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Presidential Spokesperson Harry Roque errantly defended the congressional rejection of a fresh franchise to ABS-CBN on the ground that it was the “decision of the Filipino people” since they “ratified the Constitution that bars a broadcast company from operating without a congressional franchise.”

This justification is erroneous because nowhere in the Constitution are mass media outlets required to secure a legislative franchise from the Congress. 

It was Congress which empowered itself to grant radio stations, which was later interpreted to include television stations, a franchise under the Radio Control Act of 1931 or Act No. 3846 which has survived unrepealed up to today. 

Section 1 of Act No. 3846 provides: “No person, firm, company or corporation shall construct, install, establish, or operate a radio transmitting station or a radio receiving station used for commercial purposes, or a radio broadcasting station, without having first obtained a franchise therefor from the Congress of the Philippines.”

No less than the controversial “Cease and Desist Order” of the National Telecommunications Commission (NTC) invoked the Radio Control Act in stopping the operation of ABS-CBN Corporation.

The pertinent provision on mass media in the Constitution is Sec. 11 of Art. XVI which provides that the “ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.”

This provision on mass media does not impose the requirement of securing a prior legislative franchise from the Congress.

The constitutional provision requiring legislative franchise refers to public utilities under Sec. 11 of Art. XII. 

Neither the Constitution nor any statute classifies mass media enterprises as public utilities in order for Sec. 11 of Article XII to apply.  

In Associated Communications vs. NTC (G.R. No. 144109, February 17, 2003) the Supreme Court observed and ruled that that:

“What exactly is the reason or rationale for imposing a prior congressional franchise? There seems to be no valid reason for it … The justification appears to be simply because this was required in the past so it is now… 

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“The call to dispense with the requisite legislative franchise must, however, be addressed to Congress as the lawmaker of the land for the Court’s function is to interpret and not to rewrite the law. As long as the law remains unchanged, the requirement of a franchise to operate a television station must be upheld.”

The suggestion by the High Court that a repeal of the Radio Control Act should be addressed to the Congress is an admission that a legislative franchise for mass media is not a requirement of the Constitution but only by an ordinary statute which can be repealed by Congress.

Verily, it is only the Radio Control Act of 1931 which requires a prior legislative franchise for the operation of radio and television companies, not the Constitution.