ABS-CBN BROADCASTING G.R. Nos.

175769-70

CORPORATION,

Petitioner, Present:

Ynares-Santiago, J. (Chairperson),

- versus - Austria-Martinez,

Chico-Nazario,

Nachura, and

Leonardo-De Castro,* JJ.

PHILIPPINE MULTI-MEDIA SYSTEM,

INC., CESAR G. REYES, FRANCIS

CHUA (ANG BIAO), MANUEL F.

ABELLADA, RAUL B. DE MESA, Promulgated:

AND ALOYSIUS M. COLAYCO,

Respondents. January 19, 2009

x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:

This petition for review on certiorari1[1] assails the July 12, 2006
Decision2[2] of the Court of Appeals in CA-G.R. SP Nos. 88092 and 90762, which
affirmed the December 20, 2004 Decision of the Director-General of the
Intellectual Property Office (IPO) in Appeal No. 10-2004-0002. Also assailed is
the December 11, 2006 Resolution3[3] denying the motion for reconsideration.

Petitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is licensed

under the laws of the Republic of the Philippines to engage in television and radio
broadcasting.4[4] It broadcasts television programs by wireless means to Metro
Manila and nearby provinces, and by satellite to provincial stations through
Channel 2 on Very High Frequency (VHF) and Channel 23 on Ultra High
Frequency (UHF). The programs aired over Channels 2 and 23 are either produced
by ABS-CBN or purchased from or licensed by other producers.
 ABS-CBN also owns regional television stations which pattern their
programming in accordance with perceived demands of the region. Thus,
television programs shown in Metro Manila and nearby provinces are not
necessarily shown in other provinces.

Respondent Philippine Multi-Media System, Inc. (PMSI) is the operator of

Dream Broadcasting System. It delivers digital direct-to-home (DTH) television
via satellite to its subscribers all over the Philippines. Herein individual
respondents, Cesar G. Reyes, Francis Chua, Manuel F. Abellada, Raul B. De Mesa,
and Aloysius M. Colayco, are members of PMSIs Board of Directors.

PMSI was granted a legislative franchise under Republic Act No. 86305[5]
on May 7, 1998 and was given a Provisional Authority by the National
Telecommunications Commission (NTC) on February 1, 2000 to install, operate
and maintain a nationwide DTH satellite service. When it commenced operations,
it offered as part of its program line-up ABS-CBN Channels 2 and 23, NBN,
Channel 4, ABC Channel 5, GMA Channel 7, RPN Channel 9, and IBC Channel
13, together with other paid premium program channels.
 However, on April 25, 2001,6[6] ABS-CBN demanded for PMSI to cease
and desist from rebroadcasting Channels 2 and 23. On April 27, 2001,7[7] PMSI
replied that the rebroadcasting was in accordance with the authority granted it by
NTC and its obligation under NTC Memorandum Circular No. 4-08-88,8[8]
Section 6.2 of which requires all cable television system operators operating in a
community within Grade A or B contours to carry the television signals of the
authorized television broadcast stations.9[9]

Thereafter, negotiations ensued between the parties in an effort to reach a

settlement; however, the negotiations were terminated on April 4, 2002 by ABS-
CBN allegedly due to PMSIs inability to ensure the prevention of illegal
retransmission and further rebroadcast of its signals, as well as the adverse effect
of the rebroadcasts on the business operations of its regional television
stations.10[10]
 On May 13, 2002, ABS-CBN filed with the IPO a complaint for Violation of
Laws Involving Property Rights, with Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction, which was docketed as
IPV No. 10-2002-0004. It alleged that PMSIs unauthorized rebroadcasting of
Channels 2 and 23 infringed on its broadcasting rights and copyright.

On July 2, 2002, the Bureau of Legal Affairs (BLA) of the IPO granted
ABS-CBNs application for a temporary restraining order. On July 12, 2002, PMSI
suspended its retransmission of Channels 2 and 23 and likewise filed a petition for
certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No.
71597.

Subsequently, PMSI filed with the BLA a Manifestation reiterating that it is

subject to the must-carry rule under Memorandum Circular No. 04-08-88. It also
submitted a letter dated December 20, 2002 of then NTC Commissioner Armi Jane
R. Borje to PMSI stating as follows:

This refers to your letter dated December 16, 2002 requesting for
regulatory guidance from this Commission in connection with the application and
coverage of NTC Memorandum Circular No. 4-08-88, particularly Section 6
thereof, on mandatory carriage of television broadcast signals, to the direct-to-
home (DTH) pay television services of Philippine Multi-Media System, Inc.
(PMSI).

