Fundamental Rights and the Regulation of Radio and Television. The Peruvian Experience

Samuel B. Abad Yupanqui

1. Introduction

The role played by television is fundamental not only in terms of freedom of expression, but also to enable people to be properly informed about what is occurring in their country. In a democratic state, television should contribute to the formation of a free public opinion that allows society to have reasonably well informed citizens.

However, over the past few years this has not occurred in Peru. Self-censorship, corruption, disinformation campaigns and attempts to discredit those who questioned the government were some of the most visible manifestations that highlighted the absence of informational pluralism. Thus, for example, an important book¹ was published containing the verbatim transcripts of conversations that took place at a meeting attended by the general commanders of the Armed Forces during Fujimori régime, the Winter brothers —shareholders of a television channel who are currently detained— former economy minister Carlos Boloña, and intelligence adviser Vladimiro Montesinos. The latter affirmed:

Everyone is already aligned, everyone has a signed document... We have made them sign documents and everything. Something serious is involved here. Everyone´s here, everyone is aligned, every day, I have meetings every day at 12.30 in the afternoon with them here, and at 12:30 we plan what is going to go on the air in the evening newscast (video 1792).

These words highlighted the situation experienced by a good part of Peruvian television. Given this situation, one can see that there are pending issues to resolve. On the one hand, there is the need to avoid impunity for those implicated in acts of corruption, applying the corresponding penal or administrative measures. And, on the other hand there is the need to adopt legal changes that —in the framework of respect for and development of the fundamental rights to express one´s views and freely communicate— will prevent what happened from occurring again. In fact, these latter points will be the subject of this study, in which I shall also analyze the new Radio and Television Law, Law No. 28278, published in the Peruvian Daily Gazette on July 16, 2004.

2. An Agenda for Normative Changes

In my opinion, there was an urgent need to carry out a legal reform that would guarantee the continued validity of freedom of expression, the right to information, freedom to engage in economic activity and the appropriate administration of the airwaves, a limited resource that belongs to the nation. This should enable the country to modernize its legislation, which has been plagued with glaring deficiencies.

On this level, reasonable regulations are required that adhere to the aforementioned principles and fundamental rights. Reasonable regulations cannot go to extremes that, on the one hand, could lead to state control of radio and television nor, on the other, encourage a media that is totally free from restrictions. They should strike the necessary balance between the fundamental rights and principles that are at play. As Ernesto Villanueva points out: "It is important to specify that the use of a very scarce public resource and its tremendous social presence explain why radio and television are subject to a legal régime of a greater scope than is the case with the other communications media".²

Therefore, it is understandable that a constitution such as the Colombian Magna Carta is explicit and stipulates that "the electromagnetic spectrum is an inalienable and imprescriptible public asset subject to the administration and control of the state" (Article 75). With this in mind, the Colombian Constitutional Court, in its ruling No. C-093/96 indicated that:

The electromagnetic spectrum is a public asset subject to the administration and control of the state. Contrary to other media operators, those who are in charge of television necessarily must make use of the electromagnetic spectrum. Consequently, their legal situation and régime cannot be similar to that of the other communications media, even from the point of view of the right of access. The latter do not use the spectrum and, therefore, are not subject to the restrictions that arise from its administration and control, which, in turn, can partially be attributed to technical reasons, among which a significant consideration is the limited number of frequencies and spaces that could be allocated, which makes it impossible to guarantee freedom of access to the airwaves for all those who may decide to be television operators.

This justifies the need for an adequate and modern legislation different from that anticipated in Peru´s Telecommunications Law, the text of which was approved through Supreme Decree No. 13-93-TCC of April 28, 1993. In my opinion, a reform of the regulations on radio and television should encompass at less six basic points:

—In the first place, a determination of the nature of television, that is, whether it can be considered a public service as is the case in different European countries or whether it should continue to be viewed as a private service in the public interest, as established by the telecommunications law currently in effect.

—In second place, the obligations assumed by the communications media need to be specified. Here I refer, among other aspects, to the maximum amount of advertising allowed, limits to interruptions, the protection of minors so that adult programming is only transmitted at certain hours, the existence of free space for electoral messages, the advisability of promoting domestically produced programming, respect for fundamental rights, etcetera.

