Sat. Jan 29th, 2022
Cartoon courtesy of Daily Tribune

By Rigoberto Tiglao

Desperate: Drilon, ex-ABS-CBN producer try to sneak in TV network’s franchise!

It is a desperate attempt by the Yellows (now Pinklawans) to resuscitate their once-deadly propaganda weapon, the now supine ABS-CBN’s media monster. They are hoping that this weapon will stop Ferdinand (“Bongbong”) Marcos, Jr.’s now clearly unstoppable bid to become president in 2022.

However, going by its sheer suntok-sa-buwan (long shot) character, as Filipinos would put it, it seems to be more, again, as Filipinos would put it, hanap-buhay (livelihood) by these two legislators.

Notable lawyer Ferdinand Topacio, attorney of the Volunteer Against Crime and Corruption, explains this wretched attempt by this tandem:

“It would appear that ABS-CBN is trying to sneak its franchise back in, by using a roundabout (but plausible way) of doing it through its friends and allies in Congress.

On May 13, 2020, Sen. Franklin Drilon filed Senate Bill 1530 seeking to amend a section in the 34-year-old Administrative Code (Executive Order 292) issued by then-president Corazon “Cory” Aquino to ensure that the franchise or license that needs a congressional grant would not expire as long as the franchise or license holder makes ‘timely and sufficient application for the renewal of a license or franchise xxx until the application shall have been finally determined by the xxx branch of government that grants or renews such xxx franchise.”

Of identical wording is HB 7923 filed on the very same date (May 13, 2020) by Rep. Joy Tambunting of Parañaque. Tambunting was a producer for ABS-CBN from 1988 until the late 1990s, and was assigned to oversee some top-rated entertainment content of the network.

Drilon and Tambunting, separated at birth? Re-united in porcine lawfare?

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The “conspiracy” is obvious from the synchronicity of the filing and the identity of the words of the proposed law, one from the Senate and another from the House.

Although general in its application, it is quite clear that the proposed legislation is aimed at reinstating or revivifying the franchise of ABS-CBN and Amcara Broadcasting Network, whose franchises have expired and which have been the subject of a cease-and-desist order from the National Telecommunications Commission.

Last year, Cavite Rep. Jesus Crispin Remulla had alleged that Amcara was a mere “dummy” of ABS-CBN.

During the congressional hearings for the renewal of ABS-CBN’s franchise, lawmakers who supported the station repeatedly argued that the operations of ABS-CBN should be allowed to continue while the issue of its renewal was being tackled, even if the same went past its expiration as stated in the law.

This is the same provision made in the proposed amendment to the law authored by Drilon and Tambunting.

This legal position is untenable, as argued by those who opposed the said contention, because of the doctrine of “no franchise, no operation” enunciated in the leading case of Associated Communications v NTC, decided in 2003 and penned by then-chief justice Reynato Puno, and that the NTC cannot issue a license for any media outfit to operate without an approved legislative franchise.

And only last year, the Supreme Court held in ABS-CBN Broadcasting Corp. v NTC that a cease-and-desist order against a company whose franchise was approved by Congress was not a grave abuse of discretion.

READ THE DAILY TRIBUNE:  ABS-CBN postmortem Congress has done its duty under the Constitution, and by its action, the rule of law has been upheld.

What these Senate and House bills seek to achieve is a “holdover franchise” to be enjoyed by an entity as long as it applies for a renewal thereof, while the Congress is deliberating on the question of such renewal. This is wrong on so many levels. Let us simplify the issues.

First, a franchise is granted only by Congress, and the law granting such a franchise shows definite dates as to when the privilege started and when it ends. As stated in Associated Broadcasting, supra, a franchise is a condition sine qua non for the operation of any entity, which requires a franchise for a particular activity.

The grant of a franchise is an act of Congress, meaning that it requires a positive act, something that is done by Congress deliberately and in the exercise of its legislative powers. A grant of franchise is embodied in a law.

By allowing a franchise holder whose franchise has expired to continue to operate as if it still held a valid franchise, by the simple expedient of the said franchise holder merely applying for an extension and having Congress deliberate upon it (without granting or denying the same), would in effect grant it an extension of its franchise beyond the lifetime thereof as stated in the law previously granting the same.

This would require a positive act of Congress of passing a law.

Passivity

Differently stated, it cannot be done through inaction of passivity by failing to act in the meantime on such an application for renewal. Such an effect would be unconstitutional as it allows Congress to utilize its powers in a manner not provided for in the fundamental law (note that there are strict procedures in the Constitution before a bill becomes law).

The absurdity of the situation becomes self-evident when we take into consideration that a franchise holder, which may have otherwise been — for any number of reasons — disqualified from having its franchise renewed, may still continue to enjoy the benefits of a legislative franchise far beyond the expiration of the original grant thereof, by delaying the denial of its franchise by months or even years, as is plausible due to the unavoidable delays already experienced and may be continued to be expected, in our Congress.

And what if ultimately, the franchise renewal is denied? Then the company would have enjoyed for a long time the benefits of a franchise to which it was, after all, not entitled.

READ: Congressional review of Meralco franchise sought

https://www.manilatimes.net/2021/11/14/news/congressional-review-of-meralco-franchise-sought/1822203

Making it automatic, by operation of law, for a franchise to be extended through inaction by Congress promotes sloth and procrastination on the part of both the members of Congress — who do not have to do anything in the meantime in order for an entity to continue operating — and the franchise holder itself — which only has to file an application for renewal, without having to prove itself worthy thereof in the meantime. It places a premium on inaction and results in uncertainty.

The situation is akin to having an expired passport. One cannot file an application for a new passport before the old one has expired, and after the same had expired, argue that he should be allowed to travel on his expired passport because he had already applied for a new one.

Vagueness

Then there is the vagueness in the wording of the law. What is meant by the phrase “timely and sufficient” application? When is the application timely? One year before expiration, six months? And what does “sufficient” mean? In form only, or in substance? The law does not say. And there is such a principle in constitutional law called “void for vagueness.”

And how can such sufficiency be determined except after Congress has deliberated? The main premise is egregious in the extreme. Verily, there are no set standards provided for in the law, including — and this is crucial — how long the “holdover” shall last. This in itself is objectionable for lack of definition.

Lastly, on the question of ethics and propriety, it is execrable that lawmakers are compelled to craft laws, not for the general welfare, but to transparently favor certain vested interests whose welfare may not dovetail with that of the public that the lawmakers have sworn to serve.”

WATCH: Let’s review why ABS-CBN violated its own franchise under our Constitution and laws

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