DURA LEX, SED LEX. “The law is harsh, but it is the law” and should, therefore, be executed and followed.
I have heard this principle more than a thousand times when I used to anchor the top rating legal education program “Compañero y Compañera” on DZMM with the late Senator and “Compañero ng Bayan” as I fondly called him, Atty. Rene Cayetano. I have been reading this Latin phrase from comments posted on social media from among those who support President Rodrigo Duterte and the shutdown of ABS-CBN.
Compañero was also the father of House Speaker Alan Peter Cayetano, who is now among the main characters in the saga of shutting down ABS-CBN Broadcasting Corporation. The younger Cayetano stated in an interview that ABS-CBN won’t be shut down a week before it did because of the cease and desist order from the Philippine National Telecommunications Commission (NTC).
On Tuesday, May 5, the NTC issued a cease and desist order that prohibits ABS-CBN from continuing its broadcast operations effective immediately. The shutdown covers five AM stations, including DZMM, 18 FM stations and 42 TV stations, including Channels 2 and 23.
As TIME reported, the NTC’s order “caused shock and confusion among lawmakers because the agency’s top officials had agreed to grant a temporary operating license to ABS-CBN while Congress weighs its franchise renewal.”
“Rep. Franz Alvarez, who heads the congressional committee on legislative franchises, told ABS-CBN that he was surprised that the commission backtracked on its pledge. Many senators and Justice Secretary Menardo Guevarra have agreed that the broadcaster could operate with a temporary license pending renewal of its franchise. Alvarez added that the company’s franchise renewal application would remain active, and the network said it will pursue efforts to reopen.”
NTC’s surprise order was prompted by the “threat” of Solicitor General Jose Calida that NTC’s members will be sued for graft should it grant the network an extension to operate.
Calida had also filed a case in February asking the Supreme Court to revoke the operating franchise of ABS-CBN and its subsidiary ahead of the franchise expiration, for allegedly abusing its franchises and violating a constitutional prohibition on foreign investment in Philippine media.
ABS-CBN denied the allegations in public statements on Calida’s quo warrant petition and in a sworn testimony during a Senate hearing. In the same hearing, government officials from the Bureau of Internal Revenue and the Securities and Exchange Commission also testified that ABS-CBN has no unpaid taxes, and has not violated any laws pertaining to the use of the franchise — the claim circulated on social media as the “reasons” the network should be shut down.
Reporting on this news, the Washington Post said, “President Rodrigo Duterte has repeatedly threatened to close down the network in the past. His office denied that he had a hand in the order, saying the decision was entirely up to the commission.”
CBS News reported, that “ABS-CBN is not the first news organization to be on the receiving end of pressure from Duterte’s government. Maria Ressa, who was a correspondent for CNN International and now runs the Manila-based online news service Rappler, is facing close to a dozen court cases.”
This report was corroborated by TIME: “At least two other media organizations, including a leading newspaper, the Philippine Daily Inquirer, have come under attack from Duterte for critical reporting. The government separately accused an online news organization, Rappler, of violating the ban on foreign ownership and sought its closure. Rappler denied the allegation and continues to operate.”
So this brings us back to House Speaker Cayetano, who has many times said that conducting hearings on the renewal of the ABS-CBN franchise was not the priority of Congress, and would rather tackle the passing of the charter change proposal. The inaction and delay come from the very branch of government tasked by law to do its job on this matter.
CBS News reported that pursuant to Philippine laws, “Congress has sole authority in the Philippines to grant broadcast licenses, but lawmakers in the Lower House, who are overwhelmingly allied with President Rodrigo Duterte, have declined to act on bills seeking the renewal of ABS-CBN’s permit. Duterte has repeatedly stated his disdain for the network and the family who own it.”
With the public outcry, media organizations, free press advocates and the international community’s criticism against the Duterte administration’s shutdown of ABS-CBN especially as the network has been in the service of the Filipino more than ever during this time of pandemic, a new talking point has been circulating as the “real reason” behind the network’s closure: ABS-CBN used the airwaves to broadcast six channels without separate franchises.
I heard more about this issue from ABS-CBN International’s Managing Director Jun Del Rosario, who wrote on his Facebook page: “I am appalled by the gross stupidity of Tamano’s and FICTAP’s argument that ABS-CBN used the airwaves to broadcast 6 channels without separate franchises. And that the renewal application includes these 6 channels and therefore should be applied as separate franchises.”
“Why am I appalled? Because as a cable TV operator one needs to at least understand the progression of television from analog to digital,” Del Rosario added. He then reposted an article written by another former colleague Mr. Apa Ongpin, who explained more about the technology behind it and how it affects the law governing franchise renewal.
I am not gifted on this techie stuff and so let me just share how Apa Ongin explained it. I hope this helps sift through any misinformation that may affect our understanding of this new “narrative” on this debate.
Apa Ongpin wrote:
“A franchise is a privilege granted by the government to use a limited public resource that it controls on behalf of the public. In the case of a broadcast franchise, that resource, is, specifically, a set of radio frequencies.
That is all it boils down to: Radio frequencies. The franchise does not regulate ABS-CBN’s right to exist as a corporation, or to produce content, or operate a news organization. In fact, parts of ABS-CBN are still operational online right now, as we speak, including its news department, and all of its cable channels, including ABS-CBN News Channel (ANC), which is still broadcasting TV Patrol, ABS-CBN International and its prime business unit, The Filipino Channel (TFC) in the United States. Cable, despite the fact that it reaches millions of people, is not defined as “broadcast”, but as “narrowcast”, since it is paid for, not “free-to-air”, and in general uses no radio frequencies.
