Transition to a diverse, plural, and inclusive free-to-air digital television

Today, the countries in the region are transitioning from analogue to digital television, while others have just begun this process. Beyond issues concerning the technological standard each country chooses, this process is an opportunity to guarantee freedom of expression in the region.

The Office of the Special Rapporteur elaborated a thematic report in which presents general principles for the protection of the right to freedom of thought and expression in the context of this transition. With this document, the Inter-American Commission on Human Rights offers States and civil society in the region tools and recommendations to ensure diversity in media, pluralism in information and opinions, and universal access to ideas of all kinds.

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Freedom of Expression

Freedom of expression is a fundamental right and a basic component of any democratic society. Freedom of expression is a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public.

Digital Transmition

Digital transmission is a technical process by which data, sounds, and images are converted into a series of digits in binary code (i.e., 0s or 1s) and transmitted. The digits can be compressed and then re-expanded on arrival, thus saving space in television waves.

Digitalization

Digitalization enables content and platforms to converge, whether radioelectric spectrum, optic cables, or satellite broadcasts. With digitization, media can improve transmission quality while saving occurs in the use of radio frequencies that allow the existence of more television signals.

Analogue Switch-Off

It is defined as the time in which analog broadcast is no longer available in a given geographical area. Those who do not have receivers capable for digital signals would not be able watch broadcast TV.
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Promotion of diversity and pluralism in digital broadcasting

Operators and Media

One aim of the process of implementing digital television should be to bring about a more diverse and plural system of television media than the one that exists with analogue technologies.

Freedom of expression and diversity must be guiding principles in the regulation of broadcasting.

Opening up the airwaves to new operators allows a greater diversity of voices from the time digital is switched on, and provides a direct incentive for new technologies to be spread throughout the country faster and more efficiently.

Diverse content

The digitalization of broadcasting will make it possible to have more television channels. But more channels does not imply diversity if they simply produce more of the same.

Public service television should contribute to plurality of
content.

Its mandate includes strengthening democracy, building citizenship, encouraging political pluralism and cultural pluralism, providing reliable information that is pluralistic and balanced, and providing educational, cultural, and entertainment programs for the whole of society.

Recognition of 3 sectors

One measure to promote diversity and pluralism in the media is to expressly recognize that there are at least three sectors in broadcasting—commercial, public, and community—and to reserve part of the digital television spectrum for community and other nonprofit initiatives.

Different types of broadcasters (commercial, public service, and community) as well as broadcasters of different reach (local, national, regional, and international) contribute to diversity of voices.

Regulation of concentration

States must regulate and actively intervene to prevent ownership concentration in the media sector.

In countries where elevated levels of concentration are found it will not be enough to facilitate the entry of new operators if measures are not adopted to limit and reduce the concentration of media ownership.

If the media are controlled by a reduced number of individuals, or by only one individual, this situation would create a society in which a reduced number of individuals, or just one, would exert control over the information and, directly or indirectly, on the opinion received by the rest of the people. This lack of plurality in sources of information is a serious obstacle for the functioning of democracy.

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Awarding of digital TV licenses

Licensing procedures

States should, at a minimum: (i) provide for affirmative measures so that the three broadcasting sectors can access licenses under equitable conditions; (ii) include democratic standards and transparent procedures for assigning licenses; and (iii) establish conditions for use of the concessions that are reasonable and nondiscriminatory.

The process of assigning licenses must be strictly regulated by law, characterized by transparency, and guided by objective, clear, public, and democratic standards. Under inter-American standards, it must also include sufficient guarantees against arbitrary actions, including the obligation to justify decisions that grant or deny requests, as well as adequate judicial review of these resolutions.

Transition for current operators

The State must ensure that existing operators are able to continue broadcasting in the new digital environment does not necessarily mean that these operators have a vested right to have automatic access to a completely new channel or frequency for their exclusive use, without a competition and at no cost.

