By Atty. Julius Gregory B. Delgado
A LEGAL TELESERYE: THE ABS-CBN SAGA CONTINUES
Last of the Two-Part Series
In the first part of this series, we anticipated the swift passage of a provisional franchise in favor of ABS-CBN good for a period until 31 October 2020. When their attention was called to the apparent constitutional infirmity of railroading the passage of House Bill No. 6732, the leadership of the House of Representatives ultimately withdrew the consideration of the said measure. Instead, the Committee on Franchise led by Cong. Franz Alvarez will start hearing all the measures filed to grant a fresh 25-year franchise to the biggest network of the land. Because of this development, the battle shifts back to the Supreme Court.
Acting on the Petition of ABS-CBN, the Supreme Court issued a Resolution on 19 May 2020 directing the National Telecommunications Commission (NTC) to file its Comment within a period of ten (10) days. The network was directed to file a Reply within five (5) days from receipt of the Comment of the NTC, to be represented by the Government statutory counsel, the Office of the Solicitor General. The Supreme Court noted that both periods given are non-extendible.
The biggest blow to the network in the judicial arena, as with the withdrawal of House Bill No. 6732 in the legislature, is the denial by the Supreme Court of its prayer for a Temporary Restraining Order and/or Writ of Preliminary Injunction. The issuance of a TRO or a Writ of Preliminary Injunction would have allowed a status quo ante or the last peaceful uncontested position prior to the issuance of the Cease and Desist Order by the NTC. While the case is pending, the network would have been allowed back in the airwaves. Despite arguing that the network is losing between Php30-35 Million a day and endangering the jobs of 11,000 workers, these pleas fell on deaf ears. The Supreme Court may have taken judicial notice that the network will pay its workers for three (3) months, among other reasons, why it did not grant interim relief to the network.
It may take the Supreme Court for a while to render a decision. It should be noted that the Supreme Court also ordered to implead the Senate and the House of Representatives. Impleaded as parties, it is expected that both houses of Congress will file their respective Comments/Memoranda. The order to implead both houses of Congress is novel and monumental as it is usually either the House of Representatives and/or the Senate filing for intervention on a certain case of national importance or encroaching on its functions and prerogatives. Also, we cannot discount the possibility of the Supreme Court requiring oral arguments because of the landmark nature, transcendental importance, and the overarching impact of its decision on the case.
It is expected that NTC will argue that in issuing a CDO against the network, it is merely performing its mandate and function. ABS-CBN’s franchise already expired. Thus, to allow them to operate would be an illegal act. However, it is most certain that it will not escape the Court’s attention, and as argued by the network, that the NTC has previously issued provisional authorities to entities prior to granting or renewal of legislative franchises. Aside from the fact of no hearing conducted prior to the issuance of the CDO, ABS-CBN is expected to invoke equal protection of the laws. ABS-CBN should be given similar treatment to these entities issued provisional authorities there being no substantial distinction between ABS-CBN and these entities.
What will the OSG possibly argue to counter the equal protection argument of the network? I am anticipating that Solicitor General Jose Calida will rehash or adopt its arguments in the Petition for Quo Warranto filed earlier. It is also a possibility for Calida to include in its Comment a Motion to consolidate the case with the Quo Warranto Petition. While ABS-CBN may argue that the Quo Warranto Petition is now moot since the subject of the said case is its franchise which has since expired on 04 May 2020, Calida and his battery of Assistant Solicitor Generals will invoke the exceptions to the moot and academic principle enshrined in the case of Randy David vs. Gloria Macapagal-Arroyo, G.R. No. 171396 (03 May 2020). In the said case, the Supreme Court held that the moot and academic principle is not like a magic wand that can be waved to dissuade the courts from resolving a case. “Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public, and fourth, the case is capable of repetition yet evading review.”
It is expected that the OSG may hammer on the supposed violations of ABS-CBN of the Constitution and other laws. Among other grounds, the OSG alleged in its Quo Warranto Petition that ABS-CBN violated the constitutional requirement that media outfits should be 100%-Filipino owned and controlled by issuing and selling Philippine Deposit Receipts (PDRs) to foreign companies like Prudential Singapore Holdings and US-based Capital International Private Equity. The OSG also argued in its Quo Warranto Petition thatABS-CBN violated the law when it offered pay-per view through its black box commonly known as TV Plus. The allegations in the Quo Warranto Petition will most likely be cited by the OSG to defend NTC on why it treated ABS-CBN differently from those entities the agency issued provisional authorities.
When the Congress declared that it will now hear the franchise renewal measures filed, we all thought that these supposed violations of ABS-CBN will be scrutinized in the legislative arena. The plot of this legal teleserye may change again depending on the next move of the OSG. As to how this will end, it is now in the hands of the final arbiter of legal issues and ultimate redoubt of the majesty of the law, and that is the Supreme Court of the Republic of the Philippines.