Right now, the best chance of making progress in the current debate and leading the way to reform of the regulatory framework for communications would be a ruling of unconstitutionality issued by the Constitutional Court, which would oblige the Legislature to amend the Telecommunications Act…
Leonel Herrera*/ El Salvador, August 2014
«The democratization of communications is an important part of our commitment to defend freedom of expression and the right to communicate. It is imperative to ensure that the mechanisms for frequency allocation are transparent, as well as to stimulate the creation of new media, in order to end the oligopoly by television and radio companies which limits plurality (…) our intention is to promote tolerance, the respect for freedom of expression and the democratization of communications for a more just, inclusive and equitable society. Public, private and community media are part of the cultural strength that represents the wealth and future of our country, the strength that will permit the cultural transformation for a Better way of Life.»
These are excerpts from the speech made by President Salvador Sanchez Cerén, at a reception for Journalists Day on 31 July 2014. It is also an example of the inclusion in the public agenda of the debate surrounding the right to communication and efforts to democratize the present media model. This has been one of the results of the impact of community media and popular organizations, which have been proposing new regulatory frameworks and public policies to build a model of democratic media that guarantees pluralism and a diversity of voices.
The government program with which the President and his party, the Farabundo Marti National Liberation Front (FMLN) won elections in March of this year, includes among its proposals the following: “to promote the switchover from analogue to a digital radio-electronic spectrum in order to expand the number of available frequencies, improve mechanisms for allocating broadcasting licenses, and stimulate the creation of new media; as well as strengthening the development of public, private and community media.”
Something’s on the move: proposed bills, claims of unconstitutionality and other resolutions
This agenda has also been positioned within the respective agendas of the Legislative Branch and the Supreme Court, with the former studying a community radio bill along with a law on public media, while the Supreme Court, for its part, is examining two claims of unconstitutionality with regard to the Telecommunications Act.
In the case of the former, the Legislature recognizes community media, places aside a third of all frequencies available in the current analog system and the new digital dividend, and establishes a public tender to allocate broadcasting licenses; the Supreme Court, for its part, has created a national system of public and pluralistic media independent of the government in office. Both propose the creation of a Media Ombudsman’s Office and for priority to be placed on the creation of original content.
In addition there are two claims of unconstitutionality submitted by members of the Right to Communication Network (ReDCo). The first was filed in August 2012, challenging the use of a call for bids as the only mechanism for assigning frequencies in the country. The Constitutional Chamber has promised to issue a final judgment forthwith; in the meantime, an injunction temporarily suspending the bidding process is in force. This action was dismissed at the time the demand was first submitted. However, the Constitutional Chamber has recently reinstated it in the context of the debate over the bidding process for six television channels that is being undertaken by the Superintendency of Electricity and Telecommunications (SIGET).
Together with the proposed bills and claims of unconstitutionality can be added a resolution of the Superintendency of Competition issued last June. This resolution recommends modifying the Telecommunications Act in several of its clauses that impede competition in the area of communications and generate media ownership concentration: bidding mechanisms for allocating frequencies; the automatic renewal of broadcasting licenses, and the lack of limits regarding ownership concentration, that is, the same points that are being contested in the claims of unconstitutionality.
Along with the above, there is also an investigation being carried out by the Prosecutor’s Office regarding some of the interventions of SIGET and the motion to create a legislative commission to investigate all broadcasting licenses, due to possible anomalies in the allocation and use of some of these concessions. This proposal is particularly relevant given that in 2017 all radio and television licenses will come up for renewal, and follows in the line of an audit of all frequencies requested by the Association of Participatory Radios and Programs (ARPAS) to the Office of the Human Rights Ombudsman (PDDH).
The opposition of “big media”
However, these proposals have found their greatest obstacle in the opposition of the large audiovisual media companies that form part of the Salvadoran Association of Broadcasters (ASDER), along with printed newspapers linked to the country’s right-wing oligarchy. ASDER has asked the National Assembly not to approve the Community Media Bill and to make substantial changes to the Public Media Law, and has also criticized the claims of unconstitutionality (while welcoming the temporary suspension of the bidding processes given that on this occasion they had been left out of the «distribution»).
ASDER is also fighting the legislative decision to include media organizations in a list of entities that may be investigated for money laundering, along with the elimination proposed of the tax exemption provided by an obsolete press law and which benefits the large newspapers. The first measure is linked to an amendment to the Anti-Money Laundering Law demanded by the United States Embassy, and the second measure forms part of the tax reforms promoted by the Executive.
Prospects for moving forward
Right now, the best chance of making progress in the current debate and leading the way to reform of the regulatory framework for communications would be a ruling of unconstitutionality issued by the Constitutional Court, which would oblige the Legislature to amend the Telecommunications Act. This would create an opportunity for a full comprehensive review, the updating of technical aspects and alignment of the Act with international standards on freedom of expression.
This, however, is no easy task. Big media interests are well represented in the Legislative Assembly. The parliamentary grouping of the ruling FMLN, who are the only ones openly supporting the democratization of the media system, need to forge agreements with some of the parliamentary groups on the right in order to pass the necessary legislation; just that in this particular matter, agreements are not easy to reach.
Advocacy, mobilization and public pressure will certainly need to be multiplied.
*Leonel Herrera, journalist, is Executive Director of the Association of Participatory Radios and Programs (ARPAS), and Vice-president of the Latin American Association of Radiophonic Education (ALER)