War over the air waves

Sep. 2005

Jaime Nestares isn’t sure radio as he knows it can survive this one. The general manager of Radio Caracas Radio (RCR), the first successful radio station in Venezuela, believes that the Chávez government’s Law of Social Responsibility in Radio and Television (Ley de Responsabilidad Social en la Radio y la Televisión — Ley Resorte) will disrupt the economic model under which the media has thrived for decades. According to Nestares, the law takes away radio and television channels’ ability to develop a niche and identity, which he says is the key to a healthy market, by regulating 61% of 6 am to 11 pm programming.

Radio Caracas Television (RC-TV) also contends that the law is so ambiguous that media can not monitor whether they are obeying it, ultimately leading to self-censure and hurting channels’ economic prospects. “The law has an economic effect and an effect of self-censure in the majority of radio and television stations that is evidently contrary to the economic guarantees and the sacred rights and liberties of the Constitution,” said a spokesman for the channel, who asked to remain anonymous.

“That is definitely the vision of the businessman,” counters Maria Alejandra Díaz, director of social responsibility for the Ministry of Communication and Information (MCI). “The businessman looks at the application of the law with much pragmatism because he thinks a lot about his pockets.” The government argues that because airspace is a public good, private media are privileged to use it for profit and obligated to use it to help form “exemplary citizens.”

What emerges from an analysis of the battle over the Resorte Law is an ideological divide: private media defend the free-market competition they have become accustomed to while the government argues for a socialist view that media should be regulated for the good of society.

National Independent Producers

By the end of next year, all private and public media are to hand over control of 5.5 hours of the most popular airtime to “national independent producers” (PNIs), who are licensed by the government. An additional 3 hours a day will be devoted to children’s programming. 50% of the airtime from 6 am to 11 pm will therefore be mandated by government.

Alvin Lezama, general director of the National Commission of Telecommunications (Conatel), the driving force behind the law, made it clear that control over those 5.5 hours of programming was in the hands of the PNIs, not the media themselves. He argued that the Resorte law “pluralizes” the media’s messages by giving new opportunities to independent producers since the media’s owners “had all the control” before the law was passed.

Carlos Correa, director of the human rights group Provea, agreed with giving national producers a place in the limelight, but had doubts about the government’s approach. “You don’t know if the intention is to promote independent and national production or if it’s an indirect control of the media,” Carlos Correa, director of the human rights group Provea said in an interview. “We need to see how they are selected.”

The RCTV spokesman contended that PNIs were a government attempt to affect the image of television stations. He believed that the appropriate space for independent producers was on public television and also denied government claims that private media did not give national artists and producers airtime before the law.

Resorte is being applied gradually: as of September 8, all stations are required to broadcast two hours a day of PNI programming. The irony, Nestares argued, is that the government has yet to announce how media will legally select their PNIs. This presents a Catch-22 situation for media, Nestares says, because the government could pull PNIs already contracted by stations once it settles on a framework for assigning the producers.

Díaz said there had been a delay in passing the law that had put the government behind schedule. She admitted that a channel could lose the PNI it had already contracted once the assignment procedure was passed, but that she saw this as “an opportunity for a producer to participate in other media.”

A rough draft of assignment regulations issued by MCI says the government could directly allocate producers as a last resort if an auction and a drawing is deemed “impossible.” However, Díaz said that proposal had been scrapped for another in which direct assignment was thrown out and MCI would organize a business round for media to negotiate for producers. PNIs would have to show their competency at the business round in order to get hired, she said.

“We’ll see if that’s true,” countered the RCTV spokesman when asked about government promises that media will choose their own producers. “We’ll have 5.5 hours of programming that we don’t control.” The spokesman added that the PNIs that RCTV had already contracted did not work at the station and did not have a close relationship with the station.

