THE INFLUENCE OF COMMUNICATION LAWS AND REGULATORY AGENCIES ON THE GROWTH OF TELEVISION

From the establishment of radio in Brazil until the present, communications policies have been adapted primarily to the political ideologies which are held by the executive power. Sometimes specific laws were reformulated by the addition of new articles or decrees, and sometimes-existing laws were replaced by new laws that better expressed the needs and values of the dominant political regime.

Brazilian communication policy is composed of various laws, decrees, official recommendations and suggestions, many of which are not yet codified. This chapter, therefore, does not pretend to present a complete analysis of Brazilian broadcast legislation, but focuses strongly on some of the communication institutions - for example, the Ministry of Communications, Embratel, and Dentel (see Table 4)

TABLE 4

Since the military government has played an active role in the development and regulation of the mass media, it is important to note that since 1964 "the Law of Information (Law of the Press), the National Code of Telecommunications and the Law of National Security are the main legal parameters by which decisions about mass media operations and the flow of information are taken."(1) However, besides these laws, the National Constitution and the Institutional Acts have played an important role in the Brazilian context since 1964. Between 1968 and 1979, the mass media operated under the restrictions of Institutional Act No.5. The censorship powers granted the Federal Executive Board by the Act resulted in increased self-censorship among the media in cases where publication of certain material could conceivably lead to prosecution under the Law of National Security.

The Institutional Act No.5 was extensively used from 1968 to 1979, during which time the Brazilian people and institutions (including television) were under the pressure of strict censorship.(2) The statements of high government officials, such as Colonel Toledo Camargo give an idea of the regime's concept and justification of censorship of radio and television: "These media have such a tremendous impact, such a tremendous power to influence public opinion, that a special policy towards them is essential." (3)

In order to present a realistic view of the regulatory process, which controls the behavior of the Brazilian broadcast system, it should be divided roughly into two periods: before, and after the coup of 1964.

Broadcast Regulation
before 1964

Brazilian broadcast regulations have evolved from specific laws, which ruled radio, to the Brazilian Code of Broadcast, which was changed by the revolutionary regime to the National Code of Telecommunications. According to Nely Camargo, "the first law passed in Brazil (1821) was concerned with freedom of thought, and movement and individual rights and guarantees. The freedom of the press, which was the only mass medium at the time of independence, was thus assured at the time of the formation of the Brazilian State. To preserve it has been a constant concern in everyday sociopolitical life.(4)

In 1917, by means of Decree no.3,296, the federal government stated its intention to control and run the radio, telegraphic, and radiotelephonic services. Since its advent, the broadcast system in Brazil has been considered a public service over which the state can exert control. (5) However, it can be run by private enterprises operating under government concessions.

The first regulation designed to govern the behavior of commercial broadcasts in Brazil was passed nine years after the establishment of the first radio station (in Rio de Janeiro on September 7, 1922). (6) Decree no. 20,047, which became law on May 27, 1931, preserved the power of the state to pass legislation concerning the broadcast services, which were considered to be in the national interest and which had education as their primary goal.

On March 1, 1932, decree no. 21,111 was enacted as a complement to no. 20,047. It defined the nature of broadcast services within the national territory and established a licensing procedure. It also enumerated the rights and duties of the enterprises, as well as the sanctions that could be imposed by the government against those enterprises.

On September 7, 1934, decree no. 24,655 was enacted in order to complete the procedures begun by the first two decrees. The government stated in that decree that it would invalidate the licenses of any enterprises, which were not following the rules. In response to that threat, the Paulista Federation of Radio Societies was created in 1934. This association had as its primary objectives the promotion of a review of the first two decrees, and the diminution of the control exerted by all three on broadcast activities.

Between 1940 and 1953, many projects were suggested by the broadcasters, who were trying to establish a Brazilian Code of Broadcast by means of which they could minimize the degree of control imposed by regulations. However, all attempts to change the content of those decrees failed; in effect nothing was changed.

