TELEBAP v. COMELEC
G.R. No. 132922 April 21, 1998
Mendoza, J.
Facts:
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 of B.P. Bldg. 88 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.
Issue:
whether petitioner has legal standing
to question the validity of §92 of B.P. Bldg. 88
Held:
No.
In those cases in which
citizens were authorized to sue, the Supreme 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,
petitioner’s substantive claim is without merit. To the extent, therefore, that
a party’s standing is determined by the substantive merit of his case or 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 fairly is fairly traceable
to the challenged action; and the injury is likely to be redressed by a favorable
action. Members of petitioner
have not shown that they have suffered harm as a result of the operation of §92
of B.P. Blg. 88.
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. 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 eight 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, the Supreme
Court has decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge.
Facts:
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.
§11(b)
of R.A. No. 6646 and §90 and §92 of the 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:
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(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 should be paid for, §92 states that air time
shall be procured by the COMELEC free of charge.
Issue:
whether §92 of BP Blg. 881 violates
the due process clause and the eminent domain provision of the Constitution by taking
air time from radio and television broadcasting stations without payment of just
compensation
Held:
No. 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. A franchise is thus a privilege subject, among other
things, to amended 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.
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.”
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.
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. It would be strange if it cannot even require
the licensees to render public service by giving free air time.
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 §40
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.
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. 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.
Issue:
whether §92 of BP Blg. 881 violates
the equal protection clause of the Constitution
Held:
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.
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.
Issue:
whether the requirement of COMELEC
time is a reasonable exercise of the State’s power to regulate use of franchises
Held:
In the first place, what the COMELEC is
authorized to supervise or regulate by Art. IX-C, §4 of the Constitution, 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.
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.
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. . . 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 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.”
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