The critical renewal of ABS-CBN’s franchise still languishes in the backseat as Speaker Alan Peter Cayetano prioritizes holding the National Telecommunications Commission (NTC) in contempt for shutting down the network’s operations on May 5, 2020, a day after the ill-fated franchise expired.
The “day of reckoning” for NTC as threatened by Cayetano is in the works after he directed the issuance of a show-cause order against NTC to explain, under pain of contempt, why it issued a cease-and-desist order (CDO) which stopped the operations of ABS-CBN, despite NTC Commissioner Gamaliel Cordova’s prior commitment to issue a provisional authority.
The CDO was issued even after Cordova undertook during the only public hearing on the franchise renewal last March 10, 2020 that he would cause the issuance of a provisional authority to operate to ABS-CBN after the lapse of its franchise based on equity pursuant to the advice of Justice Secretary Menardo Guevarra.
The transcript of Cordova’s undertaking during the committee hearing relevantly and interestingly reveals that he tempered his commitment and made an escape hatch for an eventual non-issuance of a provisional authority to ABS-CBN.
Cordova cited the following conditions and reservations for the projected issuance of a provisional authority to ABS-CBN:
There is no gross violation of ABS-CBN’s franchise;
There is no gross violation of NTC’s own rules and regulations; and
The state of the law and jurisprudence, as well as the applicability of the doctrine of equity, will be considered by NTC in its decision whether or not to issue a provisional authority.
More particularly, Cordova testified that: “So, may I assure this committee that barring a gross violation of its franchise (and) of the NTC Rules and Regulations, the NTC will follow the latest advice of the DOJ and let ABS-CBN continue operations based on equity, Your Honors.”
With respect to this representation’s interpellation on the state of the law and jurisprudence as well as on the applicability of the doctrine of equity, Cordova assured that: “Your Honors, we respectfully take note of the observations of Honorable Congressman Lagman and that we will also consider that in our decision on the matter.”
The facts and the law on the non-renewal of ABS-CBN’s franchise are indubitable and indisputable.
The unalterable factual setting is that the network’s franchise has not been renewed by the Congress and has eventually expired on May 4, 2020.
The law on the matter is likewise clear and unmistakable as Sec. 16 of RA 7925 or the “Public Telecommunications Policy Act” explicitly provides that “No person shall commence or conduct the business of being a public telecommunications entity without first obtaining a franchise.”
Under the foregoing provision, an original franchise is needed “to commence” the operation of a television network and a renewed franchise is necessary to further “conduct” its business.
Either an original franchise or a renewed one is a mandatory condition precedent to commence the operation of a telecommunications network or to continue the conduct of its operations.
Considering that the law is clear, the common law doctrine of equity will not apply because equity will only come in if there is an ambiguity or vacuum in the law.
The prevailing jurisprudence also reaffirms the law when the Supreme Court in Associated Communications vs. NTC ruled that: “As long as the law remains unchanged, the requirement of a franchise to operate a television station must be upheld.”
Since the CDO issued by NTC is squarely based on law and jurisprudence, a show-cause order against NTC is devoid of merit and is a duplication of the pending petition filed by ABS-CBN before the Supreme Court against NTC for the alleged improvident and illegal issuance of the CDO.
Verily, NTC issued its CDO because the issuance of a provisional authority will be a gross violation of NTC rules and regulations based on clear existing law and jurisprudence which preclude the application of equity.
Consequently, there is no other recourse but for the Congress, more particularly the House of Representatives led by Cayetano, to consider and approve without further delay the renewal of ABS-CBN’s franchise.
EDCEL C. LAGMAN