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EN BANC

G.R. No. 132922. April 21, 1998

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and GMA NETWORK, INC., Petitioners, v. THE COMMISSION ON ELECTIONS, Respondent.

D E C I S I O N

MENDOZA, J.:

In Osmea 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 cases² 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 partys 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 partys 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. Petitioners 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 Petitioners

Franchise

As pointed out in our decision in Osmea 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 clause⁶ and the eminent domain provision⁷ 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 years elections, it stands to lose P58,980,850.00 in view of COMELECs requirement that radio and television stations provide at least 30 minutes of prime time daily for the COMELEC Time.⁸cräläwvirtualibräry

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.¹⁰cräläwvirtualibräry

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.¹¹cräläwvirtualibräry

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.¹³cräläwvirtualibräry

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 vessels 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. ¹⁵cräläwvirtualibräry

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 Panganibans 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 peoples 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 communitys 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. Holmess 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 petitioners 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.²³cräläwvirtualibräry

Indeed, it is wrong to claim an amendment of petitioners 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 petitioners 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.²⁶cräläwvirtualibräry

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 Osmea 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. COMELEC²⁷ 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.²⁸cräläwvirtualibräry

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.²⁹cräläwvirtualibräry

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.³⁰cräläwvirtualibräry

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

States 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 Osmea 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 peoples right to information on matters of public concern. The use of property bears a social function and is subject to the states 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.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and Quisumbing, JJ., concur.

Romero, Panganiban, and Purisima, JJ., dissent.

Vitug, J., has separate opinion.

Endnotes:

---

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 Assn 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.