The notion of “vested rights” should not assume a right to ownership of the spectrum that is used, but rather the legal certainty that operators can continue to broadcast under equal or similar conditions as before, on another part of the spectrum.

States should take measures to prevent that the cost of this technological change becomes a limitation for media to participate in the transition.
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Digital dividends and new uses for the spectrum

Broadcast spectrum

The broadcast spectrum is a public good which States are required to administer efficiently and equitably, as it is a limited resource and one that serves to support the exercise of freedom of expression and information through the audiovisual media.

The IACHR and the Office of the Special Rapporteur have recognized the State’s regulatory role as manager of the spectrum.

New frequencies available and reservation of spectrum

The right to freedom of expression demands that States adopt measures to guarantee its exercise in conditions of equality and non-discrimination. That includes the obligation to remove obstacles preventing certain sectors of society from accessing the media and, at the same time, the State must actively promote the bringing of disadvantaged or currently marginalized groups.

Spectrum savings and new potential uses

As a result of digitalization, analogue broadcast transmissions are compressed and need to use less spectrum or bandwidth to transmit the same quality of audio and video as a current TV signal. This results in a significant savings of bandwidth.

Technical decisions made by governments and regulatory bodies in these matters have an impact on freedom of expression, as they serve to limit or enable diversity in television.

Intended use of the digital dividend

Broad reallocation of the spectrum freed up by the switch-off of analogue broadcasting (the digital dividend) should take into account the following considerations to promote diversity in broadcasting:

  • The extent to which the broadcasting environment caters to the interests of all groups in society
  • The diversity of types of content which are available through the broadcasting system
  • The interest in and capacity of broadcasters to provide new channels
  • The financial resources available to support new content production and the possibility of providing public funding for its development
  • The diversity benefits of requiring multiplex operators to carry local, community and/or independent broadcasting services
  • The diversity benefits of allocating new channel and other capacity to public service broadcasters

Access to transmission infrastructure

States should also consider whether it is necessary and viable to have a national transmission network for free-to-air digital television signals.

Different types of broadcasters —commercial, public service and community— should be able to operate on, and have equitable access to, all available distribution platforms.

The model known as must-carry should be seen as another mechanism to reduce dominant positions. This allows the transport of signals and content for public, community or commercial broadcasters that do not have their own access to equipment and transmission networks.

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Recognition, promotion and strengthening of community digital television and public television

Community television

Community broadcasting media, including community television, perform an essential function in our hemisphere for different sectors of society to exercise their rights to freedom of expression and access to information.

States not only have the obligation to legally recognize community television broadcasting but also to take positive measures to include the non-commercial sectors in the communications media, in order to ensure basic conditions of dignity, security, subsistence, and development.

States might consider the approval of public funding to support access to the infrastructure needed to transmit digital signals; tax incentives or accessible loans; and the establishment of must-carry rules so that other digital television license holders or operators of transmission networks have to carry community broadcast signals, at accessible and non-discriminatory prices.

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Public Television

States should ensure that public television has an essential role in the new digital environment.

Public service television has a different purpose than purely commercial or political television, as it operates independently of those who handle economic or political power. The role of public service television is to promote the values of democratic societies, in particular respect for human rights, cultures, and political pluralism and the protection of human dignity and minority rights.

Toward that end, as the Office of the Special Rapporteur has already reaffirmed, public television should be universally accessible.

The mandate for public service radio and television must be established clearly by law. This law should ensure: (i) the independent or non-governmental nature of the public media system; (ii) programming aspects geared toward the public interest; (iii) that the public media system is free of charge; (iv) coverage throughout the State's territory; and (v) the regulation of its form of financing.

For public media really to be able to perform their role, they must be independent of the executive branch; truly pluralistic; universally accessible; with funding adequate to the mandate provided for by law; and they must provide community participation and accountability mechanisms at the different levels of content production, distribution and receipt.

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Universal Access to Digital Television Services

Free-to-air television is an essential service that should be universal. Everyone—particularly families of lower economic means and rom areas located far from urban centers—should be able to receive television services, at least a basic package or public TV signals.

