Today saw the launching of the the first Mapuche Tehuelche radio in Argentina. FM Trauwleiñ To Kom 89.7 started operating at 10am in the town of Esquel, province of Chubut.

Invite to the launch of the first Mapuche radio in Esquel

The FM radio has been opened in the framework of the Audiovisual Communication Services Law (22.522), usually referred to as the “Media Law” -enacted in October 2009- which establishes the possibility for indigenous people to open radio and TV services (article 151). It is the first indigenous radio to open in the country as a consequence of the new Media Law. In December last year, a Mapuche TV station opened in the nearby town of Bariloche.

Article 151 of the law establishes one of its objectives which is to preserve and promote the identity and cultural values of the indigenous community.

“The Mapuche Tehuelche people of Chubut exercise their right to communicate with identity”, says the radio’s presentation poster. It is the first time that these actors are included in the media system.

“Having earned the right to participate in the communication system, we exercise it from our territories, working with the national state, the communities, and as indigenous people” says Aldo Cayulef, leader of the community. “It is a great way for us to defend our culture and start to use the new technologies” he added.

‘Trauwleiñ To Kom’, means ‘We are all getting together’ in Mapuzungún (the Mapuche language).

The opening ceremony counted with the presence and support of various national institutions as the Federal Authority of the Audiovisual and Communication services (AFSCA), the National Institute of Indigenous affairs (INAI), and the National Commission of Communications (CNC).

The Supreme Court ruled the government’s request for a per saltum midday today “inadmissible”, rejecting the measure that would have allowed the controversial Media Law case to skip straight to the nation’s highest court. Instead, the normal proceedings stand, dashing government hopes for a quick conclusion. The decision also rejected an appeal against the suspension currently protecting the Grupo Clarín media conglomerate from divestment, stating that it should remain in place until a “definitive sentence” is reached.

The government appealed per saltum on 19^th December after a ruling in its favour from Horacio Alonso, judge of the First Instance on 14^th December. The Court of Appeals must now rule before either party can appeal for the ultimate Supreme Court ruling.

Per saltum is an extraordinary legal tool used in “institutionally important” situations in which a party can ask the Supreme Court to hear his case directly, bypassing corresponding lower courts to which he would normally have to appeal first.

According to CN23, the seven judges’ decision against granting a per saltum was unanimous, but the suspension’s continued existence was not.

The court’s decision, delivered in only a few concise sentences, leaves Grupo Clarín’s polemic constitutionality case against the Media Law with no prompt end in sight.

Yesterday, Judge Horacio Alfonso ruled in the government’s favour in the anti-media-monopoly case brought by Grupo Clarín, upholding the constitutionality of key articles under dispute since December of 2009. Grupo Clarín pledged to file an appeal on Monday.

Alfonso’s verdict affirmed the validity of Articles 45 and 161, which limit the number of audiovisual licenses held by any one group. It also called for the “immediate lifting of every suspension measure pronounced by the current proceedings,” thus repealing the extension of a suspension granted last week. That extension protected Grupo Clarín from the government’s application of the law and its negation now leaves the media conglomerate in jeopardy of losing vital audiovisual licenses. “Today, at this moment, the law is fully in effect; there was a judge who said that it is constitutional and lifted the suspension measure,” reiterated Martín Sabbatella, director the Federal Audiovisual Communications Services Authority (AFSCA), “therefore, what we have to do is comprehensively apply the law until there is—if there is—any judicial measure that impedes that.”

Regarding how exactly that process, which involves multiple phases, would be accomplished, he added, “What we are working on at this time and are going to finish meeting about with the team this weekend is how we organise the steps for the complete application of the law and how we get it underway.”

Sabbatella’s team is not the only one responding to the news over this weekend. “We have five days but we are going to appeal this Monday, almost certainly,” asserted Grupo Clarín attorney Damián Cassino, calling Judge Alfonso’s decision “arbitrary and serious” because “it does not analyse the evidence that we presented but rather directly ignores it.”

Not only would an appeal allow Grupo Clarín another chance to prove the law’s unconstitutionality, but it would also shield it from license divestment until the next verdict. “The appeal has an suspending effect and that is foreseen in Article 243 of the Procedural Code,” cited Cassino. A press release issued shortly after the ruling state that the decision “does not permit any advance from the government concerning Grupo Clarín’s licenses” and warned, “any official who attempts it will incur a disobedience offense.”

In the probable case of appeal, the government would likely respond by turning to the Supreme Court. “In that case the government can ask for, by the matter’s institutional gravity, that the case goes directly to the Court,” Gustavo López, General Sub-Secretary of the Presidency, said to Radio 10.