—Third, detailed policies must be drawn up to regulate authorizations or, depending on the case, concessions. This implies the regulation of public and transparent procedures for granting such authorizations or concessions, the corresponding requirements, the length of time for authorizations and the respective extensions, avoiding a situation in which these are automatic and allowing the population the opportunity to formulate well-grounded objections in relation to the companies that have requested an authorization or its extension.

—Fourth, pluralism should be guaranteed in terms of the range of available television stations, avoiding corporate concentration, although allowing, company mergers, subject to certain restrictions. Steps should also be taken to ensure the inclusion of measures that promote transparency at the level of the companies and their shareholders, establishing, for example, administrative authorizations to transfer equity and offering special treatment for foreign investment, for example, through the principle of reciprocity.

—Fifth, it is necessary to objectively detail the infractions that broadcasters could commit, determining the agency in charge of deciding whether such infractions have occurred, as well as the administrative and criminal liabilities that may ensue.

—Finally, I feel that it would be advisable to create an autonomous institution, independent of the government —for example, a National Television Council— in charge of granting and revoking authorizations and verifying the infractions that may have been committed, such as is the case in the United States, France the United Kingdom, Colombia and Chile, among other countries. Its composition, the designation of its members and its attributions should guarantee its autonomy in relation to the government and corporate power, avoiding all types of censorship.

I feel that these are the key issues that a special law on television should contemplate and that must be evaluated in order to guarantee people´s rights —especially freedom of expression and the right to information— and to strengthen the social and democratic rule of law in Peru. Regrettably, not all of the questions posed here were taken into consideration by the new Radio and Television Law.

3. The Limitations of the New Law and Pending Issues

On December 6, 2001, Peruvian President Alejandro Toledo Manrique sent the draft `Law on the Modernization and Transparency of Telecommunications Services´ (Bill No. 1511/2001-CR) to Congress, which would modify the Telecommunications Law. A working group headed by congressional deputy Natale Amprimo began to analyze the above-mentioned proposal.

The proposal presented by the executive branch required substantial modifications, as was indicated at the time by the Public Defender´s Office.³ Indeed, if the bill were approved as written, if a case were to arise that was similar to what occurred with Frecuencia Latina —which disclosed illegally intercepted telephone conservations taped during Alberto Fujimori administration— it would have been possible to revoke the license of that company, because its actions would have been viewed as a very serious infraction (Article 87.5 of the proposed legislation). The bill also considered being the third party civilly responsible in criminal proceedings for offenses receiving jail sentences greater than four years to be a serious infraction, thus affecting the presumption of innocence (Article 87.10 of the proposal). The legislative proposal also allowed its regulations to establish infractions affecting the principle of legality since they were not specifically contemplated in the law (Article 87.12 of the bill). In addition, it maintained the much debated automatic renewal of authorizations (1st complementary disposition).

Given this situation, the above-mentioned working group decided to prepare a draft Radio and Television Law that contained 159 articles, five complementary dispositions, two final dispositions and three derogatory dispositions, whose substitute report from committee was approved on April 25, 2002 by the Peruvian Congress´ Commission on Transportation, Communications, Housing and Construction. The bill was submitted to the full session of Congress for debate and approval, but could not be considered before the end of the legislative session. Therefore, it was decided that it would be returned to the above-mentioned Commission, which —under a different chairmanship— once again proceeded to approve, with some modifications, the respective final report on December 17, 2002.⁴ The text was subjected to different modifications until its approval as the current Radio and Television Law.

The text corrects the errors present in the executive branch´s bill, but it continues to be plagued by omissions, and contains a number of different points that deserve to be revised and modified. On the one hand, I consider that it is much more appropriate to draft a special law in the field, as has occurred in Spain, Italy and other countries. Clear progress may undoubtedly be made once the aim is to draft special legislation on radio and television as opposed to a simple reform of the telecommunications law, as was proposed by the executive branch.

However, the law has some omissions. For example, it does not contemplate nor does it explore the particular case of digital television, even though the impact of this technology is extremely significant for radio and television. Thus, some experts have argued that the law basically regulates analogical television, and, therefore, would have a short life, since when digital television enters the market, the text will simply be out of date. In such circumstances, the airwaves will no longer have the same limited dimension that they currently have. Indeed: "Digital compression makes it possible for the space in which one analogical channel broadcasts to accommodate up to four or more digital channels... From a situation of a shortage (of frequencies) we have gone to a situation of relative abundance".⁵

This remarkable technological change has a direct impact on the regulations that should be adopted.

