Fight in the homestretch
In a nutshell, the administration hopes to crush ABS-CBN in a vise, with pressure on one side coming from the threat of Congress declining to enact a new franchise for the network—or being unable to do so before the current franchise expires—and pressure on the other side coming from the Solicitor General’s arguing before the Supreme Court that the franchise is void, because the network violated its provisions by, among other things, selling and profiting from pay-per-view digital sales before the National Telecommunications Commission could figure out rules to control something (the digital media field) it previously didn’t control.
Of course there are other reasons cited by the Solicitor General for asking the Supreme Court to intervene against the network, but the danger in going into those arguments is that the aggressive confidence of the Solicitor General has less to do with points of law and more with the popular perception that the Palace enjoys the attentions of an obliging court. Then again, there is also the popular perception that the Palace enjoys an iron-clad and jelly-backboned supermajority in the lower house, and an unthinking but obedient majority in the upper house of Congress. But here is where perception collides with reality. To be sure, the Palace has an overwhelming majority in the House, but then again, every administration since 1935 had had the same thing. What is more unusual is that it also controls the Senate. But if the Palace controls a majority like all its predecessors, like all previous presidents, this one has had to learn that Congress has its own way of doing things, and that includes not always doing what the Palace wants, when it wants.
The President kept hurling fire and brimstone at the network during his public appearances, and Congress, for its part, acted with foot-dragging instead of mounting a quick execution. So much so that, even as the clock came closer to running out, various congressmen then dramatically discovered their independence and filed bills to renew the network’s franchise. Because, as presidents have found out in the past, the President proposes but Congress disposes, as the Spanish saying goes. And while Congress may obligingly slow legislation to a crawl, this is merely a delay in aid of extortion, or so generations of frustrated franchise-seekers have claimed in the past.
What this means, though, is that there is the real possibility — probability, even — that for all his fury, the President might find Congress enacting a new franchise. And because of the world-class efficiency with which the Palace is run, it could lapse into law without the President’s siesta being interrupted in time to veto it. So you need something to call Congress’ bluff, and here, the Solicitor General enters the picture with a submission to the Supreme Court that he said he hasn’t even bothered to read in full. And why bother, if the point was to frighten legislators into acting to please the President, rather than do a network-friendly photo-finish that embarrasses the President, saves the network, and leaves delighted lawmakers laughing all the way to…
But I digress. I mentioned one argument raised against the network, because it seems to me one very dangerous indeed, which is: to accuse the network of taking advantage of an absence of regulations concerning operating digitally. This is dangerous, because nearly all observers have pointed out that digital operations do not require a franchise (as there are no frequencies involved to ration out). And so the network could simply stop broadcasting free TV, but continue pumping out content digitally, where the audiences are migrating anyway in ever-increasing droves. By sitting tight on their physical plant and equipment and keeping their employees hired, the network could sit the current dispensation out; and it could turn adversity into future prosperity by accelerating the shift away from terrestrial TV broadcast to the digital battleground.
Arguing that ABS-CBN’s KBO channel violated the franchise by offering pay-per-view, on the basis of the NTC ordering the network to cease and desist because it hadn’t figured out how to regulate what isn’t aired on free TV, may be clever, but it is pretty much inching into ex post facto law, some might argue. It’s a stretch — but victory for the government will require stretching many things, anyway.
