MEDIA REGULATION: LATIN AMERICA RUNNING COUNTERCURRENT

English version of Medios de comunicacin, Amrica Latina a contramano, source Nueva Sociedad n249, Buenos Aires, p. 61-74, February 2014, available at http://www.nuso.org/upload/articulos/4003_1.pdf By Martn Becerra Summary: In several countries of Latin America, recently adopted media regulation has given way to an unprecedented discussion on the role of the media driven by civil society concerns and active government intervention. The underpinnings of said intervention have changed the course of the regulatory history of Latin American media and stand diametrically opposed to the slackening of regulations over the media sector that is the trend in developed countries. Additionally, technological convergence of audiovisual media, telecommunications and the internet brings new players into the discussion and impacts the mediating role that used to be a tenet of news companies. Martn Becerra holds a PhD in Information Science from Universidad Autnoma de Barcelona. He is a Full Professor at Universidad Nacional de Quilmes (UNQ) and at Universidad de Buenos Aires (UBA), and an independent researcher for the Argentine Scientific and Technical Research Council of Argentina (Conicet). He has written books and research papers on policy-making in the field of information and communication technologies. Twitter: @aracalacana. Keywords: media, freedom of expression, regulation, technological convergence, Latin America Introduction Contrary to the slackening of the regulatory strain on communication media that is the trend in developed countries, governments embracing a range of political ideologies in Latin America have been promoting, for more than a decade, new regulations for the sector. Those regulations are intended to find answers to old issues -- the concentration of media ownership and foreign influence of the media, the role of the State as the originator and manager of communications, the subordination of law-enforcement entities to governmental will and content control-- as well as new challengesthe technological and productive convergence of the audiovisual world with the print, telecommunications and internet spheres. But while developed countries find in technological convergence grounds for more flexible regulations governing concentration in the sector, Latin America policies have set the pace for tighter controls. The way in which the media sector is regulated is a substantial indicator in analyzing how the public space projected from the State is configured, because the media is a set of privileged drivers of socialization, and give shape to the environment in which information and entertainment is massively produced, edited, distributed and used, in a metamorphosis that increasingly includes interactions based on fixed and mobile networks. This mutation casts some serious doubt on what role the media plays. The confluence of new regulations, technological convergence and mass internet access has stimulated an unprecedented opening of the discussion on the role of the media, their interests and alliances, the rules of the game, and their editorial lines. The questioning of the media has never been stronger. It is multifaceted in its approach, and comes from some of the so-called populist governments of the new left, though it can also be found in some center or center-right governments. Even beyond the sphere of the state, numerous groups in civil society have established observatories that scrutinize the workings of the media and press for the adoption of

regulations aimed at transforming what used to be the tenets of the media systems of Latin America. Latin America: Continuities and Disruptions The history of mass information and entertainment production and distribution in Latin America has shown certain continuities throughout the twentieth century that were upset by a crisis that occurred at the turn of the century. Technological convergence is not the only driver of that crisis, and its consequences are not one-dimensional-- it has proved to be a watershed development. Convergence, i.e., the use of digital platforms to leverage the processes of production, editing, storage, distribution/access and consumption of culture, is an incubator of new ways of understanding socialization processes. This incubation is nurtured by traditions that are deeply rooted in the history of culture and information industries, both massive and generalista history that is in turn crisscrossed by local and idiosyncratic logics on the one hand, and by globalizing flows on the other, giving rise to an entirely new set of conflicts. Notwithstanding differences among national developments and disparate socio-demographic structures, the abovementioned continuities of Latin America are: firstly, the commercial, privatesector logic almost exclusively setting the agenda for the functioning of the cultural industries in general and of the media system in particular; secondly, and complementarily, the absence of nongovernmental public services and the use of state-run media outlets as propagators of government discourse, with minimum popularity with the audience (except for Chile, and Colombia until 1995); thirdly, the configuration of processes of media ownership concentration of a conglomerate nature and led by a handful of media groups to an extent that greatly exceeds the concentration processes seen in developed countries (partly because the latter usually have authentic public media that stand their ground against the commercial logic of private-sector groups); fourthly, the centralization of information and entertainment content production hubs in the main urban centers of each country, relegating the rest of the state or national territories to the role of consumers of the contents produced by others; fifthly, as described by Elizabeth Fox and Silvio Waisbord, the fact that media systems in Latin America have been loosely regulated compared to Europe or the USA, but strongly controlled by the active yet informal relationship that the various governments have kept with the owners of news companies1. Furthermore, as Waisbord puts it, historically, the discretionary power of the president was a determining factor shaping the structure and dynamics of media systems in Latin America2. In the Latin American region, the highly-concentrated, conglomerate-style and centralized ownership structure of the industries for mass production and circulation of culture and communication products and services is coupled with a process of widening of the social capabilities of expressiona process that started in the 1980s, as many countries in the region returned to the constitutional form of government. Groups concentrating media ownership have built outstanding articulation with political power, one of the indications being the feeble regulation of the sector, serving the best interest of media ownership. Thus, for instance, several countries have failed to regulate the terms of expiry of audiovisual licenses, and this in turn has hampered the organization of regular bidding processes
1

