124626-1998-Telecommunications and Broadcast Attorneys of

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.
SYNOPSIS
Section 11 (b) of R.A. No. 6646 prohibits the sale or donation of print space or air
time for political ads, except to the Commission on Elections. Petitioners challenge the
validity thereof 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. AICHaS
Radio and television broadcasting companies 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 or franchise, the exercise of the which may
reasonably be burdened with the performance by the grantee of some form of public
service, such as providing print space or air time to Comelec. Section 92 of B.P. Blg. 881
must be deemed incorporated in R.A. No. 7252 granting GMA Network, Inc. a franchise
and does not constitute denial of due process and that 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.
An administrative agency cannot, in the exercise of lawmaking, amend a statute of
Congress. Therefore §2 of Resolution No. 2983-A of the Comelec providing for payment of
just compensation is invalid.
B.P. Blg. 881, §92 does not single out radio and television stations in providing free
air time. There are important differences in the characteristics of the broadcast media and
the print media, which justify their differential treatment for free speech purposes.
The freedom of television and radio broadcasting is somewhat lesser in scope than
the freedom accorded to newspaper and print media.
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.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; PARTIES; LOCUS STANDI ; LAWYERS OF RADIO AND

TELEVISION BROADCASTING COMPANIES WITHOUT STANDING TO QUESTION
OPERATION OF SECTION 92 OF B. P. BLG. 881 PROVIDING FREE COMELEC AIR TIME. —
CD Technologies Asia, Inc. 2018 cdasiaonline.com
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 in which citizens were authorized
to sue, this Court upheld their standing in view of the "transcendental importance" of the
constitutional question raised which justi ed 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. 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. A
party suing as a taxpayer must speci cally show that he has a su cient 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.
2. ID.; ID.; ID.; ID.; OPERATOR OF RADIO AND TV BROADCAST STATIONS WITH
STANDING TO CHALLENGE RESOLUTION OF COMELEC PROVIDING FREE AIR TIME. —
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.
3. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; FRANCHISE OF RADIO AND
TV STATIONS; SUBJECT TO AMENDMENT, ALTERATION OR REPEAL. — 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 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."
4. ID.; ID.; ID.; COMELEC RESOLUTION PROVIDING FREE COMELEC TIME, AN
AMENDMENT THERETO; CASE AT BAR. — 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). This provision was carried over with slight modi cation by
the 1978 Election Code (P.D. No. 1296). 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 bene t 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. 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.
5. ID.; ID.; ID.; ID.; RADIO AND TV BROADCAST STATIONS DO NOT OWN THE
AIRWAVES; NO PROPERTY TAKEN WHERE THEY WERE REQUIRED TO PROVIDE FREE
AIRTIME TO COMELEC. — As held in Red Lion Broadcasting Co. v. F.C.C. , 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 license 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 duciary 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." 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.
6. ID.; ID.; ID.; SECTION 92 OF B.P. BLG. 881, A VALID AMENDMENT OF GMA'S
FRANCHISE. — 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
7. ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCY; CANNOT IN THE EXERCISE
OF LAWMAKING, AMEND A STATUTE OF CONGRESS. — Thus far, we have con ned 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. 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.
8. CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION OF THE LAWS;
IMPORTANT DIFFERENCES BETWEEN PRINT AND AIR MEDIA JUSTIFY DIFFERENTIAL
TREATMENT FOR FREE SPEECH PURPOSES. — 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 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 justi cation 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. From another point of view, this Court has also held that because of the
unique and pervasive in uence 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." Petitioners' assertion therefore that §92 of B.P. Blg 881
denies them the equal protection of the law has no basis.
9. ID.; COMMISSION ON ELECTIONS; POWER TO REGULATE; DIFFERENT FROM
POWER OF CONGRESS TO PROHIBIT. — 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 rst 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. 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.
10. ID.; LEGISLATIVE DEPARTMENT; SEC. 92 OF B.P. BLG. 881 PROVIDING FREE
COMELEC AIRTIME, UPHOLDS THE PEOPLE'S RIGHT TO INFORMATION ON MATTERS OF
PUBLIC CONCERN. — To a rm the validity of §92 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 a rm 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 nd 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.
ROMERO, J., dissenting opinion:
1. CONSTITUTIONAL LAW; EMINENT DOMAIN; CONSTRUED. — 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 bene t as the public safety,
necessity, convenience or welfare demand. 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. AECacS
2. ID.; COMMISSION ON ELECTIONS; RESOLUTION GRANTING FREE COMELEC AIR

