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The law and SC ruling are clear: No franchise for ABS-CBN, no broadcast

THE law passed by the 9th Congress in March 1995 that gave ABS-CBN the authority to operate as a TV and radio network is crystal clear: “The franchise shall be for a term of twenty-five years from the date of effectivity of this Act.”

Period. Absolutely nothing in that law (and in all franchises) has a qualification that when that 25-year period ends, ABS-CBN can still operate until the end of the current 18th Congress if there are pending bills to renew the franchise.

Only if the current Congress renews its franchise can ABS-CBN continue to operate, sources knowledgeable about this current issue explained. Without a franchise, all the frequencies automatically revert back to government, they said.

There is no provision in the law–which exists only in the imagination of a few members of Congress, amazingly even in the minds of Senate President Vicente Sotto and House Speaker Alan Cayetano — that says that ABS-CBN can operate without a franchise until the end of the current Congress if there are pending bills to give it such authority.

It is astonishing that with the tens of millions of pesos in research funds the two leaders of the two chambers of Congress have, they haven’t heard of nor read the Supreme Court’s 2003 decision in the Associated Communications v. National Telecommunications Commission (GR 144109).

Don’t Sotto and Cayetano have access to the internet? The SC already ruled on the issue nearly two decades ago.

The significance of the decision, written by Justice Reynato Puno (who would become Chief Justice in 2003), was emphasized in its very first paragraph, and so relevant now with the Sotto and Cayetano squawks:

“For many years now, there has been a ‘pervading confusion in the state of affairs of the broadcast industry brought about by conflicting laws, decrees, executive orders and other pronouncements promulgated during the Martial Law regime.’ The question that has taken a long life is whether the operation of a radio or television station requires a congressional franchise. The Court shall now lay to rest the issue.”

It did lay to rest the issue. After a long, exhaustive narration of the history of government regulation of broadcast media and various authorities it had given in the past such as the National Telecommunications Commissions (NTC) to issue permits to operate, conditional permits, and the like — which had been complicated by martial law which dissolved Congress — the Supreme Court concluded:

“The call to dispense with the requisite legislative franchise must, however, be addressed to Congress as the lawmaker of the land for the Court’s function is to interpret and not to rewrite the law. As long as the law remains unchanged, the requirement of a franchise to operate a television station must be upheld.”

That means Sotto’s talk of the NTC issuing temporary permits while ABS-CBN hasn’t been given a franchise is garbage. More preposterous is Cayetano’s claim: “There’s a consensus that while we’re discussing the issue, walang reason na isara [ang ABS-CBN].”

ABS-CBN can’t operate with a “consensus” or even a “formal resolution.” It requires a law. If Sotto and Cayetano want ABS-CBN to continue operating after its franchise expires they should get Congress to pass a law giving the firm a franchise.

Perhaps for millions of reasons or to humor the Lopezes that they heroically tried to help them (and therefore they owe them), a few legislators have been trying to confuse the public, using half-truths.

For instance, AKO Bicol Rep. Alfredo Garbin — a staunch ally of Vice President Leonor Robredo — claims that the franchise of GMA Network expired on March 20, 2017, but it continued to operate with its authority renewed through a law signed by President Rodrigo Duterte on April 21, 2017.

What Garbin did not mention was that GMA Network’s franchise was passed by the House of Representatives in January 2017, amended by the Senate on March 13 that year and concurred in by the House the following day. Duterte’s signing it into law in April was merely a formality. If he had refused to sign the bill, it would have lapsed into law.

In the case of ABS-CBN, the 11 bills filed two years ago to renew its franchise and that of its subsidiaries have not even passed the committee level, the very first step in enacting a law.

A second case that Garbin cited to confuse people is the case of the franchise of 29 radio stations of the Catholic Bishops Conference of the Philippines (CBCP), which expired in 2017 but which was renewed by Congress only in 2019. Duterte neither vetoed nor signed the bill, so it lapsed into law in April.

