argentina's new media regulation and the social movement for

Media, Culture & Society34(5) 588 –605

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To be prepared when the time has come: Argentina’s new media regulation and the social movement for democratizing broadcasting

Christof MauersbergerFreie Universität Berlin

AbstractConcentrated and usually conservative media are characteristic of Latin American countries, and at the same time these structures undermine meaningful democracy. Given the political influence of large media conglomerates, even most center-left governments are reluctant to limit the power of influential companies. Argentina, however, passed a new comprehensive media law in 2009 designed to democratize the media sector. This article traces the origins of the law and analyzes the strategies of the actors involved, with the focus resting on the roles of social movements and large media companies. The article then presents the main features of the new regulation that social movements now take as a model case for other countries. I argue that the new law originates from an unusually participatory legislative process and furthers the democratization of communication. The passage of this law is explained through the associational capabilities of the movement, the potent framing of media regulation as a matter of democracy and the changing media–state dynamics that disrupted the long-standing mutually supporting ties between the dominant Clarín Group and the government.

KeywordsArgentina, democratization, media concentration, media market, media regulation, social movements

Corresponding author:Christof Mauersberger, Freie Universität Berlin, Ihnestr. 22, Berlin 14195, Germany Email: [email protected]

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La comunicación es una cosa demasiado seria para dejársela sólo a los medios de comunicación. (Benoît Hervieu, representative for the Americas of Reporters

Without Borders)1

Some might characterize the history of the new 2009 Argentine media law as a David and Goliath story: on one side we have big media conglomerates, notably the Clarín Group. They are politically influential actors, traditionally closely connected with (and flattered by) the political elite. In the recent past, they have prevented any reform that would have limited their chances to commercially exploit opportunities in the media sector. On the other side, we have supposedly resource-poor social movements and grassroots organiza-tions. In 2009, against the powerful opposition of all major media but with the support of the President, they achieved the passage of a new media law that is based on their own drafts and seeks to pluralize and democratize the established broadcasting sector. The law tightens the limits for (cross-)media ownership, diversifies the regulatory institutional structure and guarantees equal access to the spectrum for three types of media: public, commercial, and non-commercial private broadcasting. The law is the result of an unusu-ally participatory process in which social movements played a pivotal role.

Argentina is no exception in the Latin American context, where concentrated and privately owned conservative media dominate the scene (Becerra and Mastrini, 2010a: 14). From a democratic perspective, concentrated media are problematic because access to diverse sources of information is considered a prerequisite for meaningful deliberative processes (Dahlgren, 1995). Even many of the center-left governments that came to power during the last decade at first did not engage in reform for fear of opposition from dominant television and newspapers. In the last few years, however, debates about the role of mass media in democracies gained new momentum in the continent and led to several reform laws. In that regard, Argentina represents a trend in Latin America to democratize communication in commercially structured media markets. The new Law on Audiovisual Communication Services (Ley de Servicios Audiovisuales de Comunicación, “Ley SCA”) has become an important point of reference in regional debates, which stands in stark contrast to the sparse attention that it has received in the (English) literature so far.

As this article will show, the story of the law’s genesis is a little more complex than “David and Goliath”. The article has two objectives. First, it traces the origins of the law and analyzes the strategies of the actors involved as well as the political conditions rel-evant for the approval of the law. Second, it depicts the new regulatory system with regard to the promotion of a democratic media sector. I argue that the successful passing of the legislation can only be understood by considering the associational power of the movement behind it, its potent framing of the reform, and the changing relations between the media and the state.

The article proceeds as follows. The next section provides an overview of the media market, former regulatory frameworks and the (non-)impact of the 2001 crisis. The fol-lowing main section analyzes the genesis of the law to explain its unexpected passage. The next section then presents the main features of the new regulation and the resulting regulatory institutional order. In the concluding section, I summarize the main findings and discuss the context of similar reforms in neighboring countries.



590 Media, Culture & Society 34(5)

The lead-up

The happy liaison between deregulation and concentration

Audiovisual products have a double character. On the one hand, they are tradable goods that generate revenues for profit-oriented businesses. On the other hand, audiovisual products are central to the quality of democratic deliberations: “Questions of media access, diversity, ownership and content regulation define the type and quality of public sphere within a nation or region” (Dahlgren, 1995; see also Galperín, 1999: 629). Thus, plurality of information is considered a precondition for well-functioning democracies. However, due to the limited electromagnetic spectrum, the number of possible broad-casting stations is limited as well (Aitken, 1994). Additionally, media companies have strong economic incentives to integrate both horizontally and vertically, because infor-mation and entertainment products have very low marginal costs (Hart, 2004: 9, 18). Once produced, the cost of offering the same content on a different media type or on different channels is low compared to the original production costs. Although, from a democratic point of view, diversity of content is central, no satisfactory measurement of content diversity exists to date (Just, 2009). Hence figures on ownership and market concentration are used as a proxy. However, in the Latin American context, even those figures are difficult to obtain on an up-to-date basis (Becerra and Mastrini, 2009: 25).