TIME, AN EXERCISE OF EMINENT DOMAIN WITHOUT PAYMENT OF JUST
COMPENSATION. — Section 92 of BP 881, insofar as it requires radio and television
stations to provide Comelec with radio and television time free of charge is a agrant
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 sacri ced for the good of the community. 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 justi cation
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, respondent Comelec may, at any time, despite the resolution passed,
compel television and radio stations to provide it with airtime free of charge.
3. ID.; EMINENT DOMAIN; LIMITATIONS. — 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.
4. ID.; ID.; DIFFERENTIATED FROM POLICE POWER. — 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. 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 unquali ed may be his
title, holds it under the implied liability that his use of it shall not be injurious to the equal
enjoyment of others having an equal right to the 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.
5. ID.; POLICE POWER; RESTRICTION OF SALE OR DONATION OF AIRTIME DURING
CAMPAIGN PERIOD TO COMELEC, AN EXERCISE THEREOF; EXERCISE EXCEEDS
LIMITATION. — 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 Co. v. Mahon , 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, will be recognized as a taking."
6. ID.; EMINENT DOMAIN; ACQUISITION OF TITLE OR POSSESSION OF PROPERTY,
NOT ESSENTIAL TO 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 nor total destruction of value is essential to taking and
it is equally 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 pro table use of his property
constitutes a taking and entitles him to compensation unless the invasion of right is so
slight as to permit the regulation to be justi ed 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. It is
also settled jurisprudence that acquisition of right of way easement falls within the
purview of eminent domain. aTcSID
7. ID.; ID.; COMPENSABLE TAKING; MANIFEST IN LOSS OF EARNING. — 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 , 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.
8. ID.; ID.; PRINT MEDIA NOT COMPELLED TO DONATE FREE SPACE. — In the case
o f Philippine Press Institute v. Comelec , 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.
9. ID.; ID.; ID.; RULE APPLICABLE TO RADIO AND TV STATIONS; REASON. — We nd
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 nancial resources.
The fact that one needs a franchise from government to establish a radio and television
station while no license is needed to start 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, 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. SHaATC
VITUG, J., separate opinion:

1. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; BATAS PAMBANSA BLG.
881; A LEGITIMATE EXERCISE OF POLICE POWER. — 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 ling the instant petition and in
declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate exercise of police
power of the State.
2. ID.; STATE; POLICE POWER; STANDARDS FOR LAWFUL EXERCISE. — 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 demanded by the interests of the public, and (b) that
the means employed are reasonably necessary, and not unduly oppressive, for the
accomplishment of the purpose and objectives of the law.
3. ID.; LEGISLATIVE DEPARTMENT; FRANCHISE TO BROADCAST MEDIA; A
PRIVILEGE BURDENED WITH RESPONSIBILITIES. — The grant of franchise to broadcast
media is a privilege burdened with responsibilities. While it is, primordially, 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: ". . . (T)he Legislature
cannot bargain away the police power of a State. Irrevocable grants of property and
franchises 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 . . .
4. ID.; COMMISSION ON ELECTIONS; SECTION 2 OF RESOLUTION NO. 2983-A
REQUIRING FREE COMELEC AIR TIME, A VALID EXERCISE OF POLICE POWER. — 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. aHECST
PANGANIBAN, J., dissenting opinion:

1. POLITICAL LAW; EMINENT DOMAIN; PRINT MEDIA CANNOT BE REQUIRED TO
DONATE ADVERTISING SPACE TO COMELEC WITHOUT PAYMENT OF JUST
COMPENSATION. — In Philippine Press Institute Inc. (PPI) vs. Commission on Elections
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.
2. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; FRANCHISE; ONCE
GRANTED BECOMES PROPERTY OF THE GRANTEE WHICH CANNOT BE TAKEN WITHOUT
PAYMENT OF 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 bene t 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. 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. 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 as guaranteed under our fundamental law.
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.
3. STATUTORY CONSTRUCTION; STATUTES; CONSIDERED VAGUE AND INVALID IF
THEY LEAVE LAW ENFORCERS UNBRIDLED DISCRETION IN CARRYING OUT THEIR
PROVISIONS. — 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 exing of the government muscle." ( People vs. Nazario, 165 SCRA
186, 195, August 31, 1988) AScHCD
4. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; LIMITATIONS ON

