Wrong provision, wrong interpretation: 1987 Consti framer to solon who raised 50-year limit to ABS-CBN franchise

Mike Navallo, ABS-CBN News

Posted at May 27 2020 07:35 PM | Updated as of May 28 2020 11:00 AM

The ABS-CBN ELJ building lights up with its signature colors as it went off-air in compliance with the cease and desist order of the National Telecommunications Commission for the network to broadcast on air. Fernando G. Sepe Jr., ABS-CBN News

MANILA - A lawmaker who raised a supposed 50-year limit to ABS-CBN's franchise cited the wrong provision in the Constitution, one of the framers of the 1987 Constitution said Wednesday.
 
"Not only did he cite the wrong provision, but he also had a wrong interpretation of the wrong provision," lawyer Christian Monsod told ABS-CBN News.
 
Monsod, who was part of the 1986 Constitutional Commission that drafted the 1987 Constitution, was reacting to statements made by SAGIP Party-list Rep. Rodante Marcoleta at the House of Representatives hearing on Tuesday. The solon read a position paper seeking to block ABS-CBN's bid for a new 25-year franchise.

Marcoleta said ABS-CBN should no longer be given a new franchise since it has operated for more than 50 years, supposedly beyond the limit set by the Constitution.
 
WRONG PROVISION

The lawmaker was referring to Article XII, Section 11 of the 1987 Constitution, which limits the duration of a franchise given to a public utility to no longer than 50 years.

"That section applies to a public utility and I don't think media is a public utility," Monsod said.

A public utility, he explained, are companies that provide indispensable services to communities like water and electricity that the government had given them "natural monopolies."

"In other words, pag dalawa, sobra. Sayang ang investment...Because it takes a lot of investments e, di ba?" he said.

(In other words, if there are 2, that's more than enough. Because it takes a lot of investments.)

He pointed out that unlike other companies requiring a franchise, public utilities are given a longer term of 50 years, not just 25 years.

The House of Representatives in March approved on third and final reading a bill limiting the definition of public utility to power transmission and distribution, water distribution and sewage collection.

"Ang broadcasting, at least in the Philippines, there's no monopoly," Monsod said, pointing out that what applies to mass media entities instead is Article XVI, Section 11 of the Constitution.

The provision limits ownership and management of mass media to citizens of the Philippines or corporations wholly-owned by Filipinos.

Unlike in public utilities, monopoly is either regulated or prohibited in mass media.

The provision, however, is silent as to how long a franchise given to a mass media company can last.

"Maliwanag yung provision: Article XVI, Section 11, walang limit na maximum of 50 years, unlike in Article XII, Section 11," Monsod said.

(The provision is clear: Article XVI, Section 11 does not impose 50-year limit, unlike in Article XII, Section 11 of the Constitution.)

PUBLIC UTILITY MASS MEDIA
Art. XII, 1987 Constitution:
Sec. 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years.
Art. XVI, 1987 Constitution:
Sec. 11. The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed.

WRONG INTERPRETATION

Monsod stressed that even assuming the provision on public utility applies, the 50-year franchise limit is not absolute.

"They're allowed to renew for another 50 years," he said, saying there are no limits as to the number of renewals.

"As you can see around us, there are public utilities that have existed for a long time."