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352 Phil. 153
EN BANC
[ G.R. No. 132922, April 21, 1998 ]
TELECOMMUNICATIONS AND
BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. AND GMA NETWORK, INC.,
PETITIONERS, VS. THE COMMISSION ON ELECTIONS, RESPONDENT.
D E C I S I O N
MENDOZA, J.:
In Osmeña v.
COMELEC, G.R. No. 132231, decided March 31, 1998,[1] we upheld
the validity of §11(b) of R.A. No. 6646 which prohibits the sale or donation of
print space or air time for political ads, except to the Commission on
Elections under §90, of B.P. No. 881, the Omnibus Election Code, with respect
to print media, and §92, with respect to broadcast media. In the present case, we consider the
validity of §92 of B.P. Blg. No. 881 against claims that the requirement that
radio and television time be given free takes property without due process of
law; that it violates the eminent domain clause of the Constitution which
provides for the payment of just compensation; that it denies broadcast media
the equal protection of the laws; and that, in any event, it violates the terms
of the franchise of petitioner GMA Network, Inc.
Petitioner
Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an
organization of lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers, and
registered voters. The other
petitioner, GMA Network, Inc., operates radio and television broadcasting
stations throughout the Philippines under a franchise granted by Congress.
Petitioners
challenge the validity of §92 on the ground (1) that it takes property without
due process of law and without just compensation; (2) that it denies radio and
television broadcast companies the equal protection of the laws; and (3) that
it is in excess of the power given to the COMELEC to supervise or regulate the
operation of media of communication or information during the period of
election.
The Question of
Standing
At the threshold
of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an
interest as lawyers of radio and television broadcasting companies and as
citizens, taxpayers, and registered voters.
In those cases[2] in which
citizens were authorized to sue, this Court upheld their standing in view of
the “transcendental importance” of the constitutional question raised which
justified the granting of relief. In
contrast, in the case at bar, as will presently be shown, petitioners’
substantive claim is without merit. To
the extent, therefore, that a party’s standing is determined by the substantive
merit of his case or a preliminary estimate thereof, petitioner TELEBAP must be
held to be without standing. Indeed, a
citizen will be allowed to raise a constitutional question only when he can
show that he has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government; the injury is fairly
traceable to the challenged action; and the injury is likely to be redressed by
a favorable action.[3] Members
of petitioner have not shown that they have suffered harm as a result of the
operation of §92 of B.P. Blg. 881.
Nor do members
of petitioner TELEBAP have an interest as registered voters since this case
does not concern their right of suffrage. Their interest in §92 of B.P.
Blg. 881 should be precisely in upholding its validity.
Much less do
they have an interest as taxpayers since this case does not involve the
exercise by Congress of its taxing or spending power.[4] A party
suing as a taxpayer must specifically show that he has a sufficient interest in
preventing the illegal expenditure of money raised by taxation and that he will
sustain a direct injury as a result of the enforcement of the questioned
statute.
Nor indeed as a
corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown
that the party suing has some substantial relation to the third party, or that
the third party cannot assert his constitutional right, or that the right of
the third party will be diluted unless the party in court is allowed to espouse
the third party’s constitutional claim. None of these circumstances is here present. The mere fact that TELEBAP is composed of lawyers in the
broadcast industry does not entitle them to bring this suit in their name as
representatives of the affected companies.
Nevertheless, we
have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional
challenge. Petitioner operates radio
and television broadcast stations in the Philippines affected by the
enforcement of §92 of B.P. Blg. 881 requiring radio and television broadcast
companies to provide free air time to the COMELEC for the use of candidates for
campaign and other political purposes.
Petitioner
claims that it suffered losses running to several million pesos in providing
COMELEC Time in connection with the 1992 presidential election and the 1995
senatorial election and that it stands to suffer even more should it be
required to do so again this year. Petitioner’s allegation that it will suffer losses again because it is
required to provide free air time is sufficient to give it standing to question
the validity of §92.[5]
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner’s
Franchise
As pointed out
in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and §90
and §92 of B.P. Blg. 881 are part and parcel of a regulatory scheme designed to
equalize the opportunity of candidates in an election in regard to the use of mass media for political
campaigns. These statutory provisions
state in relevant parts:
R.A. No. 6646
SEC. 11. Prohibited Forms of
Election Propaganda. - In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
. . . .
(b) for any newspapers, radio
broadcasting or television station, or other mass media, or any person making
use of the mass media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the Commission as provided under Section 90 and
92 of Batas Pambansa Blg. 881. Any mass
media columnist, commentator, announcer or personality who is a candidate for
any elective public office shall take a leave of absence from his work as such
during the campaign period.
B.P. Blg. 881, (Omnibus Election Code)
SEC. 90. Comelec space. - The Commission shall
procure space in at least one newspaper of general circulation in every
province or city: Provided, however,
That in the absence of said newspaper, publication shall be done in any
other magazine or periodical in said province or city, which shall be known as
“Comelec Space” wherein candidates can announce their candidacy. Said space shall be allocated, free of
charge, equally and impartially by the Commission among all candidates within
the area in which the newspaper is circulated. (Sec. 45, 1978 EC).
SEC. 92. Comelec time. - The Commission shall procure radio and
television time to be known as “Comelec Time” which shall be allocated equally
and impartially among the candidates within the area of coverage of all radio
and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are
hereby amended so as to provide radio or television time, free of charge,
during the period of the campaign. (Sec. 46, 1978 EC)
Thus, the law
prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time
for allocation to the candidates. It
will be noted that while §90 of B.P. Blg. 881 requires the COMELEC to procure
print space which, as we have held, should be paid for, §92 states that air
time shall be procured by the COMELEC free of charge.
Petitioners
contend that §92 of BP Blg. 881
violates the due process clause[6] and the
eminent domain provision[7] of the
Constitution by taking air time from radio and television broadcasting stations without payment of just
compensation. Petitioners claim that
the primary source of revenue of the radio and television stations is the sale
of air time to advertisers and that to require these stations to provide free
air time is to authorize a taking which is not “a de minimis temporary
limitation or restraint upon the use of private property.” According to petitioners, in 1992, the GMA
Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour
every morning from Mondays to Fridays and one (1) hour on Tuesdays and
Thursdays from 7:00 to 8:00 p.m. (prime time) and, in this year’s elections, it
stands to lose P58,980,850.00 in view of COMELEC’s requirement that radio and
television stations provide at least 30 minutes of prime time daily for the
COMELEC Time.[8]
Petitioners’
argument is without merit. All broadcasting, whether by radio or by television
stations, is licensed by the government. Airwave frequencies have to be
allocated as there are more individuals who want to broadcast than there are
frequencies to assign.[9] A
franchise is thus a privilege subject, among other things, to amendment by
Congress in accordance with the constitutional provision that “any such
franchise or right granted . . . shall be subject to amendment, alteration or
repeal by the Congress when the common good so requires.”[10]
The idea that
broadcast stations may be required to provide COMELEC Time free of charge is not
new. It goes back to the Election Code
of 1971 (R.A. No. 6388), which provided:
SEC. 49. Regulation of election propaganda through mass media. - (a) The franchises of all radio broadcasting and television stations are hereby amended so as to require each such station to furnish free of charge, upon request of the Commission [on Elections], during the period of sixty days before the election not more than fifteen minutes of prime time once a week which shall be known as “Comelec Time” and which shall be used exclusively by the Commission to disseminate vital election information. Said “Comelec Time” shall be considered as part of the public service time said stations are required to furnish the Government for the dissemination of public information and education under their respective franchises or permits.
This provision
was carried over with slight modification by the 1978 Election Code (P.D. No.