The Brazilian Code of Telecommunications was established in 1962 as a result of the discussion of Bill no.36, which was presented in the Senate in 1953 by Senator Marcondes Filho. Between 1953 and 1962, the bill underwent countless changes in both the federal House of Representatives and the Senate. Those changes were made because Bill no. 36 was an elaboration of the conclusions presented at the 1953 Congress of Broadcasters in São Paulo and had as its purpose the elimination of all governmental control or influence on the broadcast system.

After nine years of discussion and changes, Bill no.36 was transformed into Law no. 4,117 of 1962, under which the National Council of Telecommunications (Contel) was created. According to Nely Camargo,

Contel, as a regulatory body, supervises the activities of government-granted concessions, issues authorizations and permits for the use of telecommunications services and applies penalties. Any technical or hardware supplies contract of radio and television enterprises with foreign organizations is subject to approval by the National Council of Telecommunications (Contel). The law forbids any contractual arrangement with foreign enterprises, which imply the right of direct or indirect participation on the profits of Brazilian mass media, enterprises. (7)

Broadcast Regulations
after 1964

 There is much evidence that communication policy contributed to the growth of Brazilian television. Governmental regulatory agencies after the coup of 1964 created the necessary infrastructure with regard to the technical, economic, and social development of television. At the time, the military regime, through the exertion of censorship, deprived the public of much information, in the name of national security. In addition, Nely Camargo says that,

By law, censorship may be exerted over the mass media and news agencies by the government during a period of siege, on matters related to motives of the siege and by the persons legally authorized to exert it. The motives that can determine the siege are specified by the 1967 Constitution (Article 152). Censorship is also exerted upon public shows and entertainment. A law of 1970 (no.1077, January) establishes censorship in matters of ethical and moral patterns for national or foreign publications and shows, which are to be submitted to the Ministry of Justice. (8)

As noted in Chapter 2, since 1964 the military governments have been ruling under the National Security Doctrine in order to accelerate the modernization of the country. (9) Thus, since 1964 the government has made extensive use of the broadcast media to instill in the public a sense of participation in the modernization process. The Brazilian people have been informed of governmental actions and have been called to participate in national programs by means of many advertising campaigns, which have been broadcast on radio and television.

Consequently, it can be inferred that communications policies were established in order to maintain the post revolutionary status quo in Brazil. The fact that broadcasting is conducted by means of the concession of licenses reinforces the idea of the maintenance of the existing states of the military regime's affairs. Elihu Katz and George Wedell maintain that

Television-operating licenses tended to be granted to wealthy government supporters who would take a friendly attitude toward the politicians. Concentration of ownership is also a feature of television broadcasting, but in all South American countries governments are more involved in television than they are in radio. This is particularly true in Peru and Brazil where governments are increasingly moving toward formulation of integrated communications policies. (10)

The Brazilian Press Law

 There are three basic laws by means of which the government supervises Brazilian television (Press Law, National Security Law, and National Code of Telecommunications). Gordon Campbell says of these laws that

the preparations for assumptions of power by the Costa e Silva [the second president of the revolutionary movement] administration were completed by two major pieces of legislation, the National Security and Press Laws. ... The Press Law enacted in February [1967] was criticized by the Brazilian press, radio, and television, which undertook a national campaign in protest and even mobilized support for their case from international associations of journalists. The Security Law, which was generally considered to represent the views on national problems of the War College were, similarly, ill received. It included among other things, powers to inflict stiff penalties on those trying to subvert the "politicosocial" order, to promote strikes in the public services or to publish false or tendentious news that would endanger the prestige or credit of Brazil. The combination of these two laws with the new constitution appeared to vest a formidable concentration of powers in the future President.(11)

Despite its name, the Press Law also comprises regulations regarding radio and television. The Press Law is divided into seven chapters" the first concerns freedom of thought; the second, the registration of mass media enterprises; the third, abuses of freedom; the fourth, the right of response; the fifth, criminal procedures and responsibilities; the sixth, civil responsibilities; and the last chapter deals with other provisions of the law.

Sometimes there is more than one law for the same point. For example, both the Press Law and the Constitution rule on the ownership (direct or indirect) of mass media enterprises (political or informative) in Brazil and clearly state that such ownership is reserved for Brazilians.