The influential Grupo Clarín media conglomerate has been one of the government’s leading critics for years. The Media Law, introduced into Congress by President Cristina Fernández de Kirchner and enacted in October 2009, requires the divestment of a large portion of its audiovisual licenses.

AFSCA director Martín Sabbatella announced yesterday that 20 media companies are still noncompliant with the Media Law and the plan for handling non-compliance when the law goes into effect on the 7^th December.

According to the government, groups are currently “outside the law” include Clarín, Uno, Cadena 3, Directv, Telefé, and C5N. All are required to present compliance plans by the 7^th December. Only one, Grupo Clarín, maintains that it will deliberately defy the mandate.

Once it receives compliance plans, AFSCA will review them and begin to confiscate licenses exceeding the legal limit from those companies that have not elected to do themselves. Auditors from the National Assessment Court will assess license values to determine “a low price for the tender process”. Then AFSCA will select licenses to auction off those “of lesser value, leaving the title-holder with that of greater symbolic and economic value.” Sabbatella estimates the entire process will take about 100 days.

AFSCA is the agency charged with applying the controversial Media Law. A court suspension has deferred implementation of key articles since December 2009 due to a fierce lawsuit filed by Grupo Clarín, who claims the law is unconstitutional. Grupo Clarín is the largest multimedia group in Argentina and regarded as a critic of the Fernández de Kirchner administration.

Sabbatella stressed that the point of the law is “so there is not one giant ‘take everything’ who injures the possibility of the rest existing.” The law is designed to protect the audiovisual industry from monopolies. “No one has a little crown,” insisted Sabbatella.

Congress also approved the use of per saltums yesterday, a move that could also alter the course of the Media Law dispute. The approval won 135 in favour and earned 95 against in the Lower House. Per saltum is a legal tool that allows the Supreme Court to agree to rule directly on cases “of notorious institutional gravity” without having to wait for it to pass through lower courts. Urgent matters can thus be resolved more quickly. Per saltums were already in use but are now officially sanctioned. The government plans to later request a per saltum in the Media Law case, but it remains to be seen whether the Supreme Court would be inclined to grant it.

The Tribunal Council meets today to determine its six nominations to assume five vacant judicial posts in civil and commercial courts. Among them is the First Federal Civil and Commercial Court post, which will preside over the controversial constitutionality case filed by the Clarín Group against the government for the 2009 Media Law.

To appoint a pro-government judge, two-thirds of council members, in this case nine of the thirteen, must vote in favour of the government, more than the current bloc. Legislators have accused pro-government members of attempting to invalidate opposing members Ricardo Recondo and Oscar Aguad, thereby reaching majority.

Many speculate that the government is “manoeuvring” to appoint Lorena Gagliardi, a government supporter, to the First Federal Civil and Commercial Court post for odds of favourable ruling in the Clarín case. Galiardi has been rumoured to claim that the appointment is guaranteed hers.

“Gagliardi has been heard saying that she would be the one who would occupy the court that would resolve the Clarín case. Unless I get run over by a car and I don’t make it, Gagliardi won’t be designated because the numbers don’t give it to her. No way will it happen,” said Alejandro Fargosi, a representative of Buenos Aires lawyers. Fargosi is linked to the PRO party, which opposes the current FPV government.

Other possible selections include Silvina Bracamonte, Víctor Trionfetti, Carmen Palacios, Marisa Carsco, Marcelo Gota, and Javier Pico Terrero.

Council member Patricia Bullrich has petitioned the judge overseeing the council’s deliberations to have the meeting recorded to avoid “fraudulent manoeuvres”.

Once the council selects its nominees, President Fernández de Kirchner will designate the judges of her choice with Senate approval, as per the constitution.

This afternoon, President Fernández de Kirchner appointed Martín Sabbatella as the new president of the Federal Authority for Audiovisual Communication Services (AFSCA). In his new role, Sabbatella will head the agency responsible for implementing the controversial Media Law, enacted in 2009.

Sabbatella, 42, is a congressman belonging to the Nuevo Encuentro party and former governor of Morón.

Fernández de Kirchner highlighted support for Sabbatella on the part of “artists, non-profit organisations, and politicians”. The appointment was met with four objections, three of which came from other members of congress and one from the Clarín Group.

Of Sabbatella’s new role, the President spoke in righteous terms. “You will face a hard and noble task to finish and deepen the work of the Media Law, which will be three years old on the 10^th October. It is a model law.”

The President defensively asserted, “no one can brand him as pro-government,” citing his bid against former President Néstor Kirchner, her successor and late husband, in the 2009 presidential elections.