Preliminarily, both DTH pay television and cable television services are
broadcast services, the only difference being the medium of delivering such
 services (i.e. the former by satellite and the latter by cable). Both can carry
broadcast signals to the remote areas, thus enriching the lives of the residents
thereof through the dissemination of social, economic, educational information
and cultural programs.

The DTH pay television services of PMSI is equipped to provide

nationwide DTH satellite services. Concededly, PMSIs DTH pay television
services covers very much wider areas in terms of carriage of broadcast signals,
including areas not reachable by cable television services thereby providing a
better medium of dissemination of information to the public.

In view of the foregoing and the spirit and intent of NTC

memorandum Circular No. 4-08-88, particularly section 6 thereof, on
mandatory carriage of television broadcast signals, DTH pay television
services should be deemed covered by such NTC Memorandum Circular.

For your guidance. (Emphasis added)11[11]

On August 26, 2003, PMSI filed another Manifestation with the BLA that it
received a letter dated July 24, 2003 from the NTC enjoining strict and immediate
compliance with the must-carry rule under Memorandum Circular No. 04-08-88, to
wit:

Dear Mr. Abellada:

Last July 22, 2003, the National Telecommunications Commission (NTC)

received a letter dated July 17, 2003 from President/COO Rene Q. Bello of the
International Broadcasting Corporation (IBC-Channel 13) complaining that your
company, Dream Broadcasting System, Inc., has cut-off, without any notice or
explanation whatsoever, to air the programs of IBC-13, a free-to-air television, to
the detriment of the public.

We were told that, until now, this has been going on.
 Please be advised that as a direct broadcast satellite operator, operating a
direct-to-home (DTH) broadcasting system, with a provisional authority
(PA) from the NTC, your company, along with cable television operators, are
mandated to strictly comply with the existing policy of NTC on mandatory
carriage of television broadcast signals as provided under Memorandum
Circular No. 04-08-88, also known as the Revised Rules and Regulations
Governing Cable Television System in the Philippines.

This mandatory coverage provision under Section 6.2 of said Memorandum

Circular, requires all cable television system operators, operating in a
community within the Grade A or B contours to must-carry the television
signals of the authorized television broadcast stations, one of which is IBC-
13. Said directive equally applies to your company as the circular was issued
to give consumers and the public a wider access to more sources of news,
information, entertainment and other programs/contents.

This Commission, as the governing agency vested by laws with the jurisdiction,
supervision and control over all public services, which includes direct broadcast
satellite operators, and taking into consideration the paramount interest of the
public in general, hereby directs you to immediately restore the signal of IBC-13
in your network programs, pursuant to existing circulars and regulations of the
Commission.

For strict compliance. (Emphasis added)12[12]

Meanwhile, on October 10, 2003, the NTC issued Memorandum Circular

No. 10-10-2003, entitled Implementing Rules and Regulations Governing
Community Antenna/Cable Television (CATV) and Direct Broadcast Satellite
(DBS) Services to Promote Competition in the Sector. Article 6, Section 8 thereof
states:

As a general rule, the reception, distribution and/or transmission by any

CATV/DBS operator of any television signals without any agreement with or
authorization from program/content providers are prohibited.
 On whether Memorandum Circular No. 10-10-2003 amended Memorandum
Circular No. 04-08-88, the NTC explained to PMSI in a letter dated November 3,
2003 that:

To address your query on whether or not the provisions of MC 10-10-2003 would

have the effect of amending the provisions of MC 4-08-88 on mandatory carriage
of television signals, the answer is in the negative.

xxxx

The Commission maintains that, MC 4-08-88 remains valid, subsisting and

enforceable.

Please be advised, therefore, that as duly licensed direct-to-home satellite

television service provider authorized by this Commission, your company
continues to be bound by the guidelines provided for under MC 04-08-88,
specifically your obligation under its mandatory carriage provisions, in
addition to your obligations under MC 10-10-2003. (Emphasis added)

Please be guided accordingly.13[13]

On December 22, 2003, the BLA rendered a decision14[14] finding that

PMSI infringed the broadcasting rights and copyright of ABS-CBN and ordering it
to permanently cease and desist from rebroadcasting Channels 2 and 23.
 On February 6, 2004, PMSI filed an appeal with the Office of the Director-
General of the IPO which was docketed as Appeal No. 10-2004-0002. On
December 23, 2004, it also filed with the Court of Appeals a Motion to Withdraw
Petition; Alternatively, Memorandum of the Petition for Certiorari in CA-G.R. SP
No. 71597, which was granted in a resolution dated February 17, 2005.

On December 20, 2004, the Director-General of the IPO rendered a

decision15[15] in favor of PMSI, the dispositive portion of which states:

WHEREFORE, premises considered, the instant appeal is hereby

GRANTED. Accordingly, Decision No. 2003-01 dated 22 December 2003 of the
Director of Bureau of Legal Affairs is hereby REVERSED and SET ASIDE.