The media market in Argentina illustrates a high concentration as a result of economic and political factors. In 2004, the combined share of the four leading suppliers in the Argentinean media and communications industries was 84% of revenues (up from 73% in 2000) and 83% of the customers (up from 78% in 2000). On average, the largest com-pany accounted for a 35% market share (Becerra and Mastrini, 2009: 73). The figures do not vary greatly in the individual media sectors. However, those figures do not reveal concentration through high cross-media ownership. In Argentina, the Clarín Group occu-pies an influential position and dominates the news agenda (Vialey et al., 2008: 13). Its flagship newspaper, Clarín, accounts for 31% of all newspapers sold and 40.5% of advertising revenues, while its closest rival, La Nación, has 14% of total sales. Clarín also owns the second largest radio station (Radio Mitre AM), with a market share of 23.5% of audiences in the AM band, the second most popular television station (Canal 13), with 28% of the total audience, and several other broadcasting licenses. Since 2007, Clarín has also held a dominant position in the important cable TV market (Becerra and Mastrini, 2009: 66–70). Public broadcasting, as a potential balance, was weak and regarded more as an instrument for government propaganda. Non-commercial media, particularly community radio stations, have developed more strongly since the mid 1980s, but have been legally allowed to apply for a license only since 2005. Despite this change, small and non-commercial media have continued to suffer from regulatory dis-crimination (Marino, 2009: 63–7).

The legal basis for media regulation until 2010 has been the 1980 Broadcasting Law (Ley 22.285), adopted during the country’s last military dictatorship (1976–83). With an estimated 30,000 “disappearances”, this period constitutes one of the bloodiest dictator-ships on the continent. The broadcasting law was tailored to the needs of the junta and inspired by the doctrine of “national security”. Clarín and La Nación collaborated with the military. Even though several changes were introduced during democratic rule, the



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military legacy was still highly visible until 2010, when the new regulation formally came into force. According to the old Ley 22.285, media should serve “national security” objec-tives and could for that purpose be temporarily restricted by the government (Art. 7). The Federal Broadcasting Committee (Comité Federal de Radiodifusión, COMFER), as the regulatory body, was part of the executive and directly responsible to the president. Formally, according to Article 96, COMFER was headed by a directorate, three out of seven of whose members were provided by the military forces. In practice, however, the civilian governments since 1983 dispatched a “Supervisor” who replaced the directorate.

During Argentina’s era as a model student of the Washington Consensus under President Menem (1989–99), governmental regulation was liberalized to advance mar-ket actors and market forces (Teichman, 2001). Reforms accelerated the transition of media companies from “artisanal patriarchy to large-scale groups” (Mastrini and Becerra, 2002), as the media evolved into one of the most dynamic economic sectors, aided by technological developments of convergence (Postolsky, 2010: 137). Menem’s “state reform law” (Ley 23.696) from 1989 allowed cross-media ownership, annulled the requirement that broadcasting be the only “social objective” of frequency licensees, and rendered possible the privatization of state-owned TV Channels 11 and 13, as well as some radio stations.2 Presidential Decree 1.771 from 1991 approved semi-permanent transmission networks, allowing for a greater (content) concentration in private broad-casting. The bilateral investment treaty between Argentina and the U.S. from 1992 de facto removed limits for foreign capital in broadcasting companies (Marino, 2009: 62). This opened up the path for large U.S. investments and led to significant changes in the ownership structure (Fox and Waisbord, 2002: 13). Presidential Decree 1.005 from 1999 further advanced the commercialization of broadcasting, removed restrictions on the trading of frequencies, and increased the maximum number of licenses per legal person from 4 to 24. Still, in every location, only one license could be held in each media type (Marino, 2009: 57). In essence, the reforms in Argentina in the 1990s are similar to what Traquina (1995) and Hallin and Mancini (2004: 125) call “savage deregulation” in most of the southern European countries.

A crisis of change and continuities

The crisis of 2001 marked a turning point for social movement mobilization, but hardly changed media–state relations. With the delegitimization of political institutions (five different presidents were sworn in within less than a month at the turn of 2001/2), social movements became powerful political actors. With the election of Néstor Kirchner’s government (2003–7), institutionalized politics regained legitimacy. Although move-ments surrendered political power to institutions and were said to be fragmented, com-mon experiences of successful mobilizations were preserved. Economically, the crisis of 2001 heavily affected the media market. Subscriptions and sales plummeted by around 50% between 2000 and 2004, when calculated in U.S. dollars. In relative terms, how-ever, most firms had regained pre-crisis levels by 2004. They continued to grow strongly in the subsequent years with the continuing help of the government. Many companies profited from governmental bailouts, “promotion plans” that exempted media companies from some taxes, and the unconditional renewal of broadcasting licenses (Becerra and




Mastrini, 2009: 60–3, 2010b: 616). Despite the political rupture and some strong rheto-ric, the traditionally close ties between the media and the state proved resilient, much to the displeasure of social movements.

