By Jenny Manrique
For almost a year, the Argentine people have attended to a judicial and media battle that is being fought on the podium, in the streets, and of course, in the media, because of the enforcement of the Law on Audiovisual Communication Services, promulgated in 2009, and on which President Cristina Fernández de Kirchner is risking all of her political capital.
The so called Media Law, which repealed an old law dating back to the dictatorship era, has been praised by supporters for having been achieved in a democratic fashion, since it took 23 forums and 80 conferences with members of the civil society to write the law’s 166 articles.
“It is an unprecedented process because the bill was discussed horizontally, we worked by consensus, and we achieved to have the 21 points we had discussed at our organization included in the law,” said Néstor Piccone, member of the Coalition for a Democratic Communication, to Latinamerica Press. The Coalition is a group of 300 entities, from unions to civil organizations, community radios, small and medium-sized businesses, first nations, service cooperatives, universities, and gender groups and groups of disabled individuals, all from across the nation.
The law’s critics are mainly media groups affected by the anti-trust measures, which, in summary, seek to limit the concentration of licenses; in other words, it seeks to limit a single media group to owning at most one satellite signal, up to 10 radio signals, broadcast or cable television, and up to 24 subscription broadcasting licenses.
Grupo Clarín, the largest media conglomerate in the country — which currently has 237 licenses — will be one of the first to be forced to give up its licenses. Because of this, Clarín brought suit on Oct. 1, 2009 before the Federal Civil and Commercial Chamber, questioning the constitutionality of two of the law’s articles: article number 45, which stipulates all sorts of prohibitions and limitations on cross-ownership of different types of communication media, and article number 161, which sets a one-year adjustment period to comply by the new law.
On Oct. 26 of that same year, the Judiciary granted Clarín — once an ally of the Kirchners during the presidency of the deceased former President Néstor Kirchner (2003-2007) — a precautionary measure to allow the group to keep its licenses at least until the trial judge, Horacio Alfonso, gave a verdict. After an avalanche of almost daily judicial decisions, on Dec. 15 Alfonso deemed the law constitutional, and the conglomerate prepared its judicial artillery for an appeal.
Law with a first name
“While it pretends to radically enforce the law in the Clarín group case, Cristina [Fernández de] Kirchner’s government is being extremely lax with the rest of the media groups, allowing them to violate different aspects of the law or allowing them to symbolically comply,” ensured reporter José Cretazz, professor at the Argentine University of Enterprise, or UADE, and chief of information of the newspaper La Nación, to Latinamerica Press.
Cretazz cites cases as that of Telefónica de España, which could not maintain its broadcast television chain Telefe if the law were enforced because in Argentina it already owns a public service company, Telefónica de Argentina, and now [owning both] is incompatible with the new regulatory framework. Furthermore, Mexican businessman Ángel Remigio González could not continue to have Canal 9 and FM Aspen since foreigners are not allowed to control more than 30 percent of the assets of one licensed media firm.
Meanwhile, Martín Sabbatella, president of the Federal Authority of Audiovisual Communication Services, created to ensure that the law is enforced, said during a conversation with Latinamerica Press that, although complete application of the law has not occurred because of Clarín’s precautionary measure, “this is not a law targeted to one [media] group in particular.”
“There are those who wish to maintain their privileges and their dominant position above the State, and that’s when we’ll act forcefully. Some 14 of 21 groups have a voluntary adjustment plan; we will decide one by one what will happen with the licenses, we will respect all job positions, and we will indicate [this] in the bidding documents,” ensured Sabbatella. He also explained that once the State acts ex officio, a valuation tribunal must select the licenses that will be bid on, open calls for bids, make a registry of offers, award the licenses to the new owners, and finally make the transfer.
The other challenges of the law
On Dec. 7 — known as 7D —, the day that for over two months has been seen as the last great battle in which the State will act ex officio, nothing actually occurred. The Judiciary extended Clarín’s precautionary measure, and the celebration of the ruling had to be moved to Dec. 9, a day of many commemorations: 29 years of democracy, the fifth year of President Fernández de Kirchner’s government, and the eve of the International Human Rights Day.
The streets surrounding the centric Plaza de Mayo were crowded with Peronist political militants, who could not celebrate the fall of Clarín Group but chanted slogans against the Judiciary, declaring 7D a “national day of shame.”
“It is a shame that [the Judiciary] does not agree with the people,” said indignantly an unidentified woman belonging to the Evita Movement.
Along with the manifestations, President Fernández de Kirchner gave a speech at the end of the festive day and used phrases such as: “It is important that the [Judiciary] is not only independent from the political power, but also independent from corporations (…) When some cannot use the power of the media, they try to use judicial power to topple a government.”
In this antagonistic panorama, it seems that returning Clarín its licenses was the biggest challenge to the law; and yet, there are even deeper issues.
“We want to be custodians of the law because the sectors that won new rights are not organized, and it is not yet very clear how their demands will be handled,” acknowledges Piccone.
Piccone’s largest concern lies around the fact that it is unclear how the new system of media financing will be handled, for if it is left to the free market “the resources of the private sector will go to the large companies, and the newly created companies must be autonomous and not owned by the State.”
Special legal system
For Martín Becerra, investigator and doctor in communications, “the law is written based on large Argentine cities and not with small cities in mind, where the options are limited.”
Examples of this are the 200 cities where signal from Cablevision, property of Clarín, will no longer be available when the conglomerate’s divestment takes effect. Neither the bidding documents nor the bidders are clear, and there is a fear of a repeat of what happened with Fibertel, also owned by Clarín, whose Internet license expired in Aug. 2010 but has not yet been removed because there is no one to take its place.
Assigning 33 percent of the spectrum to social organizations — the law states that the other two-thirds will be for the State and for private enterprise — provides an opportunity for, for example, the exemption for first nations, under article 151, from tender biddings and legal statements to operate in AM or FM frequencies and in broadcast television, or under article 49, which establishes a special legal system for shortwave radio stations, with direct assignment. Despite these opportunities, the discretion in granting these licenses and the compromising position that editorial guidelines could be in are also worrisome issues.
Wall Kintun TV, the first television channel of the Mapuche, Coya y Qom indigenous communities, which first aired on 7D on Channel 2 in Bariloche, showed as its first program a documentary of the life of Néstor Kirchner, which was viewed with suspicion by opponents.
“The law must be analyzed using the official guidelines to award or punish [communication] media according to their editorial guidelines,” Cretazz points out. “In this context, we need a law of access to information [there was a bill proposal that Kirchner followers in the Congress rejected last November] for citizens and journalists.”
And this is how the beginnings of the Media Law, which has been qualified by the United Nations Special Rapporteur on the promotion of freedom of expression, Frank La Rue, as “a model for the entire continent,” has become a boxing ring for politicians and businessmen, whose irreconcilable battle has become a sort of national cause.