Experts, KBP Hit NTC Restrictions On Block Time Agreements

The National Telecommunications Commission’s (NTC) latest memorandum reviewing the block time deals of radio and television stations is out of the agency’s jurisdiction and a and that it is a clear attack on press freedom, experts said on Wednesday, June 29.

“It is a very clear exercise of NTC of a power that it doesn't have. It is an attack on…freedom of the press, freedom of expression, (the) right of people to know,” former Integrated Bar of the Philippines president Domingo Cayosa said over “Agenda” on One News.

Cayosa added the NTC cannot meddle in the affairs of private corporations.

“NTC has the power to regulate, but it cannot interfere into the private affairs of corporations. ‘Yung mga (Those) entities, individuals, corporations have the right to enter into any contract with anyone as long as it does not violate the law,” Cayosa explained. “So, ‘yung pakikialaman mo kung ilang porsyento diyan ang block time at hindi, eh malinaw wala na ‘yan sa kanilang poder eh, wala na sa kanilang regulatory function.”

 Kapisanan ng mga Brodkaster ng Pilipinas (KBP) president Herman Basbaño, meanwhile, said 

“we still have to discuss with the board, but we most likely would seek clarification on the order of the NTC” because there seems to be something wrong in the process.

According to Basbaño, there was supposed to be a scheduled hearing on July 11, so the order appeared to have come out before this took place.

He said the hearing would have given all the stakeholders the chance to be heard.

Basbaño added that block time deals are actually covered by the jurisdiction of the KBP.

“It should be under the KBP and the networks. This concerns content, and I have heard from our general council that there is a Supreme Court ruling that NTC has no jurisdiction over content. So dapat walang ganitong klaseng order (there should not be this kind of order),” the KBP president said.

There are also enough laws to cover the goals of the latest NTC memorandum on block time deals, Basbaño added.

Under Memorandum Order No. 004-06-2022, the NTC asked radio and television broadcasting firms to submit their block time agreements with content producers and providers for approval.

The NTC added that block time agreements should not be more than 50 percent of the daily airtime broadcast of the radio or television station.

Read More: NTC Wants To Review Broadcast Block Time Deals

The order came as ABS-CBN Corp. explored block time deals with other networks for the return of its shows on free TV.

Following its shutdown in 2020 as a House committee junked its franchise renewal application, ABS-CBN was able to strike a deal with Zoe Broadcasting in October of the same year, where some of its shows are now airing through A2Z Channel 11. More shows were able to come back on free TV with ABS-CBN’s deal with TV5, Cignal TV and Brightlight Productions.

In April, the beleaguered media giant partnered with main rival GMA Network, Inc. for the license of some Star Cinema films for airing on GMA7.

Overstepping

The general counsel of the KBP also said the NTC is overstepping its mandate to oversee the technical aspects of broadcasting when it issued the memorandum order.

Rudolph Steve Jularbal, spokesman for the KBP, said the NTC is supposed to regulate only the technical aspects and not the commercial – much more the content side – of broadcasting.

At a virtual interview last Tuesday night, June 28, on “The Chiefs” aired on One News, Jularbal said the KBP was caught by surprise by the NTC’s sudden issuance of the memorandum.

“This memorandum circular comes as a surprise. There has never been an NTC rule or government rule regarding block time,” Jularbal told The Chiefs.

“It’s outside of their mandate because theirs is the technical aspect of the operation – the frequencies, the power, the requirement for engineers, etc. – that’s the technical aspect of operation, and that’s where their mandate comes in,” he said.

The NTC’s surprise move is not a good start for the incoming administration of president-elect Ferdinand Marcos Jr., according to the KBP’s legal counsel.

“I don’t like to speculate on the motivations behind it, but definitely, it’s not a good start for this new administration to come out with something like this right before inauguration because this constitutes prior restraint and (a form) of clamping on the media,” he said.

He stressed that the NTC has no jurisdiction over content of a broadcast station.

There is SC jurisprudence that states that the NTC’s jurisdiction lies only on the technical regulation of broadcast firms’ operations, according to Jularbal.

“The NTC has nothing to do with content as far as broadcasting is concerned,” he said of the SC’s Divinagracia case decision in 2009.

In that decision, the SC said even under existing laws, the NTC’s power to issue certificates of public convenience (CPCs) to broadcast stations did not expressly carry with it the power to cancel such CPCs.

The matter was brought up to the high court by a certain Santiago Divinagracia, who alleged that Consolidated Broadcasting System Inc. (CBS) and People’s Broadcasting Service Inc. (PBS), two of three radio networks that comprise Bombo Radyo Philippines, violated the terms of their congressional franchises when they failed to offer at least 30 percent of their common stocks to the public as required by law and their legislative franchises.

In the ruling, the SC said the NTC is incapacitated to frustrate broadcast franchise’s CPC for reasons other than the orderly administration of the frequencies in the radio spectrum. Thus, the NTC cannot – without clear and proper delegation by Congress – prevent the exercise of a legislative franchise by withholding or canceling the licenses of the franchisee.

“The KBP intends to take this to court if it needs to, to question the legality or the constitutionality of it. Because as far as the KBP is concerned, it smacks of prior restraint,” Jularbal said.

He explained that block time arrangements have been a “historical” practice in the local, if not global, broadcasting industry.

For the KBP’s general counsel, the NTC’s memorandum circular will affect most of the broadcast sector as most resort to the practice to relieve them of the high costs of producing content.

“In some countries, third-party content providers is mandatory to prevent the control of the media, to prevent the network owner from controlling 100 percent of the airtime, so they are mandated to get content from third parties,” he said.

He explained that even without the enforcement of something like a mandated third-party content provision, however, it is the prerogative of the network owner to produce the content himself or to get parties to produce it.

“What is important is that (owners) have control of the operation and management of the station,” Jularbal said.

“A block time arrangement is a business arrangement, and the NTC has nothing to do with a business arrangement, except when it comes in the form of passing on the ownership and control of a franchise or the station,” he added.

‘Pattern of normalizing repression’

University of the Philippines (UP) journalism professor and press freedom advocate Danilo Arao pointed out the “pattern of normalizing repression” with the recent threats against press freedom, such as the blocking of news media sites Bulatlat.com and Pinoy Weekly over their alleged ties with communist groups, as well as the Securities and Exchange Commission’s (SEC) affirmation to shut down Rappler.

Arao also serves as Bulatlat.com’s associate editor.

Read More: SEC Affirms Rappler Shutdown Order – Maria Ressa

“The NTC can always say that there's no reason to panic because it's still a draft memorandum and that there will be consultations, but the bottom line here is that there is already a pattern toward normalizing repression,” he said over “Agenda.”

“They want to say that this is something regular, this is something that government should be doing for the sake of the people, but what we lose here would be more than just simply the convenience of regulation because we don't want the normalization of repression,” he added.

The attacks against press freedom will only stop if media will push back, Arao stressed.

“[T]he attacks should stop and it will only stop not because the government says so, but because we are pushing, we are doing the push back against the powers that be, so we have to continue speaking through to power especially now that we're transitioning to an administration headed by the son of the dictator, so we have to keep that mindset as well,” he said, referring to Marcos Jr.