With regard to media regulation, some additional changes occurred under Kirchner. In line with a Supreme Court verdict in September 2003, Congress changed Article 45 of Ley 22.285 two years later to remove commercial character as a prerequisite for applica-tion for a frequency. Some months before, however, Kirchner passed Decree 527, which prolonged all licenses unconditionally for 10 years. This locked up the spectrum in the status quo and made it difficult for non-commercial broadcasters to enter the spectrum (Marino, 2009: 62, 75). The Clarín Group was on good terms with the president and sup-ported the government’s policies, which allowed Chinese-like annual growth rates of above 8% between 2003 and 2008 (Becerra and Mastrini, 2010b: 625; Repoll, 2010). Social movements were divided with respect to their support for Kirchner (Svampa, 2008). While many criticized him for the continuities in economic policy, he earned the respect of human rights movements when he revoked an amnesty law and allowed for a reopening of law suits against leaders and accomplices of the last military dictatorship (Jelin, 2007). Despite the continuities, social and symbolic policy changed and the gov-ernment opened up to demands from popular sectors. The vital, albeit ambivalent, alli-ance between Kirchner’s party and the popular sector, particularly human rights movements, proved to be an important condition for the new media law to enter the institutional arena under Kirchner’s wife and successor Cristina Fernández.

The origins of the new law: social movement, media conglomerates and the government

The history of the new media law can be separated into two stages. During the first (2004–early 2008), a social movement emerged that laid the basis for, and popularized the agenda of a democratization of communication and media. In 2008, against the back-ground of intensifying conflicts between large media and the government, the law entered the institutional stage when the Argentinean president took up the initiative. After retracing these two stages, a more analytical look will be given to the dynamics of media–state relations and at explanations for the success of the social movement.

The roots of a new law

The struggle for democratization of communication has emerged in different stages since the return to democracy in 1983. One might even refer to the “National Communication Policies” of the 1970s as a predecessor (Baranchuk, 2010), although references to it are not very strong in the current debate. The specific traces of the new law go back to the repercussions of the World Social Forums since 2001. In August 2004 then, the Coalition for Democratic Broadcasting (Coalición por una Radiodifusión Democrática, henceforth referred to as “the Coalition”) was founded on the initiative of the Argentinean Forum of Community Radios (Foro Argentino de Radios Comunitarias, FARCO) (Sel, 2010: 194). The forum was founded initially under the acronym ARCO in the late 1980s, when community radio stations in



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their present form emerged in Argentina. Over time, it successfully developed into a broad network of community radio stations with a horizontal, participatory structure. FARCO understands itself as a political organization aiming at the democratization of communication. Besides the political organization of common interests, FARCO’s func-tion lies in the provision of training and advice, as well as the legal defense of its mem-bers (Berger et al., 2008: 73–91).

The Coalition for Democratic Broadcasting unites a diverse range of more than 300 mostly national, but also international, social actors, movements, unions, academics and other individuals. On 27 August 2004, the Coalition presented “21 basic points for the right to communicate”, one point for each year of democracy that had passed up to that point without the media being democratized (FARCO, 2008; Uranga, 2004). These 21 points define communication as a right and an essential service for the social, cultural, and educative development of the people, dismissing the view that broadcasting is merely a commercial business (Points 1 and 2). Plurality and diversity of ownership are considered vital to democracy, and measures against horizontal and vertical concentra-tion are demanded (Points 5, 6, and 8). Point 11 defines three types of broadcasters: public (which are independent from the government), commercial, and community media. Many of the 21 points are detailed and tangible. Among other things, these points demand that 33% of spectrum space be reserved for non-commercial media (Point 13), the trading of licenses be forbidden (Point 4), commercials be of national production and clearly distinguishable from content (Point 17), and elected office holders, members of the military, or human rights violators not be frequency licensees (Point 10).

Then-President Kirchner refused to take up the issue. Politically, he was considered quite close to Clarín and aided them with favorable presidential decrees (as mentioned above). Even without official backing, the Coalition intended to popularize their agenda by discussing the points and the underlying political strategy among its members and the public in a number of forums, during discussions, round tables, and workshops across the country (Interview I002, 2010). However, during those years of sparse public attention, the heterogeneous Coalition was mostly concerned with staying alive and not breaking up over internal (political) differences (Interview I041, 2012). In the end, the Coalition still existed and could provide a basis for the broader public debate when the political context suddenly became more favorable in 2008.