Elizabeth Fox and Silvio Waisbord (eds.): Latin Politics, Global Media, University of Texas Press, Austin, 2002. 2 S. Waisbord: Vox populista. Medios, periodismo, democracia , Gedisa, Buenos Aires, 2013.

(as is the case of Uruguay or Brazil) or, when terms of expiry were legislated, they have been ignored, thus producing, de facto, a model in which audiovisual license holders operated perpetual licenses (Argentina, Venezuela). Concentration of media ownership in a few groups tends to amalgamate editorial lines and narrow down diversity. Concentration, moreover, merges the showbiz (exclusive celebrities), sports (acquisition of TV broadcasting rights), the broader economy (inclusion of financial and banking institutions) and the political arena (politicians becoming media tycoons or partnering with media groups) with news and information areas, causing reverberations that disrupt the alleged autonomy of the media. Another impact of concentration is the geographic centralization of content and information production in the locations where the main groups are based (Buenos Aires in Argentina, Sao Paulo and Rio de Janeiro in Brazil, Santiago in Chile, Montevideo in Uruguay, Lima in Peru, Caracas in Venezuela and the Federal District in Mexico). This impact also impoverishes the availability of different versions of reality to the audience / readership, and confines vast sectors living in the interior of the countries to underrepresentation. Groups concentrating media ownership, reluctant to change and eager to avoid jeopardizing their dominant positions in the information and communication markets, have become the hallmark of the media notion in the national imagery of such countries as Mxico (Televisa), Brazil (Globo), Argentina (Clarn), Colombia (Santo Domingo and Bavaria), Chile (Mercurio) and Venezuela (Cisneros). Such notion, associated with the national public space, is increasingly unstable, due to the social and political critique that today pervades the sector. The large groups of Latin America could have hardly reached the size and predominance they have today in their respective countries without the acquiescence of successive administrations, the economic support of the State, and the feebleness of a regulatory environment that, far from promoting diversity, stimulated the uniformity of players and perspectives in the media markets. In general, ownership concentration processes have unfolded in Latin America unchecked by the respective nations, well into the twenty-first century. License and permit management, direct and indirect subsidies to licensees, the discretionary management of official advertising and public resources, the generous allocation of credit by state banks and the authorization to expand business to other areas of economic endeavor have all fueled the growth of the large multimedia groups in almost all countries in the region. Today, in several countries whose administrations are questioning the status quo of traditional media, the same policies encourage the emergence of new business conglomerates that have joined the ranks of government supporters. Furthermore, the absence of media with a public service mission in a region where state-run media outlets have operated as the devices of government propaganda emphasizes the prevalence of the large business groups, given that big audiences become more interested in the commercial offering than in a biased use of communication. New concerns over concentration voiced in several countries of Latin America focus on the dominant position that some groups may show in traditional networks of production and mass dissemination of information and entertainment. That used to be the traditional business of the mass communication media. But digital convergence forces us to broaden the target of analysis: today information and entertainment at mass scale are not only produced and distributed by mass

