Chile: Digital TV in Purgatory

Chiara Sáez Baeza. Sociologist, Doctor in Communication, post-Doctorate in Government and Public Policy, and Assistant Professor at the Institute of Communication and Image (ICEI), University of Chile.

April, 2014.

Versión en español | Versão em Português

After five years of processing, the new National Television Council (CNTV) Law, known coloquially as Digital Television Law, was voted by the Parliament on October 15, 2013.

        The Government made of this milestone a moment of celebration, pointing out the positive attributes of the passed law: the recognition of gratuity; subsidies for the production of educational, cultural, and local contents; a reserve of 40% of the radio spectrum for regional, local, and community channels; the creation of a new figure with a five year old length: concessionaires with media from third parties, which do not need to invest to build up their own signal.

        In addition to that, subsidies for equipment, infrastructure, and transmission media for local, regional, and community channels; the establishment of a twenty year old length for every concession; the retransmission consent of national channels and the free-for-carrier of local, regional and community signals by paid television concessionaires; a second concession for the National Television (TVN), which will operate as carrier of its regional signal or of regional, local, and community channels; the increase in cultural hours demanded to concessionaries, and the obligation of every channel to transmit public campaigns without charge.

        However, this apparent democratization of access to radio spectrum and content diversity has its nuances. One of the most important, for its structural impact, has to do with the distribution of public resources destined to the digitalization of television as stated by the law. This is because its beneficiaries are telecommunications companies, which will receive subsidies to strengthen their dominant positions, meanwhile small and medium actors of the television industry (regional, local, and community) are left at a disadvantage regarding the access to strategic resources that ensure their sustainability, since the condition to this access is to operate preferably as convergent companies.

        Besides all this, more than five months have gone by and the law has not yet been promulgated. On October 19, 36 deputies form the Independent Democratic Union (UDI), the most extreme right party in Chile, presented to the Constitutional Tribunal (TC) an exception of unconstitutionability against four aspects of the law: the definition of pluralism, public campaigns, the second concession for TVN, and must-carry rules for paid TV operators.

        The UDI’s contesting was based on the opinion that four precepts of the law affected four constitutional principles: equality before the law, freedom of opinion and freedom to information, the principle of subsidiarity, and the autonomy of intermediate bodies.

        On November 6, the TC started conducting public hearings concerning this cause. Several sectors argued in pro or against it.[1]

        The TC made public its sentence on November 18. Only the ending phrase of the precept on pluralism was considered unconstitutional: “excluding those who threaten them”, under the argument that the better way to know when a discourse against pluralism exists is to expose it and discuss it publicly.

        Something else occurred during the period between the hearings and the verdict that contributed to the delay of the promulgation of the law. On November 15, President Piñera submitted to the Chamber of Deputies a series of observations about the law that resulted in a 28 points veto.

        In the Chilean State, presidential veto is a faculty of the President to disapprove a law or part of a law already sanctioned by the Legislative Power. If a law is vetoed it must go back to the Parliament for further examination. That process delays its enactment. In this case, the veto eliminates or modifies regressively some important aspects of the law in regard with the right function, role and composition of CNTV, cultural programming, public campaigns, the character of concessions, and the definition of the radio spectrum.[2]

        The veto is not only polemic for what it removes from the law, but because the legal text approved was product of prolonged negotiations and political agreements, many of which were supported by the Executive Power. With the veto, what Piñera wrote with the hand, he erases with the elbow. And he insists as well on topics on which the TC has already declared itself. For all this, one of the constitutional advisers of the current President Michelle Bachelet issued a report in which he points out that the veto is an event “near the misuse of powers”.

        Between the last days of January and the first days of March, 2014, the veto was voted in the Chamber of Deputies and in the Senate. A decrease in the defense of pluralism, less State control on the content of public campaigns broadcasted in TV channels, and the possibility for religious organizations to have access to community licenses are among the main modifications of the law.

        Midway through March, the UDI presented to the TC a new exception of unconstitutionability, arguing that it is legally questionable that the veto was approved only in part instead of being fully approved. This exception is now under study in the TC. If it is admitted, the veto and the law will go back to the Parliament.

        In this way, the Digital TV Law remains, since its approval, in legal limbo, that is, something like the Purgatory where every law that does not complete its “ascension” to the final promulgation Heaven is. The current Government cannot pull back neither the veto nor the law. The only chance available is to promulgate the law with the veto and, within a short space of time, send a new draft law that replaces that which was deleted or modified by the veto.

Related links:

New UDI exception to Constitutional Tribunal endangers the implementation of the Digital TV Law

Veto to the Digital TV Law: “An abusive way of legislating”

Veto to Digital TV: Senate starts the debate

[1] The public hearings can be looked over in the Constitutional Tribunal’s YouTube channel: http://www.youtube.com/user/TCCHILE2.[2] On pluralism, see pages 83 to 90 of the sentence; on public campaigns, see pages 23 to 40; on a second concession of TVN, see pages 50 to 64; on must-carry rules, see pages 66 to 73.
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