Connect with us


ABS-CBN franchise: A legal perspective (3)

Victor Avecilla



No abridgment of press freedom, free expression

Contrary to what supporters of ABS-CBN have been alleging on social media, the ABS-CBN franchise issue does not involve any abridgment of press freedom or freedom of expression. It is simply about compliance with the Constitution and the laws, and more importantly, about a legislative franchise that has expired.

More succinctly, the law requires that ABS-CBN must have a franchise if it is to remain on the air. Its franchise expired on 4 May 2020, and Congress did not renew that franchise — which is well within the discretion of the legislature under the Constitution. ABS-CBN went off the air simply because its franchise expired, and for no other reason.

When ABS-CBN was issued its franchise in 1995 under Republic Act 7966, ABS-CBN was well aware that its broadcast operations are for a specified, limited period of 25 years, and that Congress has the discretionary power not to renew its franchise.

Now that its franchise has actually expired and it was not renewed by Congress, ABS-CBN has no valid reason to insist upon, or to urge its supporters to protest, that the non-renewal of its franchise is an abridgment of the constitutional rights of press freedom and freedom of expression.

If the issue regarding the ABS-CBN franchise is truly about the curtailment of press freedom and freedom of expression, everyone in the Daily Tribune, this writer included, will be among the first to join the protest line.

The unemployment argument

The unemployment argument, i.e., that about 11,000 ABS-CBN employees will lose their jobs at the network if it remains off the air, is specious. Although mass unemployment is saddening, the Constitution and the laws should not be violated just to accommodate job security. Dura lex sed lex — the law may be harsh, but it is the law.

Even the alleged figure of 11,000 ABS-CBN employees is doubtful. Documents obtained by the Daily Tribune from the Bureau of Internal Revenue put the figure to only 4,322.

Republic Act 7966, the recently expired legislative franchise of ABS-CBN, is a law. There is a legal presumption that everyone is aware of what Republic Act 7966 because the Civil Code of the Philippines provides that ignorance of the law excuses nobody from complying with it.

When the employees of ABS-CBN decided to work for the network, they were constructively aware of the provisions of Republic Act 7966, and of the possibility of their unemployment if the legislative franchise of ABS-CBN expires and is not renewed.

Now that the network’s franchise has expired and has not been renewed, these employees, or their employer for that matter, cannot now be heard to demand the issuance of a new franchise for ABS-CBN to shield themselves against the unemployment they knew could happen.

The COVID-19 health crisis argument

The view that the absence of ABS-CBN in the airwaves is ill-timed because of the COVID-19 health crisis is nonsense. With or without the COVID-19 crisis, the ABS-CBN franchise was set to expire by operation of law on 4 May 2020. That expiration date is stated in the network’s now-expired franchise enacted in 1995, which was decades before the COVID-19 crisis even came to be. The expiration date of the franchise has absolutely nothing to do with the current COVID-19 crisis.

There is no correlation between the expiration of the franchise of ABS-CBN and the COVID-19 crisis. People are bound to contract COVID-19 because they failed to observe quarantine protocols, and not because the expiration of the ABS-CBN franchise forced the network to go off the air.

Another argument, i.e., that the so-called “closure” of ABS-CBN deprived the people of a source of information during the COVID-19 lockdown is hollow. ABS-CBN is not the only broadcast network in town. There are other networks like CNN Philippines, GMA News Network, DZRH Radio-TV News and UNTV News, to name a few, which provide and continue to provide the public with adequate information about the on-going health crisis.

ABS-CBN is not completely
out of the picture

Supporters of ABS-CBN conveniently overlook the fact that even after the expiration of the network’s franchise, ABS-CBN is not completely out of public consciousness.

As of this writing, ABS-CBN still continues to disseminate information, and even stir public opinion to its side, through its cable TV news channel ANC, through their TV Plus platform, and through its cyber forum, ABS-CBN Online.

Grandstanding politicians and vested interests

Many of the politicians who readily condemned the non-renewal of the franchise of ABS-CBN and its concomitant absence from the airwaves appear to be grandstanding on the issue. As politicians, they have their eyes on the coming May 2022 elections this early. In any and every election, being in the good graces of a powerful media establishment like ABS-CBN can be very helpful to every politician’s campaign.

Some politicians criticizing the government for what happened to ABS-CBN have vested interests to protect. One politician, who happens to be the parent of one well-known talent at ABS-CBN is very vocal about getting a new franchise for ABS-CBN soonest.

Many television personalities working at ABS-CBN have publicly equated the non-renewal of the ABS-CBN franchise to an abridgment of press freedom and freedom of expression. Their unfounded commentaries only emphasize their woeful lack of understanding of the legal aspects of the controversy.

Franchise expiration does not
violate international law

An organization that calls itself the International Commission of Jurists criticized the NTC for “ordering the closure of ABS-CBN.” The group insisted that the right of media to operate without restraint is guaranteed under the International Covenant on Civil and Political Rights, an international treaty to which the Philippines is a signatory.

The group is not only woefully misinformed; its protestations are also completely misplaced. Moreover, its comment smacks of undue interference in the domestic affairs of the Philippines.

Lawyers who know their Public International Law will attest that the objectionable restraint on broadcast media contemplated in the International Covenant on Civil and Political Rights, is a restraint based on broadcast content, i.e., the restraint was triggered by the contents of a broadcast which did not sit well with government censors.

No such objectionable restraint exists under the circumstances surrounding the ABS-CBN franchise issue.