Let a copy of this Decision be furnished the Director of the Bureau of

Legal Affairs for appropriate action, and the records be returned to her for proper
disposition. The Documentation, Information and Technology Transfer Bureau is
also given a copy for library and reference purposes.

SO ORDERED.16[16]
 Thus, ABS-CBN filed a petition for review with prayer for issuance of a
temporary restraining order and writ of preliminary injunction with the Court of
Appeals, which was docketed as CA-G.R. SP No. 88092.

On July 18, 2005, the Court of Appeals issued a temporary restraining order.
Thereafter, ABS-CBN filed a petition for contempt against PMSI for continuing to
rebroadcast Channels 2 and 23 despite the restraining order. The case was docketed
as CA- G.R. SP No. 90762.

On November 14, 2005, the Court of Appeals ordered the consolidation of

CA-G.R. SP Nos. 88092 and 90762.

In the assailed Decision dated July 12, 2006, the Court of Appeals sustained
the findings of the Director-General of the IPO and dismissed both petitions filed
by ABS-CBN.17[17]

ABS-CBNs motion for reconsideration was denied, hence, this petition.

 ABS-CBN contends that PMSIs unauthorized rebroadcasting of Channels 2
and 23 is an infringement of its broadcasting rights and copyright under the
Intellectual Property Code (IP Code);18[18]that Memorandum Circular No. 04-08-
88 excludes DTH satellite television operators; that the Court of Appeals
interpretation of the must-carry rule violates Section 9 of Article III19[19] of the
Constitution because it allows the taking of property for public use without
payment of just compensation; that the Court of Appeals erred in dismissing the
petition for contempt docketed as CA-G.R. SP No. 90762 without requiring
respondents to file comment.

Respondents, on the other hand, argue that PMSIs rebroadcasting of

Channels 2 and 23 is sanctioned by Memorandum Circular No. 04-08-88; that the
must-carry rule under the Memorandum Circular is a valid exercise of police
power; and that the Court of Appeals correctly dismissed CA-G.R. SP No. 90762
since it found no need to exercise its power of contempt.

After a careful review of the facts and records of this case, we affirm the
findings of the Director-General of the IPO and the Court of Appeals.
 There is no merit in ABS-CBNs contention that PMSI violated its
broadcasters rights under Section 211 of the IP Code which provides in part:

Chapter XIV
BROADCASTING ORGANIZATIONS

Sec. 211. Scope of Right. - Subject to the provisions of Section 212, broadcasting
organizations shall enjoy the exclusive right to carry out, authorize or prevent any
of the following acts:

211.1. The rebroadcasting of their broadcasts;

xxxx

Neither is PMSI guilty of infringement of ABS-CBNs copyright under

Section 177 of the IP Code which states that copyright or economic rights shall
consist of the exclusive right to carry out, authorize or prevent the public
performance of the work (Section 177.6), and other communication to the public of
the work (Section 177.7).20[20]

Section 202.7 of the IP Code defines broadcasting as the transmission by

wireless means for the public reception of sounds or of images or of
representations thereof; such transmission by satellite is also broadcasting where
the means for decrypting are provided to the public by the broadcasting
organization or with its consent.
 On the other hand, rebroadcasting as defined in Article 3(g) of the
International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations, otherwise known as the 1961 Rome
Convention, of which the Republic of the Philippines is a signatory, 21[21] is the
simultaneous broadcasting by one broadcasting organization of the broadcast of
another broadcasting organization.

The Director-General of the IPO correctly found that PMSI is not engaged in
rebroadcasting and thus cannot be considered to have infringed ABS-CBNs
broadcasting rights and copyright, thus:

That the Appellants [herein respondent PMSI] subscribers are able to view
Appellees [herein petitioner ABS-CBN] programs (Channels 2 and 23) at the
same time that the latter is broadcasting the same is undisputed. The question
however is, would the Appellant in doing so be considered engaged in
broadcasting. Section 202.7 of the IP Code states that broadcasting means

the transmission by wireless means for the public reception

of sounds or of images or of representations thereof; such
transmission by satellite is also broadcasting where the means for
decrypting are provided to the public by the broadcasting
organization or with its consent.

Section 202.7 of the IP Code, thus, provides two instances wherein there is
broadcasting, to wit:

1. The transmission by wireless means for the public reception of sounds or

of images or of representations thereof; and
2. The transmission by satellite for the public reception of sounds or of
images or of representations thereof where the means for decrypting are
provided to the public by the broadcasting organization or with its consent.

