On the ABS-CBN franchise issue
I had an interesting talk this week with fellow lawyers on the nature of a broadcast franchise in light of ABS-CBN’s application for the renewal of its congressional franchise. Seated around the table with me were lawyer-friends Jayson Orvina, Ria Lidia Espina, and Kara Mae Noveda. Jayson is governor of the IBP Eastern Visayas Region. Ria is president of the IBP Cebu Chapter. Kara was Kapamilya Star Patrol host at ABS-CBN Cebu before she became a lawyer.
The topic on the ABS-CBN franchise came about in relation to a talk show idea. We were thinking that it was timely to discuss with the community the legal and philosophical framework of broadcast regulations.
Much attention has been focused on President Rodrigo Duterte’s beef with ABS-CBN. Until recently, the president had threatened to block the renewal of ABS-CBN’s broadcast franchise. But things may have brightened a bit for the country’s leading broadcast network. The public apology made by the network’s CEO to the president during a Senate committee hearing seemed to have softened the latter’s heart.
Some of the president’s allies have also expressed support for the franchise renewal. The Justice secretary has also said that Congress may allow the National Telecommunications Commission to give ABS-CBN provisional authority beyond the franchise lapse.
Amid all these, only a few people understand what is the legal and philosophical framework underlining the state’s sovereign power to grant or deny the issuance of broadcast franchises. I believe that it is important to know such framework to help the public make informed judgments on the issue.
At the heart of the discussion is the principle of freedom of speech as it applies to broadcast media. Legal authorities have cited what is called the “dichotomy between print and broadcast media.”
In TBAP vs. the Commission on Elections (1998), a group of broadcast lawyers questioned the legality of Section 92 of B.P. 881 requiring radio and TV stations to accommodate the “Comelec Time,” an equal and impartial air-time allocation, free of charge, for candidates. The petitioners argued that the law takes private property without due process and just compensation. They also averred that it denies broadcast companies equal treatment vis-à-vis print media companies.
The court, in ruling for Comelec, said that 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 to be amended by Congress in accordance with the constitutional provision that ‘any such franchise or right granted ... shall be subject to amendment, alteration or repeal by the Congress when the common good so requires.’”
“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.”
The court said that Article XII, Section 11 of the Constitution authorizes the amendment of franchises for "the common good." In the case of “Comelec Time,” the court said that “what better measure can be conceived for the common good than one for free air time for the benefit not only of candidates but even more of the public, particularly the voters, so that they will be fully informed of the issues in an election?”
On the issue of equal treatment, the court declared that there are important differences in the characteristics of the two media 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.”
However, this is just one side of the coin. My libertarian bias prods me to look into the views of legal scholars which give context to constitutional edicts. I believe that in a democratic system, the state’s sovereign power to grant or deny the issuance of a broadcast franchise is not a blank check that is devoid of government accountability and the public interest. I will discuss that and more about the nature of a broadcast franchise next.
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