JPE scholarly explains "The ABS-CBN Puzzle"

Facts first we all know that since May 5, the Lopez controlled ABS-CBN Corporation has been off the air in direct compliance of the cease and desist order issued by the National Telecommunications Commission (NTC).

May 4, 2020 was the expiration of the legislative franchise given to ABS-CBN Corporation for its broadcast operations.

ABS-CBN as a party to a case asked for the intervention of the Supreme Court asking the temporary restraining order of the CDO issued by the NTC.

Juan Ponce Enrile and ABS-CBN
(photo credit to owner)

The House of Representatives passed on second reading a bill granting a provisional franchise up until the end of the month of October this year.

Does all of these make sense?

A legal titan in his own right, former Senate President Juan Ponce Enrile weighs on the different and delicate issue surrounding the ABS-CBN’s legislative franchise.

Without further delay and edit, we have quoted in full his scholarly presentation of facts and discussions of the details what we should understand about the legal intricacies involving the franchise issue of the beleaguered Lopez controlled corporation.

Please see below the full quote of his discussion titled “The ABS-CBN Puzzle, for purposes of public information and full understanding of the topic.

THE ABS-CBN PUZZLE
By Juan Ponce Enrile

1. The Constitution requires that: "The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens." [Article XVI, Section 11 (1)]

2. Since mass media business operations, like radio stations, broadcast televisions, or cable televisions use sovereign assets of the State - such as frequencies and public easements - in their business operations, they are required by the Constitution to have legislative franchises from Congress before they start their business and broadcast operations. And these franchises are granted by Congress for a specified and limited duration.

3. The Constitution provides: "No franchise, certificate, or any other form of authorization for the operation of public utilities shall be granted . . . for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by Congress when the common good requires . . ." [Article XII, Section 11]

4. Way back, ABS-CBN acquired legislative franchises from Congress that enabled it to own, operate, and manage, as it did over the years, a vast mass media business enterprises. These mass media business enterprises made ABS-CBN a politically and economically powerful and influential business organization in the country.

5. But as the years went by, like all finite things in life, these ABS-CBN franchises reached the terminal end of their specified and limited existence; and they expired. For unknown reasons (at least to me), ABS-CBN was not able to have its franchises renewed or extended by Congress.

6. Hence when May 4, 2020 arrived, which was the terminal end of its franchises, and by virtue of the Constitution and the law, the National Telecommunications Commission issued a cease and desist order to ABS-CBN to immediately stop it from further continuing its mass media businesses and broadcast operations. Let it be known that the NTC is the government agency vested with the power and responsibility of supervision, adjudication and control over all telecommunications services in the country. It is, in fact, a creation and delegated agency of Congress.

7. The cease and desist order of NTC perforce abruptly stopped all the businesses and broadcast operations of ABS-CBN. As a consequence, political pandemonium broke loose and intervened. Blames splashed all around. When the political storm subsided somewhat, NTC ended up the bad guy and the convenient whipping boy.

8. All along, a legislative bill seeking to extend the expiring franchises of ABS-CBN was previously filed in the House of Representatives. But for unknown reasons, it languished in the House of Representatives for quite sometime now without action.

9. In the mean time, the Solicitor General filed with the Supreme Court a quo warranto proceeding against ABS-CBN for some alleged violations of its franchises and also of the constitutional mandate that "The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations wholly-owned and managed by such citizens."

10. To seemingly assuage and dampen the rising political turmoil, the House of Representatives proposed to grant a temporary franchise to ABS-CBN so that it can resume its business and broadcast activities. That means a new law has to be enacted by Congress to grant ABS-CBN a temporary franchise.

11. How the House of Representatives can rush such temporary franchise bill is beyond my ken. It must comply with the Constitution's explicit mandatory directive that "No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. . . .” [Article VI, Section 26 (2)]

12. But a question thus arises: Does Congress really have the legislative power or authority to grant such a temporary franchise to ABS-CBN - or to anyone else similarly situated - to enable it to carry on and continue the business of a mass media enterprise whose franchises have already reached their terminal end? I do not think so.

13. But, assuming for the sake of argument that Congress has, indeed, the constitutional power or the authority to grant ABS-CBN a temporary legislative franchise, despite the expiration of its old franchises, then other subsidiary questions would also follow: How temporary would the temporary franchise be? Or to put it more explicitly: How long a time would that temporary franchise last? Would the duration of that temporary franchise be deducted from the maximum period of fifty (50) years allowed under the Constitution for each and every legislative franchise granted by Congress?

14. Moreover, if the Supreme Court finally decides the quo warranto petition of the Solicitor General adversely against ABS-CBN, would the temporary franchise ipso facto be rendered invalid and of no further effect?

15. I am not sure. But, if it is not rendered ipso facto invalid and of no effect, then a Gordian Knot-like constitutional conundrum is created.

16. If the Supreme Court sustains the position of the Solicitor General in the quo warranto case against ABS-CBN and Congress, for whatever reason, would not repeal the law granting ABS-CBN a temporary franchise, one would see, for the first time in our legal history, a classic situation where two major branches of our free and democratic government - the Supreme Court and the Congress - taking opposite positions on a legal issue to the great advantage and benefit of a giant mass media business enterprise, like ABS-CBN, in direct violation of our Constitution. That would, indeed, be a shocking spectacle that, most likely, would immensely embarrass our country before the global audience.

17. Then comes another problem. How would the Philippine government at that point, treat the assets generated by ABS-CBN under the aegis of its temporary legislative, but unconstitutional, franchise? Would the Philippine government allow ABS-CBN to keep and enjoy the fruits of its violation of the Constitution? Well, it is indeed a hell of a legal conundrum!

18. In the wake of the ABS-CBN brouhaha some partisans raised the right to press freedom to defend the beleaguered mass media enterprise. They argued that NTC's cease and desist order violated ABS-CBN's press freedom.

19. With due respect to the ABS-CBN partisans, I could not see how that argument would fly. From the very start, ABS-CBN knew that its right to engage in mass media broadcast as a business is only for a specified and limited duration. It was only up to May 4, 2020, and not more. That was why the owners of ABS-CBN caused the filing of a legislative bill in the House of Representatives to extend the ABS-CBN's franchises. The specified terms of ABS-CBN's franchises are limitations on its press freedom. The press freedom of ABS-CBN as a business enterprise was not indefinite. It was circumscribed and limited by the provisions of its legislative franchises. Its franchises said -- only up to May 4, 2020.

Thank you.

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