ALLIED BROADCASTING CENTER, INC., PETITIONER, VS. REPUBLIC OF THE PHILIPPINES, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS AND NATIONAL TELECOMMUNICATIONS COMMISSION, RESPON…

This is a petition for the declaration of the unconstitutionality
of Presidential Decree No. 576-A with a prayer for the issuance of a temporary
restraining order and/or a writ of preliminary injunction.

The allegations of the petition are that on January 19,
1960, Republic Act No. 3001 was passed granting petitioner the
permit or franchise to construct, maintain and operate radio broadcasting
stations in the Philippines.  Petitioner was able to construct, maintain and operate ten (10) radio broadcasting
stations all over the country.  Through
said broadcasting stations, petitioner was able to provide adequate public
service which enabled the government to reach the population on important
public issues, and assist the
government in programs relating to public information and education.  Its radio stations have never been used for
the broadcasting of obscene or indecent language or speech, or for the
dissemination of misleading information or willful misrepresentation, or to the
detriment of the public health, or to incite, encourage or assist in subversion
or treasonable acts.

Under Section 10 of Republic Act No. 3001, petitioner’s franchise
or permit “shall be subject to amendment, alteration or repeal by the
Congress of the Philippines
when the public interest so requires x x x.”

On November 11, 1974,
Presidential Decree No. 576-A entitled “Decree Regulating The Ownership
And Operation Of Radio And Television Stations And For Other Purposes” was
issued and duly published in the December
2, 1974 supplemental issue of the Official Gazette.^[1]

Sections 3, 4, 5 and 6 of the said Decree provide as follows:

“Sec. 3.  No person or
corporation may own, operate, or manage
more than one radio or television station in one municipality or city; nor more
than five AM and FM radio stations; nor more than five television channels in
the entire country, and no radio
or television station shall be utilized by any single-interest group to
disseminate information or otherwise influence the public or the government to
serve or support the ends of such group.

Sec. 4.  Any person or corporation which owns more than the number of radio or
television stations authorized in the preceding section shall divest itself of
the excess stations or channels.  Any
excess station shall be sold through the Board of Communications.

The divestiture provided herein shall be made not later than December 31, 1981.  Thereafter, a person or corporation shall
make such divestiture within one year from the discovery of the offense.

Sec. 5.  Failure to divest as
provided in the foregoing section shall, in addition to the penalties provided
in Section 6, subject the person or corporation guilty of such failure to
cancellation of the franchise of every excess station and to confiscation of
the station and its facilities without compensation.

Sec. 6.  All franchises,
grants, licenses, permits, certificates or other forms of authority to operate
radio or television broadcasting systems shall terminate on December 31, 1981.  Thereafter, irrespective of any franchise,
grant, license, permit, certificate or other forms of authority to operate
granted by any office, agency or person, no radio or television station shall
be authorized to operate without the authority of the Board of Communications
and the Secretary of Public Works and Communications or their successors who
have the right and authority to assign to qualified parties frequencies,
channels or other means of identifying broadcast systems; Provided, however,
that any conflict over, or disagreement with, a decision of the aforementioned
authorities may be appealed finally to the Office of the President within
fifteen days from the date the decision is received by the party in
interest.”

Pursuant to Section 6 of the said Decree, all franchises, grants,
licenses, permits, certificates, or other forms of authority to operate radio
or television broadcasting
systems/stations, including the franchise or permit of petitioner under
Republic Act No. 3001, have been deemed terminated or revoked effective
December 31, 1981.

Thus, petitioner is left with only 3 radio stations located in Iloilo
City, Bacolod City
and Roxas City.

Petitioner alleged that said Decree has caused it great and
irreparable damage, because – (a) it divested petitioner of its franchise without due process of
law and forced it to divest
itself of some of its radio stations; (b) it deprived petitioner of its right
to further construct, maintain and operate radio broadcasting stations in other
cities or municipalities of the country;^[2]
(c) it deprived petitioner of its right
to avail of loan facilities or renew its existing loan availments
from any bank or financial
institution in order to expand and continue
the operation of its radio broadcasting business; and (d) petitioner suffered
loss of income.

Hence, this petition to declare Presidential Decree No. 576-A as unconstitutional and null and
void ab initio.  The grounds
of the petition are as follows:

“I.       THE
ISSUANCE OF PRESIDENTIAL DECREE NO. 576-A SUMMARILY TERMINATING THE
PETITIONER’S FRANCHISE OR PERMIT ON DECEMBER 31, 1981 CONSTITUTES AN UNLAWFUL
TAKING OR DEPRIVATION OF THE PROPERTY RIGHTS (FRANCHISE OR PERMIT) OF
PETITIONER WITHOUT DUE PROCESS OF LAW AND/OR PAYMENT OF JUST COMPENSATION;

“II.      THE ISSUANCE OF
THE AFORESAID DECREE FORCED THE PETITIONER TO DIVEST ITSELF OF SOME OF ITS
RADIO STATIONS AND THE TERMINATION OF ITS CONGRESSIONAL FRANCHISE CONSTITUTES A
VIOLATION AND IMPAIRMENT OF PETITIONER’S OR THE PEOPLE’S RIGHT OR FREEDOM OF
SPEECH, EXPRESSION AND/OR OF THE PRESS;

