ABS-CBN properties can't be seized on a whim
MANILA - The TV and radio frequencies that were assigned to the ABS-CBN Corp. cannot be re-allocated to just any individual or entity after the network was denied a fresh franchise by Congress, an expert said Wednesday.
This, after Deputy Speaker LRay Villafuerte proposed before the Lower House the temporary use of ABS-CBN's former TV and radio frequencies for remote learning, saying the vacant frequencies would be "especially useful in areas not yet reached by digital infrastructure" such as some communities in Bangsamoro region.
Speaking to Teleradyo, former Information and Communications Technology Secretary Rodolfo Salalima said the government cannot just re-assign ABS-CBN's frequency as there are requirements to follow.
Citing Section 4 of the Republic Act 7925, or the Public Telecommunications Policy Act of the Philippines, he said the government "shall award any frequency of the state to the best qualified."
"Now remember the word 'best qualified'. It's not to the highest bidder, but someone who is qualified technically, legally and financially. And on top of that, they must have a plan or they must have a use for the frequency," said Salalima, who formerly worked as chief counsel in a telecommunications firm and was the President Rodrigo Duterte's classmate at San Beda law school.
He said that based on the provision of the telecoms act, the "winner" of the frequency, if it will be reassigned, should have the capacity to use it "efficiently and effectively."
"Dapat may plano 'yan and may use sila ng frequency," Salalima said, adding that the National Telecommunications Commission should set up criteria on who or which entity is the "most qualified" to have the frequency.
The NTC on May 5 shut down the network's free TV and radio operations after its original 25-year franchise was left to expire on May 4 despite a long-pending renewal application at the lower chamber.
Salalima said that since a frequency is a state resource, ABS-CBN's frequency can be allocated temporarily for national emergency purposes, such as the coronavirus crisis, citing Section 17, Article 12 of the 1987 Constitution which says that "when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest."
"The law speaks of under reasonable terms and conditions... there is a merely temporary takeover for purposes of addressing national emergency," he said.
Salalima stressed however that broadcast infrastructure of the network -- such as transmitters, radio stations and other properties owned by ABS-CBN -- can't be taken by the government immediately.
Citing Section 1 the 1987 Constitution's Bill of Rights, he said "no private property shall be taken by the government without due process of law." The ex-telecoms official also noted that in Section 9 of the legislation, private property cannot be taken for public use without just compensation.
"Remember that the hardware of ABS-CBN are in the nature of private property. And there are provisions in the Constitution which calls for due process before [they] are taken, and the payment of just compensation," said Salalima, who resigned from Duterte's Cabinet "out of delicadeza" in 2017.
Integrated Bar of the Philippines president Domingo Egon Cayosa meanwhile said that authorities can't just barge in ABS-CBN's compound and take over the network as it is trespassing on private property.
"Ang maari lang mangyari kung saka-sakali, kung kina-kailangan talaga for public use and required for greater interest, ay yung tinatawag nating 'eminent domain'," he told TeleRadyo.
Under eminent domain, Cayosa explained the government or its agents can expropriate private property for public use, but with payment of compensation.
The IBP president however noted that the government has its own broadcast facilities, referring to the state-run television station People’s Television Network, Inc. or PTV-4.
"Ba't pa sila kukuha ng iba? So medyo mahirap po nila mai-justify yung pag-exercise nila ng eminent domain sa ABS-CBN," Cayosa said.
Voting 70-11, a House of Representatives panel last Friday rejected ABS-CBN's bid to return on air "because the applicant was seen as undeserving of the grant of a legislative franchise." The move however is seen by many rights advocates and international groups as succumbing to Duterte's vow to stop the network's operations over complaints of political partisanship.
Without a fresh franchise, the network, which employs 11,000 workers throughout its various subsidiaries, said it would cease the operations of some of its businesses and lay off workers effective Aug. 31, 2020.