The project enters the institutional stage

In early 2008, the political debate gained momentum, when Cristina Fernández invited the Coalition to present their 21 points in the Presidential Palace on 16 April. This hap-pened amidst a national political conflict that changed the dynamics of media–state rela-tions (see next section). Fernández officially declared her interest in a new law and announced a public debate including all stakeholders (Clarín, 2008; Piqué, 2008). The Coalition, in turn, increased its pressure and sent an open letter to the president on 30 July 2008, asking her to initiate a legislative substitute for the old Ley 22.285. About a month later, Congress officially declared interest in the “21 points”. The Coalition actively lobbied individual legislators for support for the project. In March 2009, Fernández presented a first official draft of the new broadcasting law based on the “21




points” (Clarín, 2009; Piqué, 2009). The draft was written by a group of about seven persons, of whom some had been leading figures in the Coalition for many years (Interview I017, 2012; Interview I019, 2012). In her speech, the President qualified the need for a new law as “an old debt of democracy”, borrowing the discourse of the Coalition, and invited society to discuss the draft before it was sent to Congress (Fernández de Kirchner, 2009). The regulatory agency COMFER then organized 24 forums in all parts of the country to collect input from a broad range of actors. The results, including the transcripts and sometimes the videos of those meetings, were pub-lished on COMFER’s website.3 The participatory nature of the legislative process was widely acknowledged, among others by the non-governmental organization (NGO) Reporters Without Borders (Hervieu, 2010; Interview I001, 2010), but criticized by the political opposition as an electoral maneuver that circumvented Congress (Lara, 2009). Representatives of commercial media claimed that those forums were more political or “studenty” rather than technical and thus were not considered to be adequate opportuni-ties for participation (Interview I007, 2011; Interview I035, 2012). Indeed, large media rarely participated in any of those discussions. The 24 organized forums, together with another 80 debates and over 15,000 opinions voiced by mail, led to about 50 minor modi-fications of the law before it was officially sent to Congress on 27 August 2009 (Cibeira, 2009). More than providing input, these forums mobilized large parts of society and secured public support for a politically controversial topic.

In the Chamber of Deputies, the draft was discussed further, and several changes, including major ones, were made in the course of four sessions. During the hearings, many members of opposition parties chose to be absent as a matter of protest, claiming several irregularities in the administrative procedures and a lack of time that made it impossible to adequately discuss the bill (Interview I035, 2012; Interview I036, 2012). Still, critical voices from the business sector were also heard, particularly during the fourth hearing (Bravo, 2009). On 16 September 2009, the Chamber of Deputies voted on the project after a final 14-hour debate. Four members voted against, 147 voted in favor and one abstained. Another 105 of the delegates left before the vote so as not to legiti-mize the approval (Jorquera, 2009b). The draft was then discussed in the Senate in seven sessions within little more than a week, from 24 September to 2 October. Again, experts and stakeholders from different sectors voiced their opinions, and senators from the opposition often abstained as a sign of protest (Jorquera, 2009a). In the early hours of 10 October 2009, the Senate finally approved the new “Law on Audiovisual Communication Services” (Ley SCA) with 44 votes to 24, with only 4 members now being absent (Jorquera, 2009c). Legal action on the part of media businesses and missing decrees delayed the entry into force of the new regulation until September 2010. As of January 2012, an interim injunction obtained by Clarín still safeguards the group against a forced partial sale of its 225 subscription broadcasting licenses and 13 free TV/Radio licenses.

Changing media–state dynamics

The passage of the law and particularly the “institutional stage” of the law cannot be regarded as isolated from the changing dynamics between private media and the state. Similar to their counterparts in the southern European region (Hallin and Mancini, 2004:



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98), the mass media in Argentina (be they commercial or state-run) have a rather strong tradition of political mobilization and of getting involved in political conflicts. While, even during dictatorships, governments seldom directly controlled media, relations between large media and the state are marked by “complicity, compromise, and mutually shared goals” (Fox, 1998: 21). Referring to the historical background of an intervention-ist state until the 1970s and persisting clientelistic relations in Latin America, Hallin and Papathanassopoulos (2002) offer a structural explanation for why private business relies on media to maintain political influence. The result is a “strong tendency … for media to be controlled by private interests with political alliances and ambitions which seek to use their media properties for political ends” (Hallin and Papathanassopoulos, 2002: 177). Neoliberal reforms and the commercialization of media do not necessarily abolish this clientelistic relationship between media and politics, but rather alter its form: where media’s dependence on the state attenuates, news media become a potentially even more powerful political instrument (Hallin and Papathanassopoulos, 2002: 190).

In Argentina, a “tradition of intertwined state and market interests” has existed for several decades (Waisbord, 1998: 42) and continued under the popular government of Néstor Kirchner (see the discussion of the policies introduced then on p. 5). After the election of Cristina Fernández in 2007, the fragile harmony between the government and the Clarín Group gradually gave way to distrust, as several conflicts emerged. The government was increasingly criticized for an “abusive” use of official advertising (Giudici, 2010). While the discretionary use of the advertising budget to discipline opposition media is nothing new, this practice became more apparent when Clarín openly opposed governmental policies. Indeed, the Fernández government lost several law suits on this issue in provincial courts and even one dealt with by the Supreme Court in March 2011 (Becerra, 2011). Although the prohibition of “arbitrary assigna-tion” of public advertising already formed part of the 21 points of the Coalition, it has not been included in the new media regulation. Indeed, with the intensification of the conflict between Clarín and the government, the official advertising budget increased disproportionately while Clarín’s share decreased sharply. While there are debates about how public advertising funds can be used to advance media diversity, their use so far is still characterized by political discrimination (Becerra, 2011).