It is under the second category that Appellants DTH satellite television

service must be examined since it is satellite-based. The elements of such
category are as follows:

1. There is transmission of sounds or images or of representations thereof;

2. The transmission is through satellite;

3. The transmission is for public reception; and

4. The means for decrypting are provided to the public by the broadcasting
organization or with its consent.

It is only the presence of all the above elements can a determination that
the DTH is broadcasting and consequently, rebroadcasting Appellees signals in
violation of Sections 211 and 177 of the IP Code, may be arrived at.

Accordingly, this Office is of the view that the transmission contemplated

under Section 202.7 of the IP Code presupposes that the origin of the signals is
the broadcaster. Hence, a program that is broadcasted is attributed to the
broadcaster. In the same manner, the rebroadcasted program is attributed to the
rebroadcaster.

In the case at hand, Appellant is not the origin nor does it claim to be the
origin of the programs broadcasted by the Appellee. Appellant did not make and
transmit on its own but merely carried the existing signals of the Appellee. When
Appellants subscribers view Appellees programs in Channels 2 and 23, they know
that the origin thereof was the Appellee.

Aptly, it is imperative to discern the nature of broadcasting. When a

broadcaster transmits, the signals are scattered or dispersed in the air. Anybody
may pick-up these signals. There is no restriction as to its number, type or class of
recipients. To receive the signals, one is not required to subscribe or to pay any
fee. One only has to have a receiver, and in case of television signals, a television
set, and to tune-in to the right channel/frequency. The definition of broadcasting,
wherein it is required that the transmission is wireless, all the more supports this
discussion. Apparently, the undiscriminating dispersal of signals in the air is
 possible only through wireless means. The use of wire in transmitting signals,
such as cable television, limits the recipients to those who are connected. Unlike
wireless transmissions, in wire-based transmissions, it is not enough that one
wants to be connected and possesses the equipment. The service provider, such as
cable television companies may choose its subscribers.

The only limitation to such dispersal of signals in the air is the technical
capacity of the transmitters and other equipment employed by the broadcaster.
While the broadcaster may use a less powerful transmitter to limit its coverage,
this is merely a business strategy or decision and not an inherent limitation when
transmission is through cable.

Accordingly, the nature of broadcasting is to scatter the signals in its

widest area of coverage as possible. On this score, it may be said that making
public means that accessibility is undiscriminating as long as it [is] within the
range of the transmitter and equipment of the broadcaster. That the medium
through which the Appellant carries the Appellees signal, that is via satellite, does
not diminish the fact that it operates and functions as a cable television. It remains
that the Appellants transmission of signals via its DTH satellite television service
cannot be considered within the purview of broadcasting. x x x

xxxx

This Office also finds no evidence on record showing that the Appellant
has provided decrypting means to the public indiscriminately. Considering the
nature of this case, which is punitive in fact, the burden of proving the existence
of the elements constituting the acts punishable rests on the shoulder of the
complainant.

Accordingly, this Office finds that there is no rebroadcasting on the part of

the Appellant of the Appellees programs on Channels 2 and 23, as defined under
the Rome Convention.22[22]

Under the Rome Convention, rebroadcasting is the simultaneous

broadcasting by one broadcasting organization of the broadcast of another
broadcasting organization. The Working Paper23[23] prepared by the Secretariat
of the Standing Committee on Copyright and Related Rights defines broadcasting
organizations as entities that take the financial and editorial responsibility for the
selection and arrangement of, and investment in, the transmitted content.24[24]
Evidently, PMSI would not qualify as a broadcasting organization because it does
not have the aforementioned responsibilities imposed upon broadcasting
organizations, such as ABS-CBN.

ABS-CBN creates and transmits its own signals; PMSI merely carries such
signals which the viewers receive in its unaltered form. PMSI does not produce,
select, or determine the programs to be shown in Channels 2 and 23. Likewise, it
does not pass itself off as the origin or author of such programs. Insofar as
Channels 2 and 23 are concerned, PMSI merely retransmits the same in accordance
with Memorandum Circular 04-08-88. With regard to its premium channels, it
buys the channels from content providers and transmits on an as-is basis to its
viewers. Clearly, PMSI does not perform the functions of a broadcasting
organization; thus, it cannot be said that it is engaged in rebroadcasting Channels 2
and 23.

The Director-General of the IPO and the Court of Appeals also correctly
found that PMSIs services are similar to a cable television system because the
services it renders fall under cable retransmission, as described in the Working
Paper, to wit:

(G) Cable Retransmission

47. When a radio or television program is being broadcast, it can be

retransmitted to new audiences by means of cable or wire. In the early days of
cable television, it was mainly used to improve signal reception, particularly in
so-called shadow zones, or to distribute the signals in large buildings or building
complexes. With improvements in technology, cable operators now often receive
signals from satellites before retransmitting them in an unaltered form to their
subscribers through cable.

