On October 22, Resolution No. 1194/2020 (hereinafter, the “Resolution”) issued by the National Communications Entity (hereinafter “ENACOM”) was published in the Official Gazette of the Nation, by which the new Regulations for the Voluntary Procedure for the Alternative Resolution of Disputes between Providers of Audiovisual Communication Services and/or Subscription Broadcasting Services through a physical and/or radioelectric link were approved in its Annex I.
The objective of the New Regulation is to expedite the processing of complaints between providers. Furthermore, this voluntary mechanism seeks to avoid administrative burdens in the substantiation of complaints.
Subjects reached
Providers of legally authorized audiovisual communication services may initiate the voluntary procedure. ENACOM is at its discretion to assess whether or not the voluntary procedure initiated by said provider is appropriate.
It is important to note that consumers are not entitled to initiate the voluntary procedure stipulated in the Resolution. The New Regulation only contemplates the alternative dispute resolution mechanism for disputes arising between providers of Audiovisual Communication Services and/or Subscription Broadcasting Services through physical and/or radio links.
Exclusions
- A reading of the Resolution and its Annex does not reveal the matters that will be the subject of potential disputes to be resolved by this new mechanism. Notwithstanding this, the following matters are excluded from this modality: In the event that one of the interested parties is Radio y Televisión Argentina Sociedad del Estado (“RTA”) or the Instituto Superior de Enseñanza Radiofónica (“ISER”);
- When the request for initiation of the procedure reveals the existence of harmful interference with: (i) essential services[1]; (ii) broadcasting services whose licenses and/or authorizations were granted under conditions imposed by the outcome of international coordination processes, and, finally, (iii) when the subject matter in dispute has as its objective the provisions established in Title III, Chapter V of Law No. 26,522.[2]
Procedure
Income
Submissions must be made exclusively through the Electronic Platform for Remote Procedures (“TAD”) of the Electronic Document Management System[3], selecting the procedure “Alternative Dispute Resolution S.C.A ENACOM”.
To initiate a claim, the start-up form available on the ENACOM website[4] must be completed under the title “START-UP FORM. ALTERNATIVE DISPUTE RESOLUTION”. This form, in the form of a sworn statement, must be completed and signed by the legal representative or attorney of the requesting company, accompanied by the appropriate documentation that proves the representation claimed.
The reason for the dispute, along with the background information, must be stated in the request for initiation. The requesting party must also provide all necessary information to identify the other provider involved in the procedure.
Confidentiality
The parties will sign a confidentiality agreement within the framework of the alternative dispute resolution procedure.
Audience
The National Directorate of Audiovisual Services, within fifteen administrative business days of completing the request for initiation, will summon the parties involved to the first hearing. At that hearing, the parties are required to present their identification documents and prove their legal status.
The fifteen-business-day administrative period may be extended if technical verifications are necessary due to the dispute raised. In such cases, the period will begin to run from the date the relevant report is received by the competent ENACOM department.
A minimum of two hearings will be held. A larger number of meetings may be arranged when the nature of the dispute so requires.
The Resolution stipulates two types of hearing:
- The parties must appear at the place, date, and time established in the notification sent for this purpose, with a minimum of five business days’ notice.
- The meeting will be held using a virtual platform. The parties involved must attend on the date and time established in the notification sent to that effect, with a minimum of five business days’ notice.
An official appointed by the National Directorate of Audiovisual Services will preside over the hearing. Within their duties, they will act as moderator and reconcile the parties’ positions. If deemed appropriate, the designated official may request advice from ENACOM’s technical departments and may suspend the proceedings until the necessary information is obtained.
It is important to note that the Resolution establishes that the parties must have technical advice to assist them at the hearing.
In the event of a failure to appear by one of the parties involved in the proceedings, the designated official will proceed to set a new date within five days of the hearing.
The presence of third parties in the procedure is admitted by virtue of the justification of the need for their appearance by the interested party.
Agreement
If the parties reach an agreement, it will be drawn up by the designated official, detailing its terms. The minutes must be signed by the official, the interested parties, and the respective technical advisors.
Once the minutes have been signed, they must be approved by issuing a Provision issued by the National Directorate of Audiovisual Services.
Compliance with the agreement will be binding on the parties. If non-compliance with the terms of the agreement is verified, ENACOM will initiate the corresponding proceedings to apply sanctions. These are provided for in the applicable regulations, depending on the matter in question.
If the parties fail to reach an agreement, the designated official will draw up a report stating the negative outcome of the procedure.
As a corollary, the procedure may be terminated due to the parties’ failure to appear. When one of the interested parties has failed to appear at two consecutive hearings without providing a justified reason, the intervening official must draw up a report stating that the procedure cannot continue.
Retroactivity
Finally, the Resolution establishes, as a transitional clause, that voluntary procedures for alternative dispute resolution may be initiated, either ex officio by ENACOM or at the request of a party, in conflicts that, as of the date of approval of this Annex, are in the process of administrative proceedings or, once the administrative resolution act has been issued, it has not been finalized.
The initiation of the procedure in question will suspend the processing and deadlines for the aforementioned actions until their conclusion.
This report should not be considered as legal or any other type of advice by Allende & Pitch.
[1] Section 2.2.1 of Article 2 of Annex I of the Resolution defines essential services as: Argentine Mobile Service, Aeronautical Radio Navigation Service, used in Airports and Aerodromes; emergency services and, in general, any service whose harmful interference could endanger the safety of citizens, human life or the fulfillment of powers assigned to public bodies.
[2] Law No. 26,522 regulates Audiovisual Communication Services. Chapter V specifically regulates the content of programming.
[3] https://tramitesadistancia.gob.ar/tramitesadistancia/tad-publico
[4] https://www.enacom.gob.ar/tramites
