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Brazil: Resistance to the Current 50-Year-Old Law

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Abril, 2014

In the past five years, many Latin American countries have adopted new legal frameworks for communication, or at least they have started discussing draft laws on the matter. In the contrary, the idea of a new broadcasting regulatory framework was not included in the official agenda of the Government of Brazil.

        At the end of the 1st National Conference on Communication in 2009, the opening of a public debate on a new law seemed a matter of time. Five years later, this hypothesis seems ever more distant. At the same time, civil society organizations are trying to fill the Government’s action gap with a project of popular initiative that has the goal of collecting 1.3 million signatures.

        The President’s inaction on this topic is based on a set of factors. First of all, the fact that there would be a lot of political friction if an attempt was made to change the current law (dated on 1962). The commercial broadcasting industry is well organized and has strong political relationships, and a great capacity to influence the debate. Simple attempts to discuss this issue have been considered as threats to freedom of expression by this sector.

        Second of all, many of the controversial topics for the communication sector were settled by the Law 12.485, promulgated on 2011, which states regulations for paid TV services. This law opened the way of cable television services to telecommunications companies, but it limited its participation in programming activities, for which it is difficult to achieve vertical integration. Concurrently, it set quotas to foster national and independent contents, generating a boom in the demand of new Brazilian productions.

        Another factor that may have played a part in the freezing of the debate was the view of the eventual change caused by a new regulatory framework as not yet necessary in a scene of diversified Internet sources, or too expensive compared to the progress it could bring. It is possible to clarify the reasoning as follows: to really change the scenery of the communications area, the Government would need to start a confrontation it is not willing to carry out because, even with the media that fulfill their role of critical opposition, the Government has still high approval ratings. This means that although the occasional changes process continues, there will still be a wearing out and the result will carry little effective transformation. Done the math, it is preferably to leave things as they are.

A Real Need

Groups with different ideological perspectives defend the relevance of a new law. Even the largest media, like the journal O Estado de S. Paulo (The State of S. Paulo) and TV Bandeirantes (Band TV), have spoken out in favor of the transformation of the current legal framework. The Constitution approved on 1988 sets important measures as the prohibition of monopolies and oligopolies, the fostering of regional and independent programming, and the complimentarity among public, private and state systems. However, the text has never been regulated.

        The current law includes some measures against horizontal concentration, but it is exceeded in terms of technology and business arrangements. At the same time, concentration levels are strong: open television represents still almost two thirds of publicity investment in the country. More than 70% of this income goes to TV Globo, which has an average participation of 40% in the national audience.

        Since the beginning of Lula’s term in 2003, changes in the communications sector were expected. Nevertheless, all the decisions made on the topic were timid. The Government approved the creation of a new national public television in 2007. That same year a broad public debate on the implementation process of the indicative classification of television programs took place. That showed clearly the strength of broadcasting companies to schedule their positions in public discussions.

        Two years later the National Conference on Communication was held. More than twenty thousand people attended it. In that context, the idea of a new general law on communications seemed possible. In 2012, the Government set a date to publish a public consultation on the new law, but a low degree political crisis ended up calling off the goal set. Since then, the Ministry of Communications detached from the proposal of a public consultation. Even when Paulo Bernardo, Minister of Communications, has spoken in favor of a new regulatory framework, there is no improvement in practice and every Government’s action goes in the opposite direction.

Society is organized

When it was clear that the Government was not going to call for a public consultation, the organized sectors of the civil society who are in favor of a new law adopted a new strategy. Several organizations, led by the National Forum for the Democratization of Communication, designed the “To Express Freedom” campaign and started working on a draft law of popular initiative.

        In Brazil, every project supported by more than 1% of the total number of national voters can automatically present initiatives to the Congress, provided that it complies with state quotas. But beyond making sure the discussion on the draft law within the Congress (which could be done by any member of the Parliament), initiatives like this are useful to ensure debate among the population. Therefore, this is a strategy that seeks more to have an impact in society instead of influencing the political field.

        The project of popular initiative, called “Democratic Media Law”, establishes measures to regulate constitutional principles, and which would be applied to all electronic media. These measures include the reserve of at least 33% of the radio spectrum for the public system, two regulatory bodies for the sector, the prohibition of licenses for politics with mandate, and a series of regulations to stop anti-competitive practices and structures, as well as abuse of market power. Up to February 2014, more than fifty thousand signatures had been collected. They must be delivered on paper to the Congress.

        It is difficult to foresee when the conditions might change in Brazil. For one part, civil society seems distant from achieving the goal of 1.3 million signatures. For the other, the Government will undoubtedly remain silent during an electoral year. In case of reelection of President Dilma Rousseff, further changes in the Ministry of Communications might put the topic back on the agenda. But even if this happens, the chance of processing a draft law in the Congress seems distant. It appears that Brazil will continue to be one of the few Latin American countries without a new law on communications in its political horizon.

Joao Brant. Master degree in Regulation and Communication Policies by the London School of Economics and Political Science and member of Intervozes, Brasil.

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