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ABS-CBN franchise: A legal perspective (2)



Critics of ABS-CBN Speak Up

There are, however, several opinion leaders who disagree with the supporters and sympathizers of ABS-CBN.

In an essay published on 16 May 2020, a columnist of The Manila Times observed that most comments on the ABS-CBN franchise controversy are from non-lawyers, laymen and celebrities who flaunt their views on a legal matter regarding a case of which they do not know the ultimate facts and the applicable laws.

Another essay, published on 18 May 2020 by a columnist of The Philippine Star, bluntly stated that the issue about the ABS-CBN franchise is not about press freedom, and that the removal of the media giant will level the playing field in the media industry, and will strengthen democracy in the Philippines.

Former Senate President Juan Ponce Enrile believes that the expiration of the ABS-CBN franchise does not involve press freedom, and is not an affront to public interest. He said that from the very start, ABS-CBN knew that its right to engage in the business of broadcast media is only for a specified, limited duration as stated in its franchise, namely, Republic Act 7966.

No TRO from the Supreme Court
On 19 May 2020, the Supreme Court en banc deliberated on the ABS-CBN petition against the National Telecommunications Commission (NTC) through an online full court session. After due proceedings, the Court did not issue a temporary restraining order against the NTC, which means that ABS-CBN is to remain off the air pending further court action of the network’s petition.

The 14 Justices present (one Justice recently retired) unanimously voted to include Congress as a co-respondent of the NTC in the case, and to require both the NTC and Congress to file their comments on the ABS-CBN petition.

The Supreme Court also denied the prayer of Atty. Lorenzo Gadon to have the ABS-CBN petition consolidated with his petition against the NTC which he filed earlier on 5 March 2020.


No franchise,  no broadcast operations

Act No. 3846, as amended, is the applicable law governing legislative franchises of broadcast stations and networks in the Philippines. It explicitly provides that a broadcast station must first obtain a franchise from Congress in order to operate. This law has not been repealed, and it remains in force as of this writing.

On 5 May 2020, House Deputy Speaker Prospero Pichay, Jr. said Republic Act 7925 (the Public Telecommunications Policy Act of 1995) does not require broadcast companies to seek a legislative franchise before they may operate, and that only public telecommunications entities need to meet the legislative franchise requirement.
Pichay’s view is patently erroneous.

As late as February 2003, or eight (8) years after Republic Act 7925 took effect, the Supreme Court ruled that the franchise requirement under Act No. 3846 is still very much in force (Associated Communication & Wireless Services v. National Telecommunications Commission, G.R. No. 144109, 17 February 2003).

The power of Congress to enact a legislative franchise is discretionary
Except for instances categorically mandated by the Constitution itself, the power of Congress to enact a law is a discretionary power. Simply put, Congress cannot be compelled to legislate if it does not want to.

As pointed out earlier, a franchise from Congress is a legislative enactment no different from a traditional law or statute, and it is embodied in a Republic Act. Undoubtedly, therefore, the power of Congress to enact or issue a legislative franchise or to renew one, is a discretionary power.

Being so, if Congress does not want to issue or renew a legislative franchise, nobody can do anything about it. Pursuant to the separation of powers principle underlying the constitutional government obtaining in the Philippines, neither the President nor the Supreme Court can order Congress to issue or renew a legislative franchise. To hold otherwise is to say that the President and the Supreme Court can order Congress to enact a law which Congress does not want to enact in the first place.

Evidently, non-issuance or non-renewal of a legislative franchise does not give rise to judicial review because nobody, ABS-CBN included, has a vested right to the issuance or the renewal of a legislative franchise.

Under the Constitution, the only instance where the Supreme Court may intervene in the matter of legislative franchises is when Congress issues a franchise or renews one under circumstances that amount to a grave abuse of discretion.

Supreme Court ruling on broadcast franchises

In Associated Communication & Wireless Services cited earlier, the Supreme Court declared that existing laws in the Philippines do not allow the NTC to issue a provisional authority to operate to a broadcast network whose franchise has already expired. Accordingly, since a legislative franchise is a Republic Act, a legislative franchise may only be renewed by way of another Republic Act.

To allow the NTC to issue to ABS-CBN a provisional authority when the network’s franchise has already lapsed, is unconstitutional because that arrangement is tantamount to allowing the NTC to usurp the legislative power of Congress

The NTC promise is illegal

The NTC promised Congress that it will issue to ABS-CBN a provisional authority to operate even after the network’s franchise shall have expired.

That promise, however, is premised on a patent illegality, which makes the “promise” an illegal agreement. Under the law, illegal agreements are void and, therefore, legally inexistent and without any binding effect.