1296), which provided:
SEC. 46. COMELEC Time. - The Commission [on Elections] shall procure radio and television time to be known as “COMELEC Time” which shall be allocated equally and impartially among the candidates within the area of coverage of said radio and television stations. For this purpose, the franchises of all radio broadcasting and television stations are hereby amended so as to require such stations to furnish the Commission radio or television time, free of charge, during the period of the campaign, at least once but not oftener than every other day.
Substantially
the same provision is now embodied in §92 of B.P. Blg. 881.
Indeed,
provisions for COMELEC Time have been made by amendment of the franchises of
radio and television broadcast stations and, until the present case was
brought, such provisions had not been thought of as taking property without
just compensation. Art. XII, §11 of the Constitution authorizes the amendment
of franchises for “the common good.” What better measure can be conceived for the common good than one for
free air time for the benefit not only of candidates but even more of the
public, particularly the voters, so that they will be fully informed of the
issues in an election? “[I]t is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount.”[11]
Nor indeed can
there be any constitutional objection to the requirement that broadcast
stations give free air time. Even in
the United States, there are responsible scholars who believe that government
controls on broadcast media can constitutionally be instituted to ensure
diversity of views and attention to public affairs to further the system of
free expression. For this purpose,
broadcast stations may be required to give free air time to candidates in an
election.[12] Thus,
Professor Cass R. Sunstein of the University of Chicago Law School, in urging
reforms in regulations affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most important, government should ensure free media time for candidates. Almost all European nations make such provision; the United States does not. Perhaps government should pay for such time on its own. Perhaps broadcasters should have to offer it as a condition for receiving a license. Perhaps a commitment to provide free time would count in favor of the grant of a license in the first instance. Steps of this sort would simultaneously promote attention to public affairs and greater diversity of view. They would also help overcome the distorting effects of “soundbites” and the corrosive financial pressures faced by candidates in seeking time on the media.[13]
In truth, radio
and television broadcasting companies, which are given franchises, do not own
the airwaves and frequencies through which they transmit broadcast signals and
images. They are merely given the
temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the grantee of some form of
public service. Thus, in De Villata
v. Stanley,[14] a
regulation requiring interisland vessels licensed to engage in the interisland
trade to carry mail and, for this purpose, to give advance notice to postal
authorities of date and hour of sailings of vessels and of changes of sailing
hours to enable them to tender mail for transportation at the last practicable
hour prior to the vessel’s departure, was held to be a reasonable condition for
the state grant of license. Although
the question of compensation for the carriage of mail was not in issue, the
Court strongly implied that such service could be without compensation, as in
fact under Spanish sovereignty the mail was carried free. [15]
In Philippine
Long Distance Telephone Company v. NTC,[16] the Court
ordered the PLDT to allow the interconnection of its domestic telephone system
with the international gateway facility of Eastern Telecom. The Court cited (1) the provisions of the
legislative franchise allowing such interconnection; (2) the absence of any
physical, technical, or economic basis for restricting the linking up of two
separate telephone systems; and (3) the possibility of increase in the volume
of international traffic and more efficient service, at more moderate cost, as
a result of interconnection.
Similarly, in
the earlier case of PLDT v. NTC,[17] it was
held:
Such regulation of the use and ownership of telecommunications systems is in the exercise of the plenary police power of the State for the promotion of the general welfare. The 1987 Constitution recognizes the existence of that power when it provides:
“Sec. 6. The use of property bears a social function, and all economic
agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives,
and similar collective organizations, shall have the right to own, establish,
and operate economic enterprises, subject to the duty of the State to promote
distributive justice and to intervene when the common good so demands” (Article
XII).
The interconnection which has been required of PLDT is a form of “intervention” with property rights dictated by “the objective of government to promote the rapid expansion of telecommunications services in all areas of the Philippines, . . . to maximize the use of telecommunications facilities available, . . . in recognition of the vital role of communications in nation building . . . and to ensure that all users of the public telecommunications service have access to all other users of the service wherever they may be within the Philippines at an acceptable standard of service and at reasonable cost” (DOTC Circular No. 90-248). Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory agency of the State, merely exercised its delegated authority to regulate the use of telecommunications networks when it decreed interconnection.
In the granting
of the privilege to operate broadcast stations and thereafter supervising radio
and television stations, the state spends considerable public funds in
licensing and supervising such stations.[18] It would
be strange if it cannot even require the licensees to render public service by
giving free air time.
Considerable
effort is made in the dissent of Mr. Justice Panganiban to show that the
production of television programs involves large expenditure and requires the
use of equipment for which huge investments have to be made. The dissent cites the claim of GMA Network
that the grant of free air time to the COMELEC for the duration of the 1998
campaign period would cost the company P52,380,000, representing revenue it
would otherwise earn if the air time were sold to advertisers, and the amount
of P6,600,850, representing the cost of producing a program for the COMELEC
Time, or the total amount of P58,980,850.
The claim that
petitioner would be losing P52,380,000 in unrealized revenue from advertising
is based on the assumption that air time is “finished product” which, it is
said, become the property of the company, like oil produced from refining or
similar natural resources after undergoing a process for their production. But air time is not owned by broadcast
companies. As held in Red Lion Broadcasting Co. v. F.C.C.,[19] which
upheld the right of a party personally attacked to reply, “licenses to
broadcast do not confer ownership of designated frequencies, but only the
temporary privilege of using them.” Consequently, “a license permits broadcasting, but the licensee has no
constitutional right to be the one who holds the license or to monopolize a
radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment
which prevents the Government from requiring a licensee to share his frequency
with others and to conduct himself as a proxy or fiduciary with obligations to
present those views and voices which are representative of his community and
which would otherwise, by necessity, be barred from the airwaves.”[20] As radio
and television broadcast stations do not own the airwaves, no private property
is taken by the requirement that they provide air time to the COMELEC.
Justice
Panganiban’s dissent quotes from Tolentino on the Civil Code which says
that “the air lanes themselves ‘are not property because they cannot be
appropriated for the benefit of any individual.’” (p.5) That means neither the State nor the
stations own the air lanes. Yet the
dissent also says that “The franchise holders can recover their huge
investments only by selling air time to advertisers.” (p. 13) If air lanes
cannot be appropriated, how can they be used to produce air time which the
franchise holders can sell to recover their investment? There is a contradiction here.
As to the
additional amount of P6,600,850, it is claimed that this is the cost of
producing a program and it is for such items as “sets and props,” “video
tapes,” “miscellaneous (other rental, supplies, transportation, etc.),” and
“technical facilities (technical crew such as director and cameraman as well as
‘on air plugs’).” There is no basis
for this claim. Expenses for these
items will be for the account of the candidates. COMELEC Resolution No. 2983,
§6(d) specifically provides in this connection:
(d) Additional services such as tape-recording or video-taping of programs, the preparation of visual aids, terms and condition thereof, and the consideration to be paid therefor may be arranged by the candidates with the radio/television station concerned. However, no radio/television station shall make any discrimination among candidates relative to charges, terms, practices or facilities for in connection with the services rendered.
It is unfortunate
that in the effort to show that there is taking of private property worth
millions of pesos, the unsubstantiated charge is made that by its decision the
Court permits the “grand larceny of precious time,” and allows itself to become
“the people’s unwitting oppressor.” The
charge is really unfortunate. In Jackman v. Rosenbaum Co.,[21] Justice
Holmes was so incensed by the resistance of property owners to the erection of
party walls that he was led to say in his original draft, “a statute, which embodies the community’s
understanding of the reciprocal rights and duties of neighboring landowners,
does not need to invoke the petty larceny of the police power in its
justification.” Holmes’s brethren
corrected his taste, and Holmes had to amend the passage so that in the end it
spoke only of invoking “the police power.”[22] Justice
Holmes spoke of the “petty larceny” of the police power. Now we are being told of the “grand larceny
[by means of the police power] of precious air time.”
