Carpio: NTC discriminated vs ABS-CBN in issuing closure order

Mike Navallo, ABS-CBN News

Posted at May 14 2020 05:59 PM

Carpio: NTC discriminated vs ABS-CBN in issuing closure order 1
Retired Justice Antonio Carpio during an interview in ANC Headstart on October 30, 2019. Alec Corpuz

MANILA - The National Telecommunications Commission (NTC) violated ABS-CBN's right to equal protection when it issued an order stopping the network's broadcast operations, retired Supreme Court Associate Justice Antonio Carpio said Thursday.

In his column for the Philippine Daily Inquirer, Carpio said the NTC singled out ABS-CBN when it issued the cease and desist order (CDO) Tuesday last week, a day after the network's franchise lapsed.

"This is the first time that the NTC issued a CDO to a broadcast company upon expiration of its franchise while pending renewal in Congress. In the past, broadcast and telecommunications companies were never issued CDOs even if their franchises expired while pending renewal in Congress," Carpio said, naming 3 companies that were allowed to operate beyond the expiry of their franchise.

These are Vanguard Radio Network, whose franchise expired on June 13, 2017 but renewed on Oct. 30, 2018; Catholic Media Network, whose franchise expired on Aug. 4, 2017 but renewed on April 22, 2019; and, Isla Communications Company, whose franchise expired on May 6, 2017 but renewed on Dec. 14, 2018.

"The NTC obviously discriminated unfairly against ABS-CBN, denying ABS-CBN its constitutional right to equal protection of the law," Carpio said.

He added, "The Constitution mandates, 'nor shall any person be denied the equal protection of the laws.' The state, its departments and officials are prohibited by the Constitution from discriminating unfairly against natural or juridical persons."

Carpio took note of measures the Senate and the House are taking to remedy the situation: a Senate bill extending ABS-CBN's franchise until the end of the present Congress on June 30, 2022 and a joint resolution allowing the media giant to continue operating.

Sticking to his earlier position, Carpio said only a bill and not a resolution can grant ABS-CBN a provisional franchise.

"Any extension of the term of a broadcast or telecommunications franchise must be embodied in a law. Without a franchise embodied in a law, a broadcast or telecommunications company cannot operate and cannot be issued any authority by the NTC. This was the ruling of the Supreme Court in the 2003 case of Associated Communications v. NTC," he said.

Solicitor General Jose Calida had cited the Associated Communications case to justify his advice to NTC to issue a CDO against ABS-CBN.

Justice Secretary Menardo Guevarra, meanwhile, said factual circumstances in the case do not apply to ABS-CBN's situation because unlike Associated Communications, ABS-CBN had already been granted a franchise and had exercised it for decades.

Carpio also cautioned the Senate against proposing a bill limited in application to ABS-CBN.

"If enacted into law, the bill will deny equal protection of the law to other franchisees whose franchises will expire while Congress deliberates on their renewal. Ironically, there will be discrimination in favor of ABS-CBN," he said.

"To cure this infirmity, the bill should be generic, applicable to all broadcast and telecommunication franchisees similarly situated, and retroactive to Jan. 1, 2020, covering the present and future Congresses," he added.

Carpio's column appears to have been written before Wednesday's passage on second reading of House bill 6732 sponsored by House Speaker Alan Peter Cayetano granting ABS-CBN provisional franchise until Oct. 31, 2022, which was not mentioned in the column. 

Cayetano's bill is expected to be approved on third reading next week after which it will be sent to the Senate, which is expected to approve the measure. 

ABS-CBN has a pending petition before the Supreme Court asking it to stop the implementation of the CDO and set it aside on the grounds of violation of the constitutional rights to due process, equal protection, press freedom, and the people's right to information.

The high court is set to tackle the matter on its next en banc session on Tuesday, May 19.

"Absent the intervention of the Supreme Court, only a general law allowing ABS-CBN to continue broadcasting can prevent its radio and TV stations from being silenced until the end of the term of President Duterte," Carpio said.