The aim of the new regulation for community radio was to respond to important social demands for such services so as to improve operating conditions. However, the results have been very limited.
Javier García*/ Spain/September 2016
Law No. 20.433 for Community and Citizen Broadcasting was passed in Chile in 2010 as part of an effort to replace regulations for radio stations offering minimum broadcasting coverage that were introduced in 1994. The aim of the new legislation was to respond to significant social demands for such services through the improvement of operating conditions compared to the previous legal framework, namely:
Expansion of transmission coverage from 1 to 25 watts for transmitter power and higher antennas
Longer license concession periods (from 3 to 10 years)
Opportunities to secure funding from commercials
Setting aside part of the spectrum to accommodate a greater number of community stations; assigning a special segment of the radio spectrum in the FM band (between 1 and 2 MHz depending on the region and at the end of the dial).
However, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) indicated in a report issued in 2010 (paragraph 115) that community radio stations were only able to provide local coverage, noting that “while it is true that many communities protected by the legislation are located in specific municipalities or localities, others may be present at national level. In such cases, there seems to be no reason to prevent community radio from accessing national coverage.”
This article presents some of the results obtained from an investigation regarding the implementation of the law based on data provided by the Undersecretary of Telecommunications (Subtel).
The first steps in the implementation of the law
When the new law was passed in Chile, there were 396 community radio stations providing minimum transmission coverage. Each was required to submit an application and technical project in order to benefit from the new legislation. Not all of them could undertake this process, and around a hundred radio stations were excluded, most for belonging to companies or municipalities, as the law stipulated that participatory radios should be private, non-profit entities.
The adaptation process that was initiated in 2012 had still not been completed by 2015, and some 50 applicants have yet to complete the process set out in Subtel Regulation 1405 of 12 February 2016. In total, 289 pre-existing radio stations made the transition, of which 25% belong to religious bodies.
It was also necessary to set aside the end of the radio dial for use by existing and new community radio stations. This required the relocation of commercial radio stations that held licenses for that segment, and the transfer to that area of the dial of radio stations providing minimum transmission coverage that were broadcasting outside of this segment.
The results of implementation of the new law 6 years later
The first consequence of the measures introduced to implement the law was the freezing of the allocation of new licenses to radios while the segment of the spectrum to be set aside for community broadcasting had still not been made available. This meant that up until the first quarter of 2013, the first public tenders for the creation of new stations had still not been initiated.
In this first call for applications, only two license concessions were made available in the tender. That number increased in the following calls to 15 license concessions in 2013, 64 in 2014 and 69 in 2015.
According to SUBTEL, by 12 February 2016, a total of 156 tenders had been issued, of which over one hundred are still being processed; consequently, only 18 new broadcasting frequencies have actually been awarded.
The analysis of the tenders yields the following results:
The largest number of tenders were called in La Araucanía, with 31 new license concessions, and Maule, with 25. The regions with the highest population density and greatest demand for community radio stations, such as Santiago and Valparaíso, have had just 18 and 10 calls to tender, respectively.
A high number of license concessions were voided due to the lack of applications or for failing to meet the requirements. Around 40% of the 122 concessions called to tender between January 2013 and June 2015 have not been awarded.
Today there are fewer community radios with a license concession than the number of minimum coverage radio stations prior to the law passed in 2010. A current survey shows there to be around 300 community radios with a license to broadcast on the FM band, compared to 1,671 private commercial radio stations.
The paradox of the new law
Law 20,433 created an expectation in Chilean society that encouraged many social groups to create new radio stations. However, the slow implementation of the new legislation has contributed to these initiatives remaining outside of the law. Furthermore, the law does not meet the objectives for which it was approved.
Along with the above is the existence of a particularly severe penalty regime for radio broadcasters that lack authorization, such situations being viewed as a criminal activity and dealt with by the imposition of fines, the confiscation of equipment, and possible prison sentences of up to 3 years. While no one has so far been sent to prison for such acts, it has been observed that the usual procedure is the intervention of the Public Prosecutor’s Office and the police, entering radio stations to seize equipment and arrest those who are broadcasting in order to take their statements, and then subjecting them to a criminal prosecution process that can drag on for over a year.
According to SUBTEL data, between 2010 and 2015, the Public Prosecutor’s Office received 116 complaints of radio broadcasting without a license. Of these only in two cases had a call to tender for community radio broadcasting licenses been made in the same area of coverage: in all other cases, it could be verified that at the time of the criminal accusation, no calls to tender had been made in the respective localities, making it impossible for such stations to transmit with the proper authorization.
Another revealing fact concerns the regions where most accusations were being processed. The Metropolitan Region has the largest number of accusations with 40; followed by BíoBío with 22 and 18 in Valparaíso. Santiago and Valparaíso are the only regions where complaints for unauthorized broadcasting exceeded, and even doubled, the number of new license concessions offered through public tender.
A bill is currently being processed for the elimination of prison sentences and the replacement of the criminal felony by that of an administrative offense. However, a lobby is being carried out by the Association of Commercial Broadcasters of Chile (ARCHI) along with the Undersecretary of Telecommunications (SUBTEL) itself to maintain the criminal nature of such conduct and the intervention of the Public Prosecutor’s Office and the police in closing down radio stations.
* Action Group for communicators in conflict of the People’s Defender. Doctorate in Law from Universidad de Castilla-La Mancha