24 decision not to renew RCTV’s concession. In that document, Minister Chacón Escamillo observed that his decision was not a penalty; instead, it was the legal effect established in Article 1 of Decree No. 1,577, namely, expiration of a concession. He maintained that because this was a matter of a concession’s expiration, there were no grounds to institute any administrative proceeding; hence, there was no violation of due process. He also claimed that the only logical and reasonable interpretation consistent with the consultations and discussions of the preliminary draft, draft and text of the Organic Telecommunications Law, is that under Article 210, the only part of the concession that is to be respected is whatever remains of the 20 years that began on the date that Decree No. 1,577 took effect, in other words, until May 27, 2007. As for the right to preferential treatment that RCTV is claiming, Minister Chacón Escamillo stated that no such guarantee is provided in either the Constitution of the Republic or the Organic Telecommunications Law, and that even in areas where the right of preference exists, it cannot be asserted or challenged against the owner of the property to which the right attaches; in this case, the electromagnetic spectrum belongs to the Venezuelan State, which has decided to use and 67 operate, effective May 27, 2007, the portion once licensed to RCTV. He also asserted that the transformation application that RCTV had filed in 2002 no longer served any purpose, given the State’s sovereign decision, based on the National Telecommunications Plan, to reserve for itself the use and 68 operation of that portion of the electromagnetic spectrum. Resolution No. 002 of March 28, 2007, also issued by Minister Chacón Escamillo, had declared that the transformation application had lapsed and 69 with that the corresponding administrative procedure was extinguished. Communication No. 0424 stated that the Venezuelan government’s decision was taken in order to “enable democratization of the use of the electromagnetic spectrum and make it available to a wide range of messages and content” by 70 creating a free-to-air public television station. 86. Communication No. 0424 also stated that RCTV did not have an acquired right to automatic renewal of its concession, since: i) the Constitution does not provided for any such right; ii) concessions are a privilege granted for a limited period of time; iii) it is a general principle of law that privileges are to be interpreted narrowly, and iv) automatic renewal would be detrimental to the principle that the electromagnetic spectrum should be open to as wide a cross-section of uses and users as possible and that it is within the public domain. The communication explains that the State had decided to “reserve for itself the use and operation of that portion of the electromagnetic spectrum,” so as to thereby “enable democratization of the use of the radio electric spectrum and make it available to a wide range of 71 messages and content,” in compliance with the National Telecommunications Plan and Article 108 of 72 the Constitution. Finally, as for RCTV’s request for production of evidence, Minister Chacón Escamillo 67 On May 27, 2007, RCTV’s concession ended, as did those of four other television stations, Venezolana de Televisión, Venevisión, Televisora Andina de Mérida, and Amavisión. But of these five, only RCTV’s concession was not renewed. Ministry of the People’s Power for Communications and Information. “Conatel procesa renovación de habilitaciones que vencen el 27 de mayo” [CONATEL processes renewals of concessions and licenses that expire on May 27, 2007], available [in Spanish] at: http://www.minci.gob.ve/a_r_r/1/13981/conatel_procesa_renovacion.html. 68 Annex 25, MPPTI, Communication No. 0424 of March 28, 2007, Communication from the petitioners received on February 18, 2010, Attachment 28. 69 Annex 49, MPPTI, Resolution No. 002 of March 28, 2007, Communication from the petitioners received on February 18, 2010, Attachment 30. 70 Annex 25, MPPTI, Communication No. 0424 of March 28, 2007, p. 11, Communication from the petitioners received on February 18, 2010, Attachment 28. The Constitution of the Bolivarian Republic of Venezuela, available at http://www.venezuelaemb.or.kr/english/ConstitutionoftheBolivarianingles.pdf, provides the following in its Article 108: The communications media, public and private alike, shall educate the citizenry. The State shall guarantee public radio and television services and library and computer networks, with a view to enabling universal access to information. Education centers are to impart knowledge of new technologies and their applications and innovations, as prescribed by law. 71 See, Ministry of the People’s Power for Science, Technology and Intermediate Industries, National Plan for Telecommunications, Data Processing and Postal Services, PNTIySP 2007-2013, available [in Spanish] at: http://www.mcti.gob.ve/Tices/PNTIySP/. Among the Plan’s objectives is “5.1.2 To promote the growth of Public Service television and radio” and “5.1.3 To promote the de-concentration of ownership of the communications media.” 72 Annex 25, MPPTI, Communication No. 0424 of March 28, 2007, p. 11, Communication from the petitioners received on February 18, 2010, Attachment 28. The Constitution of the Bolivarian Republic of Venezuela, available at http://www.venezuelaemb.or.kr/english/ConstitutionoftheBolivarianingles.pdf, provides the following in its Article 108: Continúa…