JUAN FRANCISCO ALONSO
EL UNIVERSAL

Neither radio and/or TV operators nor states are the owners of the radio spectrum, let alone governments. The treaties and covenants of the International Telecommunications Union (ITU) -and Venezuela is a party thereto- set forth that this set of frequencies, where the waves containing information travel, is property of the planet inhabitants.

As it is very limited, the spectrum enjoys the status of "humankind heritage." Precisely because not everybody can access it, ITU has apportioned among the countries "packages" of frequencies. Such frequencies should be managed by authorities "as wide and fair as possible" to favor free dissemination of views.

In this regard, expert in human rights Héctor Faúndez elaborated: "The Venezuelan government thinks that the radio spectrum forms an integral part of the state sovereign powers. On the contrary, ITU understands that it is a common humankind heritage and the state has authority only to manage technical issues, but not to regulate the contents of the information and ideas disseminated on the spectrum. This is outside of the state jurisdiction because it collides with a fundamental principle -freedom of expression."

For his part, chairman of NGO Espacio Público Carlos Correa added: "Frequencies are public assets. This makes the state to act cautiously and be very sparing with discretionary actions. They belong to everybody, not only to the majority ruling the country."

Faúndez noted that what domestic or foreign authorities can do is to apportion frequencies among the applicants that meet the legal requirements to run a radio station or a TV channel, and they should ensure that operators will air their programs on the band and the power allocated to them in order not to affect other transmissions.

The World Association of Community Radio Broadcasters (Amarc) thinks likewise. According to them, states, and not necessarily governments, should manage from the strictly technical point of view, the bands granted by ITU. "Therefore, awarding a frequency does not mean transfer or granting unto citizens the right on a state asset. It is just the acknowledgment of a pre-existing right, inherent in people. For such purpose, a license or record is needed with a view to making arrangements for the access to a limited natural resource," said the entity in the document entitled "Legislative panorama of the communication and alternative media in Latin America," submitted in 2003.

The RCTV case: Setting a bad precedent
Faúndez labeled as flagrant violation of the American Convention on Human Rights and the jurisprudence of the Inter-American Commission on Human Rights (IACHR) the developments with private TV channel Radio Caracas Televisión (RCTV). President Hugo Chávez announced that the government would not renew a broadcasting license by arguing that it was a "coupster channel."

"Such a decision has an apparent impact on freedom of expression. It is so apparent that the American Convention anticipated such situations and prohibited them expressly in the third paragraph of article 13, which reads: 'The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.'"

By the same token, Correa stated, "It is not a semantic issue, whether closure or renewal. The point is that as from May 28th an informational, communicational offer will be missing in Venezuela, because a signal will be shut."

He also recalled the IACHR provision set forth in 2000. "Awarding radio and TV frequencies in order to pressure, punish, or reward and favor social communicators and the media based on their informational guidelines endangers freedom of expression and should be expressly banned by law."

Both experts agreed on saying that RCTV rights to defense and due process were not observed and lamented that the move was announced in the absence of a substantiating administrative proceeding of public knowledge.

"Accusing a broadcaster of coupster means that they do not know that the criminal responsibility goes to individuals. People do commit crimes and should anybody commit a crime, then the government should make the evidence available for courts. The government may not punish a broadcaster based on the type of message delivered. Incidentally, such an assumption is unconstitutional. In accordance with the Constitution, everybody is innocent until proven otherwise," Faúndez said.

For his part, Correa wondered, "Why did they (the authorities) fail to impose a fine, punish or file charges against RCTV if it presumably committed a crime? If the events of 2002 and 2003 are one of the allegations, then, why did they fail to punish remaining TV channels, which were also accused of acting likewise?"

Legal void
Juan Caraballo, the legal counsel of the Venezuelan Broadcasters' Chamber, explained that the 2000 Telecommunications Organic Law fails to elaborate on non-renewal of broadcasting licenses, which is not the case for cancellation.

However, he claimed that authorities will have to provide a rationale for their decision against RCTV. "Current licensees have a preemptive right that was gotten in the course of time, and they cannot be said that their license will not be renewed just because the president does not feel like doing it."

The Venezuelan spectrum
ITU put Venezuela in region 2 and has granted unto it bands from 3 kHz to 3,000 kHz, from 3 MHz to 3,000 MHz and from 3 GHz to 3.000 GHz. Different frequencies supply the services of radio (AM and FM), television, mobile and fixed telephone system, Internet maritime and aeronautic radio-navigation, radio-localization, meteorological support and spatial and satellite navigation.

The National Telecommunications Commission (Conatel) is responsible for allocating the frequencies. Pursuant to the Telecommunications Organic Law, in order to operate the spectrum, the parties in interest should apply for it at Conatel. This agency will review the application and may award licenses for up to 25-year terms.

Translated by Conchita Delgado
cdelgado@eluniversal.com