José Roberto Rugamas Morán*/may 2016.
In El Salvador, the telecommunications system was deregulated from the perspective of administrative law. This had been the case since the military dictatorships and after the return to a democracy dominated by neoliberal governments: there had always been a great deal of discretion in regard to the designation of the broadcasting spectrum in general, and radio and free-to-air television services in particular. Thus, concepts and categories such as transparency, publicity, free participation, equality of users, all of which were incorporated into the parliamentary reform of the recently passed Telecommunications Law, are a real novelty.
When the regulatory body for the Telecommunications Law was established on 6 November 1997, the idea was to introduce structural adjustment and economic stability programs, which recommended, among other aspects, privatizing public services and limiting the supervisory role of the State, thus leaving the relationship between provider and end user exposed exclusively to market forces.
In the case of the radio spectrum, and given that it is a natural public resource, it was not possible to privatize it expressly in a secondary Law as that would be unconstitutional; instead a covert form of privatization was used, granting concessions for the exploitation of this spectrum for twenty years, with the benefit that after receiving the broadcast network concession, this would include an infinite number of automatic extensions for equal periods of time, which in practice generated the perpetuation of such concessions, with the State never being able to regain access to them. The second element indicated by this privatization process was to recognize the bidding process as the only way to acquire a radio and television frequency.
Under these legal conditions, community radio stations in El Salvador had to compete against the large broadcasting companies and conform with taking up a marginal place in a single radio frequency, divided into twenty-two stations for the whole of the country. In the absence of the political will to reform the law, it was decided to lodge a legal complaint regarding the constitutionality of the law before the Constitutional Chamber of the Supreme Court.
This judicial process resulted in a favorable ruling in the core points that restored the public nature of the spectrum. It also was determined that the services of radio and free-to-air television are essential or minimum public services (such as public health or public safety), and thus must be maintained and monitored by the State with greater attention when they are delivered on its behalf by a private agent. Furthermore, it was decided that the agency responsible for exercising said oversight is the Office of the Superintendent of Electricity and Telecommunications (SIGET). The Constitutional Court ordered the Legislature to implement the respective reforms within five months, a period it later extended by another three months.
In response to this ruling, parliamentary groups on the right tried to generate minimal reforms that did not in essence change the actual media model; such change required that the Executive delegate the same SIGET to undertake, and in parallel to the work of the legislative branch, round-table discussions with all the concession licensees of the broadcast spectrum in order to generate proposals for the comprehensive reform of the Telecommunications Law. This was made possible through negotiations in which the interests of each sector were recognized, and on the 30 March 2016, the Legislature was presented with the results of said discussions, supported by stakeholders who originally had been antagonistic but were now committed to reaching a consensus.
The reform was finally adopted at the plenary session of the Legislative Assembly dated 5 May 2016, obtaining 81 votes in favor (out of 84). And how was it possible to build such a consensus after such opposing positions? We believe that the reform proposal drafted by the SIGET and the concession holders provides legal certainty for all sectors involved along with the flexibility that allows the players to advance towards technical criteria.
The main innovations introduced by the Law start from Article 1, which recognizes information and communications technologies, as well as the convergence of services in the radio spectrum. Article 2-A incorporates sixteen guiding principles for the use of the spectrum, such as equality, equity, non-discrimination, advertising, convergence, technological neutrality, freedom of expression; replacing the only criterion that existed previously, which was the acquisition of the greatest possible profit from the exploitation of the broadcasting spectrum.
In Article 6, definitions were incorporated such as «community media and other non-profit operators,» defined not by their size or geographical location, but rather by their not-for-profit nature and company purpose, as well as by the ownership structure of the media organization and its commitment to issues of social development, human rights and vulnerable minorities, thus fulfilling a social function on behalf of the State. Because of the latter such media are to be exempted from the administrative fees that commercial private-sector media companies must pay on a proportional basis and with progressive increases.
In Articles 9, 9-A, 9-B and 9-C, public ownership of the spectrum is clearly defined, given that the regulator will take the lead in terms of management. This implies that SIGET will no longer operate at the request of the parties, but will be obligated by law to monitor all uses (or misuses) of the radio spectrum. This is a subtle but very significant way of reversing the covert privatization process which took place in 1997, and today the governing body has the authority to examine whether there are idle frequencies and, in accordance with established technical criteria, reallocate them.
The latter should also be related to Articles 15 and 15-A, which state that on the basis of the reform, a broadcasting license cannot be transferred or leased without the assessment and approval of the governing body. Prior to the reform, license holders were able to make endless legal transactions of their broadcasting concessions and the State was the last to be informed of the business dealings between private entities of this public service. In addition, the opinion of the Superintendency of Competition will be made public, as an incipient form to limit media concentration and anti-competitive practices.
Finally, three management mechanisms have been established: the bidding process is to be maintained along with the incorporation of public tender and direct allocation to State media. The license holder chosen by any of these regulated mechanisms must sign a concession contract with the State, and when admissible a renewal of said contract, after assessment by SIGET, thus the private entity must make a service commitment via a new instrument denominated as the contract extension.
*Attorney for the Association of
Radios and Participatory Programs of El Salvador (ARPAS)