III.      THE ISSUANCE OF THE
AFORESAID DECREE FORCED THE PETITIONER TO DIVEST ITSELF OF SOME OF ITS RADIO STATIONS AND THE ARBITRARY
TERMINATION OF ITS CONGRESSIONAL FRANCHISE CONSTITUTES AN UNLAWFUL IMPAIRMENT
OF THE OBLIGATION OF CONTRACT BETWEEN THE STATE AND THE PETITIONER; AND

IV.      THE ISSUANCE OF THE
AFORESAID DECREE RESTRICTING PETITIONER OR ANY OTHER PERSON OR ENTITY TO OPERATE A CERTAIN NUMBER OF RADIO OR
TELEVISION STATIONS IN ONE CITY OR MUNICIPALITY, OR IN THE ENTIRE COUNTRY FOR
THAT MATTER, AND FURTHER TERMINATING THE CONGRESSIONAL
FRANCHISE OF PETITIONER CONSTITUTES AN UNLAWFUL RESTRAINT OF TRADE;”^[3]

Without giving due course
to the petition, the respondents were required to submit their comment thereto
within ten (10) days from notice.  After
the comment of the respondents was submitted,
the petitioner was required to
file a reply thereto.  As said reply was
filed the Court required respondents to
submit their rejoinder.  The rejoinder of
respondents had been duly submitted so the case is now due for resolution.

After a careful deliberation on the petition, the Court finds the
same to be devoid of merit.

The petition seeks a declaration of the unconstitutionality
and/or nullity of Presidential Decree No.
576-A.  As such, it must be treated as one seeking declaratory
relief under Rule 64 of the Rules
of Court.  Such an action should be brought before the
Regional Trial Court and not before the Supreme Court.  A petition for declaratory relief is not among
the petitions within the original jurisdiction of the Supreme Court even if
only questions of law are
involved.^[4]

Thus, the present petition should be dismissed on this score.

Moreover, there is no actual case or controversy involving the law
sought to be annulled.  Petitioner does
not allege that it has filed an application for a license to operate a radio or
television station in excess of the authorized number and that the same is
being denied or refused on the basis of the restrictions under Presidential
Decree No. 576-A.  Petitioner does not
also allege that it had been penalized or is being penalized for a violation
under said Decree.  There is, likewise,
no allegation that any of the petitioner’s stations had been confiscated or
shut down pursuant to Presidential Decree No. 576-A.  Obviously, the constitutional challenge is
not being raised in the context of a specific case or controversy wherein the petitioner has asserted his rights.  All that petitioner seeks is the nullification of Presidential Decree No.
576-A and the reinstatement of its rights under Republic Act No. 3001.

Judicial review cannot be exercised in vacuo.  Judicial power is “the right to
determine actual controversies arising between adverse litigants.”^[5]

The function of the courts is to determine controversies between
litigants and not to give advisory opinions.^[6]
The power of judicial review can only be exercised
in connection with a bona fide case or controversy which involves the
statute sought to be reviewed.^[7]

Petitioner alleges that it used to maintain and operate at least
ten (10) radio broadcasting stations but pursuant to Sections 3, 4, 5 and 6 of
Presidential Decree No. 576-A it divested itself of the “excess
stations” thus leaving it with three (3) radio stations located in Iloilo
City, Bacolod City and Roxas
City.  Petitioner did not allege that it challenged the
constitutionality of the decree at any time since it took effect on December 31, 1981.  It does
not appear that petitioner’s compliance was made under protest.  In view of its acquiescence with Presidential
Decree No. 576-A, the petitioner is now estopped from
challenging the same under the principle of estoppel
that “one who sleeps on his rights shall not be heard to complain.”

The allegation of petitioner that its petition should be treated
as a petition for prohibition does not place petitioner in any better
position.  The petition cannot be
considered as one for prohibition as it does not seek to prohibit further
proceedings being conducted by any tribunal, corporation, board or person
exercising judicial or ministerial functions.^[8]

In the instant petition, petitioner does not seek to prohibit any
proceeding being conducted by public respondent which adversely affects its
interest.  Petitioner does not claim that
it has a pending application for a broadcast license which is about to be
denied under Presidential Decree No. 576-A. 
Apparently, what petitioner seeks to
prohibit is the possible denial of an application it may make to operate radio or television
stations on the basis of the restrictions imposed by Presidential Decree No. 576-A.  Obviously, the petition is premature.

Petitioner prays for reinstatement of its rights under its
original franchise.  Reinstatement is an
affirmative remedy and cannot be secured
through a writ of prohibition which is essentially a preventive
and not a corrective remedy.  It cannot
correct an act that is a fait
accompli.^[9]

WHEREFORE, the petition is DISMISSED with costs against
petitioner.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea, and Regalado, JJ., concur.

Paras and
Feliciano, JJ., on leave.

^[1] Volume 70, No. 48, page 10042.

^[2] See Section 1, Republic Act No. 3001.

^[3]
Page 6, Rollo.

^[4] See Section 17, Republic Act No. 296; Section 19(b), Batas Pambansa Blg. 129; Alliance of Government Workers vs. Minister of
Labor and Employment, 124 SCRA 1 (1983).

^[5] Muskrat vs. United States, 219 U.S. 346 (1911).

^[6] In Re: 
Workmen’s Compensation Fund, 119 N.E. 1027 (1918), cited in Director of
Prisons vs. Ang Chio
Kio, 33 SCRA 494, 509 (1970).

^[7] PACU vs. Secretary of Education, 97
Phil. 806, 810 (1955).

^[8]
Section 2, Rule 65, Rules of
Court.

^[9]
Agustin vs. de la Fuente, 84 Phil. 515 (1949).