Academics, journalists and representatives of university media outlets have expressed concern about the extent of reforms to the Organic Telecommunications Law, which opposition deputies who are in the majority have presented as a “timely and urgent” amendment.
Jesús Urbina Serjant*/ Venezuela/ September 2016
As the result of a judgment issued by the Supreme Court, all legislative acts in two sessions of the National Assembly of Venezuela have been suspended. The court decision affects the draft reform of the Organic Law of Telecommunications (LOTEL in its Spanish acronym), approved in its first reading on 28 April this year.
Two days prior to the ruling in response to an appeal for annulment with injunctive relief presented by the ruling bloc of the country, the Standing Committee of People’s Power and Media of the parliament had approved the report for the second debate of the law.
The sentence was issued in response to the “non-compliance” of the National Assembly of another Supreme Court decision issued on April 21 in which an injunction was decreed against the opposition majority for not convening the meetings of 26 and 28 of that month according to the time parameters stipulated by the Rules of Procedure and Debate.
The LOTEL reform was approved in its first phase with the repeal of an article, the modification of another 19 articles, and four additional provisions. The current legislation, which was enacted and promulgated in December 2010, is the product of a general reform of the Organic Law of Telecommunications of the year 2000.
The now-suspended reform reinstates the principle of activity of general interest of all telecommunications activities (Article 5), which was one of the innovations of the original law that was not recognized in the amendment signed by President Hugo Chavez. The text submitted by the opposition majority to the Media Commission deletes the condition regarding the “service and public interest” of telecommunications networks, so as to establish a regulation to halt the growing and arbitrary control that the central government has exercised on the radio spectrum over the last five years.
The new reform extends to 20 years the term of license concessions and administrative authorizations, which is five years more than stipulated by current legislation. It also removes the curtailment of such concessions due to the loss of the conditions that led to their being granted, and controls the administrative silence of the regulatory body with regard to license applications.
The reform agreed upon during the first debate in the National Assembly proposes the redefinition of the rules on the regulatory body, the National Telecommunications Commission (CONATEL), to ensure its autonomy from the Executive Branch. The Assembly will have an important role in the appointment of its board and party activists will be disqualified from holding positions within the body. The reform seeks to prevent the repeated occupation of posts by members of political organizations allied to the government, as has been the case of high-ranking officials appointed by Presidents Hugo Chavez and Nicolás Maduro.
Article 60 of the law introduces a new transparency requirement for the regulatory body, the annual reports of which should be made public following an independent audit. The list of permitted telecommunications operators, which at present is unknown, also needs to be made public. The sanctioning powers of the Director General of CONATEL are to be limited, along with ratification by the Governing Board of administrative procedures that place restrictions on the exercise of their powers, as provided for in Article 39 of the parliamentary proposal.
The reform of LOTEL proposed in the National Assembly introduces attenuating circumstances for the imposition of fines for violations by operators and the conditions attached to some grounds for sanctions, as in the case of any recurrence (Article 170). Unauthorized or illegal use of the spectrum is considered grounds where those responsible are liable to the confiscation of broadcasting equipment, according to the draft LOTEL reform.
Digital TV: The pending responsibilities of the government and parliament
The “de-politicization of CONATEL” in the words of Deputy Tomás Guanipa, Chairman of the committee in charge of the reform, is the main objective of the initiative that has been put on hold with judgment 797 issued on 19 April. And so is the protection of the rights of license holders, which according to the parliamentarian are exposed “to the arbitrary whims of the government during the duration of their license concessions.”
For two and a half months, the National Assembly submitted the draft reform to public consultation, for which a mechanism was created for receiving input from citizens and organizations, via the website of the legislative branch.
When the final report for the second discussion of the law was approved, another member of the commission, Deputy José Gregorio Correa, guaranteed that “all observations” had been taken into consideration. However, the final text has still not been made public.
Academics, journalists and representatives of university media outlets are concerned about the extent of reforms to the Organic Telecommunications Law, which opposition deputies who are in the majority have presented as a “timely and urgent” amendment to resolve some of the most delicate issues of the current legal regime for telecommunications in Venezuela.
The limited scope of the proposed changes delays important requirements, such as the digitization of the radio spectrum, a subject that is barely mentioned in the proposed legislation. In March 2016, the Standing Committee of People’s Power and the Media received a report from the Venezuelan Chamber of Telecommunications (CAVETEL) on the status of government policy in this area and that should lead to the analog switch off, which has been a pending obligation of the State since 2007 when the measure was first announced.
The report shows that there is no clarity on national plans for a final transition to the DTT standard chosen a decade ago, making the existence of digital TV an experiment of limited transparency, subject to political bias and very low impact.
The LOTEL reform that is now in limbo simply proposes that the State “shall promote the development of digital radio and television” (provision 8). For a country that has made a huge public investment in DTT, without clear results or significant progress being made, a legal ruling such as the one that has been issued does not meet the expectations either of users or operators.
* Researcher in media regulations and Academic at Universidad del Zulia, Venezuela.