That umbrella we employed it

Posted on Tuesday, December 11, 2018

Perhaps because I grew up and spent more than half my life in an Anglo-Saxon country, I do not really appreciate what the purpose of so-called ‘Ley Marcos’ – known in English as framework or umbrella laws – might be. The proposed Colombian Telecom umbrella law seems to be having a bad time of it.

My understanding of umbrella laws is that – as the name implies – they provide a framework for subsequent legislation and regulation. In countries that are ruled by modern variants of the Napoleonic Code, everything which is not explicitly described in a law is prohibited. By contrast, in Anglo-Saxon legal systems, anything which is not prohibited in a law is permitted. Thus, in Latin American and many parts of Europe, absent an umbrella law it would be difficult to create regulations without passing specific laws through Congress.

In practice, governments cannot resist making these closer to ‘omnibus’ laws that not only provide a framework but pack a large number of specific regulations into the text, forcing legislators to deal with the whole package, both high-level principles (to which they might be in agreement) and low-level implementation (for which they might have reservations).

By August she was mine

In Colombia, President Iván Duque was sworn in on August 7th of this year and every bit the modern, executive-like leader, the focus at his inaugurations was effectiveness and speed. He and his team had clearly been working hard, not only during the just-under two months between the election and swearing-in ceremony but probably before. A number of laws were tabled in Congress on the very day he took office and several followed shortly thereafter.

ICT Minister Silvia Constaín was also sworn-in on August 7th along with the rest of his cabinet – also unusually efficient in Colombian practice. Within a few weeks we were hearing about a new umbrella law and by the time she was accepting speaking opportunities, the bill had been introduced for debate. She encouraged – even harangued – industry audiences to advocate for the legislation, especially in social media.

Except she had not given us much detail to advocate for.

The high-level, umbrella description was that it was (finally) a convergent regulation that did not talk about communications technology when setting the rules. In particular, the existing telecom regulator (CRC) and television regulators (ANTV) would be merged. Like most countries, frankly, Colombia still licenses over-the-air television stations and treats them differently from channels that are only distributed over cable (like ESPN, Discovery or Fox) and there is no regulation for OTT channels like Netflix.

The country had already separated its spectrum regulator (the ANE) from the CRC and ANTV so this law would be consistent with that decision.

Technology-free regulation is something everyone can sign-up for – except perhaps the television operators who like to celebrate their uniqueness and rail against the Internet.

Silly but it’s true

However, much as we might think this view reflects an unrealistic ‘dinosaur’ attitude, television still has a dominant influence over voters through advertising and news coverage. Netflix and YouTube political commentators may be the future but the former does nothing for politicians today and the later only cause problems. If the established television operators express their opposition to convergent regulation, politicians will listen.

As well, the government had indeed given in to the temptation to go beyond the umbrella principle and include a number of specific regulations, including changing license fees and annual license payments for certain classes of television operators. That was guaranteed to get the lobbyists going.

As early as September, there were rumors that opposition was building. The Minister is an experienced private sector executive – including experience in government relations – but she is a political neophyte. There are stories that Senator María del Rosario Guerra, a far more seasoned congressional veteran and a former ICT Minister herself, has an alternative draft law which is sometimes described as the polar opposite of the official government position at least so far as television is concerned.

The unexpected part of this story is that Senator Guerra is from the same political party as the President. Given that he does not enjoy an absolute majority in either chamber of Congress, opposition in his own ranks, coming from a senior party member, is likely fatal for the bill.

As if we were both quite insane

This week, a respected senator from the real opposition, wrote a letter to the Minister, asking her to take the bill “slowly” pointing out that the country had other issues like children dying of malnutrition in the north of the country and a UN study saying that, on average, one social leader per week is assassinated in Colombia. Why, he was asking implicitly, is this a priority?

The draft law was probably well advanced even before the President and the Minister took office at the first of August. It was tabled in September. Now it is December, Congress is about to shut-down for the year-end break and the bill will have to be re-introduced (starting from zero) next year, unless the Minister succeeds in ramming it through in the coming few days.

Today’s ‘topic of the day’ on local talk radio is the changes to how public broadcasters are treated by the new law. They say it will kill them. (Colombian ‘talk radio’ is a fairly high-level affair and ‘public broadcasting’ includes both ‘PBS-like’ services that few watch and local broadcasting that does get a lot of viewership.)

I have to admit I am not entirely clear what the lesson is here.

There are some political lessons that are no doubt very specific to Colombia (like the dissention within the President’s own party) which have little universal applicability.

There is a global point about technocratic ministers with extensive business experience but no knowledge of how to ‘work the system’ and get their plans through the legislature. (My upbringing in a Commonwealth country makes me call this an inherent weakness of Presidential systems vis-à-vis Parliamentary systems, but many would not agree with me.)

But the main point I want to make is about the clash between technology and politics when it comes to regulation.

There is no question that the convergent regulation is the sensible response to the rapidly growing use of the Internet for activities that traditionally were served by television and radio, from entertainment to news to advertising. But there is the reality of the incumbent television operators and their continuing influence over politicians and legislative processes. They play too important a role in getting politicians elected for broadcasters not to have influence.

As a good executive, the Minister was pushing her project to completion based on a deadline she committed to with her boss. She has the weight of technology behind her. As a neophyte politician, she has run into a brick wall caused by the reality of television’s influence over voters. She has the brick wall of politics – within her own party even – against her.

As Enrique Carrier tweeted last week in response to my comment about hype-cycles: “The considerations must not only be technological. One also has to consider economics and regulation,” to which I would add “politics”.

Title Reference: The title and sub-titles are from Bus Stop a 1966 hit by The Hollies. It got to number 1 in Canada and Sweden (which have Parliamentary systems) but only number 5 in the US (Presidential). I have to admit I had forgotten this was the Hollies until I started looking up the references. I had thought it was by Herman’s Hermits and it turns out this band did cover Bus Stop but it was never a hit or even released as a single so I have no idea where I got that notion.


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