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners
claim that §92 is an invalid amendment
of R.A. No. 7252 which granted GMA Network, Inc. a franchise for the operation
of radio and television broadcasting stations. They argue that although §5 of R.A. No. 7252 gives the government the
power to temporarily use and operate the stations of petitioner GMA Network or
to authorize such use and operation, the exercise of this right must be
compensated.
The cited
provision of R.A. No. 7252 states:
SEC. 5. Right of Government. - A special right is hereby reserved
to the President of the Philippines, in times of rebellion, public peril,
calamity, emergency, disaster or disturbance of peace and order, to temporarily
take over and operate the stations of the grantee, to temporarily suspend the
operation of any station in the interest of public safety, security and public
welfare, or to authorize the temporary use and operation thereof by any agency
of the Government, upon due compensation to the grantee, for the use of said
stations during the period when they shall be so operated.
The basic flaw
in petitioner’s argument is that it assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of the GMA Network, Inc. This
is not so. Under §92 of B.P. Blg. 881,
the COMELEC does not take over the operation of radio and television stations
but only the allocation of air time to the candidates for the purpose of
ensuring, among other things, equal opportunity, time, and the right to reply
as mandated by the Constitution.[23]
Indeed, it is
wrong to claim an amendment of petitioner’s franchise for the reason that B.P.
Blg. 881, which is said to have amended R.A. No. 7252, actually antedated it.[24] The
provision of §92 of B.P. Blg. 881 must be deemed instead to be incorporated in
R.A. No. 7252. And, indeed, §4 of the
latter statute does.
For the fact is
that the duty imposed on the GMA Network, Inc. by its franchise to render
“adequate public service time” implements §92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the
government to communicate with the people on matters of public interest. Thus, R.A. No. 7252 provides:
SEC. 4. Responsibility to the Public. - The grantee shall provide adequate public service time to enable the Government, through the said broadcasting stations, to reach the population on important public issues; provide at all times sound and balanced programming; promote public participation such as in community programming; assist in the functions of public information and education; conform to the ethics of honest enterprise; and not use its station for the broadcasting of obscene and indecent language, speech, act or scene, or for the dissemination of deliberately false information or willful misrepresentation, or to the detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable acts. (Emphasis added)
It is noteworthy
that §49 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken, expressly
provided that the COMELEC Time should “be considered as part of the public
service time said stations are required to furnish the Government for the
dissemination of public information and education under their respective
franchises or permits.” There is no
reason to suppose that §92 of B.P. Blg. 881 considers the COMELEC Time therein
provided to be otherwise than as a public service which petitioner is required
to render under §4 of its charter (R.A. No. 7252). In sum, B.P. Blg. 881, §92 is not an invalid amendment of
petitioner’s franchise but the enforcement of a duty voluntarily assumed by
petitioner in accepting a public grant of privilege.
Thus far, we
have confined the discussion to the provision of §92 of B.P. Blg. 881 for free
air time without taking into account COMELEC Resolution No. 2983-A, §2 of which
states:
SEC. 2. Grant of “Comelec Time.” - Every radio broadcasting and television station operating under franchise shall grant the Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily, to be known as “Comelec Time”, effective February 10, 1998 for candidates for President, Vice-President and Senators, and effective March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasis added)
This is because the amendment providing for the payment of “just
compensation” is invalid, being in contravention of §92 of B.P. Blg. 881 that
radio and television time given during the period of the campaign shall be
“free of charge.” Indeed, Resolution
No. 2983 originally provided that the time allocated shall be “free of charge,”
just as §92 requires such time to be given “free of charge.” The amendment appears to be a reaction to
petitioners’ claim in this case that the original provision was
unconstitutional because it allegedly authorized the taking of property without
just compensation.
The Solicitor
General, relying on the amendment, claims that there should be no more dispute
because the payment of compensation is now provided for. It is basic, however, that an administrative
agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since §2 of Resolution No. 2983-A is
invalid, it cannot be invoked by the parties.
Law Allows Flextime for
Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed
that there is no standard in the law to guide the COMELEC in procuring free air
time and that “theoretically the COMELEC can demand all of the air time of such
stations.”[25]
Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily
sequesters radio and television time. What they claim is that because of the breadth of the statutory
language, the provision in question is susceptible of “unbridled, arbitrary and
oppressive exercise.”[26]
The contention
has no basis. For one, the COMELEC is
required to procure free air time for candidates “within the area of coverage”
of a particular radio or television broadcaster so that it cannot, for example,
procure such time for candidates outside that area. At what time of the day and how much time the COMELEC may procure
will have to be determined by it in relation to the overall objective of
informing the public about the candidates, their qualifications and their programs
of government. As stated in Osmeña
v. COMELEC, the COMELEC Time provided for in §92, as well as the COMELEC
Space provided for in §90, is in lieu of paid ads which candidates are
prohibited to have under §11(b) of R.A. No. 6646. Accordingly, this objective must be kept in mind in determining
the details of the COMELEC Time as well as those of the COMELEC Space.
There would
indeed be objection to the grant of power to the COMELEC if §92 were so
detailed as to leave no room for accommodation of the demands of radio and
television programming. For were that the case, there could be an intrusion
into the editorial prerogatives of radio and television stations.
Differential Treatment of
Broadcast Media Justified
Petitioners
complain that B.P. Blg. 881, §92 singles out radio and television stations to
provide free air time. They contend
that newspapers and magazines are not similarly required as, in fact, in Philippine
Press Institute v. COMELEC[27] we upheld
their right to the payment of just compensation for the print space they may
provide under §90.
The argument
will not bear analysis. It rests on the
fallacy that broadcast media are entitled to the same treatment under the free
speech guarantee of the Constitution as the print media. There are important differences in the
characteristics of the two media, however, which justify their differential
treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum, the
government must, of necessity, allocate broadcast frequencies to those wishing
to use them. There is no similar
justification for government allocation and regulation of the print media.[28]
In the
allocation of limited resources, relevant conditions may validly be imposed on the
grantees or licensees. The reason for this is that, as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not do in
the case of the print media. To require
the radio and television broadcast industry to provide free air time for the
COMELEC Time is a fair exchange for what the industry gets.
From another point of view, this Court has
also held that because of the unique and pervasive influence of the broadcast
media, “[n]ecessarily . . . the freedom of television and radio broadcasting is
somewhat lesser in scope than the freedom accorded to newspaper and print
media.”[29]
The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate, analyze, and reject the utterance.[30]
Petitioners’
assertion therefore that §92 of B.P. Blg. 881 denies them the equal protection
of the law has no basis. In addition,
their plea that §92 (free air time) and §11(b) of R.A. No. 6646 (ban on paid
political ads) should be invalidated would pave the way for a return to the old
regime where moneyed candidates could monopolize media advertising to the
disadvantage of candidates with less resources. That is what Congress tried to reform in 1987 with the enactment
of R.A. No. 6646. We are not free to
set aside the judgment of Congress, especially in light of the recent failure
of interested parties to have the law repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
State’s Power to Regulate
Use of Franchises
Finally, it is
argued that the power to supervise or regulate given to the COMELEC under Art.
IX-C, §4 of the Constitution does not include the power to prohibit. In the first place, what the COMELEC is
authorized to supervise or regulate by Art. IX-C, §4 of the Constitution,[31] among
other things, is the use by media of information of their franchises or
permits, while what Congress (not the COMELEC) prohibits is the sale or
donation of print space or air time for political ads. In other words, the object of supervision or
regulation is different from the object of the prohibition. It is another fallacy for petitioners to contend that the power to regulate does
not include the power to prohibit. This
may have force if the object of the power were the same.
