In brief: media law and regulation in Brazil

Media

Summarise the regulatory framework for the media sector in your jurisdiction.

Broadcasting services are regulated by Law No. 4.117/1962 (the Brazilian Telecommunications Code – not to be confused with the General Telecommunications Law) and related decrees, especially Decree No. 52.795/1963.

Radio frequencies, as explained above, are public assets, which the government, through Anatel, licenses to private parties that wish to provide broadcasting services. It is worth stating that, apart from technical issues related to radio frequencies, Anatel does not have authority over broadcasters.

The concessions are valid for 10 years for radio broadcasting and 15 years for TV, renewable for equal periods successively, according to change proposed by Law No. 13.424/2017.

The main regulatory frameworks for cable TV are the General Telecommunications Law (Law No. 9,472/1997) and the SeAC Law (Law No. 12.485/2011). The legislation provides the principles to be followed by cable TV providers and sets up cross-ownership restrictions.

Law No. 12.485/2011 also conceptualises and regulates the activities included in the audiovisual communication field, which are production and programming (regulated by Ancine), as well as packaging and distribution (regulated by Anatel).

Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

Article 222 of the Brazilian Constitution states that the ownership of news and broadcasting companies is exclusive to native Brazilians or naturalised Brazilians who have been citizens for at least 10 years, or to legal entities incorporated according to Brazilian laws, with headquarters in Brazil. In any case, at least 70 per cent of such companies’ total and voting capital must be owned, directly or indirectly, by native Brazilians or by naturalised Brazilians for more than 10 years, who shall manage the companies and control the programming.

Law No. 10,610/2002 also prevents foreign ownership exceeding 30 per cent of the capital stock and the voting capital of news and broadcasting companies.

Regarding cross-ownership of media companies, Law No. 12.485/2011 expressly forbids radio and TV broadcasters, producers and programmers to control or own more than 50 per cent of the total and voting shares of collective interest telecommunications services providers. In turn, the latter are forbidden to own or control more than 30 per cent of the total and voting shares of radio and TV broadcasters, producers and programmers.

What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

The General Telecommunications Law (GTL) provides that the granting of licences is subject to a bidding process conducted by the Ministry of Communications. To obtain the authorisation to use a radio frequency, the interested party must comply with all requirements of the bidding process and pay a public price, which varies from 400 reais to 9,000 reais, and depends on several features, such as bandwidth, term, number of inhabitants in the targeted area, among other things. It is important to note that radio frequency licences are valid for a certain period, after which the party must pay the public price again to continue using the band. After the bidding, Congress has to approve the licence. There is no timetable provided by law.

Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

SeAC Law (Law No. 12.485/2011), which regulates the cable TV sector, imposes local content quotas of at least 210 minutes at prime time to certain cable TV channels, half of whose programmes must be produced by independent Brazilian producers. Moreover, the same law imposes quotas for local cable TV channels that have to be offered by the cable TV operators and programmers.

How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

In Brazil, there are both governmental rules and self-regulation rules regarding broadcast media advertising. When it comes to self-regulation, the National Publicity Self-Regulation Board (CONAR), established in 1980, provides the enforcement of the Advertisement Self-Regulation Brazilian Code, dealing with litigation and disputes regarding consumers and broadcasters.

Under the Brazilian Telecommunications Code (Law No. 4.117/1962), the time dedicated to broadcast of commercial advertisements of broadcasting concessionaires and permissionaires cannot exceed 25 per cent of its daily programming.

Law No. 9.294/1996 also imposes a series of limitations regarding advertising of specific products such as tobacco, alcoholic beverages, medication, treatments and others.

When it comes to online advertising, however, there are no regulations other than those mentioned in the Advertisement Self-Regulation Brazilian Code, which states that all advertising on the internet should be made with special care, with a more restrictive interpretation of all rules that may apply to it. Therefore, as with other advertising, internet advertising should respect the Consumer Defence Code and all rules enforced by CONAR.

Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

Law No. 12.485/11 establishes, in article 32, a list of channels that all programmers must offer in their packages, including open TV channels and governmental channels, among others. There are no mechanisms for financing the costs of such obligations, and the providers must deliver the mandatory channel at their expense, except if proven that the fulfilment of these obligations is impracticable by the provider.

Is new media content and its delivery regulated differently from traditional broadcast media? How?

There is no specific regulation for new media content and its delivery. Nonetheless, Congress is discussing two bills to regulate the video on demand (VOD) market, especially subscription VOD delivered through the internet.

Furthermore, on 16 May 2017, Ancine concluded its analysis of the regulation of VOD, concluding that there should be a specific law for its regulation, and a definition of the service should be established.

When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

The switchover from analogue to digital started with Decree No. 5,820/2006, which was altered by Decree No. 8.061/2013, which provided that the Ministry of Communications would establish the time frame for the switchover. In 2016, the state of São Paulo took the first steps towards making all TV broadcasting digital. On 29 March 2017, the analogue broadcasting signal was shut down in São Paulo city and in 37 other cities around it. On 9 January 2019, analogue signal was switched off in 80 cities, and currently 1,379 cities (around 128 million people) have already switched to digital broadcasting. The complete transition of the remaining 4,191 cities, however, is estimated for 2023, but around 60 per cent of the population already have access to digital broadcasting.

After the switchover, the radio frequencies freed up (700MHz) will have their use designated to mobile networks, improving 4G-based services.

Does regulation restrict how broadcasters can use their spectrum?

Anatel is the competent authority for regulating technical aspects related to the radio frequencies dedicated to each telecommunication service. However, there is no specific discipline regarding how each broadcaster uses the spectrum.

Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

There is no specific legislation regarding media plurality in Brazil. SeAC Law (Law No. 12.485/2011), which regulates cable TV, provides that the diversity of cultures, sources of information, production and programming is one of its principles (article 3, II).

Provide a summary of key emerging trends and hot topics in media regulation in your country.

Ancine is likely to propose the regulation of VOD, including the service provided by ISPs over the top, such as Netflix, Amazon Prime and HBO-GO.

Optical fibre should become the main technology for Brazil’s fixed broadband accesses in the next few years. During the past two years, optical fibre accumulated net additions of 3.9 million accesses, while xDSL accesses shrank by 1.1 million.

Law stated date

Give the date on which the information above is accurate.

20 April 2020