community broadcasting, has been weakened due to the domination of these large corporations in the use of radio frequencies. 218 146. The State argued that the broad wording of the LGT “grants the right to any person to participate in public auctions, promoting free competition.” 219 However, the Court points out that although free competition appears to have a neutral character, it often generates a de facto discrimination because it ignores the diverse vulnerabilities that exist in a given society. 147. The Court emphasizes that this is precisely the subject matter of this case. As was demonstrated, most of Guatemala’s indigenous communities, due to their situation of poverty, social exclusion and discrimination, do not have the financial 220 and technical means to compete on an equal footing with applicants from commercial radio stations, who are indirectly favored by the LGT. Therefore, Guatemala should have adopted all the necessary measures to remedy the various disadvantages faced by indigenous peoples in order to allow them de facto access to the radio spectrum. This also meant adopting affirmative actions to reverse or change existing discriminatory situations. 148. In this regard, the Court finds that the State has not taken the aforementioned affirmative actions, since, as can be inferred from the facts described above, Guatemala’s legal system does not make provision for community radio stations, nor does it provide mechanisms for the reservation of radio frequencies for indigenous peoples, 221 for example. This, despite (i) the international and domestic commitments assumed by the State when it signed the AIDPI, 26 years ago, to promote the necessary legislative reforms to allow access to the radio spectrum to indigenous peoples; (ii) the exhortation of the Constitutional Court of Guatemala to the Congress of the Republic to issue legislation to regulate access by indigenous peoples to obtain and exploit frequency bands of the radio spectrum, 222 and (iii) the continuous efforts made by indigenous communities and civil society organizations, for decades, to promote the legal recognition of community radio stations. 223 149. Bearing in mind that most indigenous people live in a structural situation of poverty and that the vast majority do not have the financial means to cover the costs of legally acquiring the usufruct of a radio frequency, the Court finds that the regulation of radio broadcasting in Guatemala promotes, in practice, indirect discrimination and a de facto impediment to the exercise of freedom of expression by indigenous peoples, by establishing the highest price as the sole criterion for awarding radio frequencies and by not adopting any measure, such as the reservation of frequency bands, to enable indigenous peoples to actually establish and operate 218 Amicus curiae brief presented by the Asociación Latinoamericana de Investigadores de la Comunicación (merits file, folio 851). 219 Answering brief presented by Guatemala on January 21, 2021 (merits file, folio 350). 220 This is also reflected in the statements of the alleged victims during the public hearing, who stated that it was impossible to cover the amounts normally offered to obtain licenses (sometimes more than $100,000). 221 Cf. Written version of the expert opinion presented to the Court by Adriana Sofía Labardini Inzunza, supra (evidence file, folio 1584); statement rendered by Anselmo Xunic, supra; Cultural Survival. A Question of Frequency: Community Radio in Guatemala. June 2020. Available at: https://www.culturalsurvival.org/publications/culturalsurvival-quarterly/question-frequency-community-radio-guatemala; OAS, IACHR. Justice and social inclusion: the challenges of democracy in Guatemala, supra, paras. 412 ff.; OAS, IACHR. Report on the situation of the Human Rights in Guatemala, supra, December 31, 2015, paras. 302 ff.; Report on the situation of the Human Rights in Guatemala, supra, December 31, 2017, paras. 293 ff. 222 Cf. Resolution of the Constitutional Court, supra (evidence file folio 1021-1022); statement rendered by Anselmo Xunic, supra. 223 Cf. Amicus curiae brief presented by the Asociación Latinoamericana de Investigadores de la Comunicación (evidence file, folios 853 to 855); Human Rights Research Unit of the Ombudsman for Indigenous Peoples. Nota conceptual sobre las radios comunitarias, una aproximación al contexto de Guatemala, supra, and OAS, IACHR. Report no. 164/19. Case 13.608 (merits file, folio 12 to 13). See also: Initiative No. 2621, supra (evidence file, folios 940 to 953); Initiative No. 3142, supra (evidence file, folios 955 to 967); Initiative No. 3151, supra (evidence file, folios 969 to 975), and Initiative No. 4087, supra (evidence file, folios 977 to 990). -41-