Of course, the radio frequencies are critical, in the sense that this was how ABS-CBN’s content was made available to the majority of its viewers, and thus, the majority of its advertising revenue is based on this. By cutting off the frequency access, the government is thus cutting off ABS-CBN’s main revenue.
In the case of ABS-CBN, in the National Capital Region, those frequencies are, specifically:
55.25 MHz in the VHF band 1, for what we in Metro Manila know as “Channel 2”, but whose official call sign is DWWX-TV;
525.25 MHz in the UHF band for “Channel 23”, call sign DWAC-TV;
630 kHz in the AM band for “DZMM Radyo Patrol”, officially DZMM-AM;
101.9 kHz in the FM band for “MOR 101.9 For Life!”, call sign DWRR-FM.
The foregoing are termed “analog” frequencies, which broadcast television signals according to the NTSC standard originally promulgated in the United States, and thus can be received by conventional analog television sets, or the international AM and FM standards for radio. In addition to the analog broadcasts, ABS-CBN has been broadcasting digitally for about a decade now, using the following separate frequencies:
485.143 MHz, channel 16 UHF, for ABS-CBN TV Plus;
647.143 MHz, channel 43 UHF, for ABS-CBN Manila.
ABS-CBN has many other frequencies nationwide, which are allocated by geography and date of application; this is dictated both by the first-come-first-served nature of the allocations, and the archipelagic nature of our geography.
As a side technical note, the lower the frequency, the more desirable, as the rate of propagation, or coverage, per watt of broadcast power is more efficient. This applies to both analog and digital broadcast. The higher in the frequency spectrum you go, the more power you will need to achieve the same effective coverage. ABS-CBN has the lowest analog frequency allocated in the VHF band, because it was the first television station in the Philippines.
There are two things to note here: first, in digital broadcast, it is possible to put multiple channels on the same frequency without interference. On the TVPlus frequency, 485.143 MHz, ABS-CBN offers a total of seven channels.
Second, the extra TVPlus channels (5 out of the 7) are encrypted, and thus not free-to-air. You need to obtain the TVPlus appliance and a paid subscription in order to be able to view them. The other frequency, 647.143 MHz, is unencrypted and free-to-air, and can be viewed by anyone with an appliance that conforms to the Japanese ISDB-T standard, for example, any television made in Japan for the domestic market. I believe the TVPlus channel uses the European DVB standard, the same as its ABS-CBN affiliate SkyCable, as well as the TV5 group’s Cignal TV. They are not required to conform to the ISDB-T standard because they are not “broadcast”. Update: yes, they did start off this way, but have now switched to ISDB-T.
This has become relevant recently, because an obscure group known as FICTAP, the Federation of International Cable Television Associates of the Philippines, has been alleging that ABS-CBN violated its franchise by broadcasting more than one channel on its TVPlus frequency.
FICTAP’s complaint is nonsense, because the franchise (which is a law) explicitly allows ABS-CBN to broadcast on its assigned frequencies, with no mention of any limits, or even the word “channel”. Both Congress and the National Telecommunications Commission (NTC) are well aware of the potential to broadcast multiple channels on the same frequency. In any case, the NTC granted additional frequencies to ABS-CBN for its digital channels.
It was noted that the shrill complainant, Estrellia Juliano-Tamano, head of the FICTAP, is the stepmother of Adel Tamano, who, in turn, is the spokesperson and right hand of Dennis A. Uy, a known Duterte crony. Uy formed a media and communications company, which until now has no known franchise asset, right before Duterte made a public appearance telling the owners of ABS-CBN to sell the station, on Dec. 30 last year.
Update: I am told that Estrellia Juliano and the Tamano family are not on good terms. In fact, Juliano should not even be using the name Tamano, as she was never legally married to the father of Adel Tamano, and this case was decided against her twice at the Supreme Court. While a couple of other top-tier businessmen have been rumored to express interest in the station, Dennis A. Uy and Udenna Corp. have denied having any interest in ABS-CBN.
Under Philippine laws, broadcast franchises are not transferable. Any entity that buys broadcast assets must apply for their own franchise, or a renewal of the previous franchise, but under a change of ownership, which is about the same thing.
Having established that the object of regulation is radio frequencies, let us turn to the nature of regulation. A typical Philippine broadcast franchise today sets the following conditions:
1. It gives the franchisee the right to construct, install, establish, maintain and operate radio and television stations, for commercial purposes, and in the public interest, usually in a defined territory, which can be as small as a province, or as large as the whole Philippines.
2. The broadcaster may not broadcast outside their assigned frequencies, or in a manner that interferes with other licensed frequencies.
3. The broadcaster must have the approval and assignment of frequencies from the NTC.
4. The broadcaster must exercise public responsibility. This is specifically defined.
5. The broadcaster must comply with labor standards.
6. The privilege of the radio frequency may be withdrawn by government at any time after due process.
7. The franchise period, usually 25 years.
8. The company granted the franchise must have a minimum public equity ownership, usually 30%, within usually 5 years after the franchise is granted.
The rest is boilerplate.
These provisions are pretty well-defined, and thus one might expect that renewal of such a franchise would be merely ‘ministerial’. In other words, it takes but a moment, and not a lot of debate, to determine whether or not a company has complied with its franchise conditions, or not. It’s a binary question, yes or no. If that company has not clearly violated any franchise condition, then the franchise should be renewed.
In fact, franchises should automatically renew, unless there is a formal legal objection. Think about it. Why should we give the government that kind of power over business?
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Gel Santos Relos has been in news, talk, public service and educational broadcasting since 1989 with ABS-CBN and is now serving the Filipino audience using different platforms, including digital broadcasting, and print, and is working on a new public service program for the community. You may contact her through email at [email protected], or send her a message via Facebook at Facebook.com/Gel.Santos.Relos