his campaign ads back in 2016 and for alleged loans unjustly condoned by the government.

The palace would always say that the ball is in Congress and the President has nothing to do with the ABS-CBN predicament. Not totally true, because if the president wanted the Coco Martin fans to enjoy a bit longer the unbelievable exploits of Cardo, he could have asked Congress to pass the law with dispatch, or at the very least, he could have refrained from influencing Congress with his public rants against the renewal of the ABS-CBN franchise.

Did the NTC improperly issue the CDO in an unfair and perhaps, anti-competitive manner, considering what the Secretary of Justice opined as an “equitable practice” to allow a broadcast company to continue its operations despite an expired franchise, pending renewal? Well, it can always be argued that one cannot escape the penalty for a red traffic light violation because others ahead did. In fairness to the NTC chief, he was consistent at the senate hearing in telling that the agency will abide by the advice of its counsel regarding the issuance of a provisional authority in favor of ABS-CBN.

What was amiss at that time, however, is the fact that the statutory counsel of NTC is not the Department of Justice, but the Office of the Solicitor General. Thus, in the leaked April 30, 2020 letter of the Office of the Solicitor General to the NTC, the latter was earnestly advised against issuing a provisional authority. The statutory counsel cautioned the NTC by emphasizing that – “Issuing anything other than a cease and desist and recall order subjects the NTC to legal sanctions for violations of the law, its own rules, and the Supreme Court Decisions which form part of the law of the land.” Can we then blame the NTC officials for heeding the advice of the agency’s statutory counsel, or else face criminal prosecution? Certainly, the commissioners cannot raise by way of defense before the Ombudsman or the Sandiganbayan, that they have to comply with a promise to congress or that they acted pursuant to an opinion of the DOJ, which is contrary to the legal position of their statutory counsel. Is it now the fault of the Solicitor General for doing his job with intense passion? Suffice it to state that the motive may be questioned, but if the act is within the bounds of law, what can we do?

As we would naturally find interest in knowing who is at fault, the blame game will bring us to nowhere because people would always do a “Pilate act” by washing their hands and blaming all and everything but themselves.

Last week, the TV giant brought its battle to the Supreme Court. With an impressive line-up of lawyers, ABS-CBN wants the Supreme Court to restrain the NTC from implementing the Cease and Desist Order it issued against the former. I am not a lawyer, but was not the CDO already implemented as the TV network is now off the air? What then shall be restrained? I am just wondering if the Supreme Court has the power to allow ABS-CBN to operate without a franchise. If no less than the Constitution requires a legislative franchise for the network to operate, will not an order from the Supreme Court in favor of the plea of ABS-CBN be considered tantamount to a non-existent “temporary franchise by judicial decree” or an equally undiscovered “equitable franchise to operate”?

But of course, the Supreme Court may give us surprises. Since the NTC is part of the executive branch, cannot the president overturn the CDO? Maybe, but why will the President do that?

Yet again, even if the President will now consider in favor of ABS-CBN its great contribution to relief operations, news and information dissemination, entertainment and the like, at this time of extreme emergency, how can the palace avoid the legal issue raised by the Solicitor General on the absence of a legislative franchise? Therefore, the only sure remedy is indeed in the halls of Congress. So instead of picking a fight with the NTC or the OSG in a blame game, Congress should act fast but with prudence and hear the proponents as well as the oppositors of the franchise renewal bill, without any other consideration but the best interest of the people.

From where I sit, if there is no truth to the allegation that the Philippine Depositary Receipts issued for ABS-CBN shares violated the foreign ownership restrictions mandated by the Constitution, there should be no reason to withhold the renewal of its franchise. After everything has settled down and ABS-CBN is back on air, under the same or with new owners, its 2016 experience should be a lesson learned when it airs the campaign ads of the candidates in 2022. Shall we expect an extraordinary volume of TV airtime for sitting legislators who will seek re-election or vie for higher positions in 2022? Abangan!

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