“Finally, after a long process that included discussion in the Senate and House of Representatives and approval by Parliament, on 30 December 2014, the Executive Branch of Uruguay passed the Audiovisual Communication Services Law 19.307 .”
Francois Joss*/Uruguay, 2015.
Law 19.307, substantially modified the map of regulation of audiovisual communication services in Uruguay, establishing for the first time a coherent normative framework that makes explicit and protects citizens’ rights. The law sets out mechanisms and time and ownership limits for the concession of audiovisual communications services licenses, generating mechanisms of competition among the various service operators; encouraging the promotion of national production through quotas, rates and prices; generating a public audiovisual communication services system with greater autonomy; and establishing a specific institutional design with the creation of the Audiovisual Communication Council and the figure of the hearings advocate, both institutions with an important level of autonomy from the Executive Branch.
In reality, the discussion process began in October 2010 when the Executive Branch through the National Telecommunications Directorate (DINATEL-MIEM) convened a Consultative Technical Council (CTC) composed of various representatives of civil society to discuss and propose recommendations in order to approve a law that would contain the minimum elements of the audiovisual communication services system which were to be regulated.
Groups ranging from associations defending the rights of children and adolescents and freedom of expression to academic representatives, technical worker and journalist unions and even members of various business chambers participated in the committee. The discussion broadly covered issues related to the regulation of audiovisual communication services. The final document developed by the CTC was delivered on December 10, 2010 to Minister of Industry Roberto Kreimerman. It established the foundations for what would come to be the Audiovisual Communication Services Law that the Executive Branch would remit to Parliament.
While in said document one could observe significant differences among civil society stakeholders, in general and with those exceptions, the final proposal was approved by consensus. The members of business chambers disagreed with the other members of the Committee on three issues: the concession and duration of licenses, rates and prices to be imposed on audiovisual communication services users and the duty to broadcast content that was produced within Uruguay. The representatives of the chambers in no way opposed the standards that were contained in the final document on freedom of expression, children’s civil rights and those of various minorities, diversity, concentration or the proposal to create a new institutional design.
It is important to recall this process, as this can define the final results of the laws, particularly when they limit and restrict the power of the most important media outlets.
As one can see, four years passed between the submission of this document to the Executive Branch by the CTC and the passage of the law.
In this sense, it is good to keep in mind that this process of discussion within the Executive Branch after the work of the CTC ended coincided with another process of democratization of audiovisual communication services. It was legally independent from the process of discussing the bill, and involved the assignment of licenses for operating digital terrestrial television (DTT) frequencies. This coincidence brought major media and de facto powers into the discussion, which clearly became an obstacle to the approval of the Audiovisual Communication Services Law.
Decree 153 of May 2012 , which set out the conditions for organizing bidding for the concession of DTT frequencies; Decree 437 of December 2012, which defined the conditions for the bidding on DTT frequencies and increased flexibility for and decreased requirements on communications groups to participate in the bidding process; and Decree 028 of January 2013, which temporarily suspended the call for bids to grant said licenses were clear examples of the movement in the Executive Branch, the complex negotiation processes that it was conducting with media groups, and the discussion and contradictions within the political force that governed. In the end, it decided the destiny of the regulation of this important sector.
Finally, the temporary suspension of the call for bids on DTT frequencies was lifted by Decree 145, which was issued on 9 May 2013, and on 21 May the Executive submitted the ACS Law to Parliament. It had completed the first part of negotiations with the most important communication groups in which the government established the final rules for participating in the call for new frequencies and had taken an important step towards the approval of the law.
In the process of discussing the bill since the first draft entered the Executive Branch until the final bill was submitted to Parliament, several changes were introduced as a result of these negotiations and/or contradictions. The most important loss in this sense was the reduction of the sphere of coverage of the law. Article 1 states that the communication services that use the internet protocol network as a platform will not be the object of regulation of this law. This generates an important anachronism in addition to unequal treatment of operators that use different platforms. The Audiovisual Communication Services Law of 2010 approved in Spain includes any electronic input in the definition of audiovisual communication service. European Union Directive 2007/65, which updates other related directives, includes on-demand products in the audiovisual communication services category (such as the various video streaming options like Netflix).
Also in this process and in relation to the final document approved by the CTC, the bill submitted by the Executive Branch to Parliament decreased the levels of decision-making capacity and autonomy. The most important decisions are now handled essentially like an advisory council of the Audiovisual Communications Council and public audiovisual communication services relative to the Executive Branch. Modifications that favor private communications groups also were made.
Eighteen months passed between the submission of the bill to Parliament by the Executive Branch and its passage. The participation of civil society in the House of Representatives Industry Commission and that of the Senate covered the broadest spectrum.
That process positioned the project on the political agenda, where it was attacked by representatives of various groups. This ranged from criticism that could be considered more well-founded from a liberal perspective such as the critiques offered by the Inter-American Press Society (SIP) to more ideological and uninformed critiques such as those submitted by the National Uruguayan Broadcasters Association (ANDEBU) accusing the national government of approving a law with the characteristics of more authoritarian regimes (‘fascist, Mussolinist and Stalinist’).
However, and perhaps as a good overview, Edison Lanza, the OAS Rapporteur for Freedom of Expression, stated in an interview granted to a local media outlet (11) a few days before the law was approved that the bill met each and every one of the freedom of expression standards created by international human rights law.
According to Lanza, internationally, the Uruguayan case is seen as a balanced model which provides transparency to the media system, sets equitable and clear rules for accessing the media, promotes national production, respects the rights acquired but allows for the entry of new stakeholders, and promotes the rights of diverse groups which have suffered discrimination without interfering with news contents.
For example, and according to the Rapporteur, the design of the Audiovisual Communication Council provides guarantees of independence and autonomy from the government. The agency would be composed of five members, one designated by the Executive Branch and the remaining four named by the General Assembly with special majorities. In addition, the law states that if there is a dispute linked to content regulation –which is limited to the prohibition of discrimination, the definition of programming that cannot be transmitted during times protected for children, and a very general regulation on marketing to children-, the issue will be forwarded directly to the justice system, for which there are plans to create specialized courts.