On May 6, 2003 and
in Santiago de Chile, UNESCO and United Nations celebrated a �Seminar for the
Fostering of Independent and Pluralist Communication Media� participating
government, private entrepreneurs, faculty and communal media.
In its Final Declaration are concepts that are to
promote the work about legislation being developed by AMARC within LAC:
�In view of the increasing importance of the
commentary communication media for the democratic process in the region, to ask
UNESCO that, with the collaboration of professional organizations and research
institutes, study the current situation of commentary communication media in
relation to legislation, frequencies, limitations of power and advertisement
restrictions, in order to formulate recommendations to be considered by the
governments involved�.
Likewise, it is asked to the International Program for
Communication Development (IPCD) of UNESCO and donating agencies that:
�support projects for the creation of new
communitarian communication media, both printed and electronics, as well as
projects aimed at strengthen the current communitarian communication media, subjected to
international regulations, specially those communication media addressed to
women, youth, indigenous groups and the minorities�.
These resolutions were included in the Agenda
unanimously approved by the presents, having as fundament the �vigorous disapproval� to the �political
and economics pressures, such as censorship, restriction for buying paper by
newspapers and other professional equipment and material; licensing systems and
abusive controls that limit the ability to publish or transmission...�
To many legal frameworks, obsolete and discriminatory,
as current administrative practices in many of our countries, hinder the
creation of new communitarian radios (frequency blocking) or prevent the
performance of the already installed ones (closure threat, confiscation of
equipments, ban to increase power, advertisement, etc).
Facing this, AMARC-LAC poses the need to contribute to
the transformation of these legal frameworks and discriminatory practices, and
to defend our simple right and of Civil Society as a whole, to express and
communicate through every possible media, especially through the radio
frequencies.
The exclusion of the access or limiting its use is not
unique to the communitarian radios, since it leaves out even non-monopolist
businessmen. Therefore, it is not a question of merely to defend the interests
of the radios associated to AMARC-LAC, it is mandatory to aim at the
Democratization of Communications, it means, to conquer legal guarantees, fair
and democratic, that assure equal opportunities in order to allow everybody to
benefit from the freedom of speech.
But the task is not easy, even less for a single
organization. Together with other communication networks, and human right
international organizations, we have proposed the need for the Right to
Communicate to be acknowledged and preserved as a fundamental human right. To
reach this, the realization of international meetings to discuss these themes
and, specially, some strategy to make aware the organisms of the United Nations
or the American Estates Organization, would provide for the creation of
international standards that protect the rights of the communitarian radios as
freedom of speech y as a right to the vast majorities to access radio
frequencies in a fair and equitable way.
The choosing of this setting is not casual. For
AMARC-LAC the key issue is not technical or economic, but about the violation
of one of the basic Human Rights, essential to consolidate our democracies.
Both worldwide and nationwide, it can be and should be
advanced towards the democratization of the legal frameworks that regulate
radio broadcasting, especially the regulations and its application by
governments that make use of these mechanisms in order to prevent or make it
difficult for the Civil Society to manage directly its own communication media.
Restrictions for the Civil
Society to provide radiobroadcasting services
Reading the
national legislations from diverse countries within our region related to radio
broadcasting, it comes up that the possibilities of exercising the information
right are not only obstructed or limited, but also clearly negated in the
majority of them.
There are
countries were explicit clauses are present by means of which this right is
excluded to entities that were not established as commercial societies, meaning
that foundations, mutual funding entities, cooperatives, trade unions,
community entities, school associations and others, as it occurs in the
Argentinean legislation[1].
In other cases
(even having previsions for this undertakings to access the frequencies), the
restrictions or obstacles are expressed through limitations to the covering of
its radio stations, as it is the case of the Chilean radios of minimal cover[2]
or in Brazil[3]. Or the
imposition of the use of a marginal location within the spectrum thus forcing
any possibility of pluralism, such as it also happen in Brazil with the
authorization of a single channel in the whole country, out of the 200
potentially available. It is usual to verify
that non-commercial radios are not allowed to form transitory or permanent networks,
which clearly conspire against the possibility of diffusing events of national
or regional transcendence, in frank discrimination with respect to other users.
On top of that
there are exclusions to the possibility of obtaining genuine resources out of
the reckoning of the intellectual or artistic creation being developed. This
discrimination about some other juridical forms are specially established for
the radios managed with social ends in almost each country (except Colombia and
Venezuela, with some limitations and, recently, in Ecuador) leaving the
non-commercial radio stations to the amateurism and limiting its independent
capability.
It is also possible to detect the existence of auction
regimes, as the only mechanism to provide radioelectric frequencies, as in
Guatemala[4]
and Paraguay[5], were the
economical factor is not only preponderant but also unique. This procedure was
�in both cases- strongly objected by the Commission for the Freedom of Speech
and Human Rights Inter-American Commission[6],
assuming that economic wealth should not be the criterion for the official
decisions to extend authorizations to use the spectrum in order to practice the
right to inform and to be informed.