media such as television and radio, but also, and increasingly, over telephone networks and internet services. For that reason, the role of telecommunication and cable TV companies is also relevant. Changing Styles of State Intervention The end of the first decade of this century was marked by the consolidation in Latin America of certain processes that were bound to transmute the history of the media sector. The alteration of the bonds historically established between politics and the media (and, in particular, between governments and news companies); the determinations of a structure of media concentration ownership; the ease with which multichannel pay TV could expand its reach also with a highly concentrated structure; the IT transformation framed in audiovisual digitization; the growing disintermediation of the articulated work of traditional media systems, closely tied to the pervasiveness of the new media and digital networks; the inexistence of non-governmental public media; the reconfiguration of the basic challenges associated with the issue of freedom of expression, and the regulatory changes tied to the notion of the right to communication surfacing in the Latin American scene with singular strength are the main processes addressed below. The expansion of multichannel pay TV in Latin America involved a qualitative leap in the type of insertion that the region had nurtured in terms of the provision of foreign programming (mainly from the US); the import, modification and export of formats3; the generation of national or local contents through outsourcing by channels --with the subsequent emergence of independent producers--, and the growing complexity of the business model adopted by the industry. Pay TV reaches extremely high penetration levels in the southern countries of the region (e.g., in Argentina, almost 80% of households have a TV subscription). In regional terms, cable TV reaches 50% of households, but it represents a major segment of the audiovisual media economy that is dominated by large conglomerates (Televisa in Mexico, and Clarn in Argentina and Uruguay). In practice, the absence of strong and stable regulation in Latin America has been historically counterbalanced by the control exerted over the media system by the bottleneck structure of concentrated ownership. This state of affairs started to be questioned by several governments that leveraged the structural fracture at socioeconomic level and strived, in the middle of the first decade of this century, to implement changes in the regulation of the industry. This paper is not intended to provide a classification, undoubtedly problematic, of these new governments. But regardless of the designations that some authors have coined for them -including left-wing populists4, national-populist or new left5--, the truth is that their method of state intervention is peculiar compared to the methods used by Latin American democracies in previous decades.
3

Amelia Arsenault and Manuel Castells: The Structure and Dynamics of Global Multi-Media Business Networks en International Journal of Communication vol. 2, 2008, pp. 707-748; John Sinclair: Televisin: comunicacin global y regionalizacin, Gedisa, Barcelona, 2000; and E. Fox and S. Waisbord: ob. cit. 4 Philip Kitzberger: Las relaciones gobierno-prensa y el giro poltico en Amrica Latina, in PostData vol. 14 N 2, 2009, pages 157-18. 5 Carlos M. Vilas: La izquierda latinoamericana y el surgimiento de regmenes nacional-populares in Nueva Sociedad No. 197, 5-6/2005, available at <www.nuso.org/upload/articulos/3261_1.pdf>.

Several governments in the region have stated their intention to overturn the status quo reigning in the communication and culture industries: notably, these are policies that are designed to change the ownership system, the financing modes, and the accessibility by various social actors. Several governments in the region have also innovated in the questioning of the mediating role played by cultural industries in the twentieth century (and part of the previous one). In some specific cases, this intention includes a controversial chapter on content control, which kindles the discussion about the limits of what is expressible /publishable and about freedom of expression, both in its nineteenth century conception (understood as an individual right) and in its contemporary conception (understood as a social right). Still, the big strokes of the media policy have not reached except for Venezuela the telecommunications sector or except for Ecuadorthe digital network sector. On the contrary, inversely to the political significance attached to media regulation, those two sectors seem to be viewed as technological settings of little social weight. While Venezuela and Argentina reformed their audiovisual media laws in 2004 and 2009, respectively, Uruguay introduced new regulations in 2007 governing community media, and its Parliament is currently engaged in the debate of an audiovisual media law that resembles the Argentine law. Ecuador passed its Communication Act in 2013, and Mexico promoted an ambitious constitutional reform in the same year. Bolivia made constitutional amendments that encompass the media sector. In Brazil and Chile, civil society has for years been putting forward several initiatives, which have so far met lukewarm support from the political system to advance regulatory reform. In almost all of the abovementioned countries there is consensus about reserving more than 30% of audiovisual licenses for the nonprofit sector of society (communities, indigenous peoples, foundations and cooperatives). It should be noted that as part of the general winds of change in communication policies in the region there are two distinct movements: on the one hand, the public debate on the need to adopt new rules of the game in the media sector (as mentioned, in some countries this debate triggered new audiovisual laws), and on the other, the new role that many governments have taken in that debate, creating devices for direct communication with the population, thus doing away with the mediation role that commercial media played for decades virtually unrivalled. The main trade actors of the region, represented by trade associations such as the Inter-American Press Association (IAPA), have been taken by surprise by the double move of both emerging competition from governments focusing a great deal of their efforts and their spendingon communicating, and the emergence of a newfangled regulation aimed at the onboarding of new social players in the ownership structure of the media system, the control of cross-concentration, and, in individual cases (certainly not across-the-board in Latin America), the introduction of problematic prescriptions on information contents. Omar Rincn believes that Latin America increasingly leans towards a type of presidentialism in which governments are obsessed with media presence6. In fact, through a regular presence on
6