President Castelo Branco enacted a decree-law, which added a new paragraph to the third Article of Law no. 5,250, under which foreign ownership of mass media was permitted, at the same time that the "scandal" involving Time-Life and TV Globo began to be discussed throughout the country. The decree law was presumably short-lived, because on March 13, 1967, a new National Security Law was promulgated and the press (print, radio, and television) came under the new Security Law (see the Time-Life and TV Globo discussion in Chapter 1). (12)

 The National Code of
Telecommunications

 Brazilian television is primarily a private activity that has a tendency to form cultural conglomerates without any legal restrictions. In Brazil, television networks are generally associated with newspapers or other kinds of organizations involved with mass communication. The best example of these multi-media enterprises in Brazil is the Globo organization.

Besides the newspaper, O Globo, the Globo organization is composed of the Globo Radio System (17 stations); Rio Gráfica Editora S.A. (the Rio Graphics Publishing Company, Inc.); SIGLA (Globo Audio-Visual Recording System, Ltd.); Telcom (a telecommunications industry); Vasglo (an entertainment promotions business); the Galeria de Arte Global (Global Art Gallery); TVC (cable television); the Roberto Marinho Foundation; and the Globo Television Network (five owned-and-operated television stations linked to 30 relay stations). In the mid-1979, the Globo Television Network had 36 affiliated TV stations in principal Brazilian cities. (13)

Regardless of the fact that Brazilian television networks are private enterprises, they operate the channels under concession from the federal government. Because of this, they must observe the rules of the political game in order to keep their licenses. However, even if an enterprise has observed all regulations, it can be punished for other things; for example, it may be singled out for its political or ideological positions.

Reprisals can vary from economic punishment to cancellation of the license. For example, TV Excelsior Network, which had been a powerful group during Goulart's term in office, lost its license on October 1, 1970. The principal reason given by Dentel (the regulatory agency) to justify the cancellation of the license was Excelsior's financial insolvency. (14)

It can be inferred that the group may have been subjected to economic pressure before the cancellation of the licenses due to its connections with Goulart's administration. TV Excelsior’s decline - between 1964 and 1970- coincides with the ascendant period of TV Globo, which directly benefited from the Revolution of 1964.

In order to understand Brazilian communication policies, one must bear in mind that legal ownership of radio and television services is ultimately in the hands of the federal government. Because of the high level of public interest in radio and television, the federal government reserves the right, whenever justifiable, to modify regulations and by-laws, as well as the terms of individual concessions. (15) Thus, under the National Code of Telecommunications, which was modified in 1967,both television and radio services have to have educational and cultural objectives. Because of this, the code rules that stations must broadcast a minimum of 5 hours per week of educational programs. Moreover, they must reserve at least 5 percent of their total on-air time for news broadcasts. (16)

Licenses for television channels are granted for 15 years. Assuming that the concessionaire has observed the rules and accomplished all legal and contractual duties, a license may be renewed for another fifteen years. However, the concessionaire’s technical, financial, and moral suitability must not change during the licensed period, and the concessionaire must maintain the "public interest".

In order to prevent the formation of a monopoly, according to Decree law no.236, of February 28, 1967 (which completed and modified Law no.4, 117, of August 1962), each entity is limited as to the total number of television stations it may run. Each communication enterprise may own a total of 10 stations, owned-and-operated, in all of the national territory. Of that total, only 5 may be VHF. The same decree also limits each group to a maximum of 2 stations per state. (17)

Decree law no. 236 shows a strong involvement of the military regime in mass media communications. Law no.236 enhanced the values and objectives of the new government, and, at the same time, changed and adapted Law no. 4, 117, which had encompassed the first code of telecommunications and Contel. Katz and Wedell state that

the severity of the penalties for infringement of the law increased, and the concentration of power by local and, particularly, foreign interests was also restricted. The law prohibited all types of foreign technical assistance that might permit "intervention or knowledge of the administrative life or the orientation of the broadcasting organization" and limited the number of stations that might be owned by commercial organization. (18)

The Ministry of Communications and the Brazilian Association of Radio and Television Enterprises (ABERT), jointly elaborated a new code in 1974 in which the mass media were considered as a means to be used for furthering national development and national security. (19)

