The Issues and the Law
When Chavez government officials from the country’s National Telecommunications Commission (CONATEL, equivalent to the U.S. Federal Communications Commission) recently confiscated microwave transmission equipment from Globovision, a 24-hour TV news channel, it said that its actions were strictly based on Venezuela’s Telecommunications Law. The confiscated equipment allowed Globovision to do live non-studio transmissions from anywhere in the capital. Conatel argued that Globovision was in violation of the law because it was using microwave frequencies for which it did not have permits.
Globovision, on the other hand, denies these allegations and argues that even if it were true, it is Conatel that is at fault because it does not have the authority to confiscate equipment without demonstrating an "urgency" to do so. Besides, says Globovision, Conatel has been sitting on applications for the usage of frequencies ever since Chavez came to office. Globovision charges that the Chavez government is partly shutting down Globovision and is, in effect, censoring the media.
A closer look at the law might shed some light on whose arguments are stronger. Ultimately, though, the issue must be judged on the basis of the facts, which are still unclear in many respects. But let’s take apart Conatel’s accusation and Globovision’s defense.
Conatel argues that its actions are based on articles 5, 7, 25, and 76 of Venezuela’s Telecommunications Law. These articles refer to the State’s ownership of the airwaves and its obligation to regulate these in the interest of the general public. Next, Conatel says that routine inspections had determined that Globovision was using microwave frequencies for which it had no permits. Based on articles 166, 173, and 175 of the Telecommunications Law, Conatel argued that it had the obligation to temporarily confiscate the microwave transmission equipment, until a full determination of the legality of Globovision’s use of these can be made.
Specifically, article 166 states that the usage of frequencies without permit shall be penalized. Article 173 adds that in addition to any fines, the equipment used for illegal transmission can be confiscated. And article 175 says that Conatel will order the cessation of illegal broadcasts.
Conatel’s communiqué to the press, however, fails to mention the exact procedure by which equipment can be confiscated. According to article 183, which deals with the confiscation of equipment, such confiscation may only take place provisionally and only “when reasons of urgency merit” such measures. Globovision’s defense, thus rests on the argument that even if it had been using frequencies without a permit (which it denies), Conatel could only confiscate equipment if there was an urgent reason to do so. Conatel says that its urgent reason for confiscating equipment is based on the need to regulate the radio-electric spectrum and to avoid Globovision’s interference with other users who have permits for the wavelengths Globovision was using illegally.
Furthermore, Globovision argues that the Telecommunications Law is unconstitutional because it violates the right to defense, to due process, and is incompatible with the constitutional prohibition against censorship. A case has been filed against the law with Venezuela’s constitutional court, but the court has so far not yet ruled on the issue.
Globovison’s third argument is based on the facts of the matter, in that it argues that at the time of the confiscation, its transmission equipment was broadcasting at frequencies for which it has permits. Globovision adds that previous inspections of the transmission equipment were made without the presence of a Globovision representative who could have verified the results Conatel officials measured. However, it is unclear if there is a legal basis for this argument.
An Evaluation of the Situation
It would seem that Conatel’s case against Globovision is based on three central issues that need clarification:
- Whether Globovision really used microwave frequencies for which it had no permit.
- Whether there were “reasons of urgency that merit” the confiscation of equipment.
- Whether Globovision is being targeted selectively.
Added to these three one might add several less central issues, such as:
- The constitutionality of the telecommunications law itself (an important question, no doubt, but less central, in that it will eventually be dealt with by the court)
- Whether Conatel inspections must be accompanied by a legal representative of the broadcasting organization
- Conatel’s tardiness in approving applications for the use of the radio-electric spectrum (Globovision’s use of this argument almost sounds like an admission of guilt)
Ultimately, these are all issues that Venezuelan courts will have to decide. However, it does seem that Conatel is skating on thin ice, legally speaking. It seems credible that Globovision was using frequencies illegally, given that it is fairly common knowledge that TV stations in Venezuela simply use whatever frequencies they can get away with. However, precisely because it appears to be a common practice, it is doubtful that there were urgent reasons for the immediate confiscation of the equipment. Rather, it seems more plausible that Conatel (and Diosdado Cabello, the Minister of Infrastructure in charge of Conatel) took advantage of the general lack of regulation and order in Venezuela’s electro-magnetic spectrum, in order to send a message to one of the government’s most outspoken and vehement critics. If this is true, then Conatel’s action would be a violation of equal treatment under the law.
An important factor in this is that Globovision, more than the other three major oppositional television channels, is a medium of purely oppositional views. That is, its 24-hour news broadcasts are filled with spiteful and non-stop anti-government programming. While its regular news programming is relatively harmless, though clearly biased, Globovision also broadcasts numerous opinion programs, such as “Grado 33,” “Orlando Urdaneta,” and “Aló Ciudadano,” which are unrelenting in their attacks against the government. Also, Globovision’s charges of censorship ring hollow, in light of the fact that Globovision was a participant in the “mediatic” coup attempt against President Chavez in April 2002, when the media practiced self-censorship in an attempt to make the coup succeed.
Globovision shamelessly uses any opportunity it can to present itself as a victim of a dictatorship. As such, it forfeits its credibility when it makes arguments about its use or non-use of certain frequencies. Globovision’s director (and the newspapers supporting the channel) immediately claimed that the government was “shutting Globovision down.” Also, Conatel’s director, recently said, “They [Globovision] intend to create a public perception that Conatel has incapacitated their ability to make live transmissions, which is untrue. Last year, Conatel issued permits for various microwave transmitters, which allow them to move throughout the city of Caracas; it is unknown to us why they have not used these.”
However, even if Globovision is nothing more than a 24-hour opposition propaganda machine, bending the rule of law, even if for a higher purpose, such as defending the bolivarian revolution (as Chavistas call their political project), cannot be allowed. Rather, ways must be found to democratize ownership of the media. As the old saying goes, freedom of the press really is freedom for those who own the press. True freedom of the press would thus require a truly pluralistic and democratic media-landscape.
Another free-speech saying is applicable here too, that the only decent way to fight free speech is with more free speech. The Chavez government thus ought to spend more time figuring out how to democratize the expression of views, rather than selectively placing marginally legal obstacles in the path of odious (and anti-democratic)media outlets.