After months of waiting, the Council on the Regulation and Development of Information and Communication, the agency that was created through the Communication Law, issued the General Regulations in order to apply it…
José Ignacio López Vigil*/ Ecuador, August 2014
Ecuador’s Constitution, which was approved on September 28, 208, contains very progressive language on social communication. Article 16 establishes the right to free and diverse communication, universal access to information and communication technologies, and equal conditions for the use of radio spectrum frequencies for the management of public, private and community radio and TV stations. Article 17 guarantees the assignment of said frequencies through transparent methods and under equal conditions.
Though the First Temporary Article of the Constitution ordered the creation of a Communications Law within 360 days, it took four years for that law to be approved by the National Assembly. The reasons for the delay are not the object of this analysis. On June 14, 2013, the Statutory Communications Law was finally approved in the Ecuadorian National Assembly in which the government party has the broad majority.
The most interesting articles of this law may be those that refer to the redistribution of radio frequencies. This may also have been the main complaint of social organizations and communications network. Without entering into other favorable and unfavorable aspects of the law, Article 106 establishes the redistribution of these frequencies, reserving 33% for public media, 33% for private media and 34% for community media. This redistribution would be achieved through the recovery of many frequencies that were assigned illegally and by applying a different article, Article 113, which prohibits the monopoly on frequencies in order to guarantee greater diversity and plurality in the public sphere. Based on this law, a concession holder can only have a main frequency in FM, one in AM and one on TV. Ecuador currently has 1,147 radio stations and 547 public television channels. There are concession holders with over two dozen allocated frequencies. If this article were applied, there would be enough space on the spectrum to achieve the tripartite redistribution that the law requires.
But the law is one thing and regulations are another. After months of waiting, the Council on the Regulation and Development of Information and Communications, which was established through the same law, issued the General Regulations for applying the Communications Law.
The regulations are surprising. The 89 articles barely contain any mention of community media. No mechanism is put in place to determine how the spectrum will be redistributed in order to achieve that 34% reserved for the community sector. There is no mention of how the illegal and illegitimate frequencies detected by the Auditing Commission on Radio and TV Frequencies will be recovered, nor is mention made of public policies and affirmative action necessary to promote community media (see Article 86 of the Law).
In regard to the granting of broadcasting licenses for community media, there is a noteworthy suppression of citizen initiative. Access to frequencies to create media outlets is a constitutional right, as we have said, and must be guaranteed by the government for all organizations that wish to exercise it, request it and do not violate reasonable regulations in this regard. It is not a gift from the government. In other words, the processes for obtaining a community radio or TV broadcasting license must not begin with the calls to participate made by the National Telecommunications Council at its discretion, but through requests by communities or social organizations. Based on those requests, the Council must study the possibilities for adjudication and open a competitive process without ascertaining whether there are other requests in that same place and frequency.
None of this has occurred. To date, the Council has assigned frequencies for radio stations that are called community stations to groups that are in agreement with the government as decided by the National Policy Management Secretariat. The regulations say nothing about this, nor do they clarify the requirements for requesting a frequency.
Another aspect to consider is the signals obtained for the upcoming digitalization of frequencies. (Ecuador has adopted the Japanese-Brazilian standard which allows for at least four signals where only one fit before.) In Temporary Article 20 of the Law, it is stated that these new digital radio and TV signals will be managed by the government and are to be assigned between the public, private and community sectors with the same percentages as set out in the Law (Article 106). However, the regulations say nothing about this. In Article 79, the State reserves one of the TV signals resulting from the analog shut-off for itself. And the community sector? Not a word.
Although the Constitution guaranteed universal access to information and communications technologies (Article 16), the Statutory Law contains only rhetorical mention of it in Article 35. The regulations do not mention it at all. Officials say that the matter will be addressed in the Telecommunications Law. In this way, ignoring the digital convergence, traditional communications technologies are separated from modern ones (mobile telephony, Internet). The latter, which is where the business is, are not legislated. They remain at the discretion of the Telecommunications Ministry.
Another aspect to consider in these regulations is the violation of Article 6 of the Statutory Law. The article clearly states that the national social communications media cannot belong fully or partly, directly or indirectly to foreign companies or organizations domiciled outside of Ecuador or to foreign citizens except for regular residents who live within the national territory. It is noteworthy that Article 6 of the regulations states the opposite, that foreigners from countries that have signed trade or economic complementation agreements with Ecuador may own media.
Finally, and noting that I am not presenting an exhaustive discussion of this issue in this text, it is worth noting an unprecedented article contained in the regulations. According to Article 17, between 6 a.m. and 10 p.m., broadcasters may not air programs which are “contrary to the respect and exercise of rights.” From this, one can conclude that human rights can be violated during other time periods. The regulations allow for it.
In short, these strange regulations seem to be made for a different law. What is said is serious. And what is not said is even more so.
*José Ignacio López Vigil, Radialistas Apasionadas y Apasionados.