«By mentioning economic regulation and differentiating it from content regulation, Dilma encouraged discussion, particularly given that broadcasters tend to encourage confusion of regulation with censorship. In addition, the term ‘economic regulation’ allows many of the issues that need to be addressed to be included in contemporary debate. The first challenge will be to adapt the regulation to a scenario of convergence…»
Joao Brant*/Brazil, November 2014
Two episodes from Brazil’s most recent elections restored the issue of communications regulation to the national agenda. At the beginning of her campaign, President Re-elect Dilma Rousseff stated that she intended to discuss the economic regulation of the media during her new administration without leaving room to include regulation of content in the discussion. The statement was repeated by the candidate several times, including during televised debates.
A few days before the second round of voting, another episode helped fuel discussion of the topic. The magazine Veja, the country’s most widely read weekly with nearly 1 million copies in print, moved up its publication date by one day and published a cover story with a direct attack on Dilma Rousseff and Ignacio Lula da Silva. The action was interpreted by the Superior Electoral Court as anti-Dilma propaganda and as an attempt to influence the electoral process on the part of the magazine, which was forced to publish a right to reply on its Website.
The two episodes described above raised the issue of media regulation from various angles. On the one hand, Brazil has yet to update its communications regulatory framework (the current law is from 1962). Three of the articles of the Constitution of 1988 have yet to be regulated and continue to exist without effective application. The country already has reasonable electoral regulation which seeks to inhibit but not to impede the political use of the media during election periods. The most urgent task would seem to be the first, and the second needs to be addressed more in the judicial arena than Congress.
Brazil emerged from its military dictatorship in 1985. Since then, it has managed to overcome many of its anti-democratic liabilities. However, the communications sector continues to be organized on foundations that, though they were not created by the dictatorship, were developed during that period. The 1970s saw an increase in concentration with the development of the national network structure promoted by public satellite infrastructure and the distribution of concessions to politicians (particularly members of Congress) as a currency held by the Executive Branch.
After the dictatorship, distribution of concessions to politicians increased under the first civilian government, and the task of setting the new foundations for the TV and radio system was taken to constituent debate. The Constitution was the subject of a dispute between business sectors, which were interested in maintaining the foundations of the system, and civil society (such as the National Federation of Journalists and Brazilian Press Association), which called for anti-concentration of ownership measures and an independent regulatory agency.
The final result was a compromise. The constitutional text stated that the media may not be the object of direct or indirect monopolies or oligopolies and established a minimum regional production and programming percentage for TV and radio stations, encouraging independent production. But the independent regulatory agency was not approved and concessions continued to be the responsibility of the Executive Branch, with monitoring by the Legislative Branch. Since 1988, various administrations have proposed the task of regulating the constitutional text.
Regulation- Under what terms?
By mentioning economic regulation and differentiating it from content regulation, Dilma encouraged discussion, particularly given that broadcasters tend to encourage confusion of regulation with censorship. In addition, the term ‘economic regulation’ allows many of the issues that need to be addressed to be included in contemporary debate.
The first challenge will be to adapt the regulation to a scenario of convergence. All electronic social communication is covered in the popular initiative bill presented by civil society organizations. It is defined as “telecommunications or broadcasting activities that allow for the delivery of audiovisual or radio programming on any platform with the following characteristics: a) flow of signals predominantly in the direction of the broadcaster, provider or operator to the user; b) programming content not generated by the user; and c) selection of content of transmissions developed by the service provider, such as the programming grid, even as a limited catalog of the programming offer.” The approach is positive because it broadens the discussion beyond traditional open TV without including contents produced by users available on platforms such as YouTube.
But the main issue of economic regulation is surely anti-concentration measures. Above and beyond the rules traditionally adopted in Western democracies such as prohibition of cross-ownership and potential audience limits, it will be necessary to take steps to allow for the anti-competitive practices that occur in the region to be addressed. Said practices take place among economic agents of different activities in the value chain such as broadcasters, programmers, producers and even equipment manufacturers, which have come to play a key role with the introduction of connected TVs.
The stimulation of regionalization and independent production is also an effective measure against vertical concentration and will most certainly be taken up in the discussion. Article 223 of the Constitution provides for the complementarity of public, private and government systems. Today the system is close to 90% private. As such, an important measure that also fits into the economic regulation discussion is the creation of space for public and community broadcasting stations. The issues that must be addressed include the guarantee of space for the public system in limited distribution platforms (such as the radio spectrum) and financing for that programming. The process of granting and renewing licenses, which is now practically automatic, and the discussion of licenses for politicians are also topics that must be addressed.
In addition, several content-related issues must be addressed, and some have yet to be included in the Federal Constitution. One is the right to reply, which has lacked regulation since the old Press Law was repealed by the Constitution of 1988. Others include the programming principles, given that Article 222 of the Constitution states that “regardless of the technology used to provide the service, the electronic social communication media should observe the principles set out in Article 221 in the form of a specific law that also will guarantee the priority of Brazilian professionals in the execution of national productions.” (Our translation.)
President Dilma Rousseff’s proposal returns to the discussion that was interrupted by the government after the I National Communications Conference in 2009. At the end of 2010, a bill was submitted to the Ministry of Communications that was taken up at that time but on which there has been no action or public debate in the past four years.
Organized civil society has gathered signatures in support of the bill, which is the result of a popular initiative. Nearly 100,000 signatures have been collected thus far. Furthermore, the II National Meeting for the Right to Communication is being prepared for the first half of 2015. The hope is that progress can finally be made on this demand, which is now 30 years old. For now, at the very least the issue has returned to the public agenda.
* Master’s degree in Communications Regulation and Policies from the London School of Economics and Political Science and member of the collective Intervozes, Brazil.