48. In principle, cable retransmission can be either simultaneous with the

broadcast over-the-air or delayed (deferred transmission) on the basis of a fixation
or a reproduction of a fixation. Furthermore, they might be unaltered or altered,
for example through replacement of commercials, etc. In general, however, the
term retransmission seems to be reserved for such transmissions which are
both simultaneous and unaltered.

49. The Rome Convention does not grant rights against unauthorized
cable retransmission. Without such a right, cable operators can retransmit
both domestic and foreign over the air broadcasts simultaneously to their
subscribers without permission from the broadcasting organizations or other
rightholders and without obligation to pay remuneration.25[25] (Emphasis
added)

Thus, while the Rome Convention gives broadcasting organizations the right
to authorize or prohibit the rebroadcasting of its broadcast, however, this protection
does not extend to cable retransmission. The retransmission of ABS-CBNs signals
by PMSI which functions essentially as a cable television does not therefore
constitute rebroadcasting in violation of the formers intellectual property rights
under the IP Code.

It must be emphasized that the law on copyright is not absolute. The IP Code
provides that:

Sec. 184. Limitations on Copyright. -

184.1. Notwithstanding the provisions of Chapter V, the following acts

shall not constitute infringement of copyright:

xxxx
(h) The use made of a work by or under the direction or control of the
Government, by the National Library or by educational, scientific or professional
institutions where such use is in the public interest and is compatible with fair use;

The carriage of ABS-CBNs signals by virtue of the must-carry rule in

Memorandum Circular No. 04-08-88 is under the direction and control of the
government though the NTC which is vested with exclusive jurisdiction to
supervise, regulate and control telecommunications and broadcast
services/facilities in the Philippines.26[26] The imposition of the must-carry rule is
within the NTCs power to promulgate rules and regulations, as public safety and
interest may require, to encourage a larger and more effective use of
communications, radio and television broadcasting facilities, and to maintain
effective competition among private entities in these activities whenever the
Commission finds it reasonably feasible.27[27] As correctly observed by the
Director-General of the IPO:

Accordingly, the Must-Carry Rule under NTC Circular No. 4-08-88 falls under
the foregoing category of limitations on copyright. This Office agrees with the
Appellant [herein respondent PMSI] that the Must-Carry Rule is in consonance
with the principles and objectives underlying Executive Order No. 436,28[28] to
wit:

The Filipino people must be given wider access to more

sources of news, information, education, sports event and
entertainment programs other than those provided for by mass
media and afforded television programs to attain a well informed,
well-versed and culturally refined citizenry and enhance their
socio-economic growth:

WHEREAS, cable television (CATV) systems could

support or supplement the services provided by television
broadcast facilities, local and overseas, as the national information
highway to the countryside.29[29]

The Court of Appeals likewise correctly observed that:

 [T]he very intent and spirit of the NTC Circular will prevent a situation whereby
station owners and a few networks would have unfettered power to make time
available only to the highest bidders, to communicate only their own views on
public issues, people, and to permit on the air only those with whom they agreed
contrary to the state policy that the (franchise) grantee like the petitioner, private
respondent and other TV station owners, shall provide at all times sound and
balanced programming and assist in the functions of public information and
education.

This is for the first time that we have a structure that works to accomplish
explicit state policy goals.30[30]

Indeed, intellectual property protection is merely a means towards the end of

making society benefit from the creation of its men and women of talent and
genius. This is the essence of intellectual property laws, and it explains why certain
products of ingenuity that are concealed from the public are outside the pale of
protection afforded by the law. It also explains why the author or the creator enjoys
no more rights than are consistent with public welfare.31[31]

Further, as correctly observed by the Court of Appeals, the must-carry rule

as well as the legislative franchises granted to both ABS-CBN and PMSI are in
consonance with state policies enshrined in the Constitution, specifically Sections
9,32[32] 17,33[33] and 2434[34] of Article II on the Declaration of Principles and
State Policies.35[35]

ABS-CBN was granted a legislative franchise under Republic Act No. 7966,
Section 1 of which authorizes it to construct, operate and maintain, for commercial
purposes and in the public interest, television and radio broadcasting in and
throughout the Philippines x x x. Section 4 thereof mandates that it shall provide
adequate public service time to enable the government, through the said
broadcasting stations, to reach the population on important public issues; provide
at all times sound and balanced programming; promote public participation such as
in community programming; assist in the functions of public information and
education x x x.