In addition, the regulations omit public television, and the text limits itself to stipulating that the executive branch, within a period of 120 days, will draft a state radio broadcasting bill (third complementary and final disposition). At the present time, state television practically belongs to the government, which is not advisable in a country seeking to guarantee media neutrality and promote informational pluralism.

A second issue is television quality. As we have seen in several European countries, television is considered to be a public service. The law does not use this characterization, since in its Article 3 it continues `to define television as a private service in the public interest´. This issue should be further debated, although in Peru, virtually no such debate has occurred. At times when the question has been posed, the idea of characterizing television has been sidetracked, by considering it to be a state-interventionist proposal. I believe that a possible alternative in order to establish a greater commitment and a larger number of social obligations would have been to characterize television as a public service, as is the case in other juridical classifications. As Francisco Bastida points out, `radio and television are public services because this is the best way to guarantee pluralism, that is, access to broadcasting on the part of significant social and political groups´.⁶

A third issue consists in determining the legitimate obligations and responsibilities assumed by the communications media. These obligations can then be justified given that, as argued by the

US Supreme Court in the Red Lion case (39 US 367.9.VII.1969), the holder of a radio broadcasting license to some extent enjoys a privilege, since he or she is a person who utilizes —exclusively and to the exclusion of others— a valuable and limited resource.⁷

As we know, in Peru different communications media shareholders received money from the Fujimori government and its intelligence service to misinform the population. As a result of this negative experience, the law —probably inspired by the corresponding Spanish legislation— contemplates in Article 2 a series of `Principles for Providing Broadcasting Services´, the most important of which include defense of the individual and respect for his or her dignity, defense of the democratic legal order and human rights, the preservation of freedom of information, opinion and the circulation of ideas, promoting an increase in the nation´s education, culture and morals, and respect for the Code of Ethical Norms. I believe that some of these principles require greater precision, such as, for example, the doctrine concerning respect for the democratic legal order that should govern broadcasting activities. Furthermore, their non-fulfillment will not result in any sanctions.

In terms of other points, I feel that the infractions should be `objectified´ in the best way possible to avoid potential mistrust and questions being raised. Thus, for example, Article 23, Paragraph c) of the law stipulates that an authorization request will be denied if the applicant has been `sentenced to a jail term of four (4) or more years, for the willful commission of a crime´. In my opinion, the law should link such a crime with broadcasting activity.

The law introduces two additional issues. First, the regulation of government advertising (Article 49 and beyond) and second, the conscience clause (first complementary and final disposition). In relation to the first point, progress was made in Article 51, which requires the Presidency of the Council of Ministers to provide the Congressional Federal Budgetary and General Account Commission with consolidated and itemized information on contracts and expenditures related to government advertising. Article 52 of the law is also important, when it states that state entities should preferably contract advertising announcements in programs whose content contributes to raising the population´s educational, cultural and moral levels, as well as to strengthening national identity. Nevertheless, in my opinion, the rule should be that the government only contract state advertising when it is strictly indispensable to fulfill its mission of safeguarding the general interest. The problem is that there is a big risk of using such advertising expenditures to support or harm a communications media and it is advisable to avoid such a situation.

Moreover, the law regulates the conscience clause, stipulating that based on this doctrine,

anyone who exercises journalistic activity will have the right to request the cancellation of their contract or the end of their employment when they have been forced or required to carry out activity contrary to their conscience or the Code of Ethical Norms established by the owner of the service.

I believe that the recognition of this clause represents an advance. However, the question that is posed is whether we really guarantee freedom of conscience by stipulating that if the editorial line changes or the Code of Ethics is affected, it is sufficient to recognize the right of the journalist to request that his or her contract be revoked or that his or her employment be terminated. And in a country where the labor market is so reduced and there is considerable unemployment, will a journalist for whom the editorial line at the media outlet where he or she works changes seek another job or will he or she accept the new imposed line even though it affects his or her conscience? We have already seen what has occurred in the communications media in Peru. Therefore, I maintain that it should be stipulated that the journalist, instead of resigning, can refuse to obey the order of the communications media and remain in his or her post while upholding his or her conscience.

