Shadow boxing

THE lights are up. The fighter throws punches in the air without an opponent. He throws combinations. He fights his own shadow.

By all indications, this is how government is dealing with the fast expiring ABS-CBN franchise. The first punch was thrown by no less than President Duterte. In early December last year, he spat these words at the media network, “your franchise will end next year. If you expect it to be renewed, I’m sorry. I will see to it that you’re out.” 

The next punch was thrown by the Solicitor General. With presidential sentiment on his side, he unloaded his weapon of choice – quo warranto against the beleaguered broadcast network, alleging varied violations of its franchise.

The quo warranto petition elicited a storm of reactions. It is now seen as the initial barometer of how the public would react to government action against a gargantuan media organization.

Since the petition raised quite a howl, the next jab was thrown in a backstep. In a Senate hearing, Justice Secretary Menardo Guevarra testified that ABS-CBN can continue operating even after the franchise shall have expired in May, citing precedent based on equity molded from the prevailing mood of Congress. The best palliative would be a resolution jointly passed by both houses of Congress.

In a bizarre move, the House of Representatives Committee on Legislative Franchises chaired by Franz Alvarez, with the concurrence of Speaker Alan Peter Cayetano, wrote the National Telecommunications Commission urging the regulator to grant ABS-CBN provisional authority pending the decision of the House on the application for the renewal of the franchise.

We say “bizarre” because Speaker Cayetano has not exactly hidden his disdain for the media network. He has repeatedly accused ABS-CBN of partiality during the 2010 and 2016 national elections.

It is puzzling indeed for the Speaker to push for a favorable provisional authority in the context of his very public admissions of a lingering grudge against the network.

But the letter was a feint and a blow. While it ostensibly announces support for the network in the meantime, it actually asserts the exclusive and original jurisdiction of the House of Representatives to act on franchise applications.

To recall, this came in the heels of the decision of Sen. Grace Poe to hold hearings on the franchise. The Senate initiative was branded “unconstitutional” by the Speaker, citing, precisely, the sole authority of the House of Representatives to entertain franchise applications at the first instance.

Former Chief Justice Reynato Puno exposed this hidden mischief when he spoke about the legal inability of the TV network to continue operating as a broadcast network without the benefit of an existing franchise. It needs to secure a new license from Congress. The NTC has no power to grant a provisional permit in the interregnum.

In a decision he penned in February 2003, CJ Puno disregarded a memorandum of understanding among the NTC, the Kapisanan ng mga Brodkaster sa Pilipinas, and the congressional committee on legislative franchises which provided that the NTC may grant temporary permits to operate sans franchises for a period of two years.

In plain terms, the Supreme Court in effect said that an MOU grounded on equity may not supplant the law. “As long as the law remains unchanged, the requirement of a franchise to operate a television station must be upheld.”

Clearly, the Cayetano directive to the NTC is nothing more than a pair of finger scissors. It cannot cut through existing jurisprudence that dispossessed the NTC of any power vis-a-vis an expired franchise.

Consequently, with the legal fodder provided by Cayetano, failed senatorial candidate Lorenzo Gadon, a reputed ally of the administration, filed a petition with the Supreme Court asking it to stop the NTC from complying with – hold your breath – the directive of Speaker Cayetano.

The Palace through Salvador Panelo cannot seem to agree more. In response to reporters on Saturday he said that “a provisional authority cannot be legal because the NTC cannot give provisional authority if there is no franchise.”

That single sentence should be a stinging left hook on House committee on legislative franchises. That is, if what we are seeing is nothing more than a splendid display of shadow boxing.

The fact is that the commissioners of the NTC may not rest easy on their tenure. They serve at the pleasure of the appointing authority – their boss – the President. Neither chamber of Congress can reprobate their decision on the provisional authority requested by the Speaker for ABS-CBN.

In the end, regardless of the posturing of the administration and its allies, there is no gainsaying that the fate of the ABS- CBN frequency lies in the question of whether the President will stay true to his promise – “I will see to it that you’re out.”

So, is it “goodbye #GandangGabiVice” on May 4?/PN