Name: Rolando L. Sergio Jr.

Section: JD1B
Subject: Social Justice

FACT

Republic Act No. 3846, otherwise known as the Radio Control Act, enacted
in August 10, 1931, requires that a franchise must first be obtained from the
Philippine Legislature before a person, firm, company, association or corporation
may construct, install, establish, or operate a radio station.

ISSUE

Is the requirement of a legislative franchise an issue of freedom or welfare?

Should the law requiring broadcast corporations to secure a legislative franchise be
repealed, on the basis of freedom or of welfare?

CONCLUSION

Republic Act No. 3846 (Radio Control Act) requires any person or entity to
first secure a franchise from the legislature before they could construct, install or
operate a radio broadcast station. In enacting the law the Scarcity Doctrine was
adopted by the legislature, since broadcast frequencies constitute a scarce resource,
government regulation is a necessary. Without regulation, the result would be a
free-for-all market, there would be hundreds of stations each using frequencies of
their choice and changing them at will, and these would lead to chaos on the
airwaves. Frequencies being a scarce resource, portions of it must be reserved for
vital uses not connected with human communication, such as radio-navigational
aids used by aircrafts and vessels; “Land Mobile Services” for police, ambulance,
fire departments. Among the various uses of radio frequency space including
marine, aviation, amateur, military, and common carrier users, there are easily
enough claimants to permit the use of the whole with even a smaller allocation to
broadcast radio. In regulating the airwaves, the legislature is put in a position to
determine who is worthy to be accorded the privilege to broadcast, it may impose
regulations to see to it that the broadcasters promote the public good deemed
important by the state, and to withdraw the privilege from those who fall short of
the standards set in favour of the worthy applicants.1

Some argue in regulating radio broadcast stations would infringe the

freedom of speech and expression, the reality is that there are more individuals or
persons who want to broadcast compared to the frequencies which are available.
Imagine 100 people want to broadcast but there are only 10 frequencies to allocate
them to and they were all accommodated the airwaves would extremely be
crowded. If there is to be effective communication by radio, only a few can be
given a franchise and the rest must be barred from using the frequencies. It would
be strange if the freedom of speech and expression which aims to protect and
further communication of the people could prevent the government in making
radio communication more effectively. In denying a station a franchise because
public interest demands it is not a denial of free speech. The reality of the scarcity
of remains the primary, indisputable and indispensible justification of the
government to regulate. In regulating radio broadcast it showed how freedom of
speech can be balanced in accordance with the circumstances of world while at the
same time still preserving the essence of the constitutional right.

In repealing or amending Republic Act No. 3846 welfare and freedom must
be considered. Studies have disputed that there is no such scarcity in which the
Scarcity doctrine was based. According to the study of John W. Berresford entitled
“The Scarcity Rationale For Regulating Traditional Broadcasting: An Idea Whose
Time Has Passed”, the Scarcity doctrine has no basis in either physics or
economics. There has been a great misunderstanding in the physics of airwaves in
considering them as a physical resource which is finite, the frequency spectrum is
merely a way of describing the forms of electromagnetic radiation; it is not a thing
but a force. Thus, to the extent that the scarcity doctrine assumes that the frequency
spectrum is a tangible thing of a scarce amount, the assumption is simply incorrect
as a matter of scientific fact. The doctrine ignores the basic principles of resource
allocation, history, technological progress and economics. If ever the doctrine was
valid in the past, it would clearly be invalid in today’s media marketplace.2 the
legislature must then abandon the doctrine and formulate a different approach in
regulating broadcast that would be more beneficial to the people for their welfare
and freedom.

1
Red Lion Broadcasting Co. V. FCC 395 U.S (1969)
2
John W. Barresford, “The Scarcity Rationale For Traditional Broadcasting: An Idea Whose Time Has
Passed” (2005)