In any event, I believe that the two points introduced by the bill go beyond a radio and television law, since both the regulation of government advertising as well as the conscience clause are applicable to the print media and not only to radio and television.

4. Toward an Autonomous Agency in the Field of Radio and Television

In different European countries, in the United States and in some Latin American nations, special commissions or boards responsible for broadcasting activities have been created.

In general, these agencies are organized under the category of an independent administration or as institutions of public law with their own legal status..., which allows them a greater functional and financial autonomy for exercising their functions, especially in relationship to the branches of government.⁸

The creation of such agencies has sought to remove this attribution from the government —in Peru, the Transportation and Communications Ministry— in order to guarantee the political independence provided by a neutral administration and to promote free competition.⁹ A brief review of comparative experiences can offer us an overview of the issue.

Thus, for example, in the United Kingdom, there are several agencies in charge of overseeing regulations concerning the communications media, although their unification is currently being proposed. First, there is the Independent Television Commission (ITC) regulated by the 1990 Broadcasting Act , whose members are appointed by the secretary of state for a five year term. Among the functions of the ITC is the preparation of a report for the secretary of state, who in turn, sends a copy to Parliament. In addition, it regulates private, regional and local television; grants licenses, verifying compliance with technical demands and quality in programming. The ITC also imposes sanctions, including the revoking of licenses.

In addition, there is the Broadcasting Complaints Commission (BCC), whose members are also appointed by the secretary of state. It deliberates on complaints concerning unjust or unfair treatment and violations of individual privacy committed by television programming. The BCC can impose the obligation to report on such complaints and issue a ruling; it publishes an annual report, among its other tasks. Its financing comes from the television companies. And finally, there is the Broadcasting Standards Council (BSC), whose members are appointed by the secretary of state. This council drafts standards concerning sexual content, violence and, in general, on the standards of taste and decency to which television companies should be held. It supervises television broadcasts from abroad that can be received in the United Kingdom. The BSC prepares a report for the Secretary of State, who furnishes a copy to Parliament.¹⁰

In France, there is the Higher Audiovisual Council (CSA), which is comprised of nine members designated for a six-year term. Three of its members are designated by the country´s president; three by the chairman of the National Assembly; and three by the chairman of the Senate. It has a rigid statute governing conflicts of interest, and its members cannot be re-elected or be removed. Every two years a third of the council´s membership is renewed. The CSA is authorized to regulate, orient and control audiovisual communication. It assumes the management of the airwaves and authorizes the use of frequencies. It has the power to impose sanctions (temporary suspension of broadcasts, monetary fines, reduction of authorization by up to one year and the revoking of licenses). In addition, the Council prepares an annual report on its activity that it sends to the government and Parliament.¹¹

In Spain, even though a separate agency does not exist at a national level, since the field corresponds to the Ministry of Science and Technology, in Catalonia the Audiovisual Council of Catalonia was created in 1996,¹² to be subsequently reformed and reinforced in its functions and attributes by Law 2/2000. The Council functions with full independence from the local administration and seeks to guarantee respect for the rights and freedoms in the sector —above all by ensuring compliance with the norms on programming and advertising— for political, religious, cultural, social and linguistic pluralism, and for the fulfillment of concession contractual obligations. This Council is comprised of ten members, of whom nine are designated by the Parliament (with a two-thirds majority vote and through a proposal made by three parliamentary groups, as a minimum requirement) and one member, who will be its chairman, appointed by the government, after hearing the opinions of the nine members designated by the Catalonian Parliament. Their term in office is for six years, and their mandate cannot be extended.

In the United States, there is the Federal Communications Commission (FCC). It is comprised of five members selected for a five-year term by the country´s president with the consent of the Senate. It is the agency in charge of granting licenses and regulating radio and television broadcasting. In exercising its functions, the FCC cannot censor the contents of radio and television programs and but does have the authority to issue fines and revoke licenses.