Therefore, States must define:

No cost

Maintain free-to-air television services at no cost for the entire population.

Coverage

Guarantee national coverage for public television signals, even supplementing terrestrial broadcasts with free-to-air satellite services

Technical Standards

The unification of technical standards reduces the costs associated with the production of devices, such as set-top boxes.

Regulatory Measures

To ensure the interoperability and compatibility of reception and decoding devices.

Subsidies

Avoids delays in transition and helps not to rely on market forces to give full access to the entire population.

Trade-offs and Technological Solutions

Allow to meet the interests of end users, regardless their income.

Free broadcast television and universal access to digital television receivers

As a general principle, the transition to digital television should be allowed to continue the provision of broadcasting transmission services that exist until now.

People should continue to have access to analogue television services until the realization of the switch-off while obtaining digital receivers.

States should include appropriate measures such as the creation of public funds, tax incentives, and total or partial subsidies to low-income families, among other measures, to encourage access to digital television receivers. At least public television must have coverage throughout the State's territory to ensure the rights of freedom of expression and access to information of all persons under their jurisdiction, without discrimination based on social, economic or geographical conditions.

Accesibility of Digital TV Services

The new digital technology facilitates the use of devices, services, and applications that make audiovisual content accessible to persons with hearing and visual disabilities.

States should include regulations and incentives to ensure that digital television is inclusive and accessible to everyone through various technological means.

Information and Outreach for the Digital Transition

Throughout the digital transition process, States should create and support a multi-strand public educational outreach programme to ensure that users are aware of the process and of what they need to do to prepare for it, and have at least the basic technical knowledge they need.

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Establishment of an Explicit, Clear and Precise Legal Framework

The digitalization of television presents regulatory challenges that are not always addressed correctly in the legal frameworks for analogue broadcasting, and therefore it may be necessary to review current legislation.

Objectives of State regulation

State regulation of broadcasting in general and of digital television in particular must have as one of its objectives to guarantee, protect, and promote the right to freedom of information, pursuant to conditions of equality and non-discrimination, and guarantee the right of society to access all types of information and ideas.

Consultation

Rules and plans for the digital transition should be developed under public scrutiny, with public participation, and should be open to civil society to ensure pluralism in television services, public access to a wide variety of programs, and the protection of the interests of the population, especially those of minority and vulnerable groups.

Three-part test to Limit Freedom of Expression

As it has been interpreted by the Inter-American jurisprudence, Article 13.2 of the American Convention requires compliance with the following three basic conditions for a permissible limitation on the right to freedom of expression.

Clear and Precise

The limitation must be established in a law in a precise and clear way.

Authorized by the Convention

The limitation must be designed to achieve imperative objectives authorized by the American Convention.

Proportional and Appropriate

The limitation must be necessary, appropriate and strictly proportional for meeting the objective it pursues.

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Transparency, Social Participation and Roles of State Agencies

Transparency and Participation in the Process

During the process of drafting regulations and policies on digital television, States should adopt measures and procedures to ensure that the entire process is transparent and to enable everyone involved—not just businesses from the broadcasting sector, but also civil society organizations.

There should also be participation by society and by business in the implementation phases and in promotion and outreach activities associated with digital television.

In these matters, the principle of transparency should be expressed with the most comprehensive and accurate information on regulatory processes—such as the process of granting authorizations to providers of digital TV services—as well as information concerning owners or license holders.

Characteristics of State Agencies

States must clearly define the characteristics and roles of the various State players in the process must be clearly defined, both in terms of the preparation, approval, implementation, and oversight of regulations and public policies for the transition process and in terms of actual digital television services.

Regulatory agencies in charge of enforcement and oversight over broadcasting legislation should be independent of both government and economic interests. The agency must be a deliberative body that ensures plurality in its composition. It must be subject to clear, public and transparent procedures, as well as to the imperatives of due process and strict judicial review.
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