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Broadcasting, whether by radio or television stations, requires authorization from the government before they can operate. The pre-regulation history of radio and television stations illustrates the need for government intervention, as opposed to other industries such as print media and the Internet. The rationale for the imposition of government regulation is that the airwaves, the medium utilized by broadcast, are not susceptible to appropriation, nor can they be the object of any claim of ownership. A broadcast corporation cannot appropriate a certain frequency without regard for government regulation or for the rights of others. This can only be accomplished if the industry itself is subjected to regulation whereby broadcasters receive entitlement to exclusive use of their respective or particular frequencies. The basis for regulation is rooted in empiricism — “that broadcast frequencies are a scarce resource whose use could be regulated and rationalized only by the Government.” (Divinagracia v. Consolidated Broadcasting System, Inc., G.R. No. 162272, April 7, 2009; Eastern Broadcasting Corporation v. Dy, G.R. No. L-59329. July 19, 1985)
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. (Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, G.R. No. 132922, April 21, 1998)
However, the Constitution guarantees the freedom of speech and expression. It is well settled that expressions by means of newspapers, radio, television, and motion pictures come within the broad protection of the free speech and expression clause.
Jurisprudence provides for the two regulations of the freedom of speech — content-neutral regulation, i.e., one which is merely concerned with the incidents of speech, or one that merely controls the time, place, or manner, and under well-defined standards; and a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. A content-based regulation is based on the subject matter of the utterance or speech. It is the communicative impact of the speech or the reader’s possible reaction to the ideas expressed that is being regulated. Typically, strict scrutiny is applied to content-based regulations of speech and requires that laws “be narrowly tailored to promote a compelling Government interest.” A content-neutral regulation, on the other hand, is merely concerned with the incidents of the speech; or merely controls the time, place, or manner of the speech under well-defined standard, independent of the content of the speech. For content-neutral regulation, an intermediate test is employed, which requires that the regulation be narrowly drawn to pursue a substantial or significant government interest, provided that the regulation of the time, place, or manner of speech is not discrimination based on the communicative content of the speech.
The act of the government requiring the franchise and CPC can be argued, when applied to a television station, as content-neutral since the twin-requirement would apply to any other television station that wishes to operate within the country. It merely controls the manner of broadcasting under well-defined standards, such as financial and technical capacity of the franchise/license applicant. Thus, applying the intermediate test, the government is justified to regulate it due to the interest of the government in allocating the limited frequencies to qualified applicants.
Broadcast frequencies, such as those used by television networks, are limited resources, and as such, relevant conditions may validly be imposed on the grantees or licensees. Considering also the pervasiveness of radio and television in the lives of Filipinos, regulation by the government of broadcasting is necessary. However, it must not be forgotten that broadcast media is also a constitutionally protected right, and thus, government regulation should not be used to disguise any other agenda aside from significant interest — the protection of the public.
Chrissete C. Agustin, is an associate of the Litigation and Dispute Resolution Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).