In Latin America, one can mention the case of Colombia, whose Constitution stipulates that `state intervention in the electromagnetic spectrum used by the television services will be under the control of a public agency with a legal and administrative identity, ownership rights and technical autonomy, subject to its own legal regime´ (Article 76). Thus, Colombia has a National Television Commission that is directed by a Governing Board comprised of five members who represent different sectors. Two of them represent the country´s president; one the television viewers´ leagues; one the production unions; and one the regional channels. In representation of the state, the Commission exercises ownership of and regulates the public television service and controls the use of the airwaves in order to guarantee informational pluralism, competition and efficiency.¹³ For the Colombian Constitutional Court (ruling No. C-497/95):

The autonomy of the National Television Commission is not, then, a simple physiognomic feature of a decentralized public entity. In this autonomy a true social right is codified, that television not be controlled by any political or economic group and, on the contrary, that it always be conserved as a social asset, so that its immense power be the instrument, basis and support for public freedoms, democracy, pluralism and cultures. The sense of this autonomy is to remove the leadership and management of television from the control of the political majorities and the dominant economic groups, in such way that it is conserved as a social and community asset.

By the same token, Chile has the National Television Council, which is comprised of 11 individuals with outstanding personal and professional credentials. Its chairman is chosen by the country´s president, and the ten remaining members are named by the president with the approval of the Senate. The Commission has the authority to grant, renew, modify and cancel television broadcasting concessions, to ensure the correct operation of television services, to determine the hour after which adult programming can begin to be transmitted and to establish a percentage of Chilean production in television programs.

The Peruvian Law (Article 54 and subsequent articles) introduces a Consultative Council for Radio and Television comprised of ten members, whose breakdown is as follows:

—A representative of the Peruvian Press Council.

—A representative of the Transportation and Communications Ministry, with a voice but no vote.

—A representative of university Social Communication departments, designated by their deans.

—A representative of the holders of authorizations for commercial radio and television broadcasting services.

—A representative of the holders of authorizations for educational radio and television broadcasting services.

—A representative of the Journalists College of Peru.

—A representative of the consumers´ associations

—A representative designated by the National Association of Advertisers (ANDA)

—A representative of the Professional Professors College of Peru.

—A representative of the National Association of Centers, comprised of non-profit development organizations.

In principle, I support the idea of creating an agency that `de-governmentalizes´ questions related to radio and television, with the participation of civil society, as well as guaranteeing their total independence in relation to political and economic groups. This is reflected, for example, in the `Principles on standards governing freedom of expression and the regulation of radio and television broadcasting´ proposed by Article 19, the international organization specializing in freedom of expression, with headquarters in London. In its 10th principle, Article 19 declares that the independence of such regulatory agencies should be guaranteed:

All public agencies that exercise powers on the level of regulating broadcasting and/or telecommunications, including agencies that receive the public´s complaints, should be protected against any type of intervention, especially of a political or commercial nature.

In this sense and as a comparison, ruling C-497/95 handed down by the Constitutional Court of Colombia emphasizes the need to guarantee that autonomy:

The autonomy of the television regulatory agency, then, assumes the character of a functional and institutional guarantee of the series of rights and fundamental freedoms related to the existence and strengthening of democratic principles, the formation of a free public opinion, the fluidity and depth of the social communication processes, the creation, exchange and popularization of ideas, the conservation of the different cultural identities, etc.

However, the sectors tied to the media have been very critical of the Council. In this sense, the Radio and Television Association of Peru issued a statement dated March 15, 2002, in which it declared that:

Neither of the two proposals represents progress on the prevailing normative legislation, but in fact they present clear objectives aimed at intervention in and control of the content of journalistic programs on private radio and television channels.

The above-mentioned Radio and Television Association added:

As there are those who want the Council to be a beachhead for a policy of prior censorship, the organizations signing this statement wish to warn public opinion that the National Radio and Television Council (CONARTE) would be an inquisitor willing to send any audiovisual communication media to the stake for the simple presumption of a crime.

This statement ends by declaring `NO TO CENSORSHIP, NO TO MANIPULATION, NO TO STATE INTERVENTION´. Thus, even though the Council was not designed as a censorship body, it was characterized as such. This shows the intention of maintaining the current state of affairs, in which the granting of authorizations and licenses, and the imposition of sanctions continues to be in the hands of the government, before proceeding to a change that would `degovernmentalize´ this situation.

At the same time, if we review the functions of this Consultative Council foreseen in Article 58 of the law, it can be seen that it is a body that makes proposals and recommendations —definitely an advisory agency— but that lacks coercive faculties. Its functions are:

a) To act as an overseer in the public bidding processes for the granting of authorizations for broadcasting services. In these cases, the Council does not issue an opinion on the underlying questions.

b) To establish and administer a system for the annual granting of awards and recognitions to individuals and institutions that contribute to the integral and cultural development of the country, through their work in broadcasting. The award system does not imply the existence of preconditions in relation to the content of the programming.

c) To encourage academic research that promotes improvements in broadcasting.

d) To support initiatives with academic objectives, dedicated to preserving and archiving domestically produced programming, transmitted by broadcasting services.

e) To issue non-binding opinions, in the context of the administrative sanctioning procedure.

f) To propose to the Transportation and Communications Ministry that national and international agreements be signed that allow for the development of broadcasting.

g) To participate in public hearings organized by the Transportation and Communications Ministry.

h) To participate in drafting the National Plan for Frequency Assignment.

Therefore, one can see that the law does not create an institution that acts as a censor. In my opinion, there has been a need to bolster an agency of this nature with greater attributions, as is the case, for example, in the United States. With this in mind, the creation of an independent administration should be proposed —it could be called the National Radio and Television Council— that is not tied to the government or the economic powers, which would be in charge of granting authorizations, imposing the corresponding administrative sanctions and formulating the necessary policies in the field of television, without this implying any type of censorship over the communications media.

This was part of the proposal put forward by the Citizen Overseer for Social Communication, a civil society organization whose initiative will be presented to Peruvian Congress in accordance with what is known as a popular legislative bill. That organization proposes the creation of a National Radio and Television Council (CONRATV) as a decentralized public sector agency, endowed with its own legal status and with administrative, economic and technical autonomy, although at the same time attached to the presidency of the Council of Ministers. Its Board of Directors would be comprised of five members, designated as follows:

A representative of the presidency of the Council of Ministers.

A representative of the regional governments, elected through voting by the presidents.

A representative of a communication or journalism department of the private universities.

A representative of a communication or journalism department of the state universities.

A representative of the National Council of Deans of Professional Colleges.

The CONRATV will be presided over by the representative of the presidency of the Council of Ministers, with the prior ratification by a simple majority of the votes of the quorum of members of Congress. In the event that such a vote is not obtained, the four remaining members of the Board of Directors of the CONRATV will choose a chairman from among their ranks, who will exercise the position until Congress ratifies the representative of the presidency of the Council of Ministers.

The CONRATV will have the authority to grant, renew, suspend and cancel authorizations and licenses of radio and television services; to prepare the bases for and to receive, evaluate and rate the proposals presented for public bidding processes to obtain and renew authorizations for radio and television services; to begin ex-officio legal procedures for suspected infractions of the law committed by broadcasting services; to apply the corresponding sanctions in cases of ex-officio or ex-parte charges for failure to comply with the current law, among other functions.

5. By Way of Conclusion

1. One of the essential questions for strengthening democracy is respect for freedom of expression and information, so that people can be properly informed and in order to guarantee the formation of a free public opinion. Regrettably, the experience in Peru has demonstrated how different communications media were used by the government to eliminate all types of questioning in order to keep the population misinformed or only to inform it of what the government wanted to report. Therefore, at the current time it is indispensable to promote a change that will involve, naturally, a legal reform, but will not be limited to it.

2. To advance toward a reasonable and balanced legal reform it is necessary to abandon stigmas and stereotypes and to recognize that the regulations that have existed in Peru have not served to prevent the problems that have arisen. Therefore, a major change should be undertaken that obviously should not imply a return to an ill-fated past that characterized the military government or that would involve keeping the situation exactly as it is. It is possible to find a balanced and reasonable legal alternative by examining the comparative experiences in other countries and seeking to apply these to our reality. To do so, we should take into account that at the same time that a globalized international context prevails —in which major communications groups are developing— an important technological development is occurring —such that is digital television— which cannot be outside the domain of regulations that claim to be modern.