Beyond specific media issues, Clarín and other private news companies openly opposed political projects of the Fernández government. Among those was the nationali-zation of pension funds in late 2008, but hostility had already culminated in the “farmers’ conflict” some months earlier (Repoll, 2010; Sel, 2010: 206). What was probably the most intense political conflict in Argentina since 2002 began in March 2008, when President Fernández passed a resolution that flexibilized the export taxes for certain agricultural products to adjust for rising world market prices. The agro-businesses and their organizations responded by launching a lockout with road blocks, paralyzing com-merce across the country. The “strike” went on for over four months until July with the support of parts of the urban middle class and, most importantly, the Clarín newspaper that explicitly took sides (Wiñazki, 2009). In the end, the farmers’ conflict and the sub-sequent outbreak of the international financial crisis revoked “the long-standing coop-erative relationship” and the “logic of understanding” between government and dominant media (Becerra and Mastrini, 2010b: 625).




Just as these conflicts exemplify the tradition of advocacy journalism, they gave fresh impetus to the project of a new media law. Although Fernández had already announced her intent to pass a new media law in her electoral platform in 2007, before the farmers’ conflict, the decisive invitation for the Coalition to present their 21 points in the Presidential Palace took place about one month after the start of the lockout. Only in March of the following year did she present a first official draft.

The farmers’ conflict also influenced the position that Clarín and the political opposi-tion took later during the debate on a new media law. Confident of their victory over the farmers’ issue, they expected the new media law to fail as well (Interview I001, 2010). From 2004 to 2008, while the Coalition promoted the “21 points” across the country, the mass media was silent on the topic (Interview I002, 2010; Interview I007, 2011). When the law entered Congress in 2009, the part of the opposition linked to the larger media businesses boycotted the sessions and was often absent, including during the final vote in the lower chamber. Contrary to the broad participation of social sectors, business and political opposition simply did not participate in the media debate (Interview I007, 2011). The strategy was to prevent any new law and neglect the legitimacy of the debate as such. Statements usually remained very general and qualified the law as an attack on the free media, a gag, or showing the intention of the president to control the media (see for example Wiñazki, 2009). As Mattelart (2005: 151) argues, large media groups have in principle no interest in engaging in a debate on media diversity and democratization because that would mean debating issues of concentration and the resulting “economic censorship”. Large parts of the opposition and the commercial media are still unwilling to distinguish public regulation to democratize communication from governmental con-trol (just as some activists linked to the governing Peronist fraction turn a blind eye to some dubious practices of the government) (Interview I035, 2012; Interview I039, 2012; Interview I040, 2012).

A second reason for the absence of media companies’ involvement is the timing: they missed the debate. The Coalition had at least a four-year “discursive head start” which it used to set the agenda, engage organizations and political representatives, and frame the issue. The campaign of commercial media could not easily catch up and thus relied on a strategy of intransigent opposition (Interview I007, 2011; Interview I041, 2012).

Explaining the movement’s impact: associational power and framing

After the height of the neoliberal era and together with the ascent of popular-left govern-ments, social movements emerged as powerful political players in many countries of the continent. As their capacities to influence politics and political culture vary, the condi-tions of success as well as movements’ strategies have been researched by a wide variety of scholars (Alvarez et al., 1998; Martí i Puig, 2010; McAdam et al., 2001; Silva, 2009; Stahler-Sholk and Vanden, 2011). The categorization of factors in Silva’s (2009: 43–55) model, designed for anti-neoliberal contention in socio-economic realms, helps to shed light on the relevant parameters to explain the movement’s impact in the specific case of the media law.

Two factors are particularly important: the development of “associational power” and the framing of the debate. For the first aspect, the legacy of the 2001 uprising has to be



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taken into account. Soon after 2001–2, when social movements took to the streets and emerged as central political actors, the displayed unity of the movements vanished because of internal differentiations and a campaign of politicians, supported by the mass media, to “return to normalcy” (Svampa, 2008: 45). Even though the different move-ments internally split up according to different political logics, they remained connected. Their links, albeit weak, developed and maintained through common protests on the streets and in campaigns, seminars, or conferences, allow the movements to avoid inter-nal conflicts and resource-intense maintenance of common agendas, but still provide the possibility to cooperate on common projects (Mauersberger, 2009). The same happened with the Coalition, which brought together a variety of individual and collective actors from different social classes, integrating new and traditional movements on a single issue. By creating horizontal linkages, they sustained “associational power” (Berger et al., 2008: 73; Silva, 2009: 46).

