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.

FACTS

This case involves a challenge to Section 92 of Batas Pambansa Blg. 881 (BP 881), which mandates that the Commission on Elections (COMELEC) shall procure radio and television time, known as “Comelec Time,” to be allocated equally among candidates. The law states that for this purpose, the franchises of all radio and television stations are amended to provide this time “free of charge” during the election campaign period. Pursuant to this, COMELEC issued Resolution No. 2983-A, which granted “Comelec Time” but specified that it would be upon payment of just compensation. The dissenting opinion focuses on the constitutionality of the “free of charge” provision in Section 92 of BP 881.

ISSUE

Whether or not Section 92 of BP 881, insofar as it mandates that radio and television stations provide airtime to COMELEC free of charge, constitutes a taking of private property for public use without just compensation, in violation of the Constitution.

RULING

The dissenting opinion votes to declare Section 92 of BP 881 UNCONSTITUTIONAL insofar as it mandates that radio and television time be provided to COMELEC free of charge. The opinion holds that:
1. The requirement to provide airtime free of charge is a taking of private property under the power of eminent domain, not a valid exercise of police power. While the taking is for public use (to ensure equal allocation among candidates), it lacks just compensation.
2. The legislative intent of BP 881 is to provide the time free of charge, and COMELEC’s resolution providing for payment cannot override this mandate, leaving broadcasters vulnerable to being compelled to provide free airtime.
3. The regulation restricts the profitable use of property (airtime) and results in a loss of earnings for broadcasters. This loss is not de minimis and constitutes a compensable taking, similar to the acquisition of an easement.
4. The power of eminent domain does not require a total destruction of value or acquisition of title; a deprivation of profitable use can amount to a taking.
5. There is no valid reason to treat broadcast media differently from print media, which the Court in Philippine Press Institute v. Comelec protected from being compelled to donate free space. The requirement of a franchise to operate does not justify disregarding the constitutional guarantees of due process and equal protection.