Nestares said RCR had already eliminated 3.5 hours of opinion programming and that employees on those shows were left unemployed. While RCR had sought out independent producers on its own in order to comply with the law, Nestares said other stations had not yet contracted producers for 2 hours of PNI programming. He also accused state-run media such as Venezolana de Television (VTV), Vive and Radio Nacional de Venezuela of not complying with the new law.

Díaz said MCI had seen “good faith” from the service providers regarding the law. Lezama said that the private media stations RC-TV, Globovision, Televen and Venevision and were all developing relationships with PNIs, although he did not say if they had contracted any yet. “They are accepting (the law),” Lezama said when asked if private media were complying. “I think that people that aren’t in favor of the government have recognized the positive aspects of the rules.”

Lezama and Díaz both insisted that the law didn’t differentiate between private and public producers. Nestares, however, believed that the government would put government-sympathetic producers in stations typically critical of the government. He doubted, on the other hand, that opposition-minded independent producers would find their way into government media.

Díaz said there were 2,756 PNIs registered with MCI as of mid-September, but both she and Lezama said many more would be needed. “We are committed to convincing those who have not yet been convinced of the goodness of the project so that they register as PNIs,” she said. Díaz explained that some producers were unconvinced because of government critics who had branded the law as the “Ley Mordaza,” or the “Gag Law.” Díaz contended that many private media “lost a big opportunity” to participate in discussions to create the law because they left the negotiating table after the possibility of imposing sanctions was brought up.

Children’s programming

Díaz lauded the new emphasis on children’s programming because she said many children spend more hours per day watching television than they do at school. Venezuelans did not have sufficient experience producing programs that “show values” to children, she said.

Globovision, for example, had adapted its programming to include the program “Emisión Juvenil,” or “Youth Broadcast,” which shows adolescents reporting the news. Díaz’s personal opinion, however, was that the show was “not adequate” as a children’s hour because it was the “same news just with adolescents.” She said that MCI was still working out the guidelines for determining what types of shows qualified for the three hours of children’s programming required by the Resorte law.

Critics argue that theme channels such as Globovision, a 24-hour news channel, and the sports channel Meridiano Television, will have a hard time incorporating children’s hours. But Díaz said the law did not make special conditions for theme channels and that they would “have to adapt.”

The new sound of music

Resorte also regulates 60% of all musical programming between the hours of 6 am and 11 pm. Under the clause, 50% of musical works broadcast on the air must be Venezuelan, half of which must be “traditional” pieces. Another 10% of the play list must be songs from Latin America or the Caribbean.

Nestares contends that this clause will homogenize radio stations. Many stations, he says, thrive by finding a niche in the market characterized by a certain genre of music or news. Because revenue from advertisement is the basis of radio’s economic model, many stations therefore depend upon that niche to attract listeners from specific socio-economic groups and to sell advertising targeting those groups, he argued. While the RCR general manager contended that the audience lost in the deal, his train of logic suggests that stations could lose revenue as well.

“Either they don’t understand what the industry is or they understand it very well and are trying to destroy it,” Nestares said. “It’s a totalitarian project against the freedom of expression.”

But Lezama argues that the clause helps Venezuelan musicians promote their work and has already generated a boom for national artists. “We cannot interpret the taste of the Venezuelans, but we have to give them the possibility to choose,” he said. Many stations, he said, have been focused on promoting groups from giant international music companies at the expense of smaller national bands. He also pointed out that the 25% portion of non-traditional national music can include a wide variety of genres such as rock, hip hop, salsa and reggaeton, the only rule being that they must be played by a Venezuelan.

Díaz said that she didn’t believe private media would lose money by diversifying programming. “There has to be equilibrium between social responsibility and profits,” she said. “Our businessmen have not managed that equilibrium very well.”

Correa also pointed out the great wealth of musical genres in Venezuela and dismissed any notion that the law would result in an excess of llanero music, for example. He suggested, on the other hand, that forcing a station to play a certain kind of music might not be the best way to promote national artists.

