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DISSENTING OPINION

PANGANIBAN, J.:

At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code¹ 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.³cräläwvirtualibräry

The Courts 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 franchisees 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 Kings prerogative, subsisting in the hands of a subject.⁵cräläwvirtualibräry

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.

Franchisees 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 holders 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 compensation⁹ 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.¹¹cräläwvirtualibräry

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:¹³cräläwvirtualibräry

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 Franchisees 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.¹⁴cräläwvirtualibräry

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.¹⁵cräläwvirtualibräry

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.¹⁶cräläwvirtualibräry

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.²⁰cräläwvirtualibräry

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 licensees 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, enterprise²⁴ 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.²⁵cräläwvirtualibräry

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.²⁶cräläwvirtualibräry

3. No one, regardless of social or financial status, shall be denied equal protection of the law.²⁷cräläwvirtualibräry

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 peoples 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 peoples unwitting oppressor.

WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election Code UNCONSTITUTIONAL and VOID.

Endnotes:

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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.