Even more serious
are the legal and regulatory previsions by means of which the radio
broadcasters from communitarian radio have content limitations, due to the fact
that they are aimed in a exclusive way to cover specific subjects, Typical
clauses on this matter are those that force to radiate educative, cultural or social
themes exclusively as if they were propagandists and not social communication
media. This happens in several countries within the region[7].
Last, but not least, there are penalties even more
severe than for other radiobroadcasters, such as radiostation shutdown, to
infractors when for other commercial media it would just imply a warning or
some admonition. The clearest evidence of this kind of situations is indicated
by the differential approach to the protection against harmful interferences
that fully enjoy the commercial stations but not the ones of the civil society,
meaning it a clear violation of the equality facing the law[8].
Despite de fact that sometimes the laws, and even
constitutions, acknowledge the access under equal opportunities, the specific
regulations and requirement to grant permissions, include conditions that
strongly limit that possibility. Such is the case of demanding technical or
economical thresholds in order to participate in awarding systems, turning them
unreachable for small broadcasters[9].
Also, when it is required to hold some specific social status to be able to
postulate, affecting the freedom of association[10].
Together with these
explicit statutory provisions of the current legal frameworks, the
administrative practices at the time of application provide newer sources of
discressionality and discrimination. The lack of fair mechanisms, democratic
and, above all, transparent, make it possible for the radioelectric frequencies
to be assigned as true gifts favoring political friends or businessmen next to
the power[11].
Without detriment
to it, some positive regulations can be highlighted as far as the access to
radioelectric frequencies is concerned[12],
in addition to recent legal modifications in order to introduce guidelines for
applying best policies in favor to non-commercial radios such as the Ecuadorian
legislation that eliminates discrimination to content and access to collect
from advertising[13], or
governmental resolutions that start to partially solve this discriminatory
situation, as it occurs in Paraguay[14].
Usually, radio
broadcasting has been considered second place with regard to freedom of the
press and right to information, under the erroneous belief that the former is a
purely commercial service o that it is concerned only to technical matters.
To AMARC, the
thing is assigning to radio broadcasting the importance it deserves, assuming
that we are talking about an activity through which it is exercised the right
stated at the art. 13 of the American Convention on Human Rights (ACHR) and the
art. 19 of the Universal Declaration of Human Rights, since the fact that it
accomplished by means of some specific technical medium, should no result in
any impediment to acknowledge it as such.
Before that,
from the exclusive technical point of view, there will be who refer to it as
specie within the gender of radiocommunications, something that will allow
reducing that activity to one of the many kinds of �telecommunications�.
This classification
would not have major significance, as long as the placing of this description
would provide the same status as telephony or mailing.
From the
standpoint of international law, however, radiobroadcasting is the exercise of
freedom of the press through a technological media other than paper. That,
assuming the principles of universality stated in art. 19 of the Declaration of
Human Rights of 1948 and in art. 13 inc. 1 of the American Convention of Human
Rights of 1969:
�Each person has the right to receive, broadcast or research into information and opinions through any media he or she might choose�.
Within the framework of de
Inter-American System for Protecting Human Rights, this tessitura is
highlighted by the precautions of art. 13.3 that states:
�It can not be restricted the right to express oneself
through ways or indirect media, such as abusive official or private controls
over paper for newspapers, radiobroadcasting frequencies, or goods and
equipment used to broadcast information or any other mean aimed at preventing
the communication and circulation of ideas or opinions�.
By the same token, the Inter-American Human Rights
Court states that:
�The freedom of the press does not end at the
theoretical acknowledgement of the right to speak or to write, but also
includes inseparably, the right to use any appropriate media to broadcast the
thinking and to make it available to the greatest number of addressees�[15].
It is
particularly important to point out what is the nature of the valued object in
the radiobroadcasting activity, and as far as the easiness or not of its access
is concerned, it should be debated in order to consider it as an indicator of
effectiveness in regard to human rights. They are the frequencies.
The
radioelectric spectrum belongs to the Heritage of Humanity, it means, we all. The estates do not own the waves,
they just administer them. For better use of a limited spectrum, the
International Union for Telecommunications (IUT) distributes �sets� of
frequencies to countries, to be administered by them within their territories,
in order to avoid, among other things, interferences between telecommunication
services.
International regulations on this
subject emerge from the International Union for Telecommunications Agreements,
whose specific articles, in Recommendation 2 of Resolution 69 IUT (incorporated
to the Agreements of Geneva of December 1992 in Kyoto during 1994) say:
"taking
in account the Human Rights Declaration of 1948, the Conference of Plenipotentiaries
of the International Union for Telecommunications, fully aware of the noble
principles of free flowing of information and that the right to communicate is
a basic right on the community RECOMENDS: member estates the facilitation of
the free flowing of information through telecommunication services�.
