Peru. On November 5, Supreme Decree No. 022-2016-MTC was published, approving new modifications to the Regulations of the Radio and Television Law, which, except for a single aspect, will not imply major changes in the processing of procedures and that contains various gaps and inaccuracies that must be clarified via interpretation.
See:
Articles 29 and 48 - Requirements for the application for authorisation
The requirement to present the copy of the DNI and that copies of certain documents be legalized or authenticated is abolished; likewise, the right to publish the authoritative decision is abolished.
In the case of article 48, it is also indicated that if the Native or Peasant Community is registered in the Official Base of Indigenous and Native Peoples of the Ministry of Culture, the presentation of the SUNARP Registration File or Item is not required. Here is a question regarding the legal capacity that communities must have: Does the registration in this base grant the community legal personality and constitute rights in the same way as registration in SUNARP and its official recognition? If the answer is positive, then this modification would help simplification, if the answer is negative then you would be facing a problem of a legal order. This is an issue to be evaluated.
Under the perspective that the modification seeks the simplification of requirements, it is not understood why it is maintained: i) the 1/100,000 scale plan and the copy of the engineer's certificate of skill, ii) the Study of Non-Ionizing Radiation, despite the corresponding regulations establish that its presentation is after the authorization is granted; and(iii) the requirements for foreign participation despite the fact that the second paragraph of article 24 of the Radio and Television Law, which supports them, was declared unconstitutional. These aspects were included in the 2013 proposal.
Article 34 – Publication of the extract of the application for authorisation
The publication of the extract of the application will be in charge of the General Directorate of Authorizations in Telecommunications, and will be made on the website of the Ministry of Transport and Communications for 15 days.
With this change, the initial purpose of the obligation to publish the extract is lost, so it would have been better to do without it.
Article 35 – Assessment of the application
It does not make substantial modifications, the changes are only drafting to adapt it to the new article 34.
Article 71 – Renewal of authorisation
The right to publish the resolution in the newspaper El Peruano is suppressed, but unlike articles 29 and 48 it maintains the requirement of legalization and fedateo of the copy of the public deed of modification of statutes.
But the real and important modification of the article is to attribute to the General Directorate of Authorizations in Telecommunications the competence to approve the renewal of an authorization, a substantial change with which it would be seeking to accelerate the attention of such requests.
Despite this important modification whose purpose would be to speed up and accelerate the attention of the renewal procedures, unfortunately the Ministry is left halfway to not have: i) modified article 37 of the Regulation so that the requirements only suspend the period of attention (in fact it implies a real reduction in the processing time of an application); and (ii) including the possibility of remedying non-compliance with the conditions for renewal, such as those identified in the roadworthiness test, which is one of the biggest obstacles to accessing renewal; without this change, the Directorate-General for Telecommunications Authorisations will be able to do little to modify the current criteria and allow broadcasters to correct the problems that arise in the technical inspection.
Finally, it is not clear the level of the resolution that declares approved the applications for renewal by positive administrative silence configured before Supreme Decree No. 022-2016-MTC, considering that the respective fictitious administrative acts occurred when the competent body was the Vice Ministry of Communications and that a competence can only be exercised as soon as it is granted, in this case from the entry into force of the amendment to Article 71. Imprecision that could well have been clarified in the same Supreme Decree issued.
Text written by Patricia Chirinos Noves, lawyer and consultant specialized in broadcasting and disseminated by the Coordinator of Local Media of Peru.
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