O. Rincn: La obsesin porque nos amen: crisis del periodismo/xitos de los telepresidentes in Adriana Amado Surez (ed.): La palabra empeada: investigaciones sobre medios y comunicacin pblica en Argentina, FES, Buenos Aires, 2010, pages 13-16.

radio and TV programs or the use of the national radio network (cadena nacional), presidents have become new sources of critique targeting the work of traditional media while using public resources, such as official advertising, to strengthen their presence in the space enabled by communication technologies. The growing activity of direct communication by governments in the region appeals to citizens through speeches which, unlike what happened until a decade ago, contain explicit ideological references7 and in some cases are aimed at presenting dichotomies in which the large media groups represent an adversary that is opposed to the common interest. With that stance, the governments seek to denaturalize the traditional mediation role played by the media, qualifying said mediation as the conveyance of the interests of the dominant classes with which the media groups of Latin America have historically been associated. But the commitment to new regulations is uneven: while Venezuela (through the Resorte Law of Radio and TV Responsibility of 2004) and Ecuador (through the more recent Communication Law of 2013) have authorized controls of news contents in the media, the Audiovisual Communication Services Law passed in Argentina in 2009 and the bill submitted for debate at the Uruguayan Congress in late 2013 extend the right of nonprofit organizations to access licenses, and respect the freedom of expression of every individual. These changes have often caused a direct confrontation between governments and commercial media groups. The best known case is that of late Venezuelan president Hugo Chvez (1999-2001; 2001-2007; 2007-2013), but the controversy with the big media companies has also pervaded the administrations of Luiz Incio Lula da Silva in Brazil (2003-2007, 2007-2011); Cristina Fernndez de Kirchner in Argentina (2007-2011, 2011-2015); Evo Morales in Bolivia (2005-2010; 2010-2015); and Rafael Correa in Ecuador (2007-2009, 2009-2013, 2013-2017). The conflict between industry players and governments evidences the coming apart of a model that Fox & Waisbord used a paradox to describe: The business model of Latin American audiovisual companies has been both non-regulated and strongly regulated.8 The new regulations entail other forms of control and have a baffling effect on people inside and outside the industry alike, in the audiovisual landscape of Latin America. Regulatory changes have been driven or supported depending on the countryby the mobilization of social organizations, an unparalleled event in the configuration of the media system. Conflicting interests of industry and socio-political players --obviously including governments in the role as direct spokespersons-- and the clashes between the logic of global intervention upheld by the industry and the logic of local regulation, are indicative of a rapidly changing environment. The issue of freedom of expression is another cross-cutting axis of analysis in the media system, but a closer scrutiny leaves us with results that are contradictory or uneven at best. Given the proliferation of discourses and the wide range of political uses by both corporations and academiaof the term freedom of expression, which turn this notion into nothing short of a fetish that serves to validate the position of those that invoke it, it is essential to address its definition from the conceptual point of view. One of the organizations that has evidenced a most exemplary and systematic way of defining the notion of freedom of expression is the Organization
7

