By Joseph B.A. Marzan
ABS-CBN Corporation on May 7, 2020 filed a petition for a Writ for Injunction and a Temporary Restraining Order (TRO) with the Supreme Court (SC) against the Cease-and-Desist Order (CDO) issued by the National Telecommunications Commission (NTC).
The NTC issued the CDO on May 5 ordering the network to stop nationwide operations of all its free-to-air television networks and AM and FM stations after its legislative franchise expired on May 4.
The agency said in its press release that the CDO was based solely on the absence of the legislative franchise, which was a requirement for the issuance of a license to operate.
ABS-CBN aired the final broadcast of its long-time flagship news program TV Patrol after focusing on the CDO.
The network, as well as its radio stations DZMM and MOR, stopped their operations shortly after.
The CDO also ordered ABS-CBN to state its cause as to why its frequencies should not be taken from them as a result of the expiry of its franchise.
GOVERNMENT ISSUANCES
ABS-CBN argued that the COD violated equal protection and due process clauses of the 1987 Constitution.
It alleged that the NTC violated the equal protection clause when other broadcasters with expired franchises were allowed to operate while their renewal was being deliberated by Congress.
The network cited the agency’s Memorandum Order No. 03-03-2020, issued on March 18, which extends the validity of all NTC-issued permits, certificates and licenses of all government-owned and private telecommunications entities for up to 60 days after the end of the Enhanced Community Quarantine (ECQ).
The ECQ was first imposed by President Rodrigo Duterte in Luzon through Proclamation No. 929 on March 12 in response to the coronavirus disease 2019 (COVID-19).
It was extended to May 15 based on the recommendation of the Inter-Agency Task Force on the Management of Emerging Infectious Diseases (IATFMEID).
The Lopez-led network also alleged that the NTC violated the due process clause by not giving them a chance to be heard.
It added that the network cannot be properly heard during the ECQ period, and it will be uncertain when it can be heard after the quarantine period ends.
The petition also mentioned the House of Representatives’ Committee on Legislative Franchises’ letter dated February 26, 2020 directing the NTC to grant the network a provisional authority to operate from May 4 until Congress has approved its renewal application.
It also mentioned the Senate’s resolution supporting continuation of the network’s operations while Congress was in the process of renewing its franchise.
During a House Committee hearing, NTC Commissioner Gamaliel Cordoba affirmed that it may issue a provisional authority to ABS-CBN when its franchise expires.
Department of Justice (DOJ) Secretary Menardo Guevarra backed up Cordoba’s position then.
FREEDOM OF THE PRESS
ABS-CBN also invoked freedom of the press in its case, alleging that the CDO amounted to a threat and curtailment of the freedom of speech and freedom of the press with prior restraint.
The network pointed out that the NTC made its decision “with a threat hanging over its head, made no less by the Government’s own lawyer [Solicitor-General Jose Calida], of prosecution for graft. Under such climate, the NTC’s impartiality is at best seriously suspect.”
Solicitor-General Calida issued a warning on May 3 that his office will file charges for violation of Republic Act 3019 (Anti-Graft and Corrupt Practices Act) if NTC grants a provisional authority to the network.
Calida argued that only Congress can grant the network its authority to remain on the air through a duly-approved legislative franchise.
RECALL ‘IMPOSSIBLE’
In an online livestream interview with TV Patrol, NTC Deputy Commissioner Edgardo Cabarrios said that the CDO was the proper legal remedy they had in response to the franchise’s expiry.
Cabarrios added that the NTC can no longer recall its decision through any legal means because the arguments have already been presented.
“It was a unanimous decision. Based on the arguments presented by the legal staff and also based on my own understanding and knowledge of the issue, it seems [the CDO is] the only possible option. Recalling it will be difficult. There is no option to recall because all of the arguments are already in the decision,” he said.
Cabarrios said that while Cordoba had affirmed giving a temporary license to ABS-CBN, the agency’s legal department agreed with dissenting legal opinions, including Calida’s warning, that it had no authority to do so.
“At the time, there were opinions that we may [grant provisional authority]. Then after that there were several opinions from retired justices, retired chief justices, legal luminaries, and others including [Calida] and the [Federation of International Cable TV Associates of the Philippines], and also pending matters before the court, we studied them, all arguments presented and all available information to the NTC. Our legal staff recommended to [issue the CDO],” he said.