The NTC order dated 5 May 2020 has nothing to do with broadcast content. To repeat, ABS-CBN had to go off the air by operation of law, i.e., its franchise expired. The NTC had to issue the order dated 5 May 2020 to ABS-CBN not because the government objected to the contents of any ABS-CBN radio or television program, but because ABS-CBN remained on the air as of 5 May 2020 even after its franchise expired a day earlier, on 4 May 2020.

Calida, Gadon petitions are moot and academic

Solicitor General Jose Calida’s petition for quo warranto, which he filed in the Supreme Court on 10 February 2020, seeks the cancellation of the legislative franchise of ABS-CBN under Republic Act 7966. In view of the expiration of the ABS-CBN franchise, there is no more ABS-CBN franchise for the Supreme Court to cancel.

The petition filed by Atty. Lorenzo Gadon in the Supreme Court on 5 March 2020 seeks to prevent the NTC from issuing a provisional authority to operate to ABS-CBN after upon the expiration of the franchise of the network on 4 May 2020. Considering that the NTC has already decided that it will not issue a provisional authority to ABS-CBN because it has no statutory authority to do so, there is no need for a judicial restraint against the NTC in this regard.

In fine, the Calida and Gadon petitions have become moot and academic, and their dismissal appears inevitable.

Procedural defect in the  ABS-CBN petition

The ABS-CBN petition now pending in the Supreme Court is very unlikely to prosper.

Under Rule 43 of the Rules of Court (rules of procedure in courts), the rulings of the NTC are appealable only to the Court of Appeals. The appellate court is also vested by law with original jurisdiction over petitions which assail rulings of administrative agencies alleged to be tainted with grave abuse of discretion.

Therefore, unless the Supreme Court waives the rule on hierarchy of courts, the ABS-CBN petition will be dismissed for having been filed in the wrong forum.

No valid ground for TRO
sought by ABS-CBN

To the disappointment of ABS-CBN, the Supreme Court did not issue a temporary restraining order (TRO) to prevent the NTC from enforcing its order dated 5 May 2020.

If a TRO had been issued by the Supreme Court, it would have allowed ABS-CBN to resume its broadcast operations even without a legislative franchise. To all intents and purposes, the TRO would have substituted for a legislative franchise, and its issuance would have been a usurpation by the judiciary of the exclusive power of Congress to issue legislative franchises.

No grave abuse of discretion
by the NTC

Assuming for the sake of argument that the Supreme Court will waive the hierarchy of courts rule and will entertain the ABS-CBN petition, it is difficult to see how the Supreme Court can rule in favor of ABS-CBN.

ABS-CBN alleges in its petition that the NTC committed a grave abuse of discretion amounting to lack of jurisdiction because the NTC issued the order dated 5 May 2020 without affording due process to ABS-CBN. In other words, ABS-CBN protests that the NTC never gave the network a chance to be heard before the NTC issued the order dated 5 May 2020.

That argument is flawed.

Whether or not the NTC gave ABS-CBN a chance to be heard has been rendered immaterial by the fact that the network’s franchise had already expired on 4 May 2020, a full day before the NTC issued its order dated 5 May 2020.

In other words, the prior hearing demanded by ABS-CBN would have served no useful purpose because, regardless of the outcome the hearing, ABS-CBN would have had no choice but to cease operations on 4 May 2020 because its franchise expired on that date.

Moreover, to allow ABS-CBN to remain on the air and to continue its operations after its franchise has expired will be a patent violation of  Act No. 3846.

Remedy is with Congress

The remedy available to ABS-CBN, therefore, is with Congress, and not with the Supreme Court. Since its franchise has already expired, ABS-CBN must do its best to convince Congress to issue a new franchise in its favor.

In that regard, ABS-CBN ought to show to Congress that a new franchise will redound to the best interest of the public, and not because the network has a vested right to a new one.

A caveat for Congress

A franchisee that does not comply with the Constitution, or the laws, or the terms and conditions of its legislative franchise, should not be entrusted by Congress with a renewal of an expiring franchise, much less with a new one. A franchise is a privilege from the government, and privileges should not be abused or enjoyed in violation of law.

On that premise, Congress must make sure that it pursues a thorough investigation of the allegations of Solicitor General Calida that ABS-CBN violated the Constitution, the laws, and the terms and conditions of its now expired legislative franchise under Republic Act 7966.

If the allegations against ABS-CBN are true, then Congress should refrain from enacting a new legislative franchise for ABS-CBN.

Enacting a new legislative franchise for ABS-CBN, even after it is shown that the allegations against the network are true, will create bigger problems for Congress.

First, any interested party may, pursuant to Section 1, Article VIII of the Constitution, file a petition in the Supreme Court to challenge the validity of that new franchise on the ground that it was issued by Congress with grave abuse of discretion.

Second, the members of Congress who vote for a new legislative franchise for ABS-CBN even after it is established that the allegations against the network are true, may be charged with graft under Section 3(j) of Republic Act 3019, or the Anti-Graft and Corrupt Practices Act.

There is one more caveat worth mentioning.

Members of Congress who have relatives employed in ABS-CBN and will continue to be employed in ABS-CBN or will join ABS-CBN within a year after a new legislative franchise is issued to the network, may also be charged with graft under Section 3(d) of the same anti-graft law, if they vote in favor granting the new franchise.

(Atty. Victor C. Avecilla is a member of the faculty of the University of the Philippines College of Mass Communication. His professional interests include Constitutional Law, Media Law, Political History, Media History and Media Ethics. He has been writing for the Daily Tribune since May 2018.)