Truth about ABS-CBN franchise

“Congress has the discretionary power not to renew the ABS-CBN franchise, and no court can compel it to renew the same. Once its franchise expires and no renewal is granted by Congress, ABS-CBN must cease its operations.

Under Philippine law, a broadcast facility must obtain a franchise from Congress before it may operate. The print media and the cinema industry, on the other hand, do not need any such legislative franchise to operate.

Radio and television are the most regulated among all the media of communication in the Philippines and in the United States. That’s because radio and television use the electromagnetic spectrum in the atmosphere for its broadcast transmissions.

Since the electromagnetic spectrum of the atmosphere is in the public domain, the government regulates the spectrum’s use. Only broadcast facilities with a franchise issued by Congress may use it.

Because a legislative franchise granted to a broadcast facility is an act of Congress, the latter has the exclusive, discretionary power to renew or not to renew a legislative franchise.

Considering that the power of Congress over legislative franchises is discretionary, the Supreme Court cannot order Congress to renew the legislative franchise of any existing broadcast facility, precisely because the exercise of discretionary power by a co-equal branch of the government cannot be judicially mandated.

ABS-CBN was established sometime around 1954 but its operations were halted during the authoritarian regime of President Ferdinand Marcos (1972-1986). The facility reopened under President Corazon Aquino and remains on the air today. Its legislative franchise expires on 30 March 2020.

There are several bills currently pending in the House for the renewal of the ABS-CBN franchise, but House Speaker Allan Peter Cayetano said those bills will be taken up early next year.

Even if the House approves the renewal of the ABS-CBN franchise, the Senate will still have to deliberate on it. If the Senate approves the bill, it must go through the bicameral conference for final approval. Thereafter, it will be sent to President Rodrigo Roa Duterte, who has 30 days within which to either approve it or veto the same.

From a practical perspective, therefore, there is not enough time from January to March 2020 for ABS-CBN to get its franchise renewed.

Actually, the real problem ABS-CBN faces regarding its franchise renewal is President Duterte himself. The President has repeatedly announced that he will not act favorably on any bill renewing the franchise. He said ABS-CBN refused to broadcast his campaign advertisements when he ran for president in the May 2016 elections.

At first glance, President Duterte’s attitude toward ABS-CBN seems prompted by a petty annoyance. After careful evaluation, however, it appears that the President has good reason not to renew the franchise of the broadcast giant.

The Constitution mandates that a broadcast facility like ABS-CBN must provide equal opportunity and time for candidates for public office to campaign through political advertisements. If, as the President maintains, ABS-CBN refused to air his political campaign advertisements during the May 2016 elections, then that refusal is an infraction of the Constitution.

Consequently, if ABS-CBN has no regard for what the Constitution mandates, it cannot be entrusted with a renewal of its legislative franchise to operate.

Attention is also invited to ABS-CBN’s false advertising claim to 65 years of existence. For about 13 of those 65 years (September 1972 to March 1986), it was shuttered by the authoritarian regime of President Marcos. President Duterte maybe believes that if this broadcast giant can’t tell the truth about itself, it cannot be expected to be truthful in its news coverage.

A few uninformed columnists in other newspapers believe that the non-renewal of the ABS-CBN franchise violates the freedom of expression, is not conducive to democracy, or will create unemployment, etc. Their arguments are legally untenable.

At the end of the day, the fact that remains is that Congress has the discretionary power not to renew the ABS-CBN franchise, and no court can compel it to renew the same. Once its franchise expires and no renewal is granted by Congress, ABS-CBN must cease its operations and wait for the time when a less hostile administration may yet be sympathetic to its cause.

In the meantime, ABS-CBN can only hope its fortune changes.