Nevertheless, Fernández de Kirchner warned Sabbatella bluntly of harsh criticism to come. “You will suffer more than ever. You received prizes from the Konex Foundation, Clarín, and the Wall Street Journal… You’re only missing a declaration as Miss Universe, but now you’ll become ugly, dirty, and evil. They will put you to the test; you will say white and they will put you up as black; they will take you out of context.”

The federal chamber of Salta, a northern province, overturned an injunction presented by Zulema Beatriz Daer, which was freezing the implementation of the new law. The decision followed a ruling by the Supreme Court last week against the appeal of a Mendoza deputy questioning the legislative process of the law.

“Legislators lack the legitimacy to oppose in the judiciary what they should have managed in the parliament,” the Salta ruling states.

Former President Nestor Kirchner celebrated the decision during a speech in Neuquén. “We’re very content with the Salta ruling, and next Monday the New Media Law will take effect,” he said.

The new law, passed last year by a wide margin in the national congress after a controversial legislative process, was stalled by legal claims around the country. In Salta, judge Miguel Antonio Medina upheld an appeal by deputy Daer that suspended the enforcement of the law throughout the country.

Gabriel Mariotto, head of COMFER, which oversees communication services federally, said in comments to Pop Radio that parts of the law can be enforced while others still require further development.

“Today we have a valid democratic law, and starting next week we’ll start to build its participative character. This means opening the possibility for all sectors to contribute,” said Mariotto.

The law aims to allow a wider plurality of voices in the media by opening public airwave licensing to non-profit groups. It also provides protections for independent artists and media industry workers, and prohibits cable companies from owning public broadcast networks.

The remaining legal obstacles relate to article 161, which calls for the divestment of media monopolies that are in violation of the new law’s anti-trust standards. The case was brought by media group Clarín.

The Supreme Court on Tuesday ruled unanimously against the appeal of a Mendoza judge and deputy, which questioned the legislative approval process of the New Media Law.

In the sentence, the judges ruled that “a deputy is not legitimated to use the judiciary to revise a debate lost in parliament,” and that “it’s not evident the plaintive was unmistakably deprived of exercising his duties as a legislator.”

The ruling went on to say that “no single judge in Argentina has or has ever had before the Constitution the capacity to block the validity of a law relating to everyone”. The decision will put the breaks on similar claims against the new law by judges around the country.

President Christina Fernández de Kirchner, in comments from Tres de Febrero in Buenos Aires province said, “I’m content because today the Argentine judicial system has honoured its own proper functioning and allowed the application of a law that was approved by an ample majority in Congress.”

She added that the new law “tends to democratise the media and access to information.”

The new law was passed in both houses of congress last year by a wide margin after a controversial legislative process. It would replace the existing media law, in place since the military dictatorship from 1976-1983.

Among other initiatives, the new law seeks to allow a wider plurality of voices in the media, protect industry workers and independent artists, and break up audio-visual media monopolies, stipulating that no cable business may own any over-the-air broadcast networks.

The injunction measure was presented by Mendoza deputy Enrique Thomas and later upheld by the Mendoza Chamber of Deputies and judge Olga Pura de Arrabal. The case arrived at the Supreme Court after an appeal by the national government.

The High Court will rule on substantive issues relating to the new law in coming days. Several parties directly affected by the law, namely the media monopolies, have claimed the new law will force them to liquidate parts of their businesses at unfairly low prices.

A group of 20 civil society organisations presented an amicus curiae (friend of the court) to the Supreme Court in support of the full implementation of the New Media Law, arguing that its continued suspension restricts freedom of speech.

Among participating organisations are the Center for Legal and Social Studies (CELS), the University of Buenos Aires (UBA), the World Association of Community Radio Broadcasters – Latin America and Caribbean (AMARC ALC), media workers’ unions and non-profit broadcasters.

The document argues that the decision to suspend the law does not consider the “people, collectives or entities that have rights or interests directly affected by the suspension of the law”.

Furthermore, the text reads, the approval of the new law was a product of “a democratic debate through various channels, including public audiences,” and that suspending the law’s enforcement “resolves to block” this participatory process.

Meanwhile, community-based broadcasters and indigenous groups are not able to access public airwaves. The existing media law, from 1980, allows media licenses to be granted only to commercial enterprises.

If implemented, the new law would also include protections for media industry workers and independent artists.

After an appeal by Mendoza deputy Enrique Thomas, the application of the new law was suspended in March by judge Olga Pura de Arrabal and upheld by the Mendoza Chamber of Deputies. The federal government subsequently intervened and the case will be argued before the Supreme Court in coming weeks.