In the second
place, the prohibition in §11(b) of R.A. No. 6646 is only half of the
regulatory provision in the statute. The other half is the mandate to the COMELEC to procure print space and
air time for allocation to candidates. As we said in Osmeña v. COMELEC:
The term political “ad ban,” when used to describe §11(b) of R.A. No. 6646, is misleading, for even as §11(b) prohibits the sale or donation of print space and air time to political candidates, it mandates the COMELEC to procure and itself allocate to the candidates space and time in the media. There is no suppression of political ads but only a regulation of the time and manner of advertising.
. . . .
. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise freely in the mass media, the law provides for allocation, by the COMELEC of print space and air time to give all candidates equal time and space for the purpose of ensuring “free, orderly, honest, peaceful, and credible elections.”
With the
prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise
their qualifications and programs of government. More than merely depriving candidates of time for their ads, the
failure of broadcast stations to provide air time unless paid by the government
would clearly deprive the people of their right to know. Art. III, §7 of the Constitution provides
that “the right of the people to information on matters of public concern shall
be recognized,” while Art. XII, §6 states that “the use of property bears a
social function [and] the right to own, establish, and operate economic
enterprises [is] subject to the duty of the State to promote distributive
justice and to intervene when the common good so demands.”
To affirm the
validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their
obligation to see to it that the variety and vigor of public debate on issues
in an election is maintained. For while
broadcast media are not mere common carriers but entities with free speech rights, they are also public trustees
charged with the duty of ensuring that the people have access to the diversity
of views on political issues. This
right of the people is paramount to the autonomy of broadcast media. To affirm the validity of §92, therefore, is
likewise to uphold the people’s right to information on matters of public
concern. The use of property bears a social function and is subject to the
state’s duty to intervene for the common good. Broadcast media can find their
just and highest reward in the fact that whatever altruistic service they may
render in connection with the holding of elections is for that common good.
For the
foregoing reasons, the petition is dismissed.
SO ORDERED.
Romero, Panganiban, and Purisima, JJ., dissent.
Vitug, J., has separate opinion.
[1] Reiterated in Kapisanan ng mga Broadkaster sa
Pilipinas (Negros Occidental Chapter) v. COMELEC, (res.), G.R. No.
132749, April 2, 1998.
[2] Emergency Powers Cases [Araneta v. Dinglasan], 84
Phil. 368 (1949), Iloilo Palay and Corn Planters Ass’n v. Feliciano, 121 Phil.
358 (1965); Philconsa v. Gimenez, 122 Phil. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317 (1991).
[3] Lawyers League for a Better Philippines v. Aquino,
G.R. Nos. 73748, 73972 and 73990, May 22, 1986; In re Bermudez, 145 SCRA 160
(1986); Tatad v. Garcia, Jr., 243 SCRA 436, 473 (1995) (Mendoza, J.,
concurring).
[4] Const., Art. VI, §§24-25 and 29.
[5] In Valmonte v. Philippine Charity Sweepstakes
Office, (res.), G.R. No. 78716, Sept. 22, 1987, we held that the party
bringing a suit challenging the constitutionality of a law must show “not only
that the law is invalid, but also that he has sustained or is in immediate
danger of sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must appear that the person complaining
has been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute complained of.” (Emphasis added)
[6] Art. III, §1 provides: “No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection
of the laws.”
[7] Id., §9
provides: “Private Property shall not be taken for public use without just
compensation.”
[8] Memorandum for Petitioners, pp. 21-28.
[9] Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137
SCRA 628 (1985); Red Lion Broadcasting Corp. Co. v. FCC, 395 U.S. 367, 23
L.Ed2d 371 (1969). See The Radio Act (Act No. 3846, as amended), §3(c) & (d).
[10] Art. XII, §11.
[11] Red Lion Broadcasting Corp. v. FCC, 395 U.S. at 390,
23 L.Ed.2d at 389.
[12] E.g., Owen
M. Fiss, The Irony of Free Speech 2-3 (1996) (“Surely the state can be an
oppressor, but it may also be a source of freedom. . . . In some
instances, instrumentalities of the state will try to stifle free and open
debate, and the First Amendment is the tried-and-true mechanism that stops or
prevents such abuse of state power. In
other instances, however, the state may have to further the robustness of
public debate. . . . It may have to allocate public resources. . . to those whose voices would not otherwise be
heard in the public square.”); Cass R.
Sunstein, Democracy and the Problem of Free Speech 50-51 (1993) (“The idea that
threats to speech stem from the government is undoubtedly correct, but as
usually understood, it is far too simple. Sometimes threats come from what seems to be the private sphere, and,
much more fundamentally, these threats could not be made without legal
entitlements that enable some private actors but not others to speak and to be
heard. . . . [Government regulation] may therefore be necessary.”)
[13] Cass R. Sunstein, id. at 85 (emphasis added).
[14] 32 Phil. 541 (1915).
[15] The Court said:
Considerable expenditures of public money have been made in
the past and continue to be made annually for the purpose of securing the
safety of vessels plying in Philippine waters. [Here the Court enumerated many government facilities to make the
coastwise transportation safe.] Can it be fairly contended that a regulation is
unreasonable which requires vessels licensed to engage in the interisland
trade, in whose behalf the public funds are so lavishly expended, to hold
themselves in readiness to carry the public mails when duly tendered for
transportation, and to give such reasonable notice of their sailing hours as
will insure the prompt dispatch of all mails ready for delivery at the hours
thus designated? Id., at 552.
[16] 241 SCRA 486 (1995).
[17] 190 SCRA 717, 734 (1990) (italics by the Court).
[18] For example, under the Radio Act (Act No. 3846, as
amended), the government performs, inter alia, the following functions:
SEC. 3. The Secretary of Public Works and
Communications is hereby empowered, to regulate the construction or manufacture,
possession, control, sale and transfer of radio transmitters or transceivers
(combination transmitter-receiver) and the establishment, use, the operation of
all radio stations and of all form of radio communications and transmissions
within the Philippines. In addition to
the above he shall have the following specific powers and duties:
. . .
(c) He shall assign call letters and assign
frequencies for each station licensed by him and for each station established
by virtue of a franchise granted by the Congress of the Philippines and specify
the stations to which each of such frequencies may be used;
(d) He shall promulgate rules and regulations to
prevent and eliminate interference between stations and carry out the
provisions of this Act and the provisions of the International Radio
Regulations: Provided, however,
That changes in the frequencies or in the authorized power, or in the character
of emitted signals, or in the type of the power supply, or in the hours of
operations of any licensed stations, shall not be made without first giving the
station licensee a hearing.
[19] 395 U.S. at 394, 23 L.Ed.2d at 391, quoting 47
U.S.C. §301.
[20] 395 U.S. at 389, 23 L.Ed.2d at 388-389.
[21] 260 U.S. 22, 67 L.Ed. 107 (1922).
[22] 260 U.S. at 31, 67 L.Ed. at 112. 1 Holmes-Laski
Letters 457 (1953), quoted in P. Freund, A. Sutherland, M. Howe and E.
Brown, Constitutional Law, Cases and Other Problems 1095 (1978).
[23] Art. IX-C, §4.
[24] B.P. Blg. 881 took effect on Dec. 3, 1985, whereas R.A.
No. 7252 took effect on March 20, 1992.
[25] Memorandum for Petitioners, p. 17.
[26] Ibid.
[27] 244 SCRA 272 (1995).