LEGISLATIVE REGULATIONS OF PUBLIC UTILITIES. — "[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 con scating or appropriating private property without due process of law,
nor of con scating 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.
Consequently, "rights under a franchise cannot be taken or damaged for a public use
without the making of just compensation therefor." To do so is clearly beyond the power
of the legislature to regulate.
5. ID.; BILL OF RIGHTS; EQUAL PROTECTION OF LAWS; VIOLATION THEREOF
MANIFEST WHERE BROADCAST STATIONS WERE COMPELLED TO DONATE FREE TIME
WHILE MAKING PAYMENT TO PRINT MEDIA ADS. — 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 insigni cant and too imsy to be a valid justi cation 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. EHSAaD
DECISION
MENDOZA , J : p
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. dctai
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 justi ed 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
speci cally show that he has a su cient 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:
xxx xxx xxx

(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 o ce 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." 1 0
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 fteen 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 modi cation 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 bene t 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." 1 1
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. 1 2 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 rst 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 nancial pressures faced by
candidates in seeking time on the media. 1 3
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, 1 4
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
I n Philippine Long Distance Telephone Company v . NTC , 1 6 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 tra c and more e cient service,
at more moderate cost, as a result of interconnection.
Similarly, in the earlier case of PLDT v. NTC , 1 7 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. 1 8 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 " nished product" which, it is said,
become the property of the company, like oil produced from re ning 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 ., 1 9 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 duciary 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." 2 0 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 bene t 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., 2 1
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 justi cation." 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." 2 2 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 aw 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. 2 3
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. 2 4
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
Thus far, we have con ned 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 allocation 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 Con scation 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." 2 5 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." 2 6
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 quali cations 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 2 7 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. 2 8
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 in uence 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." 2 9
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 nd 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 in ammatory or offensive speech would be di cult
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. 3 0
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 rst
place, what the COMELEC is authorized to supervise or regulate by Art. IX-C, §4 of the
Constitution, 3 1 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.
xxx xxx xxx

. . . 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 quali cations and program 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 a rm 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 a rm 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 nd 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. dctai
Narvasa, C .J ., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and
Quisumbing, JJ., concur.
Separate Opinions
ROMERO , J ., dissenting :

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
bene t 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 states
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 coverage 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.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed
Resolution 2983-A the pertinent provision of which reads as follows: dctai
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.
Section 92 of BP 881, insofar as it requires radio and television stations to provide

