Honduras Is A Democracy, Isn't It?

"It is unacceptable and inadmissible to look for a solution to an act by violating the laws of the country"

(Article lead in El Heraldo on August 9, 2010)

We agree. However, the Unión Cívica Democrática (UCD), which promulgated this view in its protests in support of the Honduran Supreme Court Wednesday, revealed a very selective understanding of Honduran law.

The UCD based its protests Wednesday in support of the Supreme Court on the alleged "disrespect" of the Judicial Branch by the Legislative and Executive branches.

The evidence for this "disrespect": a bill approved by Congress that orders CONATEL to use its authority under Honduran and international telecommunications law to migrate Teleunsa S.A. from television channel 8 to another frequency.

According to the UCD this legislation, and the executive action it requires, violates the previous actions of the Judicial branch, which previously delivered a judicial decision that the UCD feels needs to be respected. That court decision ruled that Elias Asfura's Teleunsa company had the right to analogue television channel 8. Notice that Teleunsa isn't losing rights to a television channel-- just to this specific frequency.

The UCD muddies the water about the actions of Congress and the Executive branch, referring to the decision as "the virus of Chavez".

In Honduras, the UCD and business owners have forgotten that in a constitutional democracy, the legislature legislates, the court adjudicates, and the executive branch manages.

In the United States, Congress frequently writes laws to override judicial decisions. In fact, this is so common, there are books on the topic. These books point out that this process often serves the useful function of refining the federal legal code, removing ambiguity in the laws as passed by Congress, and reversing errant judicial interpretations through new legislation.

In short, this is part of the system of checks and balances in a democracy.

The Honduran constitution is not that different in this regard.

It is equally true that legislatures sometimes pass laws that are not in harmony with the constitution of their country. Such laws stay in effect until a court reviews and overturns them.

This seems to be what the UCD, the business interests, and even some legislators in Honduras have conveniently forgotten about democracy.

As Porfirio Lobo Sosa said in an interview in the August 10, La Tribuna,

"My friend (Elias Asfura) has the right, if he feels his rights have been violated, whether it's true or not; he has the right to appeal; the Court will know how to resolve it."

And Lobo Sosa is precisely correct.

Under the laws of Honduras, if Elias Asfura believes his rights have been violated, or that the law transferring his TV station (which is not yet on the air) to another channel is unconstitutional, then he has recourse to the courts.

Of course, the call by the UCD is deliberate forgetting, or better, an attempt to deepen the imbalance between the branches of Honduran government, building on the success of right wing and business interests in setting aside the entire judicial branch and replacing it with the former leadership of the Congress in 2009.

But it is not democracy.

Technical Foul: Corruption in the allocation of Channel 8

A huge amount of ink is being spilt over Honduran TV Channel 8, once used by the Zelaya administration as a government information channel, then allocated to a private businessman by court action, rented back by the de facto regime, then claimed again by the current government.

Stay tuned for further developments. But meanwhile, a word from your sponsors about TV channels in Honduras and how they end up in private hands.

CONATEL is the Honduran agency that is in charge of administration of telecommunications, radio, and television, the equivalent of the US FCC. Its current operating rules were established in 2002 by accord 141-2002 and include procedures for allocating bandwidth and supervising all broadcasters in Honduras. This accord also establishes dispute resolution procedures, not that they were followed in the current case.

That case is the on-again, off-again pursuit of analog Channel 8 by Elias Asfura.

CONATEL had a policy of only allocating the odd analog channels (3,5,7,9,11) to avoid interference between the channels. The FCC used that allocation approach for years in the US before finally allocating some adjacent channels in crowded urban markets.

Technically, in analog television, adjacent channels don't actually overlap, except channels 7 and 8. The frequencies of these two channels do overlap, so that allocating both in the same market assures there will be some interference. The FCC has not allocated both channel 7 and channel 8 in the same market, even in the crowded New York City market.

Channel 7 had already been allocated in much of the country to TeleSistema Hondureña, S.A.

So in 2005, Teleunsa, S.A., owned by Asfura, was denied permission to operate a television station on channel 8 by CONATEL.

Rather than use the dispute resolution solutions specified in the CONATEL rules, Asfura chose to appeal the decision in the courts.

In May, 2007, a lower court found in favor of Asfura and ordered the government to give him channel 8.

Rasel Tomé, then legal counsel of CONATEL, filed an appeal on November 4, 2007, which the appeals court ruled was technically invalid because it was filed one day too late.

CONATEL had valid technical reasons for not allocating channel 8 to Teleunsa, S.A.. Nonetheless, in 2007, when the government requested a channel, CONATEL went ahead and allocated channel 8 to the government, for a period of 15 years, publishing its decree in La Gaceta. On August 10, 2008, the government began broadcasting on channel 8 as the Red Informativa del Poder Ciudadano.

But El Heraldo reported that on August 5, 2008, Rasel Tomé, as legal counsel of CONATEL, had signed CONATEL resolution AS327/08 allocating channel 8 to Asfura.

Under Honduran transparency law, CONATEL posts a document on its website that notes that every authorization/allocation of spectrum, be it a radio station, TV station, or other use, brings with it financial obligations to pay for the rights to the channel, the registration of that right, and for CONATEL's supervision of the operation of that broadcast unit. Resolution AS327/08 cannot be found on CONATEL's listing of 2008 resolutions, but the transparency law in Honduras is not enforced, so that, in and of itself means nothing.

Tomé's lax handling of the case was apparently scandalous. Enrique Flores Lanza, as Zelaya's principal advisor, stripped Tomé of his legal responsibilities at CONATEL. So, between August 5 and November 24, 2008, CONATEL apparently recognized Asfura as the owner of channel 8. But on November 25, 2008, CONATEL appealed the case to the Supreme Court using a new legal team.

Fast forward to June 2009, when in the week before the coup, Channel 8 broadcast Manuel Zelaya's appeals directly to the people from the presidential palace and the speeches of those who came to join him in an attempt to ward off his removal from office.

After the coup, on August 4, 2009, a lower court again awarded channel 8 to Asfura.

By then, the de facto regime had replaced several members of CONATEL and installed Miguel Rodas as its head. Another of Asfura's companies, Eldi, was assigned channel 12, which he won in another legal suit, this one against SOTEL.

Roberto Micheletti recongized the utility of having a government channel and on assuming power after the coup, signed a contract in which the government rented back from Asfura the rights to channel 8 for the duration of his government, 7 months, renting the channel from Asfura for 1 lempira a month. Micheletti rebranded channel 8 Televisión Nacional de Honduras.

Therein lies (part) of the current problem.

As part of the transparency law, CONATEL must post its fees, which in 2008-2010 included a 57,924 lempira annual fee for the right to transmit on a particular channel, fees for spectrum use, annual fees for supervision, etc? Did Teleunsa pay these fees?

When Micheletti rented back from Asfura the broadcast rights on channel 8, he violated CONATELs operating rules, which prohibit any transfer of broadcast rights without review by CONATEL and a corresponding published resolution.

In short, Micheletti acted irregularly in signing an agreement with Asfura. But equally, the courts which repeatedly have ignored the dispute resolution process applicants are supposed to file in order to affirm Asfura as owner of Channel 8 seem, at the very least, to be acting outside their authority.

As CONATEL argues, the airwaves belong to the government. But it would be hard to tell that by the actions either of Micheletti or the courts.