[28] In the United States, because of recognition of these
differences in the characteristics of news media, it has been held that
broadcast stations may be required to give persons subjected to personal attack
during discussion of an important public issue the right to reply (Red Lion
Broadcasting Corp. v. FCC, 395 U.S. 367, 23 L.Ed.2d 371 (1969)), but a similar “right of reply” is
inapplicable to newspapers. It was
pointed out that a statute providing for such right “operates as a command in
the same sense as a statute or regulation forbidding [the newspaper] to publish
specified matter. . . . [It] exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty [is] exacted
in terms of the cost in printing and in taking up space that could be devoted
to other material the newspaper may have preferred to print. . . . [Faced with
such a penalty,] editors might well conclude that the safe course is to
avoid controversy. . . . [Thus, the
government-enforced] right of access inescapably ‘dampens the vigor and limits
the variety of public debate.’” (Miami
Herald Pub. Co. v. Tornillo, 418 U.S. 241, 4 L.Ed.2d 730 (1974))
[29] Eastern Broadcasting (DYRE) Corporation v. Dans, Jr., 137 SCRA at 635.
[30] Id. at
635-636.
[31] This provision reads: “The Commission may, during the
election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.”
DISSENTING OPINION
PANGANIBAN, J.:
At issue in this
case is the constitutionality of Section 92 of the Omnibus Election Code[1] which
compels all broadcast stations in the country “to provide radio and television
time, free of charge, during the period of the [election] campaigns,”
which the Commission on Elections shall allocate “equally and impartially among
the candidates x x x.” Petitioners contend, and I agree, that this legal provision is
unconstitutional because it confiscates private property without due process of
law and without payment of just compensation, and denies broadcast media equal
protection of the law.
In Philippine
Press Institute, Inc. (PPI) vs. Commission on Elections,[2] this
Court ruled that print media companies cannot be required to donate
advertising space, free of charge, to the Comelec for equal allocation
among candidates, on the ground that such compulsory seizure of print space is
equivalent to a proscribed taking of private property for public use without
payment of just compensation.[3]
The Court’s
majority in the present case, speaking through the distinguished Mr. Justice
Vicente V. Mendoza, holds, however, that the foregoing PPI doctrine
applies only to print media, not to broadcast (radio and TV) networks,
arguing that “radio and television broadcasting companies, which are given
franchises, do not own the airwaves and frequencies through which they transmit
broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the performance by the grantee of
some form of public service.” In other
words, the majority theorizes that the forced donation of air time to the Comelec
is a means by which the State gets compensation for the grant of the franchise
and/or the use of the air lanes.
With all due
respect, I disagree. The majority is
relying on a theoretical distinction that does not make any real difference. Theory must yield to reality. I respectfully submit the following
arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises and regulates their proper use. Thus, other than collecting supervision or regulatory fees which it already does, it cannot exact any onerous and unreasonable post facto burdens from the franchise holders, without due process and just compensation. Moreover, the invocation of the “common good” does not excuse the unbridled and clearly excessive taking of a franchisee’s property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay rental fees to the government for their use. Hence, the seizure of air time cannot be justified by the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owners’ humongous investments amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence, a forced donation of broadcast time is in actual fact a taking of such investments without due process and without payment of just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes;
It Merely
Regulates Their Proper Use;
“Common Good” Does Not Excuse Unbridled
Taking.
Significantly,
the majority does not claim that the State owns the air lanes. It merely contends that “broadcasting,
whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there
are more individuals who want to broadcast than there are frequencies to
assign. A franchise is thus a privilege
subject among other things x x x to amendment, alteration or repeal by the
Congress when the common good so requires.”[4] True
enough, a “franchise started out as a ‘royal privilege or [a] branch of the
King’s prerogative, subsisting in the hands of a subject.’”[5]
Indeed, while
the Constitution expressly provides that “[a]ll lands of the public domain,
waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State,” it is silent as to the
ownership of the airwaves and frequencies. It is then reasonable to say that no one owns them. Like the air we breathe and the sunshine
that sustains life, the air lanes themselves “are not property because they
cannot be appropriated for the benefit of any individual,”[6] but are
to be used to the best advantage of all.
Because, as
mentioned earlier, there are more prospective users than frequencies, the State
– in the exercise of its police power -- allocates, supervises and regulates
their use, so as to derive maximum benefit for the general public. The franchise granted by the legislature to
broadcasting companies is essentially for the purpose of putting order in the
use of the airwaves by assigning to such companies their respective
frequencies. The purpose is not to
grant them the privilege of using public property. For, as earlier stated, airwaves are not owned by the
government.
Accordingly, the
National Telecommunications Commission (NTC) was tasked by law to
institutionalize this regulation of the air lanes. To cover the administrative cost of supervision and regulation,
the NTC levies charges, which have been revised upwards in NTC Memorandum
Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA Network, Inc., for the
year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC
“supervision and regulation fee,” as borne out by its Audited Consolidated
Financial Statements for said year, on file with the Securities and Exchange
Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately
compensated by the broadcast media through the payment of fees unilaterally set
by the former.
Franchisee’s Property Cannot
Be Taken Without
Just Compensation
In stamping
unbridled donations with its imprimatur, the majority overlooks the twofold
nature and purpose of a franchise: other than serving the public benefit which
is subject to government regulation, it must also be to the franchise holder’s
advantage. Once granted, a franchise
(not the air lanes) together with concomitant private rights, becomes property
of the grantee.[7] It is
regarded by law precisely as other property and, as any other property, it is
safeguarded by the Constitution from arbitrary revocation or impairment.[8] The
rights under a franchise can be neither taken nor curtailed for public use or
purpose, even by the government as the grantor, without payment of just
compensation[9] as
guaranteed under our fundamental law.[10] The fact
that the franchise relates to public use or purpose does not entitle the state
to abrogate or impair its use without just compensation.[11]
The majority
further claims that, constitutionally,[12]
franchises are always subject to alteration by Congress, “when the common good
so requires.” The question then boils
down to this: Does Section 92 of the
Omnibus Election Code constitute a franchise modification for the “common good,” or an “unlawful taking of private property”? To answer
this question, I go back to Philippine Press Institute, Inc. vs. Commission
on Elections, where a unanimous Supreme Court held:[13]
“To compel print media companies to donate ‘Comelec space’ of the dimensions specified in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to ‘taking’ of private personal property for public use or purposes. Section 2 failed to specify the intended frequency of such compulsory ‘donation:’ only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as often as Comelec may direct during the same period? The extent of the taking or deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or restraint upon the use of private property. The monetary value of the compulsory ‘donation,’ measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas, may be very substantial indeed.” (Emphasis in original)
“Common Good”
Does Not Justify Unbridled
Taking of
Franchisee’s Broadcast Time
Like the
questioned resolution in PPI, Section 92 contains no limit as
to the amount and recurrence of the “donation” of air time that Comelec can
demand from radio and TV stations. There
are no guidelines or standards provided as to the choice of stations, time and frequency
of airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of a
station. The fact that Comelec has not
exercised its granted power arbitrarily is immaterial because the law, as
worded, admits of unbridled
exercise.
“A statute is considered void for overbreadth when ‘it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”[14]
“In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a legislation of its character is fatal. Where, as in the case of the above paragraphs, the majority of the Court could discern ‘an overbreadth that makes possible oppressive or capricious application’ of the statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. Such provisions offend the constitutional principle that ‘a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’
“It is undeniable, therefore, that even though the governmental purpose be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. For precision of regulation is the touchstone in an area so closely related to our most precious freedoms.”[15]
As a rule, a
statute may be said to be vague and invalid if “it leaves law enforcers (in
this case, the Comelec) unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the government muscle.”[16]
Moreover, the
extent of the actual taking of air time is enormous, exorbitant and
unreasonable. In their Memorandum,[17] petitioners
allege (and this has not been rebutted at all) that during the 1992 election period, GMA Network has been
compelled to donate P22,498,560 worth of advertising revenues; and for
the current election period, GMA stands to lose a staggering P58,980,850. Now, clearly and most obviously, these
amounts are not inconsequential or de minimis. They constitute arbitrary taking on a grand scale!
