ABS-CBN and transactional politics

If you believe in the argument that ABS-CBN cannot continue to operate when its franchise expired, you should imagine waking up one morning with no water and electricity in your house. That’s because the two utility companies were ordered to immediately stop because their franchises had expired and their applications for renewal were negligently delayed by government.

If you’re a hardcore believer in the no-franchise-no-operation argument, then live with the consequences of your unbending philosophy by fetching water from the river and gathering firewood from tree branches. These are the real-world effects of your inflexible reasoning that the continued operation of public utilities is not indispensable to life and their services can be terminated abruptly.

If you whimper in protest that there is no parity between a TV company and water/electricity companies, know that in the eyes of the law, television, water, and electricity companies are all public utilities. If you insist that a TV company is nonessential in nature, following your rigid standard of essentiality, water and electricity companies are non-essential as well because you can draw water from a manual water pump, and you can illuminate your house with candles. Besides, you certainly have not seen children and their mothers in the barrios crying unashamedly because of the abrupt loss of the TV dramas they’ve been following religiously.

You can also imagine being in the hospital looking after your mother who is fighting for her life because of COVID-19. Without warning, the city government orders patients to vacate immediately because the hospital’s permit to operate had expired and a city mayor with an ax to grind sleeps on its permit renewal application.

If you dispute the comparison between a TV company and a hospital, know that the analogy illustrates your reasoning that there are TV stations other than ABS-CBN anyway, in the same way that there are other hospitals your mother can be transferred to anyway. Your disregarded choice of a doctor working in the closed-down hospital is a minor inconvenience according to your dogmatic reasoning, so live with it.

The rule that says that a company cannot operate without a franchise is applicable as an absolute rule to a new company planning to put up a public utility business. For a new company: There can be no exception to the franchise requirement, the Civil Law concept of “dura lex sed lex” (the law is harsh but it is the law) applies with no exemptions, and the law is imposed in its vacuum-packed form, unadulterated by any other rule.

However, for an old company already operating but with an expiring franchise and pending application for renewal, the franchise rule is no longer in its unadulterated and vacuum-packed form. Its Civil Law nature becomes intermingled with Common Law concepts of equity, fairness, due process, and equal protection. This is because the franchise has woven itself into the intricate fabric of life, giving rise to rights, responsibilities, and necessities.

With ABS-CBN, its franchise has spawned these complexities: It’s a major source of independent information and entertainment; the survival of 11,000 employees and a web of big industries depends on its continuing operations; major government agencies have certified to its compliance with tax and other regulations, and; the delayed action on its franchise application renewal is the fault of Congress and a hostile President.

Our government institutions have long followed the practice of giving provisional authority to allow the continued operation of public utilities whose franchise renewal applications remain pending in Congress beyond their original franchise expiration dates. This is perfectly justified by our Common Law tradition of filling gaps in our laws with equitable and fair remedies. Beneficiaries of this practice have included TV5, Smart Communications, Globe, and many others.

Why was ABS-CBN denied a provisional authority? The answer does not lie in our Civil Law tradition. It lies in our shameless tradition of transactional politics, irresponsible politicians, and abusive leaders.

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