Regulating the airwaves

With the advent of radio broadcasting in the 20th century, it became necessary for governments to regulate and restrict the use of the limited amount of frequency space on the airwaves. Unlike printing presses—and now the internet—there is a physical limit to the number of radio and television stations in a particular area of operation with the existing technologies. that is simply a fact. However, it is also a fact that governments in the past 100 years have used its power of regulation to control radio and television despite the “freedom of the press.” Many countries place the legal responsibility and authority for licensing in some sort or another of a regulatory agency. Thailand, the Philippines and Singapore are the only countries in Southeast Asia where the law clearly provides for licensing of broadcasters by the regulator, in our case the National Telecommunications Commission (NTC). Nevertheless as broadcasting is considered under the broad definition of a “public utility,” the Philippine Constitution goes one step farther as it “prohibits the issuance of any franchise to operate a public utility except in accordance with certain conditions, including that this shall be ‘subject to amendment, alteration, or repeal’ by Congress” including for broadcasting. There are some interesting aspects of the laws governing broadcasting. For example, the NTC, created by Executive Order 546, is responsible for issuing licenses but has no power over content. Other agencies do that. Also, in the Divinagracia’s Case, the Supreme Court decided that the NTC did not have the power to cancel licenses when Congress had issued franchises to operate broadcast stations. We certainly do not like the idea of any president of any administration “interfering” in the granting of licenses or laws approving a broadcasting franchise. Nonetheless, in the Philippines as in some other nations, governments have the power to pick “winners and losers” for airwave space through legislation. Therefore, that decision is inherently political whether we like it, or not. The Constitution specifically says: “The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires.” Conceivably, there could be only one company owning the only television and radio station in the Philippines unless a decision—a political decision—were made to stop that practice by Congress. Congress would decide if a total monopoly was or was not against the public interest. Now comes the fox in the chicken coop. The concept of freedom of speech allows if not requires any individual or group to say whatever they desire while considering other laws against libel, defamation, sedition, and the like. These all would be decided by the courts, not Congress. Theoretically, the courts would make a decision based on the letter and spirit of the written law and not simply on “we do not like or agree with what you are saying.” A research paper by Toby Mendel from the Open Society founded and funded by George Soros written in 2000 was titled “Audiovisual Media Policy, Regulation and Independence in Southeast Asia.” He wrote, “The Philippines is somewhat anomalous, as the lack of an independent regulator does not appear to have resulted in serious political bias in the licensing process. There is no question, however, that in all the other countries in the region, control over regulation has led to a situation where most private broadcasters tend to support the government.” Our legislators need to look deep in their own conscience when they vote for or against any broadcast franchise.