American
jurisprudence is replete with citations showing that “[l]egislative regulation
of public utilities must not have the effect of depriving an owner of his
property without due process of law, nor of confiscating or appropriating
private property without due process of law, nor of confiscating or
appropriating private property without just compensation, nor of limiting or
prescribing irrevocably vested rights or privileges lawfully acquired under a charter or franchise.” The power to regulate is subject to these
constitutional limits.[18]
Consequently, “rights under a franchise cannot be taken or damaged for a public
use without the making of just compensation therefor.”[19] To do so
is clearly beyond the power of the
legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental
Therefor.
Let me grant for
the moment and for the sake of argument that the State owns the air lanes and
that, by its grant of a franchise, it should thus receive compensation for the
use of said frequencies. I say,
however, that by remitting unreasonably high “annual fees and charges,” which
as earlier stated amounts to millions of pesos yearly, television stations are
in effect paying rental fees for the use (not just the regulation) of said
frequencies. Except for the annual
inspection conducted by the NTC, no other significant service is performed by
the government in exchange for the enormous fees charged the stations. Evidently, the sums collected by the NTC
exceed the cost of services performed by it, and are therefore more properly
understood as rental fees for the use of the frequencies granted them.[20]
Since the use of
the air frequencies is already paid for annually by the broadcast entities,
there is no basis for the government, through the Comelec, to compel unbridled
donation of the air time of said companies without due process and without
payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier --
like oil, minerals and coal -- once the license to exploit and develop them is
granted to a private corporation, the government can no longer arbitrarily confiscate or appropriate them gratis under the guise of serving the
common good. Crude oil, for instance,
once explored, drilled, and refined is thereafter considered the property of
the authorized explorer (or refiner) which can sell it to the public and even
to the government itself. The State
simply cannot demand free gasoline for the operation of public facilities even
if they benefit the people in general. It still has to pay compensation therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and
operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee’s use of a state-granted
franchise or privilege which occasions its acquisition of private property in
the form of broadcast facilities and its production of air time. These properties are distinct from its
franchise.[21] The 1996
Audited Consolidated Balance Sheet of Petitioner GMA, on file with the SEC,
shows that its “property and equipment,” which it uses in its broadcast
function, amount to over one billion pesos or, to be exact, P1,245,741,487.[22] This does
not include the cost of producing the programs to be broadcast, talent fees and
other aspects of broadcasting. In their
Memorandum,[23]
petitioners explain that the total cost for GMA to stay on the air (for
television) at present is approximately P136,100 per hour, which
includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The
point is: The franchise holders can
recover their huge investments only by selling air time to advertisers. This is their “product,” their valuable
property which Section 92 forcibly takes from them in massive amounts without
payment of just compensation.
It is too
simplistic to say that because the Constitution allows Congress to alter
franchises, ergo, an unbridled taking of private property may be
allowed. If such appropriation were
only, to use the words of PPI vs. Comelec, de minimis or
insignificant -- say, one hour once or twice a month – perhaps, it can be
justified by the promotion of the “common good.” But a taking in the gargantuan amount of over P58 million
from Petitioner GMA for the 1998 election season alone is an actual seizure of
its private investment, and not at all a reasonable “compensation” or
“alteration” for the “common good.” Certainly, this partakes of CONFISCATION of private property.
What makes the
taking of air time even more odious is its ex post facto nature. When the broadcast companies acquired their
franchises and set up their expensive facilities, they were not informed of the
immensity of the donations they are now compelled to give.
Note should be
made, too, of the fact that what Section 92 takes away is air time. Air time is the “finished product” after a
station uses its own broadcast facilities. The frequency is just the specific “route” or “channel” by which this
medium reaches the TV sets of the general public. Technically, therefore, the wholesale alteration by Section 92 of
all broadcast franchises would appear unrelated to the compelled
donations. While the express
modification is in the franchise, what Section 92 really does is that it takes
away the end product of the facilities which were set up through the use of the
entrepreneurs’ investments and the broadcasters’ work.
EPILOGUE
By way of
epilogue, I must point out that even Respondent Comelec expressly recognizes
the need for just compensation. Thus,
Section 2 of its Resolution No. 2983-A states that “[e]very radio broadcasting
and television station operating under franchise shall grant the Commission, upon
payment of just compensation, at least thirty (30) minutes of prime time
daily to be known as ‘Comelec Time’ x x x.” And yet, even with such a judicious legal position taken by the very
agency tasked by the Constitution to administer elections, the majority still
insists on an arbitrary seizure of precious property produced and owned by
private enterprise.
That Petitioner
GMA is a viable, even profitable, enterprise[24] is no
argument for seizing its profits. The
State cannot rob the rich to feed the poor in the guise of promoting the
“common good.” Truly, the end never
justifies the means.
It cannot be
denied that the amount and the extent of the air time demanded from GMA is huge
and exorbitant, amounting, I repeat, to over P58 million for the 1998
election season alone. If the air time
required from “every radio and television station” in the country in the
magnitude stated in the aforesaid Comelec Resolution 2983-A is added up and
costed, the total would indeed be staggering -- in several hundred million
pesos.
Smacking of
undisguised discrimination is the fact that in PPI vs. Comelec, this
Court has required payment of print media ads but, in this case, compels
broadcast stations to donate their end product on a massive scale. The simplistic distinction given -- that
radio and TV stations are mere grantees of government franchises while
newspaper companies are not -- does not justify the grand larceny of precious
air time. This is a violation not only of
private property, but also of the constitutional right to equal protection
itself. The proffered distinction
between print and broadcast media is too insignificant and too flimsy to be a
valid justification for the discrimination. The print and broadcast media are equal in the sense that both derive
their revenues principally from paid ads. They should thus be treated equally by the law in respect of such ads.
To sum up, the Bill of Rights of our
Constitution expressly guarantees the following rights:
1. No person, whether rich or poor, shall be deprived of property without due process.[25]
2. Such property shall not be taken by the government, even for the use of the general public, without first paying just compensation to the owner.[26]
3. No one, regardless of social or financial status, shall be denied equal protection of the law.[27]
The majority,
however, peremptorily brushes aside all these sacred guarantees and prefers to
rely on the nebulous legal theory that broadcast stations are mere recipients
of state-granted franchises which can be altered or withdrawn anytime or
otherwise burdened with post facto elephantine yokes. By this short-circuited rationalization, the
majority blithely ignores the private entrepreneurs’ billion-peso investments
and the broadcast professionals’ grit and toil in transforming these invisible
franchises into merchandisable property; and conveniently forgets the grim
reality that the taking of honestly earned media assets is unbridled,
exorbitant and arbitrary. Worse, the
government,[28] against
which these constitutional rights to property were in the first place written,
prudently agrees to respect them and to pay adequate compensation for their
taking. But ironically, the majority
rejects the exemplary observance by the government of the people’s rights and
insists on the confiscation of their private property.
I have always
believed that the Supreme Court is the ever vigilant guardian of the
constitutional rights of the citizens and their ultimate protector against the tyrannies of their own government. I am afraid that by this unfortunate
Decision, the majority, in this instance, has instead converted this honorable
and majestic Court into the people’s unwitting oppressor.
WHEREFORE, I vote to GRANT the
petition and to declare Section 92 of the Omnibus Election Code UNCONSTITUTIONAL
and VOID.