Second, issue framing is critical to achieve support and overcome the fragmentation of social forces. It explains “the process by which a wide range of once fragmented and isolated movements formed expanding alliances and coalitions” (Silva, 2009: 3, 50). The Coalition framed the need for a new comprehensive media law using three topics, where democracy and human rights served as a “discursive umbrella”. Arguably the most out-standing theme was the need to overcome the legacy of the military dictatorship. Proponents of a new law stressed that the current legislation was a product of the military junta. After more than two decades of democratic rule, a democratic law was indispensa-ble. Two, the danger of media monopolies for democracies was highlighted. By discuss-ing high ownership concentration, the political power of the Clarín Group necessarily came to the fore. Three, communication was referred to as a citizens’ democratic right. It was emphasized that the public sphere, and thus the electromagnetic spectrum, are public resources to which regulation must guarantee equal access. Market mechanisms (where monetary resources are the currency for access), therefore had to be pushed back in favor of democratic criteria of equal opportunities.

The recent history of Argentina indicates why framing media regulation as a matter of democracy and human rights proved successful. Since the return to democracy in 1983, human rights movements have had a high profile in Argentina and are actively involved in the politics of memory and the judicial prosecution of crimes committed by the juntas (Kaiser, 2002). While the government of Kirchner was criticized by the left for represent-ing too much continuity, it was in the area of human rights that he radically broke with the past by no longer shielding perpetrators from judicial prosecution and publicly del-egitimizing their crimes (Svampa, 2008: 43). Politically, movements with a human rights background were thus in a better position to make their claims heard by the government. Also, democracy and human rights issues were more likely than, for instance, socio-economic issues to unite a large array of movements from different social classes. In the case of the new media law, the Coalition accomplished the integration of human rights, communication, unemployment and urban (neighborhood) organizations and move-ments around a common agenda. The broad network of different movements also ren-dered possible the initiative’s survival and spread between 2004 and 2008, despite indifference in the political arena, and increased the attractiveness of the proposal to the president when the time came.




Transnational entities, such as the United Nations (UN) and the Organization of American States (OAS), lent additional support to the Coalition’s demands. Several dec-larations by special rapporteurs for freedom of expression backed the orientation of the 21 points and even declared Argentina’s new law as a model for other countries (Interview I021, 2012; OAS, 2007; Télam, 2009). While any further detail about transnational influ-ence would go beyond the scope of the article, it is important to note that certain UN organizations and international NGOs have been identified as decisive actors in similar cases (Brysk, 2000; Keck and Sikkink, 1998).

The new regulation

What does the new regulation look like? There are four core changes that characterize the law: first, an explicit regulatory goal towards democratic participation; second, the reservation of one-third of the broadcasting spectrum for non-commercial media; third, the more restrictive (cross-media) ownership limits and restricted opportunities to trade frequencies; fourth, a more complex and participatory institutional regulatory structure which is less dependent on the executive.

First, Article 3 (Ley SCA) specifies the objectives of the new regulation in 15 clauses. Most important are the promotion and guarantee of the free exercise of every person’s right to investigate, receive and spread information, opinions and ideas without censor-ship (clause a), the promotion of federalism and Latin American regional integration (clause b), the vindication of human rights, equal access and the inclusion of social actors. The social role of media, their formative function in democratic societies, and thus the importance of a plurality of perspectives is explicitly acknowledged and pro-tected. While under the preceding regulation, broadcasting stations had to cooperate to “satisfy the necessities of national security” and preserve “Christian morals” (Art. 5, 7, Ley 22.285), the new law does not foresee interference in media content with the excep-tion of quotas for national and independent productions. Article 34 translates those regu-latory goals into criteria for the distribution of frequency licenses.

Second, the distribution of the broadcasting spectrum has undergone some significant change. Article 21 establishes three different types of broadcasters: public or state-owned, private with profit orientation, and private without profit orientation. Article 89 assigns a certain number of frequencies to public broadcasting, to provincial and munici-pal governments, to national universities, and to indigenous people. Thirty-three percent of all terrestrial frequency bands are reserved for non-commercial stations. This division was demanded by the Coalition in 2004, but is, according to the footnote in the law, based on the recommendations of the “Special Rapporteur on Freedom of Expression” of the OAS (OAS, 2007).

Third, media ownership limits are tightened and cross-media ownership limits rein-troduced. The details of the limits, as stipulated in Article 45 (Ley SCA), are quite com-plex. At the national level, a legal person may own either one satellite license or a maximum of 10 (reduced from 24) licenses for audiovisual services in free broadcasting. This limitation is increased to 24 licenses for cable subscription. However, there are several qualifications for those figures. Even multiple licenses may cover less than 35% of the national population, a figure that equals the population of the greater capital area.



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Moreover, at the local level, every legal person may generally own at most one license for each band (FM, AM, TV). Before a license or its partial trading is granted, authorities must check for undue vertical and horizontal concentration (Art. 48). Licenses them-selves are not transferable (Art. 41), with one exception applying to commercial radio stations: after five years of service, a maximum of 50% of the shares may be sold, but only if necessary for the continuation of broadcasting and if the regulatory authority agrees. Generally, only 15% (30% for subscription licenses) of the capital connected to voting rights may be traded via stocks (Art. 54).

