36
96.
Similarly, on May 24, 2007, José Félix Guerrero Peralta, José Miguel Ferrer Pérez and
Jorge Enrique Larrazábal Larrazábal, and the users “Oyentes Interactivos de la Radio (OIR)”
filed an action for separate and joint interests before the Constitutional Chamber of the SCJ,
together with an unspecified interim measure, against the President of the Republic and the
MPPTI, who was also the Director of CONATEL. The action was registered as Case No. 07-0731.
The plaintiffs alleged that the eventual closure of RCTV, which appeared imminent according to
statements made by the respondents, would seriously and unlawfully restrict the public’s right
to freedom of expression and information by depriving it one of the television options that the
Venezuelan people had to receive their preferred opinion, entertainment and information
programs. The plaintiffs argued that “the eventual closure of [RCTV] is unconstitutional because
this order to close down the network […] was a punishment imposed on that station for including
in its broadcasts, messages that the government disagrees with.” Consequently, they asked
the Constitutional Chamber to order the necessary measures to enable RCTV to remain on air,
without interruption.148
97.
On May 25, 2007, the Constitutional Chamber issued Decision No. 957, in which it
admitted the application only against the MPPTI and granted interim measures, ex officio.149 In
this regard, the Chamber noted that CONATEL was the competent body to rule on the legal
situation of the RCTV concession and, therefore, the application was inadmissible against the
President of the Republic. It also asserted that article 27 of the Constitution granted the
constitutional judge the power to restore the legal situation violated or the closest possible
equivalent immediately. It added that the State had the obligation to guarantee the universal
telecommunications service by maintaining the system in sufficient or adequate operating
conditions and, accordingly, the Administration could make temporary use of the assets needed
to deliver that service in order to protect the users’ rights to a quality public service. The
Chamber also affirmed that, in principle, the users’ right of access to and enjoyment of a
universal public telecommunications service did not mean the continuation of a specific
operator, but rather “the possibility that the said users may have effective access, under equal
conditions, and provided that the corresponding service is maintained at a minimum standard
of quality, irrespective of whether or not the specific private operation has a valid permission
or concession.” 150
98.
Considering that TVes might not have the infrastructure necessary to transmit
nationwide, the Constitutional Chamber ordered interim measures similar to those ordered by
Decision No. 956 delivered in Case No. 07-0720. Therefore, “as a temporary measure to ensure
an uninterrupted universal public service,” the Chamber assigned to CONATEL the right to use
the equipment necessary for the said operations, and entrusted CONATEL with assigning its
use to the operator chosen in accordance with the provisions of the LOTEL. Lastly, the
Constitutional Chamber ordered publication of a notice convening those interested in becoming
intervening parties for one side or the other in the case, or representing their own rights and
interests. However, it indicated that the intervening parties could only make arguments and
introduce evidence in support of the party for which they intervened.151
99.
The interim measures were executed on May 27 and 28, 2007, with the transfer to
CONATEL of the use of the assets indicated in the corresponding decisions.152
Cf. Supreme Court of Justice, Constitutional Chamber, Files No. 07-0731, Decision No. 957 of May 25, 2007
(evidence file, folios 3464 a 3468).
149
Cf. Supreme Court of Justice, Constitutional Chamber, Files No. 07-0731, Decision No. 957 of May 25, 2007
(evidence file, folio 3486).
150
Cf. Decision of the Supreme Court of Justice, Constitutional Chamber, Files No. 07-0731, Decision No. 957 of
May 25, 2007 (evidence file, folios 3476 to 3481 and 3484).
151
Cf. Decision of the Supreme Court of Justice, Constitutional Chamber, Files No. 07-0731, Decision No. 957 of
May 25, 2007 (evidence file, folio 3485 and 3487).
152
Record of execution of the decision of the Supreme Court of Justice of May 27, 2007 (evidence file, folios 3494
148