[1] § 92 of BP Blg. 881 (Omnibus Election Code) provides:
“Sec. 92. Comelec
time. -- The Commission shall procure radio and television time to be known
as “Comelec Time” which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television
stations. For this purpose, the
franchise of all radio broadcasting and television stations are hereby amended
so as to provide radio or television time, free of charge, during the period of
the campaign.”
[2] 244 SCRA 272, May 22, 1995, per Feliciano, J.
[3] § 9, Art. III of the Constitution provides:
“Sec. 9. Private property shall not be taken for
public use without just compensation.”
[4] Pp. 6-7, Decision in GR 132922.
[5] Finch, adopted by Blackstone in State v. Twin
Village Water Co., 98 Me 214, 56 A 763 (1903), cited in Radio
Communication of the Philippines, Inc. vs. National Telecommunications
Commission, 150 SCRA 450, 457, May 29, 1987. Also in Lim vs.
Pacquing, 240 SCRA 649, 678, January 27, 1995.
[6] Tolentino, Arturo M., Commentaries and
Jurisprudence on the Civil Code of the Philippines, p. 2, Vol. II, (1992);
citing 3 Planiol & Ripert 59.
[7] 36 Am Jur 2d, § 4 Franchises.
[8] Ibid., §
5.
[9] Ibid., § 8
citing Los Angeles v. Los Angeles Gas & Electric Corp., 251 US 32,
64 L ed. 121, 40 S Ct 76; United States v. Brooklyn Union Gas Co. (CA 2
NY) 168 F 2d 391; South California Gas Co. v. Los Angeles, 50 Cal 2d
713, 329 P 2d 289. Also in Eighth
Ave. Coach Corp. v. New York, 286 NY 84, 35 NE 2d 907.
[10] See
footnote no. 3.
[11] 36 Am Jur 2d, §8 Franchises, citing Grand Turk Western R. Co. v. South Bend,
227 US 544, 57 L ed. 633, 33 S Ct 303; Wilcox Consolidated Gas Co., 212
US 19, 53 L ed. 382, 29 S Ct 192; Wilmington & W.R. Co. v. Reid, 13
Wall (US) 264, 20 L ed 568; Arkansas
State Highway Commission v. Arkansas Power & Light Co., 231 Ark 307,
330 SW 2d 77; and others.
[12] § 11, Art. XII of the Constitution provides:
“Sec. 11. No franchise, certificate, or any
other form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines at least sixty per
centum of whose capital is owned by such citizens, nor shall such
franchise, certificate or authorization be exclusive in character or for a
longer period than fifty years. Neither
shall any such franchise or right be granted except under the condition that it
shall be subject to amendment, alteration, or repeal by the Congress when the
common good so requires. The State
shall encourage equity participation in public utilities by the general
public. The participation of foreign
investors in the governing body of any public utility enterprise shall be
limited to their proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be citizens of the
Philippines.
[13] 244 SCRA at p. 279.
[14] Blo Umpar Adiong v. Comelec, 207 SCRA 712, 719, March 31, 1992, per Gutierrez, J.,
cited in Memorandum for Petitioners, p. 15.
[15] Gonzales vs. Comelec, 27 SCRA 835, 871, April 18, 1969, per Fernando, J.
[16] People vs. Nazario, 165 SCRA 186, 195, August 31, 1988, per Sarmiento, J.
[17] See pp. 20-27 for the detailed computation.
[18] Agbayani, Aguedo F., Commentaries and
Jurisprudence on the Commercial Laws of the Philippines, p. 560, 1993 ed.;
citing Fisher vs. Yangco Steamship Company, 31 Phil 1, (1915), referring
to Chicago etc. R. Co. vs. Minnesota, 134 U.S. 418, Minneapolis
Eastern R. Co. vs. Minnesota, 134 U.S. 467, Chicago etc. R. Co. vs.
Wellman, 143 U.S. 339, Smyth vs. Ames, 169 U.S. 466, 524, Henderson
Bridge Co. vs. Henderson City, 173 U.S. 592, 614.
[19] 36 Am Jur 2d 732; citing Los Angeles v Los Angeles
Gas & E. Corp. 251 US 32, 64 L ed 121, 40 S Ct 76; United States v
Brooklyn Union Gas Co. (CA2 NY) 168 F2d 391; Southern California Gas Co
v. Los Angeles, 50 Cal 2d 713, 329 P2d 289, cert den 359 US 907, 3 L ed 2d
572, 79 S Ct 583.
[20] Apart from paying “supervision fees,” broadcast media
also pay normal taxes, imposts, fees, assessments and other government charges.
[21] 36 Am Jur 2d pp. 724 and 727; citing Gordon v Appeal Tax Ct. 3 How (US)
133, 11 L ed. 529; Bridgeport v New York & N.H.R. Co., 36 Conn 255; Consolidated Gas Co. v Baltimore, 101 Md
541, 61 A 532.
[22] In the case of ABS-CBN Broadcasting Corporation, the
amount is much larger: P3,196,912,000,
per its Audited Consolidated Financial Report as of December 31, 1996, on file
with the SEC.
[23] At p. 20. See
also Annex B of said Memorandum.
[24] This is not to say that all broadcast networks are
profitable. A comparative study of
their Financial Statements on file with the SEC shows that a majority are not really
profitable.
[25] § 1, Art. III of the Constitution.
[26] § 9, Art. III of the Constitution.
[27] § 1, Art. III of the Constitution.
[28] As personified in this case by the Comelec.
DISSENTING OPINION
ROMERO, J.:
Section 92 of BP
881 constitutes taking of private property without just compensation. The power of eminent domain is a power
inherent in sovereignty and requires no constitutional provision to give it
force. It is the rightful authority
which exists in every sovereignty, to control and regulate those rights of a
public nature which pertain to its citizens in common, and to appropriate and
control individual property for the public benefit as the public safety,
necessity, convenience or welfare demand.[1] The right
to appropriate private property to public use, however, lies dormant in the
state until legislative action is had, pointing out the occasions, the modes,
the conditions and agencies for its appropriation.[2]
Section 92 of BP
881, respondent COMELEC on March 3, 1998 passed Resolution 2983-A, the
pertinent provision of which reads as follows:
Sec. 92. – Comelec Time – The Comelec shall procure radio and television time to be known as “Comelec Time” which shall be allocated equally and impartially among the candidates within the area of comverage of all radio and television stations. For this purpose, the franchise of all radio and television stations are hereby amended so as to provide radio and television time free of charge during the period of election campaign.
Section 92 of BP
881, insofar as it requires radio and television time free of charge is a
flagrant violation of the constitutional mandate that private property shall
not be taken for public use without just compensation. While it is inherent in the State, the
sovereign right to appropriate property has never been understood to include
taking property for public purposes without the duty and responsibility of
ordering compensation to the individual whose property has been sacrificed for
the good of the community. Hence,
Section 9 Article III of the 1987 Constitution which reads “No private property
shall be taken for public use without just compensation,” gives us two
limitations on the power of eminent domain: (1) the purpose of taking must be for public use and (2) just
compensation must be given to the owner of the private property.
There is, of
course, no question that the taking of the property in the case at bar is for
public use, i.e. to ensure that air time is allocated equally among the
candidates, however, there is no justification for the taking without payment
of just compensation. While Resolution
No. 2983-A has provided that just compensation shall be paid for the 30 minutes
of prime time granted by the television stations to respondent Comelec, we note
that the resolution was passed pursuant to Section 92 of BP 881 which
mandates that radio and television time be provided to respondent Comelec free
of charge. Since the legislative
intent is the controlling element in determining the administrative powers,
rights, privileges and immunities granted,[3]
respondent Comelec may, at any time, despite the resolution passed, compel
television and radio stations to provide it with airtime free of charge.
