59
extension of the concession for another 20-year period (bold added).
176. From reading the article it can be inferred that it is referring to a “preference” for the
extension of concessions that have complied with the pertinent legal provisions. And, it should
be noted that the nature of a preferential right is totally different from a right to renewal,
because the preferential right is merely a special consideration or a certain advantage that may
or may not be granted depending on the provisions of the applicable norm. On this point, expert
witness Morles Hernández stated that “[t]he concessionaire […] cannot invoke a preferential
right, but does have the right to be considered a candidate or applicant in the renewal
process.”263 Similarly, expert witness García Belaunde stated that:
Normally, the holder [of the concession] has a preferential right or an option; he does not have a
guaranteed right; that is, he does not have a right to be given the frequency. I am referring to a
preferential right. And, if there are other holders [of concessions] who are in competition, he merely
competes. But, the person who is the holder [of the concession] has an advantage to be awarded it.
177. Regarding the alleged extension or automatic renewal deduced from article 210 of the
LOTEL, the representatives have argued that “RCTV had, at the very least, the right to an
extension of 20 years from May 27, 2007, [because] the Venezuelan Government was legally
obliged to extend or renew those licenses, as established in the LOTEL.” Article 210 is a
transitory provision of the LOTEL which establishes:
ARTICLE 210. The National Telecommunications Commission shall establish, by a resolution, special
timetables for the transformation of the current concessions and permits granted under the previous
law into the administrative authorizations, concessions or notification obligations, or registrations
established in this law. While this adaptation is taking place, all the rights and obligations acquired
under the previous law shall remain in full effect, under the same terms and conditions established in
the respective concessions and permits.
The transformation of the legal titles shall be carried out within the two years following the publication
of this law in the official gazette, shall be compulsory and shall be executed based on the following
principles: […]
2. The right to use and exploitation given in concession over legally granted frequencies shall remain
in full effect. […]
4. The purpose, coverage and remaining period of the concessions or permits in force when this law
enters into effect shall be respected. Subsequent renewals of the administrative authorizations or
concessions established in this law shall follow the general rules contained herein. […]
8. The transformation of the current titles in no way supposes that the telecommunication operators
who existed before the entry into force of this law are subject to the general procedure established for
the award of administrative authorizations or to the extinction, revocation or suspension of the
concessions or permits granted under the previous laws to this end.264
178. As can be seen, this article makes no mention whatsoever that the State was obliged to
grant the renewal, nor does it establish an automatic extension to those who requested the
transformation of titles. Furthermore, it should be underlined that expert witness Morles
Hernández stated that:
Under Venezuelan law there is no explicit legal formula that indicates that the holder of a concession
has a right to the renewal of the administrative contract.265
179. In addition, regarding whether, under international law, there was an obligation to renew
the broadcasting concessions, the Court concludes that this obligation is not established in
international law. Also, regarding whether a right to the renewal of broadcasting frequency
concessions may be deduced from comparative law, the Court has no evidence and no
arguments were presented that could support this assertion. The representatives referred to
263
Opinion of expert witness Morles Hernández of May 5, 2014 (merits file, folios 1592 and 1593).
264
Article 210, Telecommunications Organic Law of June 12, 2000 (evidence file folio 2957).
265
Opinion of expert witness Morles Hernández of May 5, 2014 (merits file, folio 1591).