SUMMARY “RADIO CARACAS TELEVISION RCTV, C. A.” (RCTV) CASE

1.-  Deny the extension or renewal of the operating Administrative Titles or the license/concession of a TV broadcaster or Radio station as a retaliation for its editorial and informative line is a severe breach of the Freedom of Speech and Expression, which is expressly forbidden by article 13(3) of the American Convention of Human Rights.

 2.- The right to a due process and defense right of RCTV that is guaranteed by article 8 of the American Convention of Human Rights and article 49(1) of the Constitution is breached if RCTV is denied the extension or renewal of its Administrative Titles or license/concession for alleged infractions set forth in the Telecommunications Organic Law of or the Law of Social Responsibility in Radio and Television, without having received any conclusive sanction for the breaching of those laws.

 Only the commission of a severe infraction set forth in the Telecommunications Organic Law or the Law of Social Responsibility in Radio and Television and the corresponding imposition of a conclusive sanction would justify the non extension or renewal of the license/concession of a TV broadcast or a Radio station. No conclusive sanction has been imposed to RCTV for infractions to these laws. Therefore, there is no reason to deny the extension of the license/concession of RCTV.

 3.-        According to article 210 of the Telecommunications Organic Law together with article 3 of Decree Nº 1.577, published in the Official Gazette Nº 33.726 dated May 27, 1987, RCTV is entitled to the extension of its license/concession for 20 more years, at least until 2022.  This extension right is protected and guaranteed by Art. 210 of Telecommunications Organic Law.

 4.-        According to the thesis publicly stated by the National Executive, the television and radio licenses/concessions granted before 1987, which include VTV, Venevisión and almost all the modulated amplitude (AM) radio stations, would expire on May 27, 2007.  From that date onwards, the existence of all those stations would remain in the hands of the arbitrary decision of the National Executive.

 5.-        If only some of those radio y television licenses/concessions are extended or renewed, and the licenses/concessions of RCTV and of some other remaining radio stations and TV broadcasts are not extended or renewed, the National Executive would then be violating the right of equality of RCTV as well as of all the other radio stations and TV broadcasts that is guaranteed by article 24 of American Convention of Human Rights, by article 21 of the Constitution and by the ordinal 1 of article 210 of the Telecommunications Organic Law, since RCTV and the remaining radio stations and TV broadcasts  would have been illegally discriminated.

I

Violation to the Freedom of Thought and Speech of RCTV guaranteed by the American Convention on Human Rights:

According to article 13(3) of the American Convention on Human Rights “Freedom of speech can not be restricted through indirect ways or means, such as the abuse of official controls [...] of radio electrical frequencies”. Likewise, article 13 of the Declaration of Principles over the Freedom of Speech adopted by the Inter-American Commission of  Human Rights indicates that “the granting of radio and television frequencies among other, intended to put pressure and punish or to award and privilege the journalists and the mass media according to their informative lines, attempts against the freedom of speech and must be expressly forbidden by the law”.

 There is no doubt that the decision to prevent RCTV to continue working as an open-air television network is due to the editorial and informative line that has a critic, independent and pluralist nature regarding certain acts of the National Executive. In other words, RCTV is being punished for its editorial and informative line. In a democratic society where the rule of law governs, the granting, extension or renewal of a license/concession of a television broadcast or a radio station can not be closed, revoked or denied because its editorial or informative line does not please the current government. Therefore, according article 13(3) of the American Convention on Human Rights, the National Executive must to allow RCTV to keep functioning as an open-air television network.

II

The right of due process and defense of RCTV has been violated when affirming that it has committed infractions without having received any sanction:

             In order to justify its decision to avoid RCTV from functioning as an open-air television network, the National Executive has indicated that RCTV has violated the Telecommunications Organic Law and the Social Responsibility in Radio and Television Law.

             We must indicate that in order to be able to prevent an open-air television network or radio station from functioning it is necessary that said station has committed severe infractions to the telecommunication norms and that conclusive sanctions have been imposed. In this sense, we must indicate that RCTV has not been subject to any conclusive sanction due to a violation of the Telecommunications Organic Law and the Social Responsibility in Radio and Television Law.

             Therefore, denying the rights of RCTV to the extension of its license/concession based on these alleged infractions, constitutes a violation of the right to a due process and to the defense guaranteed by article 8 of the American Convention on Human Rights and article 49(1) of the Constitution, since it punishes RCTV based on arbitrary conclusions of some public officers.

