Seares: ‘Gap in the law’ doesn’t mean ‘equity’ rushes in for ABS-CBN

News Sense

THERE is no law providing for a situation where a franchisee such as the ABS-CBN Broadcasting Corp. is waiting for Congress to act on its application for renewal. Shall the broadcast network be allowed to operate provisionally until Congress approves or rejects the pending franchise bills?

The ABS-CBN franchise expires on May 4 (not March 30 as earlier publicized) and the question of its staying open has not been resolved.

“By practice,” the National Telecommunications Commission (NTC) grants a temporary permit to the franchisee until the end of the current Congress or earlier when it will have decided to approve or accept the franchise bills.

Practice is not law

Practice, however, does not make a statute or law. The traditional view is “no legislative franchise, no NTC permit.” And this time decider NTC, which in the past exercised discretion along with Congress, is obviously treading differently. President Duterte had said more than once that ABS-CBN wouldn’t get a renewal, even advising it to sell. Previous instances didn’t have a sitting president who said he wouldn’t want a broadcast network to continue operating.

NTC Commissioner Gamaliel Cordoba, appearing before the Senate committee on public services last Monday (Feb. 24), said, he’d allow ABS-CBN to continue operating while Congress still had to decide on its action. NTC would rely on the principle of “equity” that DOJ Secretary Menardo Guevarra cited at the same legislative hearing.

No DOJ opinion

Guevarra talked about the absence of a law to cover the ABS-CBN situation: A “gap in the law,” the DOJ chief said, that may be filled by “equity.” And under that principle, Guevarra said it is his view that “Congress will have to give the NTC the authority to issue a provisional permit to continue operating in the meantime.”

While Guevarra didn’t hesitate to share his opinion at the Senate hearing, he later told news media his office wouldn’t officially give an opinion, apparently referring to a legal document from his office. That wouldn’t be binding on ABS-CBN, a private company, he said, which might later on sue for its rights. It may not bind the broadcast network but it will bind NTC whose chief, Cordoba, more than once said he’d give the temporary permit “upon DOJ advice.”

Guevarra actually gave the solution at the hearing: have Congress give provisional authority to ABS-CBN until the legislature makes up its mind: to renew or shut it down. That would offer some refuge for NTC, given the President’s declared hostility towards the network. His subsequent acceptance of ABS-CBN’s apology didn’t mean he abandoned his original intent.

Prospect on joint action

A resolution—filed by Sen. Franklin Drilon in the Senate and Rep. Raul del Mar in the House—will express that sense. Even finer for NTC if that resolution would pass before May 4. But the House committee last Wednesday (Feb. 26) sent a letter to NTC, asking it to issue the temporary permit until Congress will decide on the issue. Ultimately, it’s the call of the House; even the Senate depends on the lower body’s action.

Sen. Ping Lacson disagreed with DOJ Chief Guevarra’s opinion, seeing legal complications. But if practice sufficed before, why shouldn’t it do for now? Because, again, the previous instances didn’t have a President taking potshots at the would-be franchise grantee.

Chance for “equity”

Congress could give the provisional authority. Under the principle of “equity” the DOJ secretary espouses, it would fill the gap of the law, for which, come to think of it, the legislature is institutionally to blame.

The law expressly provides for the death of the franchise if not renewed. The same law doesn’t say anything about the continued operation by the franchisee while the application is pending. But equity, DOJ’s Guevarra says, comes in where there the law is silent.

The “equity” thing, like many acts of unfairness in the world that are sometimes corrected, might have a chance.


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