PMSI was likewise granted a legislative franchise under Republic Act No.
8630, Section 4 of which similarly states that it shall provide adequate public
service time to enable the government, through the said broadcasting stations, to
reach the population on important public issues; provide at all times sound and
balanced programming; promote public participation such as in community
programming; assist in the functions of public information and education x x x.
Section 5, paragraph 2 of the same law provides that the radio spectrum is a finite
resource that is a part of the national patrimony and the use thereof is a privilege
conferred upon the grantee by the State and may be withdrawn anytime, after due
process.

In Telecom. & Broadcast Attys. of the Phils., Inc. v. COMELEC,36[36] the

Court held that a franchise is a mere privilege which may be reasonably burdened
with some form of public service. Thus:

All broadcasting, whether by radio or by television stations, is licensed by the

government. Airwave frequencies have to be allocated as there are more
individuals who want to broadcast than there are frequencies to assign. A
franchise is thus a privilege subject, among other things, to amendment by
Congress in accordance with the constitutional provision that any such franchise
or right granted . . . shall be subject to amendment, alteration or repeal by the
Congress when the common good so requires.

xxxx

Indeed, provisions for COMELEC Time have been made by amendment

of the franchises of radio and television broadcast stations and, until the present
case was brought, such provisions had not been thought of as taking property
without just compensation. Art. XII, 11 of the Constitution authorizes the
amendment of franchises for the common good. What better measure can be
 conceived for the common good than one for free air time for the benefit not only
of candidates but even more of the public, particularly the voters, so that they will
be fully informed of the issues in an election? [I]t is the right of the viewers and
listeners, not the right of the broadcasters, which is paramount.

Nor indeed can there be any constitutional objection to the requirement

that broadcast stations give free air time. Even in the United States, there are
responsible scholars who believe that government controls on broadcast media
can constitutionally be instituted to ensure diversity of views and attention to
public affairs to further the system of free expression. For this purpose, broadcast
stations may be required to give free air time to candidates in an election. Thus,
Professor Cass R. Sunstein of the University of Chicago Law School, in urging
reforms in regulations affecting the broadcast industry, writes:

xxxx

In truth, radio and television broadcasting companies, which are given

franchises, do not own the airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the temporary privilege of
using them. Since a franchise is a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the grantee of some form of
public service. x x x37[37]

There is likewise no merit to ABS-CBNs claim that PMSIs carriage of its

signals is for a commercial purpose; that its being the countrys top broadcasting
company, the availability of its signals allegedly enhances PMSIs attractiveness to
potential customers;38[38] or that the unauthorized carriage of its signals by PMSI
has created competition between its Metro Manila and regional stations.
 ABS-CBN presented no substantial evidence to prove that PMSI carried its
signals for profit; or that such carriage adversely affected the business operations
of its regional stations. Except for the testimonies of its witnesses,39[39] no
studies, statistical data or information have been submitted in evidence.

Administrative charges cannot be based on mere speculation or conjecture.

The complainant has the burden of proving by substantial evidence the allegations
in the complaint.40[40] Mere allegation is not evidence, and is not equivalent to
proof.41[41]

Anyone in the country who owns a television set and antenna can receive
ABS-CBNs signals for free. Other broadcasting organizations with free-to-air
signals such as GMA-7, RPN-9, ABC-5, and IBC-13 can likewise be accessed for
free. No payment is required to view the said channels42[42] because these
broadcasting networks do not generate revenue from subscription from their
viewers but from airtime revenue from contracts with commercial advertisers and
producers, as well as from direct sales.

In contrast, cable and DTH television earn revenues from viewer

subscription. In the case of PMSI, it offers its customers premium paid channels
from content providers like Star Movies, Star World, Jack TV, and AXN, among
others, thus allowing its customers to go beyond the limits of Free TV and Cable
TV.43[43] It does not advertise itself as a local channel carrier because these local
channels can be viewed with or without DTH television.

Relevantly, PMSIs carriage of Channels 2 and 23 is material in arriving at

the ratings and audience share of ABS-CBN and its programs. These ratings help
commercial advertisers and producers decide whether to buy airtime from the
network. Thus, the must-carry rule is actually advantageous to the broadcasting
networks because it provides them with increased viewership which attracts
commercial advertisers and producers.

On the other hand, the carriage of free-to-air signals imposes a burden to

cable and DTH television providers such as PMSI. PMSI uses none of ABS-CBNs
resources or equipment and carries the signals and shoulders the costs without any
recourse of charging.44[44] Moreover, such carriage of signals takes up channel
space which can otherwise be utilized for other premium paid channels.

There is no merit to ABS-CBNs argument that PMSIs carriage of Channels

2 and 23 resulted in competition between its Metro Manila and regional stations.
ABS-CBN is free to decide to pattern its regional programming in accordance with
perceived demands of the region; however, it cannot impose this kind of
programming on the regional viewers who are also entitled to the free-to-air
channels. It must be emphasized that, as a national broadcasting organization, one
of ABS-CBNs responsibilities is to scatter its signals to the widest area of coverage
as possible. That it should limit its signal reach for the sole purpose of gaining
profit for its regional stations undermines public interest and deprives the viewers
of their right to access to information.

