44
competition, technological development and encouragement of initiative, as well as the protection and
guarantee of users”.
141.
Second, States have a series of substantive obligations destined to prevent the
occurrence of the actions proscribed by the aforementioned Article 13.3 as well as other guarantees in
the Convention such as those stemming from Article 1.1. This latter norm prohibits discrimination in the
enjoyment of the human rights enshrined in the Convention on grounds, inter alia, of the “political or other
opinion” of the person affected. In this regard, any content-based decision by the State regarding the
allocation or renewal of a broadcasting license should be subjected to the strictest of scrutinies by this
Commission. The Commission proceeds to analyze whether in the instant case the State of Venezuela
complied with these procedural and substantive obligations.
142.
From a procedural perspective, the Commission first observes that the dispute over the
nonrenewal of RCTV's concession took place in the context of legal uncertainty for the station as a result
of the lack of clarity regarding the legal framework applicable to its concession. As has been mentioned,
on June 12, 2000, the State passed the organic telecommunications law, legislation that established a
period of two years for the "transformation of current concessions and permits granted under the previous
legislation," clarifying that "while this adjustment takes place, all the rights and obligations acquired under
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the previous legislation will remain fully in force."
Pursuant to this provision, RCTV requested the
transformation of its concession. However, the State did not rule on the request within the period of two
years established in the LOTEL, and the request was still unresolved when RCTV formally requested the
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renewal of its concession in January of 2007.
Meanwhile, “CONATEL continually and peacefully
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applied the new LOTEL legal regime to RCTV."
143.
The petitioners argue that notwithstanding the ambiguity regarding the applicable legal
framework, RCTV's concession should have been extended, as a rigorous application of the LOTEL
would have required extending the concession until June 12, 2022, while a strict application of
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aforementioned decree No. 1577 would imply an extension until May 27, 2027.
Regarding this, the
Commission observes that its task in this case is not to determine which domestic law should have been
applied and which interpretation of it is the correct one. It is enough to observe that RCTV had, as a
minimum, the right to a clear and objective proceeding strictly regulated by law, and that at the moment of
requesting renewal of its concession, it was not clear to the broadcaster which legal framework was
applicable in this process. Given the State's failure to comply with the legal mandate to transform RCTV's
concession, a situation of a lack of legal certainty exists that is inconsistent with the Venezuelan State’s
obligation to establish a process for renewing concessions that are strictly regulated by law.
144.
In addition, the Commission observes that the decision not to renew RCTV's concession
and grant it to a new television station was not the result of an open and transparent process guided by
clear, public and impartial criteria. As established, officials with responsibility for the decision announced
that RCTV would not have the right to renewal given that it had violated the law. On this point, RCTV
requested evidence from the State designed to prove the falsity of these affirmations. As discussed
below, however, the evidence was denied.
145.
RCTV was not allowed access to the administrative case file on its proceeding when it
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requested as much from CONATEL. Nor did the RCTV request to present evidence in that proceeding
receive a response until after the nonrenewal decision had been made, and at that time, the evidence
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Annex 21, LOTEL, art. 210.
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The request for transformation was finally rejected on March 28, 2003, through Resolution No. 002 of the Ministry of
the People's Power for Telecommunications and Information Technology, Annex 49.
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Cf. Communication from the petitioners received on February 18, 2010, p. 12. Fact not challenged by the State.
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Annex 1, Communication from the petitioners received on February 18, 2010, p. 121.
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Annex 75, Request to CONATEL, March 21, 2007, Communication from the petitioners received on February 18, 2010,
Annex 104