38. U.S. letter to International Telecommunication Union regarding Cuban complaints (November 18, 2004)
United States Department of State
Washington, D.C. 20520
Mr. Valery Timofeev
Director, Radiocommunication Bureau NOV 18 2004
International Telecommunication Union
Place des Nations
CH-121 1, Geneva 20
Dear Mr. Timofeev: ____ ______
We are aware of a number of Cuban complaints to the ITU concerning efforts by the United States to make available certain television programming to the Cuban people via broadcasts from an aircraft flying in U.S. airspace. One such complaint was filed by Cuba with the Radiocommunication Bureau (BR) in May, 2003 and numerous similar complaints have been filed by Cuba with the BR, or made orally by Cuba at ITU Council, since that time. The Cuban complaints have charged that this broadcasting service violates the ITU Constitution and certain provisions of the Radio Regulations.
The United States takes seriously its obligations under the ITU Constitution and the Radio Regulations and welcomes this opportunity to respond to these Cuban complaints. On certain occasions, the United States has been operating an aircraft from within United States airspace to b1oadcast television programming to the Cuban people on Channel 13 (2 10-216 MHz). Before undertaking these broadcasts, the United States carefully considered whether they would be consistent with the ITU Constitution and with the Radio Regulations. Indeed, the President’s Commission for Assistance to a Free Cuba, which recommended such broadcasts, stated they should be undertaken “consistent with the United States international telecommunication obligations.”
The Cuban government has made a number of claims about these broadcasts, to which the United States responds below. First, Cuba asserts that, by carrying out a broadcasting service in this manner, the United States violated Article 23.3 of the Radio Regulations (Geneva, 1979 as amended), which it claims prohibits cross-border broadcasting.1 Article 23.3 provides that:
In principle, except in the frequency band 3,900 -4000 KHz, broadcasting stations using frequencies below 5060 KHz or above 41 MHz shall not employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned.
The consistent United States position concerning Article 23.3 is
that, contrary to the Cuban view, it is not an absolute prohibition against cross-border broadcasting. The United States’ position on Article 23.3 was spelled out in detail in a number of written communications to the BR’s predecessor, the International Frequency Registration Board (IFRB), during the period from February, 1990 to April, 1992, which communications included, inter alia, a detailed Annex examining the background and history of this provision. In the view of the United States, Article 23.3 establishes a general rule of minimizing transmitter power (“[un principle”), while allowing for appropriate exceptions to that general rule, provided that the broadcasting service is otherwise consistent with relevant provisions of the Radio Regulations. The United States has long understood that use of the term “in principle” indicates that the Member States that agreed to this provision did not intend to establish an absolute restriction on cross-border broadcasting activities but only to minimize transmitter power so that additional broadcasting stations could be more easily accommodated.
1In some of the earlier communications on this matter, Cuba asserted that such broadcasts also violate Article 23.2 of the Radio Regulations. That Article states as follows:
The establishment and use of broadcasting stations (sound and television broadcasting stations) on board ships, aircraft or any other floating or airborne objects outside national territories is prohibited (emphasis added).
The United States broadcasts do not contravene Article 23.2. As noted in the emphasized
language, Article 23.2 only prohibits such broadcasts from ‘outside national territories.” As
explained in the text, all of the broadcasts of which Cuba complains took place from within U.S.
airspace and therefore are fully consistent with Article 23.2.
Further, past and current practice by ITU Members runs counter to an interpretation of Article 23.3 as an absolute prohibition
of cross-border broadcasting. There are numerous examples, past and present, of cross-border broadcasting services, including many broadcasting stations operating in Europe and Asia and on the United States’ borders with Canada and Mexico.
The current broadcasting service into Cuba by the United States from within U.S. airspace is entirely consistent with this well-established and internationally accepted practice of cross-border broadcasting. The United States broadcasts do not violate Article 23.3 of the Radio Regulations.
The Cuban government also contends that the broadcasting service is causing harmful interference to Cuban television services registered in the Master International Frequency Register and is contrary to the Preamble of the ITU Constitution. With respect to the claim of harmful interference, Article 45 of the ITU Constitution states as follows:
All stations, whatever, their purpose, must be established and operated in such manner as not to cause harmful interference2 to the radio services or communications of other Member States. . . . which operate in accordance with the provisions of the Radio Regulations.
As stated above, the United States takes seriously its obligations under Article 45 of the ITU Constitution to operate its broadcast stations in such a manner as to avoid harmful interference to the radio services or communications of other Member States. The United States is not aware of any actual interference occurring to Cuban stations as a result of these broadcasts.
2The ITU Constitution defines “harmful Interference” as “interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunication service operating in accordance with the Radio Regulations.” ITU Constitution, Ann. 1003.
With respect to the claim by the Cuban Administration that the broadcasting service is contrary to the Preamble of the ITU Constitution, the United States notes that the portion of the Preamble quoted by the Cuban Administration states that the ITU Constitution has the object of “facilitating peaceful relations, international cooperation among peoples and social development by means of efficient telecommunication services.” The United States asserts that the activities of the Cuban Administration, rather than any activities of the United States, are in conflict with these goals. The Castro regime controls all formal means of mass media and communications on the island of Cuba, including radio, television, print media as well as access to the Internet. Further, the Cuban Communist Party exerts strict editorial control over all news publications and all radio and television broadcasting. The purpose of such a tyrannical control over access to information is to restrict the ability of the Cuban people to obtain timely, accurate and reliable information about current events, social, political and economic developments and human rights and fundamental freedoms.
The Cuban Administration’s opposition to Radio and TV Marti, similar to its other recent actions, such as the imprisonment of prisoners of conscience and expulsion of three European parliamentary members, is driven by fear of the consequences were the Cuban people to receive uncensored information about their own country and the world around them, a freedom to which they are entitled under Article 19 of the Universal Declaration of Human Rights. That Article states as follows:
Everyone has the right of freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Similar provisions are found in Article 19(2) of the International Covenant on Civil and Political Rights. The broadcasting service undertaken by the United States is for the purpose of imparting information and ideas to the Cuban people, regardless of the artificial frontiers that the Cuban government seeks to erect against the free flow of accurate and reliable information to the Cuban people. It is fully consistent with the Preamble to the ITU Constitution; it is the activities of the Cuban Administration that are contrary to “facilitating peaceful relations, international cooperation among peoples and social development by means of efficient telecommunication services.”
In sum, the actions of the United States are consistent with the relevant provisions of the Constitution of the International Telecommunication Union and the Radio Regulations.
Richard C. Beaird
~ U.S. Coordinator for International ~
Communications and Information Policy, Acting