[ANALYSIS] Duterte and Congress closed down ABS-CBN

On the evening of May 5, 2020, in view of millions of its viewers, ABS-CBN, the country’s biggest radio and TV network, was officially shut down. This was to comply with a cease and desist order issued by the National Telecommunications Commission (NTC) one day after its broadcast franchise expired.

Being a good corporate citizen, the network signed off at 7:46 pm after broadcasting TV Patrol for one last time. 

It was a poignant and sad moment – not just for the journalists and workers of ABS-CBN but for the millions of Filipinos that rely on the country’s biggest network for news and entertainment. It was frightening, too, as this was done during a pandemic when the network and its courageous leaders, anchors, reporters, and support staff have been doing incredible work to inform the public amid so much fear and uncertainty.

Three days after we celebrate World Press Freedom Day, it is pivotal to look into the legality of the closure of ABS-CBN, to conduct a discussion of rights affected (those of the press, the artists, and the people), and to talk about the consequences of such action to the Filipino people, including the 11,000 workers who will be left jobless due to its closure.

Duterte and the ABS-CBN franchise

Section 11, Article XII of the 1987 Constitution provides that the grant of a franchise, and its potential amendment, alteration, or repeal, is a power of Congress.

In 1995, Republic Act No. 7966 was passed, granting ABS-CBN Broadcasting Corporation a 25-year franchise. Near the end of the 25-year period in 2016, Nueva Ecija Representative Violago filed a bill asking for the grant of another 25 years, which she refiled in 2019. This remains pending in the House committee on legislative franchises, as do the other bills that were subsequently filed pertaining to its renewal.

It should be noted that the Senate has time and again said that once the bill approving the renewal, which must emanate from the lower house, reached it, the senators will immediately act and approve the bill.

This is a renewal of a franchise. It is not a complicated process to approve it. 

Signal from Duterte

Unfortunately, in May 2017, President Duterte accused ABS-CBN of “swindling” and threatened the corporation that he will not allow the franchise renewal to take place because of a campaign ad that the network did not air during the 2016 presidential elections. These threats continued in 2018 and 2019. Only earlier this year did the President said he had forgiven the network. (READ: Timeline: Duterte against ABS-CBN’s franchise renewal)

There is no doubt that the House of Representatives has been looking for signals from Malacañang and those signals have clearly been red.

To add to the problems of the network, in February 2020, Solicitor General Calida filed a 63-page quo warranto petition before the Supreme Court to have the network’s franchise revoked. In the petition, he alleged that ABS-CBN violated its franchise terms and claimed that it supposedly ceded and control voting rights to foreigners, among others.

There is no basis for such a case and the Supreme Court has so far not decided on how it will proceed.

Provisional authority as interim solution

Towards the end of the month, ABS-CBN filed its response to the quo warranto proceeding, with CEO Carlo Katigbak leading the way. Two days later, the NTC was asked to issue a provisional authority for the network’s continued operations while the House discussed the franchise renewal application.

The Supreme Court, in Associated Communications & Wireless Services v. National Telecommunications Network (G.R. No. 144109, February 17, 2003), differentiated franchises from certificates of public convenience in that the former is a grant or privilege from the sovereign power, while the latter is a form of regulation through the administrative agencies.

In this case, the petitioner ACWS was shut down because it had neither a franchise nor a license to operate, both of which the High Court said was necessary for the station to operate. ABS-CBN, however, already had an existing franchise, and had pending applications for its renewal.

It can thus be opined that there should be different standards for those broadcasting corporations which are applying for franchises for the first time, and those who already have existing franchises, but are seeking for their renewal.

This was the gist of the legal advice given by Justice Secretary Menardo Guevarra, who recommended the issuance of a provisional authority as a matter of equity. In essence, he meant it was unfair to the owners and workers for an existing business to be closed down while its franchise is still being heard for approval.

Both the House of Representatives and the Senate were under the impression from statements by NTC Commissioners given during a Senate hearing that the NTC would issue a provisional authority.

First of a kind

It must be noted that the cease and desist order against ABS-CBN is the first time that such an order has been issued against a broadcasting network, considering that in the last few years, as mentioned in the Senate hearing, several broadcast franchisees were still allowed to operate despite the expiration of their respective franchises, and pending renewal of the same. 

Despite this, the NTC issued the order, citing issues on the validity of the franchise as its main reason for doing so.

This of course is legally flawed because the quo warranto petition cited factual causes that required investigation. The NTC did not do that and violated the due process rights of the network by treating them differently from other franchise holders in the same situation.

Accountability for ABS-CBN closure

The delay in the approval of the ABS-CBN franchise falls squarely on the President and on the leadership of the House of Representatives. It is incumbent on them to act now.

Yes, the NTC is also wrong in its cease and desist order but they are just the immediate cause of the closure. Duterte is overall responsible; House leaders are complicit.

Even if the NTC’s action is illegal, we do not recommend that ABS-CBN appeal the NTC decision in court as that would mire the issue for years as it goes up to the hierarchy of courts.

Instead, all efforts must be directed at the House of Representatives so the renewal of the franchise can finally be approved. (Tomorrow: ABS-CBN closure an attack on citizen rights). – Rappler.com