III

RCTV is entitled to the extension of its license/concession for 20 years more:

            The National Executive has invoked Decree Nº 1.577 published in the Official Gazette dated May 27, 1987 to base its decision of preventing RCTV to continue functioning as an open-air television network. In that sense, it is necessary to indicate that the National Executive has distorted in a malicious manner the sense and scope of Decree No 1.577.  In fact, according to article 4 of Decree Nº 1.577, each one of the television networks existing at that moment (RCTV, Venevisión and VTV) where granted a license/concession with duration of 20 years as of the publication of said Decree.  However, the National Executive has hidden that article 3º of Decree Nº 1.577 compels the National Executive to extend said licenses/concessions for 20 additional years once the initial term has elapsed, provided the television networks have complied with the regulations in telecommunication matters.

 Given that RCTV has not received any conclusive sanction for severe infractions of the Telecommunications Organic Law or the Law of Social Responsibility in Radio and Television, there is no doubt that RCTV has an acquired right to the extension of its license/concession for 20 more years. Therefore, we must determine when those 20 additional years begin to be counted.

 When the Telecommunications Organic Law began to be in force, a transformation process of the former licenses/concessions took place under the titles of the new legislation. According to article 210(4) of the Telecommunications Organic Law, when the transformation of the former licenses/concessions took place, the new titles should respect “The object, coverage and term of duration” of the former licenses/concessions. In other words, the new titles had to respect the acquired right to the extension of its license/concession for 20 additional years that article 3° of Decree Nº 1.577 granted to RCTV.

 According to article 210 of the Telecommunications Organic Law, the transformation process of the former licenses/concessions into the new administrative titles should have ended on June 12, 2002. At that time, the Ministry of Infrastructure should have issued the new titles for RCTV and immediately apply the extension of 20 years set forth in article 3º of Decree Nº 1.577; Therefore, the Ministry of Infrastructure should have issued the new titles of RCTV, with an expiration date of June 12, 2022.

 The National Executive has stated that the former license/concession of RCTV should have not been extended for 20 years beginning on June 12, 2002, but that it would end on May 27, 2007. If the National Executive were right, that would only mean that the extension of 20 years would begin as of that date, therefore, the license/concession of RCTV would have to extend until May 27, 2027. In other words, if the thesis of the National Executive is adopted and the complete content of Decree No. 1577 is followed, the right of RCTV to continue operating as an open-air television network would extend for 5 years more than under the thesis of RCTV. However, the National Executive manipulates the public opinion since it hides the existence of said right to the extension of the license/concession of RCTV.

 In order to avoid the recognition of the rights of RCTV, the Ministry of Infrastructure rejected to complete the transformation of the former license/concession of RCTV; being thus delayed for more than 4 years in its legal obligations. The Ministry of Infrastructure and currently the Ministry of Public Power for Telecommunications and Informatics are aware that if they comply with the legal duty to transform the former license/concession of RCTV, they would have to ratify the right of RCTV to keep functioning as an open-air television network. Likewise, it is necessary to denounce that the National Executive has not transformed either the licenses/concessions of the remaining television broadcasts and radio stations, which places them in a high uncertainty situation regarding their legal situation.

 On the other hand, since the Telecommunications Organic Law began to be in force, the Ministry of Infrastructure, CONATEL and all the competent authorities have recognized that RCTV is a television broadcast that operates legally under the frame of the new legislation. In fact, RCTV has been timely paying all the new taxes, has complied with all the obligations set forth in the new legislation and has participated in the public consultations made by CONATEL for the implementation of the new regulations in television matters. This way, the National Executive has recognized the condition of RCTV as an operator that has the rights to which it is entitled under the Telecommunications Organic Law.

 On the other hand, it is necessary to point out that Decree Nº 1.577 would also be applicable to all the radio stations in Venezuela that were authorized before the existence of said Decree; i.e. this means almost all the AM stations.  Thus, if the new thesis of the National Executive is true, on May 27, 2007 the right of all those radio stations to continue operating would expire.  Given said risk, RCTV wants to indicate that those stations also have the right to have their titles extended until at least year 2022.

 If only some of those television and radio licenses/concessions are extended or renewed and RCTV licenses/concessions and those of the remaining television broadcasts and radio stations are not extended or renewed, the National Executive would be violating the right of equality of RCTV and of all the other radio station and TV broadcasts guaranteed by article 24 of the American Convention of Human rights and by ordinal 1 of article 210 of the Organic Law of Telecommunications, since RCTV would have been illegally discriminated as well as the remaining radio stations and TV broadcasts.

  Radio Caracas Televisión RCTV, C. A.