Therefore, by law, commercial broadcast enterprises must always be at the disposal of the authorities in order to broadcast announcements which are within the scope of national security. Also, they may all be requested, at any time and free of charge, to broadcast presidential or ministerial speeches under the direction of the National Agency of the Civil Cabinet of the Presidency of the Republic. (20)

The Ministry of Communications

The Ministry of Communications was established in 1967 in order to centralize the national system of communications under direct governmental supervision. (21) Its establishment contributed to the reduction of power of some broadcasting regulatory agencies to which the broadcast enterprises had had easier access. The Ministry of Communications thus contributed to the reduction of influence of private organizations over regulatory agencies (22).

If one considers the military regime's national objectives (see Chapter 2), an argument posited by Herbert I. Schiller can be applied to the Brazilian case as an explanation of the centralization of the system) that is, that "the control of communications is generally a primary step in the acquisition of political authority... Telecommunications are today the most dynamic forces affecting not only the ideological but also the material bases of society". (23)

Thus, from 1967, with the creation of this Ministry, the Brazilian telecommunications system began to undergo a total reformation in order to reach national integration. Regional plans were integrated within the national plan of communications in all fields to facilitate a uniform and national growth of the sector, to avoid the use of nonstandard equipment, and to eliminate other technical problems. (24)

The objectives of the Ministry of Communications may be summarized from a lecture given in 1976 by Minister of Communications Euclides Quandt de Oliveira in the Escola Superior de Guerra: (1) to establish goals for the national system of communications; (2) to promote the establishment of the communication media in order to achieve national security; (3) to promote research and training in order to supply the needs of the sector; (4) to verify the modernization of the technical management of each sector; (5) to promote the compatibility of the industrial sector with the expansion plans of the communications services; (6) to support the national telecommunications industry; (7) to consolidate the establishment of the National System of Communications via satellite until 1983, by offering the means to establish the national distribution of TV to four simultaneous channels, and by offering communications facilities to supply the needs of the national security services; and (8) to consolidate, actualize, and complete the legislation.(25)

In short, the initial development of Brazilian television was irregular. With the creation of the Ministry of Communications, the formulation of a national communication policy, and the creation of new official organizations (Embratel, Dentel, Radiobrás) the technical development of Brazilian television, and the "good taste" of program content were stimulated.

The Brazilian Telecommunications
Enterprise (Embratel)

 Embratel, which was authorized in 1962, was not established until 1965. Its initial responsibility was the setting up and operating of the national system of telecommunications. Embratel was responsible for transmission, emission, or reception of signals, images, sound, or information of any nature, by wire, radio, electricity, optical means, or any other electromagnetic process. In 1967 Embratel began to be absorbed by the Ministry of Communications, and since 1972 has been a subsidiary of Brazilian Telecommunications (Telebrás) (26). Telebrás was created in 1972 for the purpose of centralizing and coordinating telecommunications in Brazil. In order to develop the national telecommunications systems, Telebrás has, among its other accomplishments, carried out a project called National System of Communication via Satellite, which has been incorporated into the National Plan of Telecommunications. (27)

The three basic programs of Embratel are (1) to provide the country’s telecommunications Infrastructure; (2) to facilitate Brazil’s participation in the International Telecommunications System; and (3) to permit a high quality of telecommunication services, such as live transmissions of national and international programs, international and national direct telephone dialing, telegraphy, radiograms, radio transmissions, data processing, data processing centers and terminals throughout the national territory. (28)

After 1967, Embratel, following national security concepts, created the conditions necessary for the development of Brazil's telecommunications system, and created alternatives for the same services Communication can now be processed in Brazil via microwave network, satellite, or submarine cable.