Those limitations caused the most opposition and triggered the law suits that are still impeding the full implementation of the law. Several media companies, notably the Clarín Group, have been forced to disinvest. Article 161 gives companies one year to adjust to the new provisions. Only for those purposes, licenses may be transferred. The Clarín Group and some opposition politicians filed a suit against the law and particularly against the “disinvestment clause” in Article 161. This generated a dispute in the provin-cial courts over the validity of the law, but after a Supreme Court decision in June 2010, the regulatory body AFSCA (Autoridad Federal de Servicios de Comunicación Audiovisual) in September the same year declared that the one-year period for disinvest-ment has begun. As of January 2012, Clarín is still exempted because of an interim injunction.

Fourth, the Ley SCA completely changed the structure of the regulatory bodies and created a system of checks and balances. Under the former regulation, the sole regulatory body, COMFER, was directly dependent on the executive. Now, it is substituted by the Federal Authority for Audiovisual Communication Services (AFSCA, created by Art. 10) and complemented by an advisory body COFECOM (Consejo Federal de Comunicación). AFSCA’s directorate (Art. 14) consists of seven members, of which the executive names only two (including its president); three other directors are named by Congress, one each from the three largest parliamentary parties, and the last two (one of them being an academic) are designated by the Federal Council on Audiovisual Communication (COFECOM). This Federal Council, created by Article 15, is designed to advise the Executive and Congress, report to the latter annually on the state of the law, and control AFSCA. With a two-thirds majority, it can even dismiss members of AFSCA. COFECOM members represent the provincial governments, commercial and non- commercial broadcasters, unions organizing media workers and universities, the indig-enous population and a few other groups (Art. 16). The federal government does not necessarily have a majority in those bodies; private stakeholders and civil society are comparatively strongly represented. The first elected president of COFECOM is Néstor Busso, president of the community radio organization FARCO. The restructured public broadcasting company (Radio y Televisión Argentina, RTA), modeled on the Chilean example, has a seven-member directorate structured just like AFSCA’s. The RTA has its own advisory body, the Honorary Consultative Council of the Public Media, which “socially controls” the company (Art. 124). An additional advisory council has been cre-ated to incorporate concepts for the protection of minors in the audiovisual environment (Art. 17). For the function of an ombudsperson, a “Defensoría” is elected by Congress to defend public interests and manage complaints (Art. 19–20). This institutional structure is depicted in Figure 1.




Conclusions and a glimpse across the border

The analysis of the new Argentinean media law and the preceding legislative process has highlighted three main points. First, the new regulation originates from a participatory legislative process. The roots of Ley SCA lie in broad debates among a wide range of different social movements. The law itself is published with many notes and commentar-ies referring to academic studies, other countries’ laws and contributions of civil society organizations. Opposition in Argentina and the traditional press in Europe alike have shown skepticism towards the reform and often presented the political conflict as a per-sonal dispute between the president and Clarín (El País, 2010; NZZ, 2009). However, this perspective neglects, among other things, the participative origin of the law.

Second, the new regulation redefines and partly decommodifies the media market. In a market so far dominated by only a few commercial groups, public broadcasting is strengthened and one-third of the spectrum reserved for non-commercial media. Community media are promoted actively through workshops and assistance organized by the regulatory body AFSCA (Interview S02, 2010). Market mechanisms are pushed back as ownership limits are strengthened and the trading of frequencies banned.

Third, the passage of the law, strongly opposed by the traditional mass media, can be explained by the associational power of the movement, the successful framing of the debate and changing media–state dynamics. Unlike in the David and Goliath story, it was not about one clever trick that took down the “giant”. But it is also not just a story of the president’s political revenge against critical media. Rather, the Coalition suc-ceeded over years in creating a broad network that disseminated the need for a new media law across the country. The framing of the old media law as a heritage of the

Execu�ve Congress

AFSCA(regulatory agency)

Directorate of 7 members

COFECOM

(advisory body)provincial gov., private

stakeholders, civil society

Defensoría

(ombudsperson)

RTA

(public broadcas�ng)Directorate of 7 members

(elected as for AFSCA)

elects

advises

sends two directors (incl. the

president)

sends two directors;can remove directors at 2/3 majority

Honorary Advisory Council for Public Media

exerts “social control”

sends three directors

(one each of first three

parl. groups)

advises,reports

advises

Figure 1. Regulatory institutional structure according to Ley SCA



Mauersberger 601

military dictatorship allowed different sectors of society to relate to the agenda. By creating a discourse based on democracy and human rights, the Coalition also allowed the government to take up the issue at a specific moment, when its relation to the domi-nant Clarín Group reached a low point. While the government had increasingly been accused of the discretionary use of public advertising to reward politically close media, Clarín was criticized for its open campaign against several planned policies, which culminated in the farmers’ conflict in early 2008. In theoretical terms, this episode of open conflict between Clarín and the government can be considered a “critical juncture” (Capoccia and Kelemen, 2007), which interrupted the entangled relationship between the political elite and the media. When the media reform entered the institutional stage in 2008, commercial media were confident that it would fail and later on could not make up the ground as debate on media regulation had already been framed by the movement for the past several years.