Samuel Kernell: Going Public: New Strategies of Presidential Leadership , 3a ed., CQ Press, Washington, DC, 1997. 8 E. Fox and S. Waisbord: op. cit., p. 1.

of American States (OAS) Office of the Special Rapporteur for Freedom of Expression9. In its annual reports, the OAS Office of the Special Rapporteur for Freedom of Expression diagnoses the causes that mutilate the right to speak freely. Attacks against journalists or the use of contempt, slander and insult laws to discipline the media stand out as devices of direct censorship. The OAS Rapporteurship also recognizes instruments of indirect censorship, which are more subtle, yet more effective in fulfilling their goals. Two of those instruments are the discretion in the allotment of official advertising, and the concentration of media ownership. Of course, as the OAS Rapporteurship has been claiming, the fact that the quality of freedom of expression in some Latin American countries is an area of concern does not mean that analogies should be drawn from very different situations. Reports on the murder of a journalist should not be put on an equal footing with state intervention and use of official advertising to influence the editorial profile of a media outlet. A journalists murd er entails an altogether different view of the assault on freedom of speech than the subjection of a media outlet to fiscal inspection, or the harassment of journalists in their attempts to access public information of the state. It is the opinion of such organizations as Reporters without Borders or the abovementioned Rapporteurship for the Freedom of Expression that neither the new communicational style of many Latin American governments nor the newfangled audiovisual regulation in the region pose threats to freedom of expression, given that, on the contrary, one of their explicit objectives is to push the scope of this fundamental right beyond the for-profit sector. Furthermore, the new regulations open spaces for the generation of non-governmental public media, which have been absent in the history of Latin American media, and could provide opportunities for extending freedom of expression. Indeed, even though commercial and governmental interests prevail in the media scene, both are extreme models: one is an utilitarian model, justifying the existence of the media as a business requiring a high rating and sensationalist programming; and the other one is factious in its approach, relying on state media to support a biased message, which either defies or curtails critical voices. The segment that stands to lose faced with the vacuum of public media is society, as it is deprived of access to audiovisual media licenses. When public media do not exist, the right to voice the opinion of society is lost to commercial devices or the official use of communication vehicles. Thus, society is confined to the predominance of mass messages issued either with purely commercial or exclusively governmental logic. In both cases, society is relegated to a position of clientelism: citizens are viewed as either business clients or political clients. In October 2013, the Argentine Supreme Court of Justice upheld the constitutionality of the Audiovisual Communication Service Law that had been disputed by Grupo Clarn. In its ruling, the Court quoted Owen Fiss, for whom freedom of expression depends on the resources at ones disposal, and if resources are subject to concentration, freedom of expression becomes detached from the public interest. It was a groundbreaking decision by a nations highest court in the region to determine that the objective of media governance is the strengthening of public debate, and that it requires regulation, balance and reasonableness from the State. This groundbreaking decision places public interest in a privileged position. And it is bad news for groups with highly
9

Relatora para la Libertad de Expresin de la OEA: Informe anual 2004, OEA, 2004, available at <www.cidh.org/Relatoria/showarticle.asp?artID=459&lID=2>.

