What I personally believe is a done deal has come to pass.
From where I sit, ABS-CBN, which has courted the ire of President Duterte, has no chance of renewing its franchise. The die is loaded against its bid, and it was excruciating for me to watch how Congress tossed it on the table.
Was it a fair hearing as House Speaker Alan Peter Cayetano promised it would be? Not by any chance. True, the granting of a franchise is a Congress prerogative, but ABS-CBN has a vested right over its franchise. That right cannot be taken away, either by expiration or revocation, without justifiable grounds. No substantive evidence was presented to prove that the giant network violated any of its obligations and undertakings under its franchise. Not only did the testimonies of competent quasi-judicial regulatory agencies, notably the Bureau of Internal Revenue and the Securities and Exchange Commission, clear ABS-CBN on tax issues and the use of Philippine depositary receipts, respectively, but the network also competently answered all the charges hurled against it, from which Rep. Edcel Lagman drew his conclusion that ABS-CBN deserved a franchise extension. Salt on ABS-CBN’s wound was the narrow legal elbow room it was given to reverse the decision.
A legal eagle whom I consulted said that the issues thrown against ABS-CBN were better decided in the proper forum—which is not the halls of Congress—noting that, “Weighing in on its implications on the constitutionally protected right to freedom of expression, Congress should have been more circumspect in its decision.”
He added: “It is exactly within the realm of judicial review [Supreme Court] to void actions made by any branch or instrumentality of the government with grave abuse of discretion amounting to lack or excess of jurisdiction. Given recent Supreme Court decisions that this power applies only to quasi-judicial functions, and the current constitution of the Supreme Court [unfortunately], it is unlikely that we would expect an ‘activist’ judiciary at this time. Yes, the decision can be appealed under Rule 65 of the Rules of Court, but again, it is unlikely that the courts will meddle with the prerogative of Congress on the basis of the ‘political question’ doctrine: that is, the Judiciary will not interfere with issues that are within the sole prerogative or discretion of a co-equal branch.”
With 75 percent of Filipinos in favor of giving ABS-CBN another 25-year franchise extension as per the SWS survey results released on July 11, the broadcast giant’s loyal supporters are pushing for a people’s initiative as a means to meet their objective. Election lawyer Romulo Makalintal noted however that such an initiative involves a very long process that could easily fail if even just one condition were not met. The signing of the petition alone and verification of signatures may take a year. If it does not get 3 percent in one legislative district, the petition [becomes automatically] dead.” The initiative organizer said his group was aware of the tedious process, but believed that it was doable.
The “demise” of ABS-CBN which some groups relish does not only affect its 11,000 employees, but thousands more who depend on it for a living. The multiplier effect on the supply chain is just too expansive to gloss over. Unemployment in the midst of this pandemic is just too difficult to bear. Making it worse is the lamentable loss of the taxes being paid by ABS-CBN, and the thousands of companies and people dependent on it—taxes that our nation’s extremely diminished coffers badly need. Moreover, the embattled network is a publicly listed company, and its closure means inopportune losses to its countless shareholders.
The closure of ABS-CBN is a boon to rival GMA Holdings where, ironically, foreign monies are allowed to invest in Philippine Depositary Receipts (PDRs), the financial instruments that foreign funds can buy into, which allow media and other Filipino firms to raise funds globally by keeping foreign ownership at 40 percent. GMA shares went up as high as P6.30 from the P5.32 on July 10, although it lost 0.2 percent at closing. The closure also prompted the Philippine Stock Exchange to suspend the trading of ABS-CBN shares, requiring it to submit a detailed report on the impact of the non-renewal of its legislative franchise on its business, financial condition, and operations. Moving forward in the interest of the investing public, ABS-CBN has to disclose its prospects and business plans. The suspension will be lifted one trading day after media dissemination of the full disclosure. The Philippine Competition Commission in an earlier Senate hearing also said that, with ABS-CBN off the air, Filipino consumers would have fewer options for news and entertainment, and GMA-7 may get 55 percent of the total market share due to the shutdown.
What also confounds me is the accusation hurled by some groups that the network’s reporting is biased against the present dispensation and some people who are closely associated with President Duterte. Lest they forget, the press and news media, otherwise referred to as the Fourth Estate, is not and should not be the government’s public relations arm. In a democratic country like ours, the Constitution guarantees protection to media so that it can perform its role of providing unhampered, accurate and relevant information to improve the quality of public life and offer critical collaboration with the government. A free, objective and competent media serves as a beacon of truth, and acts as the people’s watchdog against the excesses of government and state actors. Pray tell, when ABS-CBN’s news anchors Noli de Castro and Ted Failon, and commentator Anthony Taberna regularly hurled a barrage of vile commentaries at then President Benigno “Noynoy” Aquino, neither gutter-language lambasting nor shutdown threats were directed at the giant network by the previous administration. Up until the election of President Duterte, the three relentlessly pursued Aquino and wanted him jailed on account of the Dengvaxia dilemma.
Quo Vadis? The legal eagle told me that, since only the network’s franchise was revoked, ABS-CBN has the option to merge with TV-5 or any other network with an existing franchise, “subject to limitations under competition law and those stated in the existing franchise holder’s franchise.” Of course, under such a merger, Congress must be notified or its consent secured. There are also ways for ABS-CBN to continue showing its content in other media platforms that do not require it to have its own franchise. My source said that the network “may continue to show its content online, [or] consider time-blocking or showing its content through a digital sub-frequency, [or the] sub-channel or content stream of an existing franchise holder.”
Unlike analog, digital frequency can be split into multiple sub-channels. For a fee, the current holder of a digital frequency may allocate or “time block” a sub-frequency to ABS-CBN. Obviously, the question is whether any current franchise-holder would be willing to offer a sub-frequency to ABS-CBN, given the current political climate. Assuming that an existing franchise holder would be willing to allocate a time block to ABS-CBN, the network’s reach through a sub-frequency would depend on the franchise holder’s infrastructure. ABS-CBN may lease its current infrastructure to the franchise holder for expanded reach.
I’m sure that ABS-CBN’s legal team is already exploring ways for the network to go back on air. Despite the obstacles, there could still be novel ways to do so. I just hope that acquiescence or kowtowing to the powers-that-be would not be part of the deal.
For comments and suggestions, e-mail me at mvala.v@gmail.com