A legal trap?

The way things are unfolding after the National Telecommunications Commission (NTC) reportedly issued a cease and desist order against ABS-CBN are mind-boggling. Many have become Constitutional Law experts, profound political philosophers, serious social scientists, and learned economists. Everyone has his own theory on what happened to the bill filed in Congress for the renewal of the franchise, the role of the leadership of the House of Representatives in failing to take it up, and the legal action ABS-CBN against the NTC, among other concerns.

Let’s leave those matters to the keen observers and hard-nosed opinion makers. Allow me to bring your attention to a rather less-probable and therefore less-divisive event. Even then, I shudder at the thought that ABS-CBN, in the remotest of chances, might have fallen to a very carefully laid-out legal trap.

We cannot dwell on the merits of the case filed by ABS-CBN for obvious reasons. We just have to assume their lawyers carefully considered all angles affecting the rights of ABS-CBN and decided on a cause of action. Still, from reports that have filtered through news organizations, we learned that the crux of its action targets the supposed grave abuse of discretion of the NTC. This accordingly stemmed from a breach of commitment done under oath by the agency’s officialdom.

In the March 10, 2020 session of the House of Representatives, the top NTC honcho promised to issue to ABS-CBN a provisional authority to continue operating beyond the May 4, 2020 expiry. His pronouncement was allegedly buttressed by an opinion given by no less than the Secretary of Justice that it was perfectly legal to do so. Also, the commitment was made upon the assurance, apparently written into a resolution, that Congress would later take up the bill for the renewal of the franchise. There, too, was a similar resolution handed down by the Senate addressed to the NTC for it to issue a provisional authority to operate while waiting for the approval of the bill by the Lower House. As we knew it, NTC issued no such document. Not only had the NTC apparently reneged on its commitment, it issued the contested CDO.

What grave abuse did the NTC commit? It’s basic that a radio/television company needs Congress approval before it can broadcast. This approval comes in the form of a law that has to pass through the legislative process of both houses. This legislation is called a franchise. When a congressional franchise is issued, the NTC comes into play. To regulate the business, the NTC issues to the franchisee the authority to operate. In other words, the regulation by the NTC comes only when there is a franchise. Differently said, without such law, the company cannot operate and the NTC has no one to issue an authority to operate or regulate.

But, what about the resolutions passed by both houses? A resolution is an expression of sentiment like a condolence and usually passing. It affords no rights, grants no privileges, and provides no corresponding liabilities. The resolutions made by both houses only expressed their sentiment that a provisional authority may be issued by the NTC but since Congress hasn’t yet approved the franchise, the agency has no legal basis to write that authority. So, why sue the NTC?