The Devil's Excrement

When I made my post on Chavez and RCTV, it was not clear to me why there was a difference in opinion between the Government and the owners of RCTV on whether the concession expires or not next year. I talked to a few people and I will explain it to the best of my understanding, which still has some gaps. If I were to learn that the details have some imprecision, I will make corrections.

The RCTV concession was indeed due to expire next year. However, the National Assembly approved in 2000 the new Telecommunications Bill, which specified, among many other things that existing concessions would have two years to “transform” or comply to the new legislation. Transforming to the new legisltaion implied the automatic renewal of the concession under the conditions of the new law. The regulator, CONATEL issued the regulations for the application for the transformation. All of the existing TV broadcasting channels submitted their requests to transform their concessions to the new Law.

The problem arises because CONATEL never replied to any of the TV broadcasters approving their  transformation to the new Law. Thus, there is no formal act approving the change. In Venezuela, there is a law called the Ley Organica de Procedimientos Administrativos (LOPA), which establishes time limits (I believe it is 4 months if no reply is ever issued) for Government offices to reply to requests, such as the transformation of the concessions to the new Law. Since CONATEL never formally approved the transformation, but never rejected it either, under the law, the request by the owners of RCTV is considered to be approved and thus, their concession was extended for twenty years counted from the time limit of two years imposed by the law. This is called in Venezuelan legalese “administrative silence” and it is applied to all requests a citizen or any legal entity may make in front of any Government office.

Thus, the difference of opinion arises from the fact that the Government considers the concession to have expired under the old law, while RCTV believes that the administrative silence automatically extended their concession.

Note that in any case, the Government would need to have a legal reason not to renew the concession. That is, if RCTV complied with the requirements for renewal, teh Government can’t simply deny it  without giving a valid reason and those given by Chavez are certainly not valid. It is not a “right of the state” to deny at will or whim, as the Vice President indicated today, there is a rule of law and there has to be a valid legal or technical reason for denying a renewal that has not even been requested by the TV station.

And thus, whether it expires or not next year will have to be decided by the Courts, which I am sure wil find a way to side with the President’s wishes.