Apparently, Sec
92 of BP 881 justifies such taking under the guise of police power regulation
which cannot be validly done. Police
power must be distinguished from the power of eminent domain. In the exercise of police power, there is a restriction
of property interest to promote public welfare or interest which involves no
compensable taking. When the power of
eminent domain, however, is exercised, property interest is appropriated and applied
to some public purpose, necessitating compensation therefor. Traditional distinctions between police
power and the power of eminent domain precluded application of both powers at
the same time on the same subject.[4] Hence, in
the case of City of Baguio v. NAWASA,[5] the Court
held that a law requiring the transfer of all municipal waterworks systems to
NAWASA in exchange for its assets of equivalent value involved the exercise of
eminent domain because the property involved was wholesome and intended for
public use. Property condemned under
the exercise of police power, on the other hand, is noxious or intended for
noxious purpose and, consequently, is not compensable. Police power proceeds from the principle
that every holder of property, however absolute and unqualified may be his
title, holds it under the implied liability that his use of it shall not be
injurious to the equal enjoyment of their property, nor injurious to the rights
of the community. Rights of property,
like all other social and conventional rights, are subject to reasonable
limitations in their enjoyment as shall prevent them from being injurious, and
to such reasonable restraints and regulations established by law as the
legislature, under the governing and controlling power vested in them by the
constitution, may think necessary and expedient.[6]
In the case of
Small Landowners of the Philippines Inc v. Secretary of Agrarian
Reform, we found occasion to note that recent trends show a mingling of the
police power and the power of eminent domain, with the latter being used as an
implement of the former like the power of taxation. Citing the cases of Berman v. Parker[7] and Penn
Central Transportation co. v. New York City[8] where
owners of the Grand Central Terminal who were not allowed to construct a multi-story
building to preserve a historic landmark were allowed certain compensatory
rights to mitigate the loss caused by the regulation, this Court in Small
Landowners of the Philippines, Inc. case held that measures prescribing
retention limits for landowners under the Agrarian Reform Law involved the
exercise of police power for the regulation of private property in accordance
with the constitution. And, where to
carry out the regulation, it became necessary to deprive owners of whatever
lands they may own in excess of the maximum area allowed, the Court held that
there was definitely a taking under the power of eminent domain for which
payment of just compensation was imperative.
The petition
before us is no different from the above-cited case. Insofar as Sec 92 of BP 881 read in conjunction with Sec 11(b) of
RA 6646 restricts the sale or donation of airtime by radio and television
stations during the campaign period to respondent Comelec, there is an exercise
of police power for the regulation of property in accordance with the
Constitution. To the extent however
that Sec 92 of BP 881 mandates that airtime be provided free of charge to
respondent Comelec to be allocated equally among all candidates, the regulation
exceeds the limits of police power and should be recognized as a taking. In the case of Pennsylvania Coal v.
Mahon,[9] Justice Holmes laid down the limits
of police power in this wise, “The general rule is that while property may be
regulated to a certain extent, if the regulation goes too far, it will be
recognized as a taking.”
While the power
of eminent domain often results in the appropriation of title to or possession
of property, it need not always be the case. It is a settled rule that neither acquisition of title nor total
destruction of value is essential to taking and it is usually in cases where
title remains with the private owner that inquiry should be made to determine
whether the impairment of a property is merely regulated or amounts to a
compensable taking. A regulation which
deprives any person of the profitable use of his property constitutes a taking
and entitles him to compensation unless the invasion of rights is so slight as
to permit the regulation to be justified under the police power. Similarly, a police regulation which
unreasonably restricts the right to use business property for business
purposes, amounts to taking of private property and the owner may recover
therefor.[10] It is
also settled jurisprudence that acquisition of right of way easement falls
within the purview of eminent domain.[11]
While there is
no taking or appropriation of title to, and possession of the expropriated
property in the case at bar, there is compensable taking inasmuch as there is a
loss of the earnings for the airtime which the petitioner-intervenors are
compelled to donate. It is a loss
which, to paraphrase Philippine Press Institute v. Comelec,[12] could
hardly be considered “de minimis” if we are to take into account the monetary
value of the compulsory donation measured by the current advertising rates of
the radio and television stations.
In the case of Philippine
Press Institute v. Comelec,[13] we had
occasion to state that newspapers and other print media are not compelled to
donate free space to respondent Comelec inasmuch as this would be in violation
of the constitutional provision that no private property shall be taken for
public use without just compensation. We find no cogent reason why radio and television stations should be
treated any differently considering that their operating expenses as compared
to those of the newspaper and other print media publishers involve considerably
greater amount of financial resources.
The fact that
one needs a franchise from government to establish a radio and television
station while no license is needed to start a newspaper should not be made a
basis for treating broadcast media any differently from the print media in
compelling the former to “donate” airtime to respondent Comelec. While no franchises and rights are granted
except under the condition that it shall be subject to amendment, alteration,
or repeal by the Congress when the common good so requires,[14] this
provides no license for government to disregard the cardinal rule that
corporations with franchises are as much entitled to due process and equal
protection of laws guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as
it mandates that radio and television time be provided to respondent Comelec
free of charge UNCONSTITUTIONAL.
[1] Cooley, Thomas, IIA Treatise on Constitutional
Limitations, pp. 1110. [1927].
[2] Supra at
p. 1119.
[3] Horack, Frank, Sutherland Statutory Construction, p.
279 [1989].
[4] Association of Small Landowners of the Philippines,
Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343 [1989].
[5] 106 Phil. 144.
[6] See Cooley, Thomas II Constitutional Limitations, 8th Ed, pp. 1224 [1927].
[7] 348 US 1954 [1954].
[8] 438 US 104.
[9]
260 US 393.
[10] Cooley, Thomas, II Constitutional Limitations, pp.
1161 [1927].
[11] Napocor v. CA, 129 SCRA 665 [1984]; Garcia v.
CA, 102 SCRA 597 [1981]; Republic v. PLDT, 26 SCRA 620 [1969].
[12] 244 SCRA 272 [1995].
[13] Supra.
[14] See Section 11, Article XII of the 1987 Constitution.
SEPARATE
OPINION
VITUG, J.:
I assent in most part to the
well-considered opinion written by Mr. Justice Vicente V. Mendoza in his
ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in
filing the instant petition and in declaring that Section 92 of Batas Pambansa
Blg. 881 is a legitimate exercise of police power of the state.
The grant of frnachise to
broadcast media is a privilege burdened with responsibilities. While it is, primodially, a business
enterprise, it nevertheless, also addresses in many ways certain imperatives of
public service. In Stone vs.
Mississippi (101, U.S. 814, cited in Cruz, Constitutional Law, 1995 ed.,
p.40.), a case involving a franchise to sell lotteries which petitioner claims
to be a contract which may not be impaired, the United States Supreme Court
opined:
"xxx (T)he Legislature cannot
bargain away the police powwer of a State. Irrevocable grants of property and franchise may be made if they do not
impair the supreme authority to make laws for the right government of the
State; but no Legislature can curtail the power of its successors to make such
laws as they may deem proper in matters of police xxx.
In this case, the assailed law, in
my view, has not failed in meeting the standards set forth for its lawful
exercise , i.e., (a) that its
utilization is demanaded by the interests of the public, and not unduly oppressive, for the accomplishment for the
purposes and objectives of the law.
I cannot consider COMELEC
Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is
nothing in the law that prohibits the COMELEC from itself procuring airtime,
perhaps longer than that which can reasonably be allocated, if it believes that
in so opting, it does so for the public good.
I vote to DISMISS the petition.