ABS-CBN: SolGen’s own quo warranto filings show factual issues SC cannot resolve

Mike Navallo, ABS-CBN News

Posted at Mar 11 2020 09:14 PM | Updated as of Mar 11 2020 09:30 PM

MANILA – The Office of the Solicitor General’s own filings show there are factual issues in its quo warranto petition against ABS-CBN Corp. and ABS-CBN Convergence, Inc. (Convergence) that the Supreme Court cannot resolve, the media network stressed in its latest filing on Monday, as it urges the high court to dismiss the petition.

“The Republic itself contends that this Honorable Court ‘is in the best position to resolve the issue based on the pleadings, records, and evidence before it.’ It, therefore, concedes that the instant quo warranto proceedings involve questions of fact which necessitate the introduction and authentication of evidence, and the weighing of the parties’ respective evidence,” ABS-CBN said in its 45-page rejoinder.

Citing the March 2019 case of Gios-Samar, Inc. v. Department of Transportation and Communications and Civil Aviation Authority of the Philippines, the media giant argued that the high court should “refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental or paramount importance of the case.’’
“The Petition must thus be dismissed,” it said.

These issues include: whether ABS-CBN Corp. operated a pay-per-view service through Kapamilya Box Office without the necessary permits; was the legislative franchise granted to Multi-media Telephony, Inc. transferred to Convergence without prior approval by Congress; and whether ABS-CBN Corp. issued Philippine Depository Receipts (PDRs) to foreigners.

The OSG cited those issues as main grounds in its quo warranto petition that seek to revoke the franchises of ABS-CBN Corp. and Convergence.

In its reply filed on Feb. 26, the OSG, however, raised new factual issues, such as:

-Did Convergence venture into broadcasting?

-Did ABS-CBN engage in conditional access system service or did it amount to a cable television service?

-Did ABS-CBN represent its digital terrestrial television (DTT) service as a free service?

-Was ABS-CBN previously ordered to desist from engaging in pay-per-view services until CAS guidelines have been issued?

-Was the acquisition of a controlling interest in Multi-media Telephony, Inc. done surreptitiously?

-Was Convergence’s franchise transferred to ABS-CBN through a merger between ABS-CBN and Sapientis Holdings, Inc.?

-What rights do the PDR holders enjoy?

The Gios-Samar case cited by ABS-CBN was a unanimous decision handed down by the tribunal, then headed by retired Chief Justice Lucas Bersamin, which laid out the rule strictly complying with the “doctrine of hierarchy of courts.”

“Accordingly, for the guidance of the bench and the bar, we reiterate that when a question before the Court involves determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental importance or paramount importance of the case,” the SC decision read.
“Such questions must first be brought before the proper trial courts or the [Court of Appeals], both of which are specially equipped to try and resolve factual questions,” it added.

Aside from the SC not being a “trier of facts,” the decision, penned by retired SC Associate Justice Francis Jardeleza, cited the need to filter the “staggering” number of cases reaching the high court.

As of end of 2016, the SC said 6,526 new cases were filed before it, contributing to a total of 14,491 cases pending in the docket. Of the new cases, 300 were raffled to the en banc while 6,226 were raffled the Court’s 3 divisions. The Court en banc managed to dispose of 105 cases, and 923 were disposed of by the divisions.
The high court has been strictly applying the doctrine in recent rulings, such as in the December 2019 resolution dismissing petitions against the provincial bus ban on EDSA.

It was also one of the grounds for junking the same-sex marriage petition, and was cited as well in dismissing outright a petition by donors of Kapa-Community Ministry International seeking to stop the execution of the Securities and Exchange Commission’s decision to close the group’s operations.

In its filings, the OSG invoked transcendental or paramount importance of the ABS-CBN franchise issue as an exception to the doctrine of hierarchy of courts despite the language of the ruling in the Gios-Samar case.
No less than Bersamin, during the Integrated Bar of the Philippines national convention in March 2019, clarified that only extraordinary writs like amparo and habeas data are excluded from the rule.

Only 2 magistrates – retired Senior Associate Justice Antonio Carpio and Associate Justice Marvic Leonen – advocated for an exception for issues involving transcendental importance.

Supreme Court magistrates, voting en banc, may however opt to revisit any existing ruling.
In its latest submission, ABS-CBN refuted the OSG’s claim that there is an “urgent” and a “strong public interest” involved so as to compel the SC to act on the KBO and PDR issues.
It pointed out, KBO was first offered in 2016 and the PDRs were issued beginning 1999.

“These were not done surreptitiously – the regulatory agencies were and are certainly aware of them. Yet these same agencies did not stop these acts. They have not found any wrongdoing, they have not commenced any investigation, and they have not imposed any penalty on ABS-CBN, as they admitted in a recent hearing by the Senate Committee on Public Services,” ABS-CBN argued.

“So what is the basis for the purported urgency and strong public interest?,” it asked.

The SC en banc on Tuesday said it will continue deliberations on the quo warranto petition on April 14 to give justices more time to further study the case.

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