concentrated media ownership and for governments with discretionary measures alike. Conclusions Latin America has accomplished a decade --since the enactment of the Venezuelan Law of Social Responsibility on Radio and Television of 2004-- of sweeping changes in the regulatory framework of the media. These changes are contemporaneous with the increasingly wider dissemination of fixed and mobile devices that connect to converging networks, challenging the traditional mediation routine of communication media. The structural drivers behind the news and culture industries of the region --regulations that have served the interests of the strongest groups, conglomerate-like concentration, feeble accessibility, failure to provide a public service-- are compounded by the outcomes of technological convergence, the phenomenon that has triggered the potential to multiply the media outlets that are available to society. Contrary to the mainstream of loosening regulations over media ownership in developed countries for the sake of technological convergence, in Latin America the new regulations and the ensuing social debate desecrate one of the hard cores of the tradition of the media sector in the region, by setting the goals to promote access to audiovisual licenses for new social players, questioning the concentration of media ownership, stating the need to produce contents from federal sources and, in some countries, giving governments the leading role in media management based on a propaganda agenda. In the midst of overriding shifts, new symptoms of old problems surface, such as the use of public resources to build political support for the governing sector. Likewise, pluralism in Latin America is an emblem that is much wrangled over by disparaging those with opposing views. The apparent incompatibility between those who request regulations of official publicity (accused of serving as spokespersons for the large groups) and those who question the concentration of the media in a few hands (stigmatized as unscrupulous advocates for governmental encroachment) leaves out in both cases the key point of resources -- audiovisual media licenses or budget-- which are in fact of a public nature but are managed as if they were not. The orientation of the new regulations is controversial, but its referent traditional mediais homogeneous. Professional politics has been nursing this change and is knowledgeable, after decades of close relationships, of the traditional radio and TV sector. However, in Latin America, there are no signs yet of a regulatory perspective taking shape regarding new media and devices of technological convergence. Contrary to what is usually said about the opportunity that convergence would bring for non-dominant actors in cultural industries, the truth is that many small and medium enterprises have poor prospects in convergence and the ensuing disintermediation of the analog system and mass content production and distribution that occurred in Latin America after the democratic spring of the 80s , coupled with a system of media ownership concentration. Threatened by the loss of influence of the broadcasting (point-mass) model in a political context opening up to new voices and emerging leaderships, many small and medium media carriers have sold their assets to the large groups operating in their countries, which in turn have developed aggressive campaigns to become national champions against the stalking of the global mega-groups.

The process of disintermediation underwent by traditional media and resulting from digital convergence is worthy of mention for other paradoxes as well: while the breakdown of the broadcasting mass communicationmodel brings expectations of a renewed debate thanks to the proliferation of spaces of direct expression, such as blogs, social networks and peer-to-peer exchanges that do away with the intervention of the big enterprise structures, it is fundamental to ascertain that the converging technology sectors have an ownership structure that is more often than not a monopoly or quasi-monopoly. In other words, the ownership relations on virtual networks show levels of concentration that are even higher than those of the traditional media system of Latin America, which, as mentioned, already shows a very high level of concentration. The media policy, which made a point of regulating a key sector in the configuration of the societies of the twentieth century, and in particular of industrialization, massification and merchantability of communication media and cultural industries, is being challenged by the crisis of the very object that it is intended to preserve. Today the media sector is going through a one-ofa-kind process of digital convergence with telecommunications and information networks. The end result of this process is still uncertain, as it is in full development. Though vehicles for mass communication, entertainment and information are mapped to definite stances and interests, the discourse of the large media have traditionally and strategically masked its stance-taking behind a seeming neutrality, impartiality and equanimity in dealing with sources and in setting its agenda, and by concomitantly omitting or making invisible certain social, economic and political issues. The departure from this strategy cannot be exclusively attributed to the political sign of the new left, with its populist style, embraced by the governments of Latin America in the second half of the first decade of the twenty-first century, because this process is also seen in countries with populist administrations that are more aligned with the center or center-right of the political spectrum, as is the case of the Colombian or Mexican governments. However, new-left populist governments have engaged in an original incursion in a territory that used to be a taboo in regional history: the intention to modify the commercial media system through a simultaneous operation whereby a new regulatory body was produced and governments took up the role of major communication operators. Along with the disruption of the doctrine of objectivity, impartiality and neutrality in the journalistic field, a newly found interest has come up in some cases, together with the advancement of Latin American governments with regard to political communication. Governments in the region are now deploying an unheard-of activity as energetic television and radio operators and as newspaper publishers, putting across the message that they believe it necessary to build their own voice in a media system that they perceive as and constructas an antagonist. All things considered, Latin America offers an ineludible laboratory for policy-making in the field of communication, in which imported technologies and their diverse uses are combined with new regulations of an unforeseen nature welcoming the participation of new social players, with an alteration of the codes of government intervention in the public sphere. Accustomed for decades to a landscape with hardly any news, the media in Latin America are now facing a whirlwind of challenging transformations for which, so far, they dont seem to have found any new answers.