But in this CBCP case, nobody complained why it was allowed to operate even if it did not have a franchise, and the issue become moot when the franchise bill lapsed into law.

“Maybe the President, as well as Congress were afraid that they’d be condemned to fire and brimstone forever, if they ordered the CBCP stations to cease operations,” an NTC official quipped.

Sotto on the other hand claimed that that ABS-CBN can “secure a permit from the NTC to be able to continue doing business.” Sotto is confused about what era he is living in. The NTC had the authority to issue permits to operate broadcast media only during martial law when there was no Congress to pass franchise bills. He should ask Duterte to impose martial law if he wants the NTC, and not Congress, to be the permit-issuing authority.

After martial law, the permits that the NTC gives to companies are those issued afterfranchises have been granted to them, and involves their compliance with technical matters such as their use of the frequencies assigned to them and their employment of NTC-certified engineers to run their stations

“How can we issue a permit to ABS-CBN when it will no longer have the authority to use the country’s airwaves soon?” an NTC official asked rhetorically. “We’ll be sued for graft for issuing a permit to operate a broadcast network, when a law is required for this,” he added.

Indeed, why would the NTC issue a permit to ABS-CBN when at least 300 out of 330 legislators clearly do not want that Lopez firm to operate, evidenced by the fact that Congress is no way near passing such a bill.

The Lopezes and Yellows can’t blame Duterte for wanting to close down ABS-CBN, that he is allegedly suppressing a critic.

Bills to renew the ABS-CBN franchise were filed in 2014, during the administration of President Aquino to whom the Lopezes gave all-out support. If Aquino couldn’t even get his allies in Congress to give the firm the franchise, there is obviously a consensus among people’s representatives, whether Yellow or otherwise, that they want to close down the Lopez firm,

Sotto and the Lopezes are very much in denial stage. Congress will take a break just three weeks from now and resume sessions in May.

There’s absolutely no chance for it to give ABS-CBN a franchise not just because of its limited time to do this. Even if they had all the time, the majority of Congress do not want for various reasons. except for Robredo’s supporters and the Communist Party representatives there.

Such reasons range from that “not-enough-millions-of-reasons” given by the firm, to loyalty to President Duterte since he has expressed his odium towards ABS-CBN, to their dislike for its top honcho Eugenio (“Gabby”) Lopez 3rd.

Neither Lopez 3rd nor any other Lopez had reportedly even bothered to “humbly request” leaders of Congress to grant the franchise, and instead sent lower ranking “feelers” and reportedly its showbiz stars, thereby insulting the politicians.

Referring to Lopez’s father, several senior congressmen said: “Geny would have handled this crisis very, very differently. He would have humbled himself to save his flagship, maybe even appealed to Duterte, as his grandfather Eugenio, Sr. did in 1973* to Marcos in the case of Meralco. Not Gabby, who’s so arrogant.”

“My colleagues were waiting and waiting and waiting for the ABS-CBN gods to approach them for years,” a congressman remarked. “They didn’t.”

I have even received reports, though unverified, that Lopez 3rd has been out of the country since January — at a time when his firm is in a life-and-death crisis.

Since the Congress failed to renew ABS-CBN’s franchise, the firm will have absolutely no authority from government to operate when its 25-year franchise expires in either March or May.

“The only question remaining,” an NTC official said, “is whether the franchise expires March 30 this year, 25 years after RA 7966 was enacted into law, or, as the law stipulated “15 days from the date of its publication in at least two newspapers of general circulation in the Philippines,” which is some day in May.

However, “the NTC will not interpret law and act on its own,” he explained. “We will be asking the justice department for its ruling on this issue this week.”

Guess how the justice department will rule? Guess how ABS-CBN’s creditors (which have a total exposure of P22 billion to it), suppliers and advertisers will act when the DoJ hands down its ruling?

The quo warranto case brought by the Solicitor General to the Supreme Court is likely to become moot and academic. There could be nothing whose franchise is to be revoked.

*See my column “Nationalize Meralco,” July 22, 2014.




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