Resort to equity is misplaced

It will be recalled that Justice Secretary Menardo Guevarra told Congress that because the protracted inaction of the House of Representatives on the ABS-CBN franchise renewal is not the fault of the network, equity considerations justify the NTC to issue to ABS-CBN a provisional authority to operate even after its franchise has already expired.

Contrary to the view expressed by Secretary Guevarra, which is an opinion shared by House Speaker Alan Peter Cayetano, the issuance by the NTC of a provisional authority to ABS-CBN is not warranted by equity considerations.

First, that view erroneously assumes that ABS-CBN has a vested right to a renewal of its franchise. As mentioned earlier in this material, nobody has a vested right to the issuance or renewal of a legislative franchise.

Second, equity considerations cannot be invoked when the law is clear, and the law clearly does not allow the NTC to issue a provisional authority to a broadcast network whose franchise has already expired.

Third, resort to equity is legally untenable when there is applicable jurisprudence on the matter. In this case, the ruling of the Supreme Court in Associated Communication & Wireless Services cited earlier.

Past illegal practices do not
ripen to lawful ones

The past practice of the NTC to issue a provisional authority to a broadcast entity whose franchise has already expired but has a pending renewal bill in Congress does not constitute a valid and legal precedent. Illegal acts, even if done repeatedly in the past, do not ipso facto ripen into lawful ones.

A Congressional resolution
is not a law

Existing laws do not authorize the NTC to issue a provisional authority to a broadcast entity whose franchise has already expired. The NTC may do so only after Congress amends the current law with a subsequent statute that explicitly authorizes the NTC to issue that provisional authority under those specific circumstances.

Speaker Cayetano’s congressional resolution authorizing the NTC to issue a provisional authority to ABS-CBN is legally inconsequential. According to the Supreme Court, a congressional resolution is not a law but a mere expression of the legislature’s sentiment (Ang Nars Party List v. Executive Secretary, G.R. No. 215746, 8 October 2019).

Be that as it may, the distinction between a congressional resolution and a law is readily discernable. A congressional resolution does not go through the same exhaustive and detailed process that a law must undergo, e.g., three (3) separate readings in both houses; bi-cameral approval; the president’s approval, publication in a newspaper of general circulation, etc.

Thus put, the congressional resolution invoked by Cayetano has no compulsory or binding effect on the NTC.

Congress has no valid ground to cite the NTC in contempt

Congress does not have any legal basis to cite the NTC in contempt for not issuing the provisional authority the NTC promised. The final decision of the NTC not to issue the promised provisional authority is anchored firmly on what the law provides. Clearly, the NTC had no option but to comply with the law, and compliance with the law cannot be a ground to cite the NTC in contempt. At any rate, the news media have reported that the NTC explained to Congress that upon further study, the NTC realized that it has no statutory authority to issue the promised provisional authority.

The ABS-CBN franchise expired, period; No arbitrary exercise of authority by the NTC

It is not the fault of the NTC or of Solicitor General Calida that ABS-CBN is now off the air. ABS-CBN is currently off the air because its franchise expired on 4 May 2020, and it was not renewed by Congress. The expiration of the franchise took place by operation of law, and not because of any intervention either from the NTC or from the Solicitor General.

Likewise, the order of the NTC dated 5 May 2020 directing ABS-CBN to cease operations effective immediately is not a gag order inasmuch as it has nothing to do with broadcast content. It is merely a directive for ABS-CBN to stop operations because its franchise has already expired, and the same was not renewed by Congress.

Therefore, it is incorrect and unfair to say that the NTC ordered the closure of ABS-CBN in an arbitrary exercise of the NTC’s regulatory authority.

The NTC, Solicitor General Calida, and President Duterte cannot be faulted

Because the franchise of ABS-CBN had already expired as of 4 May 2020, it was the ministerial duty of the NTC to order ABS-CBN to stop its broadcast operations, particularly because the network still remained on the air as of 5 May 2020, a day after its franchise expired.

In turn, the Solicitor General is vested by law with the authority to file in court a petition for quo warranto against any grantee of a legislative franchise who or which has violated the Constitution, the laws, and the conditions of the franchise. Being authorized by law to do so, what Calida did cannot be considered as “unconstitutional meddling in the affairs of Congress.

Evidently, the NTC and the Solicitor General were only performing their duties in accordance with law. They may face administrative sanctions for dereliction of duty if they did not carry out their statutory duties.

It is unfair to blame President Rodrigo Duterte for the current predicament of ABS-CBN. The ball, so to speak, is and remains with Congress, and with Congress alone. President Duterte has no power to issue a franchise to operate broadcast media.

Through his spokesman, Secretary Harry Roque, Jose Calida President Duterte has already assured ABS-CBN that he is not going to influence Congress regarding the fate of the network’s franchise. In other words, it is all up to Congress to issue or not to issue a new franchise to ABS-CBN.


Read first part here: