(Nov. 23, 2009) On October 10, 2009, Argentina's Congress adopted a new Law on Audio-Visual Communications, also called the Media Law. (Law 26522, Oct. 10, 2009, InfoLEG, available at http://www.infoleg.gov.ar/infolegInternet/anexos/155000-159999/158649/no
The law passed with a 44-24 vote in the Senate. The law sets limits on the number of broadcast licenses that a company may own. This law would replace the current Law on Radio Broadcasting that was adopted during the time of the military dictatorship in the country and allowed for the concentration of the airwaves in a few media companies while the government had the power to select who had the right to broadcast. (Law 22285 of 1980, InfoLEG, available at http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/17694/norma
The opposition political leaders and large media groups opposed the bill on the basis that it would give the government in power too much influence over the media. Those in favor of the bill, including human right groups, social organizations, community radio stations, universities, and government supporters in the Argentine Congress, maintain that this law will reverse the military-era broadcasting rules that gave excessive power over the media to a few big corporations.
The main features of the law are as follows.
a) There is a one-year deadline for companies holding more broadcasting licenses than the new limit permits to sell them. These companies argue that this requirement would force them to sell such assets at a very low price and that these licenses would eventually end up held by groups or companies close to the government. The companies threatened a challenge to the constitutionality of this provision, because, they argue, it violates acquired or vested rights and the right of ownership.
b) No company may operate more than ten licenses (the current limit is 24).
c) It creates a new autonomous regulatory body that replaces the older Federal Commission. The new licensing entity will have seven members: two appointed by the executive branch, three selected by Congress (one from the party in power and two from the opposition), and two appointed by a federal committee headed by governors. The members are appointed for four years.
d) It requires the broadcast airwaves to be divided in thirds, one for the private sector, another for the government, and the third for non- profit organizations, including universities and indigenous groups.
e) The executive branch reserves the power to assign licenses in cities with a population above 500,000.
f) It sets as a minimum 70% of the radio content and 60% of the television programs and music that must be produced in Argentina. It also requires cable TV companies to offer channels operated by trade unions, universities, indigenous groups, and civil social organizations.
g) It forbids the telephone companies to participate in the TV or cable business, unless they do it by partnering with cooperatives.
h) It regulates the distribution of advertising applicable to private channels. However, official advertising, which promotes governmental works or actions, is not regulated.
The opposition plans to introduce amendments to the law during the next legislative session, which begins on December 10, 2009, on the grounds that the law breaks the monopoly of the media held by a few big companies and transfers control to the government, which the opposition finds unacceptable. The law became effective on the date of its publication.
The affected companies are already planning lawsuits demanding compensatory damages for investments they made, based on the licensing terms that are now being cut short under the new legislation. The “acquired or vested rights” argument may be rebutted, but under the doctrine set by the Supreme Court, the government is required to compensate for damages caused to those investments made under the old legislative framework. (Gustavo Ybarra, El kirchnerismo logró aprobar en general la nueva ley de medios, DIARIO LA NACIÓN, Oct. 10, 2009, available at http://www.lanacion.com.ar/nota.asp?nota_id=1184897; Lucas A. Piaggio, Las Indemnizaciones derivadas de la Ley de Medios, DIARIO LA NACIÓN, Nov. 15, 2009, available at http://www.lanacion.com.ar/nota.asp?nota_id=1199995.)