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Commentary

More about the ABS-CBN franchise

While the Constitution protects press freedom as a fundamental right, the same Constitution prohibits the improvident issuance of legislative franchises.

Victor Avecilla

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Developments have arisen concerning the legislative franchise of the ABS-CBN Corporation. If the franchise is not renewed any time soon, it is set to expire on 30 March 2020.

Despite the public announcements made by prominent personalities in the House of Representatives that Congress will take up pending bills calling for the renewal of the ABS-CBN franchise, there is just not enough time left in the legislative calendar for that, inasmuch as the franchise expires in about 30 days.

Once the franchise expires, there is nothing to renew. ABS-CBN must apply for a new franchise, or the pending bills for the renewal of its franchise must be amended to reflect, not a franchise renewal, but a new franchise completely altogether.

If the franchise is not renewed and it expires, the National Telecommunications Commission (NTC), in all likelihood, will not issue to ABS-CBN a provisional permit to operate. The NTC is under the Executive department of the government, and President Rodrigo Duterte, who heads the Executive department, is not too keen about ABS-CBN staying on the air once its franchise expires.

The argument that it has been the practice of the NTC to issue such provisional permits to broadcast establishments with pending renewal bills in Congress once their franchise expires is specious.

A practice does not necessarily mean that it is valid and lawful. Precedents in violation of mandatory provisions of law cannot be valid and binding. Equity cannot prevail over law.

Under the law, only Congress has the power to issue a franchise to operate a broadcast network. Thus, the NTC cannot lawfully issue a provisional permit to broadcast vis-a-vis an expired franchise, unless its enabling law expressly allows such issuance. If there is no such authorization, then the NTC will be usurping the legislative power of Congress if it issues provisional permits to operate broadcast media, especially media the franchise of which has already expired.

The Constitution mandates that all bills relating to the renewal of the ABS-CBN franchise must originate from the House of Representatives, although the Senate may concur or propose amendments. Sen. Grace Poe breached that restriction when she called for a Senate investigation on the accusations made by Solicitor General Jose Calida that ABS-CBN violated the terms and conditions of its franchise, and violated the constitutional ban against allowing aliens to own and manage the network. In other words, the Senate must wait for the House to legislate on this matter, before it may take action on the same subject.

As of yesterday, however, the Senate went on with its hearing on the franchise, as called by Poe. It nearly became a circus.

Assuming that that Senate intervention at this premature stage is warranted, Poe should voluntarily inhibit herself from participating in the proceedings on the ground of conflict of interest. Her adoptive mother, actress Susan Roces, has employment connections with ABS-CBN, and the network pays royalty to Poe’s family for broadcasting motion pictures of the late film actor Fernando Poe Jr., who is Grace Poe’s adoptive father. If Poe insists on meddling in the ABS-CBN franchise issue, she will be courting anti-graft raps on the ground of conflict of interest.

The power of Congress to issue franchises does not exclude the power of the Executive department of the government, through the Solicitor General, to resort to quo warranto proceedings to cancel the ABS-CBN franchise.

Quo warranto is the legal means by which the State protects itself from any franchise improvidently issued by Congress, or from a franchise holder who violates the Constitution and the terms of its franchise with tacit tolerance from Congress.

The power of the Legislative department to issue a franchise is different from the power of the Executive department to seek a judicial revocation of an existing franchise. The Constitution itself authorizes the Supreme Court to issue writs of quo warranto, and to review any franchise issued by Congress that is tainted with grave abuse of discretion.

While the Constitution protects press freedom as a fundamental right, the same Constitution prohibits the improvident issuance of legislative franchises, and disallows local broadcast networks from allowing, even by a small percentage, alien ownership and management of mass media in the Philippines.

Restated, compliance with constitutional requirements is just as important as the enjoyment of press freedom. Moreover, jurisprudence states that press freedom is not an absolute right.

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