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ABS-CBN franchise primer

Supreme Court ruled that broadcast media enjoys the least protection under the free press clause, because its exercise requires a privilege bestowed by the state as the owner of the air waves.

Harry Roque

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Once again, the public has the rare opportunity to learn the law with the recent issue of the Solicitor General’s filing of a quo warranto petition against ABS-CBN, acknowledged to be the No. 1 television network in the country. With the purpose of helping the people know the law better, I prepared this briefer.

Q: Is the petition of quo warranto the wrong remedy to question the franchise of ABS-CBN?

A: No. It is the correct remedy. A petition for quo warranto is an action where the petitioners asks the respondent to show by what authority the latter is exercising a franchise or a public office. It is recognized under Rule 66 of our Revised Rules of Court. Article VIII, Section 5 of the 1987 Constitution, in turn, provides that the power of the Supreme Court includes original jurisdiction over petitions for quo warranto. Contrary to the claims therefore of some members of Congress, the Court is in fact duty bound to act on the petition of the Solicitor General. Moreover, what is pending in Congress is an application for renewal of a franchise soon to expire, while the petition before the Supreme Court will affect the remaining two months of the existing franchise
Q: Does the Solicitor General have the standing to file the petition for quo warranto?

A: Yes, Rule 66 (3) of the Revised Rules of Court authorizes the Solicitor General to initiate petitions for quo warranto.

Q: Does the filing of the petition against a media network constitute prior restraint and therefore, violative of the right to free press?

A: Not necessarily. In Eastern Broadcasting vs Dans, the Supreme Court ruled that broadcast media enjoys the least protection under the free press clause, because its exercise requires a privilege bestowed by the state as the owner of the air waves. Nonetheless, any act that infringes on freedom of expression comes to court with a heavy presumption of unconstitutionality (Chavez vs Gonzalez). The interest of the state is to encourage a free press to help the people discern for themselves the truth on matters affecting them. Despite such a presumption, an act of government may be sustained if the State can show an overriding state interest to justify the infringement.

Q: What are the grounds relied upon by the Solicitor General in his petition for quo warranto?

A: There are two fundamental grounds, to wit: a grave and serious violation of its franchise to operate by charging the public a fee to watch some of its programming under the
pay-per-view scheme; and the issuance of depository receipts to foreigners which violates the constitutional provision that media shall be owned only by Filipinos.

Q: Are these issues justiciable as issues of law or do they involve issues of facts that should be ventilated in a lower court?

A: Both the pay-per-view and the issuance of the depository receipts ought to be admitted by ABS-CBN and therefore, the only issues to be resolved are legal in character: whether these two acts constitute a violation of its franchise or the Constitution.

Q: Are the depository receipts issued by ABS-CBN the same as those issued by Rappler?

A: Definitely not. To begin with, the depository receipt issued by ABS-CBN was approved by the Securities and Exchange Commission, which comes as a validation that the constitutional ban on foreign media ownership was not violated. Rappler, in its receipt, granted the foreign investor veto powers on the operation of the company, which the SEC ruled was tantamount to giving foreigners control over the business and hence, violative of the Constitution.

Q: Will the failure of Congress to issue ABS-CBN a renewed franchise mean that the station will immediately cease its broadcast upon expiration of its existing franchise on 30 June 2020?

A: Not necessarily. The practice for now is for the National Telecommunications Commission to issue provisional authority (PA) to operate for broadcast companies awaiting their legislative franchises. However, this is not a ministerial duty of the NTC. The commission may withhold issuance of the PA and it cannot be compelled to issue one if it does not want to do so on good grounds. One such good ground is if its proven that ABS-CBN violated its existing franchise.

Q: What is my prognosis on the petition?

A: While the Court has jurisdiction over the petition for quo warranto, it is also subject to the doctrine of mootness. Under this principle, the Court will withhold judgment once an issue has become moot and academic, which it is bound to be at the expiration of the existing franchise on 30 June. An exception to this doctrine is where the matter is capable of repetition and yet evasive of judicial review. I do not think that the Court will recognize this exception as after expiration of the existing franchise, it is the sole constitutional function of Congress to issue an extension of the franchise. My fearless prediction: The Court will exercise judicial prudence, allow the issue to become moot and not rule on the petition during the next two months, and allow Congress to decide whether or not to give ABS-CBN an extension of its franchise.

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