3. This legislative reform should determine the nature of television, that is, if it can be considered a public service, such as is the case in Europe, or whether it should continue to be a private service in the public interest. Furthermore, it should specify the obligations assumed by the communications media (maximum amount of advertising, limits to interruptions, protection of minors so that adult programming is transmitted only at certain hours, the existence of free space for electoral messages, the promotion of domestically produced programming, respect for fundamental rights, etcetera). At the same time, the legislative reform should establish detailed policies regulating authorizations and a public and transparent procedure for granting them, the corresponding requirements, the length of time for such authorizations and the respective extensions, avoiding a situation whereby they are automatic and allowing the population the opportunity to formulate well-grounded objections in relation to the companies that have requested an authorization or its extension. In addition, reasonable limits should be placed on corporate concentration to guarantee pluralism and avoid the abuses of dominant or monopolistic positions, and measures should be adopted that promote transparency at the level of the companies and their shareholders and provide special treatment for foreign investment. The new law should objectively detail the infractions that broadcasters could commit, including the administrative and criminal liabilities that may ensue.

4. It is indispensable to create a National Television Council that is independent of the government and responsible for granting and revoking authorizations and licenses and verifying the infractions that have been committed, such as occurs in the United States, France, the United Kingdom, Colombia, Chile, etcetera. Its composition, the way in which its members are appointed and its faculties will guarantee its autonomy in relation to the government.

5. All in all, Law No. 28278, the Radio and Television Law, offers some positive points, specific omissions and others that undoubtedly will require further revision. In this sense, it is regrettable that the idea has been discarded of creating a Radio and Television Council in charge of granting authorizations, renewals and imposing sanctions when infractions are committed. Based on the argument that this would be creating a censorship body, questions were raised concerning an institution of this nature, whose establishment would have brought a momentous change in radio and television regulations in Peru.

Notes:
1 Jochamowitz, Luis, Vladimiro: conversando con el doctor. Expediente II, Lima, El Comercio, 2002, p. 17.
2 Ernesto Villanueva, "Aproximaciones al nuevo derecho de los medios electrónicos. Hacia un régimen jurídico democrático de la radio y televisión", Carpizo, Jorge and Carbonell, Miguel, Derecho a la información y derechos humanos, Mexico City, UNAM, 2000, p. 230.
3 Defensoría del Pueblo, "Hacia una reforma a la Ley de Telecomunicaciones. La regulación de la televisión privada", Documento de Trabajo, Lima, February 2002. 3
4 See Legislative Bill No. 1511/2001-CR on the Peruvian Congress web page (www.congreso.gob.pe).
5 Conde, Jordi, "La regulación de los medios audiovisuales. Criterios técnicos y decisiones políticas. La posición de los diversos poderes territoriales", in Joaquín Tornos Mas (coordinator), Democracia y medios de comunicación, Valencia, Tirant lo Blanch, 2002, p. 103. 5
6 Bastida Freijedo, Francisco, "Pluralismo y medios de comunicación audio- visuales", in Joaquín Tornos Mas (coordinator), Democracia y medios de comunicación, op. cit., note 5, p. 74. 6
7 Ibidem, p. 83
8 Carrillo, Marc, "Los medios públicos de comunicación", in Tornos Mas (coord.), op. cit., note 5, p. 126.
9 Laguna de Paz, José Carlos, Televisión y competencia, Madrid, La Ley, 2000, p. 153. 9
10 I have taken this comparative vision from Laguna de Paz, José Carlos, Régimen jurídico de la televisión privada, Madrid, Marcial Pons, 1994, p. 37 and ff.
11 Rallo Lombarte, Artemi, "La garantía del pluralismo informativo en Francia", Revista Española de Derecho Constitucional, Madrid, Centro de Estudios Políticos y Constitucionales), p. 93 and ff. 11
12 Chinchilla, Carmen, "Las libertades de expresión e información en la televisión", Revista Debate Defensorial, no. 4, Lima, Defensoría del Pueblo, 2002, p. 24.
13 Yances, Germán, "Entes reguladores en la historia de la televisión colombiana", Memorias del Seminario Internacional: Mecanismos de regulación de los medios de comunicación. Experiencias latinoamericanas, Quito, Friedrich Ebert Stiftung, 1997, pp. 95 and ff.