The new law brings together, at least partly, normative concerns of two theoretical perspectives (Hallin and Papathanassopoulos, 2002: 184). In line with critical political economy, concerned with the power of capital, ownership limits are tightened and non-commercial media promoted. Liberal worries about the power of the state are addressed by the new regulatory bodies that are no longer under direct presidential control. The law also does not foresee any content regulation or “defamation clauses”, usually used to curb press freedom. However, from a liberal perspective, the new regulation is criticized for not dealing with the additional potential for state interference.

These normatively quite positive conclusions about the law might surprise anyone who followed the political controversies from afar and was concerned about the accusa-tions of government control of the media. Two reasons might explain this potential irrita-tion. First, as already mentioned, this article is concerned with the origins of the law and the social movement’s role. It does not focus on the law’s implementation nor on govern-mental conduct regarding other media issues, which would be a slightly different debate. Indeed, many observers consider the law much more democratic than its application so far (Interview I041, 2012). Second, many of the critics are actually ignorant of the role of civil society in the construction of the law. They also fundamentally fail to distinguish between the law and other governmental or popular campaigns against the Clarín Group (e.g. the conflict over Papel Prensa). Thus, when talking about media regulation in gen-eral, the state must be considered another “Goliath”. However, in our case, this proved to be “only” an important part of the background for understanding changing media–state relations, but less so in relation to the origins of the law and the power of the Coalition. In fact, the article shows that the government’s role became relevant only in 2008 and that it took up the framework elaborated by the movement before. Even when the law was treated in Congress, the political pressure and the momentum were kept up by the movement. In sum, it was precisely the origin of the law in civil society and the movement’s mobilizing capacities to frame the debate that ensured that media regulation was reformed to democratize communication and not to increase government control.

Argentina is not the only country in the continent where reforms in media regulation are discussed or have already been passed. In many cases, social movements and, more specifically, community radio activists are driving forces. Given the broad exchange of knowledge taking place at the movement level, it comes as no surprise that the general




approach and sometimes even regulatory details look similar. The striking feature of reforms is the promotion of non-commercial media, sometimes combined with a refound-ing or strengthening of public broadcasting. Uruguay passed a new regulation for radio broadcasting in 2007, which reserved one-third of the spectrum for community radio and introduced a regulatory advisory body with a composition very similar to the Argentinean COFECOM, founded two years later. In June 2010, the Uruguayan government announced that it plans to draft a comprehensive media law similar to that of Argentina, based on broad social participation. Looking across the Andes, Chile passed a new law on community broadcasting in 2010. Although drafted by a community radio associa-tion, the Chilean law reserves only about 4% of the spectrum and does not address regu-latory discrimination or media concentration. The weakness of social movements – a legacy of the Pinochet dictatorship – explains at least partly why Chile still has one of the most restrictive media laws in Latin America. In Bolivia, new media regulation is being discussed at the moment as well. With Argentina’s new law as a model, the government plans to reserve one-third of all frequencies for non-commercial media.

Media reforms, as driven by social movements, are not solely a matter of economic market regulation, but rather about the quality and depth of democracy. It is also not solely about the power of commercial media, but about the role of governments. It is the elevated position of movements in our case that make it a further example of the chang-ing structure of political opportunities (Martí i Puig, 2010). The history of the Argentinean media law also illustrates that social movements are the driving forces for the expansion of citizenship and the strengthening of democratic participation (Avritzer, 2002). While in Europe and North America the commercialization of the media sector is often considered a given, Latin America helps to broaden the debate by offering alter-native paths.

Notes

The author would like to thank Matthias Kranke, Alejandro Maturana and Bill Taylor, as well as two anonymous reviewers, for their helpful comments and suggestions on earlier versions of this article. Empirical evidence has been obtained by document-based process tracing, complemented by 24 additional interviews conducted with movement activists, representatives of commercial media, opposition politicans and local researchers. Interviewees were chosen on the basis of their involvement in the debate and were contacted directly by the author.

1. English translation: “Communication is too important to be left only to the media.” Hervieu (2010), in this comment published in the Argentinean newspaper Página/12, paraphrases the saying of the French politician Georges Clemenceau (1841–1929), who said that “War is too important to be left to the generals.”

2. Argentina even privatized frequency management, including control over mobile phone com-munication. In 1997, a Dutch subsidiary of French Thales gained the contract. In 2004, the state regained control and annulled the contract with Thales on the basis of alleged breaches of obligations and corruption; judicial investigations into the activities of former president Menem (Hauser, 2004) were also initiated. Thales lost the following case, which was decided at the World Bank’s International Centre for Settlement of Investment Disputes (ICSID, 2008).

3. See http://www.afsca.gov.ar/web/blog/?p=2666.



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