Comelec with radio and television time free of charge is a agrant 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 or ordering compensation to the individual whose property has been
sacri ced 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 justi cation 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 not
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 justi es 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 unquali ed may be his title, holds it under the implied liability that
his use of it shall not be injurious to the equal enjoyment of others having an equal right to
the enjoyment of their property, nor injurious to the right 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
de nitely 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 Co. 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 pro table 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 justi ed 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. 1 0 It
is also settled jurisprudence that acquisition of right of way easement falls within the
purview of eminent domain. 1 1
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, 1 2 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, 1 3 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 nd 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, 1 4 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.
Purisima, J ., concurs.
VITUG , J ., concurring and dissenting :
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 ling 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 franchise to broadcast media is a privilege burdened with
responsibilities. While it is, primordially, 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.
" . . . (T)he Legislature cannot bargain away the police power of a State.
Irrevocable grants of property and franchises 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. . .
dctai
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 demanded by the interests of the
public, and (b) that the means employed are reasonably necessary, and not unduly
oppressive, for the accomplishment of 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.
PANGANIBAN , J ., dissenting :
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 . . ." Petitioners
contend, and I agree, that this legal provision is unconstitutional because it con scates
private property without due process of law and without payment of just compensation,
and denies broadcast media equal protection of the law.
I n 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 to 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 to 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 justi ed 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 facta 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.
Signi cantly, 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 . . . 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, sheries, forests or timber, wildlife, ora 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 bene t 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 le 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 service the public bene t 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. 1 0 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. 1 1
The majority further claims that, constitutionally, 1 2 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
modi cation 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: 1 3
" To compel print media companies to donate 'Comelec space' of the
dimensions speci ed 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 sti e 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." 1 4
"In a 1968 opinion, the American Supreme Court made clear that the
absence of such reasonable and de nite 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 in rm 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 sti e
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." 1 5
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 our its provisions and becomes an
arbitrary flexing of the government muscle." 1 6
Moreover, the extent of the actual taking of air time is enormous, exorbitant and
unreasonable. In their Memorandum, 1 7 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 con scating or appropriating private property without due
process of law, nor of con scating 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. 1 8 Consequently, "rights under a franchise cannot be taken or
damaged for a public use without the making of just compensation therefor." 1 9 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 signi cant
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 therefor more properly understood as rental fees for the use of the
frequencies granted them. 2 0
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. dctai
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 con scate or appropriate them
gratis under the guise of serving the common good. Crude oil, for instance, once
explored, drilled, and re ned 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. 2 1
The 1996 Audited Consolidated Balance Sheet of Petitioner GMA, on le 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. 2 2 This does not include the cost of
producing the programs to be broadcast, talent fees and other aspects of broadcasting. In
their Memorandum, 2 3 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 insigni cant —
say, one hour once or twice a month — perhaps, it can be justi ed 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. dctai
Note should be made, too, of the fact that what Section 92 takes away is air time. Air
time is the " nished 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 modi cation 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' . . ." 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 pro table, enterprise 2 4 is no argument for
seizing its pro ts. 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 insigni cant and
too imsy to be a valid justi cation 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. 2 5
2. Such property shall not be taken by the government, even for the use of
the general public, without rst paying just compensation to the
owner. 2 6
3. No one, regardless of social or nancial status, shall be denied equal
protection of the law. 2 7
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, 2 8 against which these constitutional rights to property were in the rst 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.
Purisima, J., concurs.
Footnotes
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 O ce , (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 inde nite 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.Ed.2d. 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 sti e 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:
xxx xxx xxx
(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. I 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 speci ed matter. . . [It] exacts a penalty
on the basis of the content of a newspaper. The rst 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."
ROMERO, J., dissenting:

1. Cooley, Thomas. II A Treatise on Constitutional Limitations. pp. 1110. [1927].
2. Supra at p. 1119.
3. Horack, Frank, Sutherland Statutory Construction, p. 279 [1939].

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.
PANGANIBAN, J., dissenting:
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 Eight 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, certi cate or authorization be exclusive in character or for a longer
period than fty 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 o cers 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 Angles 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 pro table. 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.

28. As personified in this case by the Comelec.

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EN BANC

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

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE

1. REMEDIAL LAW; ACTIONS; PARTIES; LOCUS STANDI ; LAWYERS OF RADIO AND

2. ID.; COMMISSION ON ELECTIONS; RESOLUTION GRANTING FREE COMELEC AIR

7. ID.; ID.; COMPENSABLE TAKING; MANIFEST IN LOSS OF EARNING. — While there

VITUG, J., separate opinion:

PANGANIBAN, J., dissenting opinion:

4. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; LIMITATIONS ON

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is

xxx xxx xxx

In the granting of the privilege to operate broadcast stations and thereafter

xxx xxx xxx

With the prohibition on media advertising by candidates themselves, the COMELEC

CD Technologies Asia, Inc. 2018 cdasiaonline.com

Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television

Section 92 of BP 881, insofar as it requires radio and television stations to provide

VITUG , J ., concurring and dissenting :

At issue in this case is the constitutionality of Section 92 of the Omnibus Election

"Common Good" Does Not Justify Unbridled

CD Technologies Asia, Inc. 2018 cdasiaonline.com

4. CONST., ART. VI, §§24-25 and 29.

16. 241 SCRA 486 (1995).

20. 395 U.S. at 389, 23 L.Ed.2d at 388-389.

ROMERO, J., dissenting:

3. Horack, Frank, Sutherland Statutory Construction, p. 279 [1939].

7. 348 US 1954 [1954].

10. Cooley, Thomas. II Constitutional Limitations. pp. 1161 [1927].

2. 244 SCRA 272, May 22, 1995, per Feliciano, J .

4. Pp. 6-7, Decision in GR 132922.

CD Technologies Asia, Inc. 2018 cdasiaonline.com

26. §9, Art. III of the Constitution.

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