Lawyer hits 'conspiracy' to skirt Congress rules in giving franchise

A lawyer of the Volunteer Against Crime and Corruption (VACC) slammed what he described as an “obvious conspiracy” orchestrated by ABS-CBN Corporation “in trying to sneak its franchise back in,” even without Congress actually granting it, by using a “roundabout way of doing it through its friends and allies” in both the Houses of Congress.

Atty. Ferdinand Topacio, chief legal counsel of VACC, made the statement even as he appealed to the Senate’s leadership to reconsider its recent approval on third reading of the controversial Senate Bill No. 1530 authored by opposition Senator Franklin Drilon, and instead remand the proposed measure back to the appropriate committee for further hearings with the participation of the affected stakeholders in the media industry.

A similar counterpart measure, House Bill No. 7923, was filed by Rep. Joy Tambunting of Paranaque in the House of Representatives.

Topacio said, Senate Bill No. 1530 and House Bill NO. 7923, both seek to amend Section 18, Book VII, Chapter 3 of Executive Order 292, and provides that “the franchise or license that needs a congressional grant will 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.”

Drilon filed Senate Bill No. 1530 on May 13, 2020.

But Topacio noted that on the same day, May 13, 2020, of “identical wording”, HB 7923 was filed  by Rep. Tambunting. It was learned that Tambunting was a producer for ABS-CBN from 1988 until the late 90s, and was assigned to oversee some of the top-rated entertainment content of the said network.

“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,” said Topacio, who is also national chairman of Citizens Crime Watch.

“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 cease-and-desist order from the National Telecommunications Commission,” Topacio said, adding that 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, Topacio said that lawmakers who support 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 that found its way into the proposed amendment to the law authored by Drilon and Tambunting, Topacio said, even as he asserted that the “said 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.”

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

According to Topacio, what the said 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,” he said, arguing that “first, a franchise is granted only by Congress, and the law granting such a franchise shows definite dates as to when the privilege start and when it ends.”

Citing Supreme Court’s jurisprudence in Associated Broadcasting case, Topacio stressed that “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,” he said.

“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.”

According to Topacio, this would require a positive act of Congress of passing a law.

“Differently stated, it cannot be done through in action or 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, particularly the 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,” he lamented.

Topacio warned that 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.”

Topacio noted that 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.

“Then there is vagueness in the wordings 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 as “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 is 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,” he said.

Topacio also raised the question of ethics and propriety, saying “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.”

In February this year, Speaker Lord Allan Velasco said that calls to revive the ABS-CBN franchise would have to wait until the next Congress, citing remaining priority measures of the Duterte administration as there is little time before the 2022 elections. —LBG, GMA News