Article 1 section 11 of Constitution
of the IUT establishes that:
�the Union
will distribute the radioelectric spectrum frequencies and will keep a record
of assigned ones and of orbital positions related to the geostationary
satellite orbits, in order to avoid any harmful interference among
radiocommunications stations of the different countries�.
Thus, it concerns the Estates (but
not necessarily the executives) just its management. Hence, when a frequency is
assigned, it does not mean that a citizen�s right is being given or granted
over a good that is public. It ought to be the mere acknowledgment of a
preexistent right inherent to the people, for which a license or register are
required, for keeping in order the access to a limited natural resource. The
way that the Estate makes use or abuse of this administrative capability then
becomes a key one, to allow or to avoid the access to frequencies, �Heritage of
the Humanity�, to be done in a transparent, fair and equitable fashion.
Therefore, we
state that, as long as finiteness of the spectrum be the single legitimate
limitation related to access, its administration should be subjected from the
technical point of view to IUT regulations, but from the legal and political point of views to the Agreements and
Declaration of Human Rights and its authentic interpretation to the
institutional entities of the established Protecting Systems. In this very
matter, they should be the American Agreement, the Principles Declaration of
the ICHR and the advisory opinions and sentences of the Inter-American Court.
Thus, we face a particular way of
exercising the freedom of speech and it should be first � at the time of
classifying- the content and not the container or the mechanisms of
transmission of information.
The Inter-American Commission for Human Rights in its Principles
Declaration about Freedom of Speech approved during its 108� deliberating
sessions (October 2000) says:
12.
Radio and television assignments
should consider democratic criteria that guarantee equal opportunities for all
to its access.
13.
To make use of the power of
Government and the resources of the public finance; the granting of custom
duties prebends; the arbitrary and discriminatory granting of official
advertising and official credits: the assignment of radio and television
frequencies, among others, aimed to apply pressure and to punish or to reward
and ranting privilege to social communicators and communication media depending
of their informative standpoint, attempts against freedom of speech and ought
to be expressly forbidden by law.
In similar fashion the three Relators of the Freedom
of Speech of the OAE, UN and OSCE, have pronounced themselves in November 19
and 20, 2001, under: �Challenges for Freedom of Speech in the New Century�:
�Diversity promotion must be the main objective of
radiobroadcasting regulation; diversity implies gender equality for
radiobroadcasting and equal opportunities for all society segments to access
radiobroadcasting waves�.
That same
month, precisely on April 2, and in the same city of Washington, the Annual
Report about the Situation of Freedom of Speech within the Americas (year 2002)
that is part of the Report of the Inter-American Commission for Human Rights
(ICHR) states that:
�it is
inadmissible the setting up of discriminatory legal frameworks that hinder the
assignment of frequencies to communitarian radios�.
This report
includes for the first time a chapter titled: "The exercise of freedom of speech by communitarian communication
media� in which it is recommended to the Estates that:
"in its role of administrators of the radioelectric spectrum waves
they should assign them accordingly to democratic criteria that guarantee equal
access opportunities to all".
The Relatory says,
"the so called communitarian,
educative, participative, rural, insurgent, interactive, alternative and civic
radios are, in many cases, and when they play within the legal framework, the
ones that occupy the places left behind by the mass media; they set themselves
as media who convey the expression where people belonging to the lower income
sector usually have best chances to access and participation as compared to
what they could have with traditional media".
Due to its importance as "channels for
exercising the freedom of speech" and due to
"the increasing need of
expression of the majorities and minorities lacking access to communication
media, and their demand for the communication right, free expression of ideas,
information flow makes prevailing the need to find out goods and services that
provide them some basic conditions of dignity, security, sustenance and
development".
[1] Art.
45 Law 22.285
[2] Only 1 watt, according to Law 18.168 Article 3, which allows covering
just a few blocks
[3] The Law N� 9612 establishes a maximum of 25 watts, but regulation
(Decree 2/98) is even more restrictive: it only allows freedom of speech within
a radio of 1 kilometer.
[4] Decree 94/96. Arts. 61, 62 and concordant.
[5] Law 642, Article 70 by requiring a single payment as access
requirement, without adversely affecting the 1% annual royalty.
[6] ICHR special report about Guatemala OEA/Ser.L/V/II.111 6/4/2001, issue
30 and about Paraguay OEA/Ser./L/VII.110 doc. 52 9 March 2001, issue 53
[7] For example, in Peru, (D.S. No. 013-93, Article 99), Venezuela:
[8] It is
the case of Brazil: Dto. Regulatory 2/98. Article 27
[9] That is the case of Mexico due to the need to have available some
pieces of equipment hard to get or the need to have technical endorsements hard
to get for poor communities.
[10] Venezuela Decree Number
1521. November 03, 2001. Article 2nd
[11] Uruguay
[12] Colombia and Venezuela:� Decree
1447/95 and Decree Number 1521
[13] Supreme Decree Number 256-A and later changes
[14] Resolution 2002/2002, of CONATEL which opens the possibility to
standardize more than 100 low potency radio stations
[15] Advisory Opinion 5/85