Indeed, television is a business; however, the welfare of the people must not
be sacrificed in the pursuit of profit. The right of the viewers and listeners to the
most diverse choice of programs available is paramount.45[45] The Director-
General correctly observed, thus:
 The Must-Carry Rule favors both broadcasting organizations and the
public. It prevents cable television companies from excluding broadcasting
organization especially in those places not reached by signal. Also, the rule
prevents cable television companies from depriving viewers in far-flung areas the
enjoyment of programs available to city viewers. In fact, this Office finds the rule
more burdensome on the part of the cable television companies. The latter carries
the television signals and shoulders the costs without any recourse of charging.
On the other hand, the signals that are carried by cable television companies are
dispersed and scattered by the television stations and anybody with a television
set is free to pick them up.

With its enormous resources and vaunted technological capabilities,

Appellees [herein petitioner ABS-CBN] broadcast signals can reach almost every
corner of the archipelago. That in spite of such capacity, it chooses to maintain
regional stations, is a business decision. That the Must-Carry Rule adversely
affects the profitability of maintaining such regional stations since there will be
competition between them and its Metro Manila station is speculative and an
attempt to extrapolate the effects of the rule. As discussed above, Appellants DTH
satellite television services is of limited subscription. There was not even a
showing on part of the Appellee the number of Appellants subscribers in one
region as compared to non-subscribing television owners. In any event, if this
Office is to engage in conjecture, such competition between the regional stations
and the Metro Manila station will benefit the public as such competition will most
likely result in the production of better television programs.46[46]

All told, we find that the Court of Appeals correctly upheld the decision of
the IPO Director-General that PMSI did not infringe on ABS-CBNs intellectual
property rights under the IP Code. The findings of facts of administrative bodies
charged with their specific field of expertise, are afforded great weight by the
courts, and in the absence of substantial showing that such findings are made from
an erroneous estimation of the evidence presented, they are conclusive, and in the
interest of stability of the governmental structure, should not be disturbed.47[47]
 Moreover, the factual findings of the Court of Appeals are conclusive on the
parties and are not reviewable by the Supreme Court. They carry even more weight
when the Court of Appeals affirms the factual findings of a lower fact-finding
body,48[48] as in the instant case.

There is likewise no merit to ABS-CBNs contention that the Memorandum

Circular excludes from its coverage DTH television services such as those
provided by PMSI. Section 6.2 of the Memorandum Circular requires all cable
television system operators operating in a community within Grade A or B
contours to carry the television signals of the authorized television broadcast
stations.49[49] The rationale behind its issuance can be found in the whereas
clauses which state:

Whereas, Cable Television Systems or Community Antenna Television

(CATV) have shown their ability to offer additional programming and to carry
much improved broadcast signals in the remote areas, thereby enriching the lives
of the rest of the population through the dissemination of social, economic,
educational information and cultural programs;
 Whereas, the national government supports the promotes the orderly
growth of the Cable Television industry within the framework of a regulated fee
enterprise, which is a hallmark of a democratic society;

Whereas, public interest so requires that monopolies in commercial mass

media shall be regulated or prohibited, hence, to achieve the same, the cable TV
industry is made part of the broadcast media;

Whereas, pursuant to Act 3846 as amended and Executive Order 205

granting the National Telecommunications Commission the authority to set down
rules and regulations in order to protect the public and promote the general
welfare, the National Telecommunications Commission hereby promulgates the
following rules and regulations on Cable Television Systems;

The policy of the Memorandum Circular is to carry improved signals in

remote areas for the good of the general public and to promote dissemination of
information. In line with this policy, it is clear that DTH television should be
deemed covered by the Memorandum Circular. Notwithstanding the different
technologies employed, both DTH and cable television have the ability to carry
improved signals and promote dissemination of information because they operate
and function in the same way.

In its December 20, 2002 letter,50[50] the NTC explained that both DTH
and cable television services are of a similar nature, the only difference being the
medium of delivering such services. They can carry broadcast signals to the remote
areas and possess the capability to enrich the lives of the residents thereof through
the dissemination of social, economic, educational information and cultural
programs. Consequently, while the Memorandum Circular refers to cable
television, it should be understood as to include DTH television which provides
essentially the same services.