Nestares believed that investing in music schools or national record labels, for example, was a better way of endorsing Venezuelan music. “When they’ve put on good rock n’ roll in Venezuela, we’ve played it,” he said, denying that RCR has not supported Venezuelan music. Nestares also said that many national bands did not have the money to invest in top-notch production because so many of their fans bought pirated copies of their albums.

Ironically, MCI distributed to the media a fifteen-CD box set called “Venezuela, songs from the land,” designed to promote traditional music in light of the new law. The set included a printed note from MCI Minister Andrés Izarra. One copy of the set reviewed by VenEconomy, however, was made of pirated CDs with the recordable CD brand name “Maxell” on them. The set also did not have a copyright notice (“Depósito legal”) on its cover authorizing the distribution of music for promotional use only, an interesting side note as the government campaigns against piracy.

The legal battle

Radio Caracas Television (RCTV) director Marcel Granier, the channel’s vice president of information and opinion Eduardo Sapene and the channel’s legal representative Oswaldo Quintana have issued a petition to the Supreme Court of Justice (TSJ), calling for Resorte to be declared void. RCTV calls the law unconstitutional, arguing that it violates freedom of expression, breaks the right to equality, allows censorship, imposes certain content on the media, and violates economic freedom.

RCTV argues certain clauses in other countries’ media laws are stricter than their Venezuela counterparts, but that the law as a whole is the most restrictive in the world.

For example, RCTV calls the clause regulating musical programming “illegitimate,” charging that it violates the freedom of expression. “The imposition of cultural preferences on the Venezuelan population is neither consistent with democratic life nor with respect to the liberty of people,” the argument says.

RCTV also calls Article 33 of the law “censure” because it allows Conatel to order any station to stop broadcasting any program which “promotes war,” “crime,” “religious intolerance” or “is contrary to the security of the nation.”

“The law seeks to economically drown radio and television companies, pressure them to self-censure, and put them in a position where the law’s own judicial uncertainty puts them in a position where they are absolutely defenseless against the government,” said the RCTV spokesman. Even so, the spokesman insisted that RCTV had not engaged in self-censure whatsoever. He did argue that there were less opinion and general news programs on television since the law had been in effect. He also said that national cadenas — government broadcasts that every channel is required to carry — were more frequent than ever before.

Asked about the arguments, Díaz accused RCTV of not understanding Venezuelan laws and maintained that “no constitution in the world upholds human rights like the Venezuelan one.” She said the TSJ would decide if it would admit the petition and then would decide if the law was constitutional. She hoped a “social movement” would mobilize in defense of the law.

With the 72-hour period required for the TSJ to respond to the petition long-expired, critics wonder if it is being deliberated shelved.

Lezama denied claims from critics that the law was an attempt to quash private media after they played a role in the political opposition to Hugo Chávez between 2002 and 2004. He pointed out that Conatel had been working on the law since the year 2000 and that the first outline of the law’s “principles” was given in 2001, both before the coup against Chavez. He also maintained that Venezuela was due for an update since it was still using the 1940 Telecommunications Law. Thirteen failed proposals to revise the law had been presented in the past 30 years, he said.

Correa noted that some television programs highly critical of the government during the era of the referendum against President Hugo Chavez — such as Napoleon Bravo and Marta Colomina’s shows — were no longer on the air. He also believed that reporters from the private media were now more susceptible to self-censorship. But he could not tell if this was due to the law.

Investigations underway

Conatel announced in mid-September that “administrative processes” were underway against 22 radio stations accused of violating the law. 92.9 FM, also managed by Nestares, is one of the 22. He called an administrative investigation of his station “very serious against the freedom of expression.”
 
 The station is being investigated for broadcasting folkloric music that contains inappropriate double meanings, which the government says violates a clause on inappropriate language in the Resorte law. Other stations are being investigated for running advertisements for casinos during children’s hours or for not dedicating 50 percent of their musical play lists to national artists.

But Conatel called the investigation was “minor” because only 22 of the country’s 680 radio stations are in the spotlight.