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2nd of the 2nd part of 7 parts 10 minutes of 40 minutes
b.for broadcast news including television news): Separate Concurring Opinion of Justice Marvic Leonen in ABS-CBN vs. NTC et al at: https://sc.judiciary.gov.ph/15988/
Justice Leonen (Concurring only as to mootness, dismissal) :
“Petitioner (ABS-CBN)successfully showed an ostensible right to the relief it prayed for. Respondent’s May 5, 2020 Order directing petitioner to “immediately cease and desist from operating its radio and televisions stations” was issued with grave abuse of discretion – and for many reasons.
“First, the Cease and Desist Order was served on petitioner without prior notice or hearing. This is a violation of its right to due process.
“Due process is guaranteed by the Constitution and extends to administrative proceedings. At the heart of procedural due process is the need for notice and an opportunity to be heard. In Central Bank of the Philippines v. Cloribel: ‘Previous notice and hearing, as elements of due process, are constitutionally required for the protection of life or vested property rights, as well as of liberty, when its limitation or loss takes place in consequence of a judicial or quasi-judicial proceeding… xxx Moreover, in Montoya v. Varilla, this Court ruled: ‘(T)he essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of. (D)ue process in administrative proceedings has also been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings … (2) a real opportunity to be heard personally … and to defend one’s rights; (3) a tribunal vested with competent jurisdiction …a reasonable guarantee of honesty as well as impartiality; and (4) a finding … supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. xxx In line with due process, Commonwealth Act No. 146 or the Public Service Act, as amended, requires proper notice and hearing before a certificate of public convenience/permit/license may be suspended or revoked..xxx Under the National Telecommunications Commission’s 2006 Rules of Practice and Procedure, before an entity could be subjected to a disciplinary measure for violating any law, rule, or regulation, the Commission must first serve a show cause order. This order contains “the particulars and matters which the Commission is inquiring”; likewise, it calls upon respondents to file a verified answer at the stated place and time and to “explain why no judgment or action” should be taken against them. The Commission may also conduct a summary proceeding within 72 hours of the parties’ receipt of its order. Within 15 days, it shall require the submission of position papers and memoranda. When some issues need clarifying, the Commission shall set a conference for it.
xxx “In this case, petitioner was not given proper notice and hearing. Instead, on May 5, 2020, respondent hastily issued a Cease and Desist Order xxx Respondent knew very well that petitioner’s franchise was about to expire and bills for its renewal were pending in Congress. In fact, Commissioner Gamaliel Cordoba (Cordoba) himself, who co-penned the Cease and Desist Order, had participated in the February 24, 2020 hearing of the Senate Committee on Public Services, where issues on the franchise renewal were discussed. Respondent had every opportunity to abide by its own rules of procedure to ascertain what action is appropriate to take-including whether a cease and desist order should be issued. But, for whatever reason, it chose not to do so. Instead, it blatantly violated petitioner’s right to due process and openly defied Congress’ prerogative.
“As stated earlier, respondent anchored the Cease and Desist Order simply on the expiration of the franchise. This does not even fall within any of the two instances mentioned in respondent’s own Rules of Practice and Procedure to justify the issuance of such order.
“In GMA Network, Inc. v. National Telecommunications Commissio xxx, this Court clarified that if the cease and desist order is more of a preliminary injunction, compliance with the essential requisites of a writ of preliminary injunction is necessary before it may be issued..xxx As has been enumerated earlier, these requisites are the following: (1) there exists a clear and unmistakable right to be protected; (2) this right is directly threatened by an act sought to be enjoined; (3) the invasion of the right is material and substantial; and (4) there is an urgent and paramount necessity for the writ to prevent serious and irreparable damage.
“None of these essential requisites were met in this case. At any rate, it is hard to conceive how it would be for the public’s best interests to enjoin petitioner from going on air, or how the public would be seriously and irreparably injured by allowing petitioner to continue its broadcast operations. Neither has any urgent and paramount need been shown for the Cease and Desist Order to be issued.
On the other hand, this Court has held that a license “is an operating authority of importance involving primarily the interest of the public,” and the “valuable rights and investments made in reliance on a license … should not be destroyed … except for the most compelling reasons.”
xxx “Second, even if petitioner’s permits were to be rendered expired ipso facto upon the expiry of the legislative franchise, the issuance of the Cease and Desist Order would still be improper. Petitioner would still have the authority to continue, in light of the grace period that respondent itself gave in Memorandum Order No. 02-03-2020 dated March 16, 2020.96
xxx “Furthermore, in the February 24, 2020 Senate hearing, Cordoba admitted that the respondent regulatory agency has not withdrawn any provisional authority in the past nor closed broadcast companies due to an expired franchise. Instead, it allowed them to operate while their franchises were pending renewal.
“Thus, not only was the Cease and Desist Order contrary to respondent’s own Memorandum Order granting the grace period, but it is also contrary to respondent’s own policy of allowing broadcast companies to continue their operations pending their franchise renewal.
xxx ”Unfortunately, the Cease and Desist Order fails to explain why respondent accorded petitioner a different regulatory treatment from other broadcasting stations.
“The Cease and Desist Order’s issuance is a serious error tantamount to grave abuse of discretion. In issuing it, respondent has singled out petitioner without any reasonable basis, in violation of the equal protection guarantee under the Constitution.” (Justice Leonen, supra)
c)for film Gonzales vs. Kalaw-Katigbak, 137 SCRA 356 (1985)
d)for social media, wireless file sharing media, SMS-text-blasts, and other virtual media) (chilling effect) Chavez vs. DOJ Sec Raul Gonzales G.R. No. 168338, February 15, 2008
(DOJ & NTC warnings on the Hello Garci tapes) (
The Anti-Wiretapping Law