In Eastern Telecommunications Philippines, Inc. v. International

Communication Corporation,51[51] we held:

The NTC, being the government agency entrusted with the regulation of
activities coming under its special and technical forte, and possessing the
necessary rule-making power to implement its objectives, is in the best position to
interpret its own rules, regulations and guidelines. The Court has consistently
yielded and accorded great respect to the interpretation by administrative agencies
of their own rules unless there is an error of law, abuse of power, lack of
jurisdiction or grave abuse of discretion clearly conflicting with the letter and
spirit of the law.52[52]

With regard to the issue of the constitutionality of the must-carry rule, the
Court finds that its resolution is not necessary in the disposition of the instant case.
One of the essential requisites for a successful judicial inquiry into constitutional
questions is that the resolution of the constitutional question must be necessary in
deciding the case.53[53] In Spouses Mirasol v. Court of Appeals,54[54] we held:

As a rule, the courts will not resolve the constitutionality of a law, if the
controversy can be settled on other grounds. The policy of the courts is to avoid
ruling on constitutional questions and to presume that the acts of the political
departments are valid, absent a clear and unmistakable showing to the contrary.
To doubt is to sustain. This presumption is based on the doctrine of separation of
powers. This means that the measure had first been carefully studied by the
legislative and executive departments and found to be in accord with the
Constitution before it was finally enacted and approved.55[55]

The instant case was instituted for violation of the IP Code and infringement
of ABS-CBNs broadcasting rights and copyright, which can be resolved without
going into the constitutionality of Memorandum Circular No. 04-08-88. As held by
the Court of Appeals, the only relevance of the circular in this case is whether or
not compliance therewith should be considered manifestation of lack of intent to
commit infringement, and if it is, whether such lack of intent is a valid defense
against the complaint of petitioner.56[56]
 The records show that petitioner assailed the constitutionality of
Memorandum Circular No. 04-08-88 by way of a collateral attack before the Court
of Appeals. In Philippine National Bank v. Palma,57[57] we ruled that for reasons
of public policy, the constitutionality of a law cannot be collaterally attacked. A
law is deemed valid unless declared null and void by a competent court; more so
when the issue has not been duly pleaded in the trial court.58[58]

As a general rule, the question of constitutionality must be raised at the

earliest opportunity so that if not raised in the pleadings, ordinarily it may not be
raised in the trial, and if not raised in the trial court, it will not be considered on
appeal.59[59] In Philippine Veterans Bank v. Court of Appeals,60[60] we held:
 We decline to rule on the issue of constitutionality as all the requisites for
the exercise of judicial review are not present herein. Specifically, the question
of constitutionality will not be passed upon by the Court unless, at the first
opportunity, it is properly raised and presented in an appropriate case,
adequately argued, and is necessary to a determination of the case,
particularly where the issue of constitutionality is the very lis mota presented.
x x x61[61]

Finally, we find that the dismissal of the petition for contempt filed by ABS-
CBN is in order.

Indirect contempt may either be initiated (1) motu proprio by the court by
issuing an order or any other formal charge requiring the respondent to show cause
why he should not be punished for contempt or (2) by the filing of a verified
petition, complying with the requirements for filing initiatory pleadings.62[62]

ABS-CBN filed a verified petition before the Court of Appeals, which was
docketed CA G.R. SP No. 90762, for PMSIs alleged disobedience to the
Resolution and Temporary Restraining Order, both dated July 18, 2005, issued in
CA-G.R. SP No. 88092. However, after the cases were consolidated, the Court of
Appeals did not require PMSI to comment on the petition for contempt. It ruled on
the merits of CA-G.R. SP No. 88092 and ordered the dismissal of both petitions.

ABS-CBN argues that the Court of Appeals erred in dismissing the petition
for contempt without having ordered respondents to comment on the same.
Consequently, it would have us reinstate CA-G.R. No. 90762 and order
respondents to show cause why they should not be held in contempt.

It bears stressing that the proceedings for punishment of indirect contempt

are criminal in nature. The modes of procedure and rules of evidence adopted in
contempt proceedings are similar in nature to those used in criminal prosecutions.
63[63] While it may be argued that the Court of Appeals should have ordered
respondents to comment, the issue has been rendered moot in light of our ruling on
the merits. To order respondents to comment and have the Court of Appeals
conduct a hearing on the contempt charge when the main case has already been
disposed of in favor of PMSI would be circuitous. Where the issues have become
moot, there is no justiciable controversy, thereby rendering the resolution of the
same of no practical use or value.64[64]
 WHEREFORE, the petition is DENIED. The July 12, 2006 Decision of the
Court of Appeals in CA-G.R. SP Nos. 88092 and 90762, sustaining the findings of
the Director-General of the Intellectual Property Office and dismissing the
petitions filed by ABS-CBN Broadcasting Corporation, and the December 11,
2006 Resolution denying the motion for reconsideration, are AFFIRMED.

SO ORDERED.