MANILA – It was Solicitor General Jose Calida who pressured the National Telecommunications Commission (NTC) to issue a cease and desist order against ABS-CBN Corp. and ABS-CBN Convergence, Inc. instead of granting provisional authority, eventually leading to the network's sign-off Tuesday night.
In a letter dated April 30, 2020, a copy of which was obtained by ABS-CBN News, Calida said the commission should stop ABS-CBN's broadcast operations instead of issuing provisional authority, as its officials had vowed under oath in a legislative hearing.
The letter came to light Wednesday, the same day Calida said Congress, not the NTC, should be blamed for ABS-CBN's shutdown. Over two months earlier, he asked the Supreme Court to nullify ABS-CBN's then expiring franchise.
“With an expired franchise and a failure to renew the franchise, the NTC should, instead of entertaining the thought of issuing a PA, with or without hearing, issue a show cause or recall order requiring ABS-CBN Corporation to explain why the broadcasting frequency assigned to it should not be recalled or otherwise forfeited,” he said in a letter dated April 30, 2020, a copy of which was obtained by ABS-CBN News.
The 14-page letter was addressed to NTC Gamaliel Cordoba and Deputy Commissioners Delilah Deles and Edgardo Cabarios, and signed by Calida and six assistant solicitors general.
“At the same time, the NTC should issue a cease and desist order against ABS-CBN Corporation from continuing its broadcasting operations,” he added.
And so the NTC did on May 5, forcing ABS-CBN to go off the air for the first time since the Marcos dictatorship.
Calida's letter is on top of a statement he released on May 3, the eve of the ABS-CBN franchise expiration, where he warned the NTC against issuing provisional authority.
ABS-CBN Corporation’s franchise ended on Monday, May 4, while ABS-CBN Convergence, Inc.’s franchise lapsed on March 17 this year.
Calida cited the Public Service Act and the NTC’s internal rules which allows the commission, on its own or upon motion, to issue a cease and desist order in the interest of public service, welfare and security.
But the rules cited by Calida require as a minimum that the respondents should have already been informed of a proceeding to be able to explain why no action should be taken against them.
In ABS-CBN’s case, it is not immediately clear if ABS-CBN was previously informed but the cease and desist order also included a 10-day period to explain why the frequencies assigned to it should not be recalled.
CALIDA DISCREDITS DOJ, SENATE, HOUSE POSITION
In the same letter, Calida not only discredited the positions taken by the Department of Justice, the Senate and the House Franchise Committee on the NTC’s issuance of a provisional authority to ABS-CBN, the government's lead legal defender also threatened NTC commissioners with graft cases if they proceed.
Calida himself is facing graft charges for, among others, allegedly owning security agencies with contracts with government offices.
Insisting that the Constitution requires a franchise first be granted by Congress before a provisional authority may be given to a public utility, he rejected the position taken by the Senate, which passed a resolution, and the House franchise committee, which sent a letter to the NTC directing it to issue provisional authority to ABS-CBN pending the renewal of its franchise.
“The House of Representatives - Committee on Legislative Franchises Letter dated February 26, 2020 and Senate Resolution No. 34413 both urging the NTC to issue a PA [provisional authority] to ABS-CBN Corporation and its subsidiaries or affiliates are erroneous and not binding,” he said.
“[T]he Letter dated February 26, 2020 and Senate Resolution No. 344 merely express the sentiment of the committee and the Senate. Hence, these issuances cannot amend the current law requiring a congressional franchise for the operation of broadcasting networks,” he added.
Calida explained that a provisional authority can only be given once a Congressional franchise is issued and only while waiting for the NTC’s issuance of a certificate of public convenience (CPC), citing constitutional provisions and a law.
ABS-CBN's franchise renewal applications have languished in the House of Representatives for years. President Rodrigo Duterte, who appointed Calida to his current post after serving as one of his campaign managers in the 2016 elections, had earlier threatened to shut the network down.
Calida dismissed the view taken by Justice Secretary Menardo Guevarra that “equity” can fill the gap in the law. The justice chief had said no law governs public utilities seeking renewal of their franchise but who are unable to secure one without their fault.
Guevarra had also earlier cited that other broadcast firms were allowed to operate after their franchises had lapsed.
But Calida insisted that the law is clear: “[W]hen there is no renewal, the franchise expires by operation of law. The franchise ceases to exist and the entity can no longer continue its operations as a public utility.”
“The said advice or guidance and the circumstances surrounding its issuance are not at all unprecedented,” invoking a 2003 case where the Supreme Court rejected the opinion of the DOJ dispensing with the requirement of a franchise.
He warned the commissioners that there are penal sanctions should they issue a provisional authority in favor of ABS-CBN.
“Congress, via a law and not mere resolution, has the exclusive constitutional and sovereign power to grant a franchise which expressly limits the period for any franchisee to operate. Thus, NTC’s grant of a provisional authority to ABS-CBN Corporation and/or ABS-CBN Convergence without a legislative franchise is tantamount to knowingly granting a permit to a private entity without it being qualified or legally entitled,” he said.
Calida also raised the citizenship issue against ABS-CBN Corp’s chairman emeritus Eugenio “Gabby” Lopez III, claiming that Lopez when ABS-CBN’s franchise was first granted in 1995, Lopez was still supposedly an American citizen.
But ABS-CBN President and CEO Carlo Katigbak already addressed this issue, explaining that Lopez is a Filipino citizen and that he holds a Philippine passport.
The letter showed Calida volunteered his office’s advice, citing the petition filed by lawyer Lorenzo Gadon before the Supreme Court questioning Cordoba’s March 10 statement that the NTC will issue a provisional authority to ABS-CBN and its affiliates or subsidiaries.
“[T]he OSG, as the statutory counsel of the NTC, deems it necessary to advise the Commission of the applicable laws, rules and jurisprudence as regards the status, effects and possible course of action brought about by the absence or non-renewal of the foregoing franchises,” the letter said.
Calida said Cordoba’s earlier statement does not bind the entire commission which is composed of 3 members. The two other commissioners are Deputy Commissioners Delilah Deles and Edgardo Cabarios.
The letter was signed by Calida and 6 other assistant solicitor generals.