On its own merit
In the continuing legislative hearing on the application of ABS-CBN for the renewal of its franchise, two distinguished gentlemen gave their opening statements for and against it. Sagip Party-list Rep. Rodante Marcoleta spoke for those who are in opposition while Carlo Katigbak, the president and CEO of ABS-CBN, spoke for those who are in favor.
Between the two, Marcoleta was more convincing. His statements were backed up with facts and figures. Indeed, he rose to the challenge. He not only sensitized the passion of his listeners but had them entertained, as well. He made a mockery of the network’s sincerity when he showed on screen the trending inane statement of one of its stars, Kim Chiu, bawal lumabas. It could have been better if he sang and danced to the tune.
On the other hand, Katigbak was less emotional and less factual. His argument was more an appeal to pity and compassion – argumentum ad hominem. He was, in fact, stoic. This surprised me. Surely, a corporation that is earning billions of pesos in a year can employ a more seasoned and professional spokesperson who can articulate its views on an emotional level than the one who delivered it for them. Yet, it chose not to.
In a way, ABS-CBN’s failure to match punto por punto the points that were raised by Marcoleta might cost its franchise. From the very beginning, Katigbak did not know how to reply to what Marcoleta was saying. He was at a loss for words and he stuck to his script about ABS-CBN not violating any law without citing any instances or evidences to substantiate his side. I thought he could have done better. I do profess to be an expert or a better debater than the country-club mannered lawyers of ABS-CBN but, in the spirit of the freedom of expression, please allow me to give some of my views and observations.
Regarding Gabby Lopez as an alleged American citizen, this argument had been there since he and his family put up in merger ABS-CBN. Thus, was way back, and, if truly, his citizenship was then an issue, it should have been raised during that time and not now when the franchise of his network is up for grabs. It is the same with the alleged foreign ownership of some of the stocks of the network. If this practice was prevalent, it was making everybody happy, including the politicians who owe their positions to ABS-CBN. Nobody was persecuted for violation of the Anti-Dummy Law. Nobody went to jail for it. Instead, the network was allowed to operate even beyond the prescribed period.
True, a franchise is a mere privilege and not a demandable right, as wont to be asserted by Marcoleta. However, there, too is estoppels and pari delicto. Estoppel is a legal principle that prohibits a person or an entity from questioning an act when by his/its own action or inaction, led one to believe that such act is legal. On the other hand, pari delicto is also a principle of law that leaves two parties alone when both are at fault. What importance do these legal principles have on ABS-CBN’s alleged violations? Everything.
When the government allowed ABS-CBN to operate despite existing violations on the conditions of its franchise, it in effect tolerated it. Such tolerance indicates equal fault. It led ABS-CBN to believe that everything was alright. It was in estoppel. So, why cry foul at this very late stage when the foul that was committed was with the implied complicity of the government. Is it because this is the opportune time to make it meaningful for politics? Or, is it because there is a need to vindicate some wounded pride?
The problem with the enforcement of laws is that it is reactionary. It is not preventive. It is like a traffic enforcer who allows a motorist to violate a traffic violation so that he can apprehend, instead of preventing its commission. That is what is happening to ABS-CBN. The legislative department allowed it to violate its franchise with impunity without giving the least warning, then wallah, it comes out with a list saying that the network is not entitled to continue operating. This could have been prevented had those in charge of regulating the issuance of a franchise been more pro-active. After all, are not the private sectors supposed to be in partnership with the government in nation building?
Okay, ABS-CBN might not have paid the correct taxes due from it. Is this even believable? There is no case of tax evasion filed against it. What then is the basis? Speculation. If it is true that ABS-CBN did not pay its correct taxes, the compromise agreement it entered into with the Bureau of Internal Revenue blotted its liability. This is what is called tax avoidance. It is not criminal. The National Internal Revenue Code recognizes compromise and abatement as among the legal remedies available to a taxpayer to settle tax deficiencies. If ABS-CBN was accorded this benefit, should it still be made to suffer a burden that had been forgiven by the government? Besides, has Marcoleta and those whom he speaks for paid their correct taxes? Just asking.
There is doubt as to whether ABS-CBN has 11,000 employees. Its critics say it is less, maybe only 3,000. Whatever the number, does it make it less inhuman and less pitiful if only 3,000 families will stare at the specter of hunger and uncertainty. Does it make it or justify it more to close the establishment because there will be less people who will be affected? Remember, even God promised Lot in the story of Sodom and Gomorrah that He will spare His people whether there are 5,000 or only five righteous ones. Can’t the government accord such benefit to a firm that had been part of our culture for the past 50 years or more?
Marcoleta was correct with his observation that the issue is not the public service or the employment that ABS-CBN is able to provide. It is the franchise. Precisely why the application is for the issuance of a new one. This is where application and renewal make a whale of a difference. A mere renewal is a continuation of the past franchise while an application is an altogether different one. Based on what I heard and understand, I think it is the latter that is being pursued by ABS-CBN.
Therefore, if it is an application, it must be based on its own merits and not on the merits of its past actions. If there are violations committed by the network and its officers that arose out of the expired franchise, by all means, file the proper criminal, civil or administrative cases against them. But, do not take it against the new application because this application must stand on its own.