Because Embratel bought approximately $10 million worth of new stock in 1976, Brazil is presently the fourth-largest stockholder in the International Telecommunications Satellite Organization (Intelsat).(29) According to Nely Camargo, the "financial resource for Embratel come from the national telecommunications fund, constituted by the government-owned Brazilian Telephonic Company (CTB), television transmissions for the generating television commercial stations and interstate telephone operations. (30)

In 1976, according to Embratel, Brazilian television transmitted via satellite to other countries 34 hours and 30 minutes of programs and received 325 hours and 48 minutes of live programs. According to Embratel, the difference between the number of hours of television programs transmitted and the number received in 1976 was attributable to the Olympic games held in Montreal. (31)

Embratel is one of the government enterprises that have contributed to national integration and development in accordance with national security concepts. At the same time, Embratel has also allowed television growth by expanding the national telecommunication industry, and by helping and stimulating the Brazilian networks to link the country by means of national television programs whose production is centralized in Rio de Janeiro and São Paulo.

National Department of
Telecommunications

In 1967, the Ministry of Communications absorbed the National Telecommunications Council (Contel), which was transformed into an organization in which the national Telecommunications policies were elaborated. In 1972, the National Department of Telecommunications (Dentel) assumed all responsibilities of Contel. (32)

From the administrative point of view, the objectives of Dentel are (1) to exploit, directly and indirectly, the basic services that integrate the national telecommunication system and its international connections; (2) to grant licenses to broadcast enterprises, as well as to inspect telecommunications concessionaires, and to apply legal and specific sanctions; (3) to supervise the expansion of public services such as telegraphy, telephony, radiocommunications, and telecommunications; (4) to stimulate the development of the telecommunication equipment industry, and give preference to those that are controlled by Brazilian stockholders; and (5) to review the international and national contracts of concessions of services.

Brazilian Broadcast
Enterprise (Radiobrás)

 In the presidential message of 1976 to the National Congress, President Ernesto Geisel officially announced the objectives of Radiobrás. Geisel said that Radiobrás (established by Law no.6, 301, December 15,1975) was created with the basic objective of promoting better utilization of the broadcast enterprises operated directly by the government. According to Geisel, Radiobra's would create and install stations at strategic points in the national territory in order to facilitate national integration. (33)

One year later, in another message addressed to the National Congress, President Geisel stated that Radiobrás programs had placed emphasis on the preservation of Brazilian culture.(34) Moreover, the president said that Radiobrás had begun an international program in order to disseminate Brazilian art and culture abroad (35).

Thus, the Brazilian military regime created its own radio and television network in order to offer alternatives to audiences, to promote national integration, and to preserve Brazilian culture in accordance with the national objectives set up by both the ESG and the National Security Council. In addition, Radiobrás was created in order to

eliminate the shortcomings of commercial broadcasting in supplying broadcasting services to all regions of the country and to coordinate the efforts of educational stations. Although this plan [to establish state-owned radio and TV stations] has increased the anxiety over nationalization among the private operators. Officials in Brasilia and Rio have declared that their intention is to supplement the existing structure rather than to compete with it. (36)

By the time Radiobrás was created, the network under federal administration was composed of 54 radio transmitters (31 medium wave, 18 short wave, and 5 FM), and 4 television stations. (37)

Thus, one can infer that, in reality, the broadcast enterprises have been directly affected by regulation. In the specific case of Brazilian television, since the military regime’s takeover in 1964, to 1979 (from Castelo to Geisel), television has directly and indirectly benefited from the political, social, and economic actions of the federal government. These encompass not only communication policies but also all other regulations and isolated actions. The government has also influenced the mass media by means of support for bank loans to progovemment media, by facilitated importation of electronic equipment, and by the placement of official advertising on progovemment media.

PREFACE / INTRODUCTION / 1. A BRIEF HISTORY OF BRAZILIAN TELEVISION / 2. THE IMPACT OF THE MILITARY REGIME ON TELEVISION / 3. THE INFLUENCE OF COMMUNICATION LAWS AND REGULATORY AGENCIES ON THE GROWTH OF TELEVISION / 4. POLITICAL INFLUENCES ON THE DEVELOPMENT OF TELEVISION / 5. SOCIOECONOMIC INFLUENCES ON THE DEVELOPMENT OF TELEVISION / 6.SUMMARY AND CONCLUSIONS / 7. NOTES / 8. BIBLIOGRAPHY / 9. ABOUT THE AUTHOR