Esta ley enmienda la Ley Orgánica del Departamento de Asuntos del Consumidor (DACO) para extender la prohibición de publicidad gubernamental en programas de televisión no clasificados o para adultos a la publicidad en programas de radio con contenido indecente. Establece un Consejo Asesor para clasificar programas y juguetes, y autoriza a DACO a imponer multas por incumplimiento. También define excepciones para publicidad educativa o en situaciones de emergencia.
(Approved August 9, 2002)
To amend the first paragraph and subsections (1), (4) and (5) of Section 6-A; to repeal and adopt a new Section 6-C and add a new Section 6-C1 to Act No. 5 of April 23, 1973, as amended; and to amend Section 3 of Act No. 128 of August 9, 1995, as amended, known as the "Organic Act of the Department of Consumer Affairs," in order to extend its provisions to the advertising of government agencies in radio programs or to exclude from said provision certain public advertisements that are essentially educational; and to broaden the powers of the Advisory Board of the Department of Consumer Affairs on Television Programs, Video Games and Hazardous Toys Rating Systems.
The Act approved to prohibit the agencies and public instrumentalities of the Commonwealth of Puerto Rico from advertising in any television program that has not been rated or recommended for adults only was aimed toward contributing to provide citizens with sound living environment.
In view of the growing incidence of advertising, previews and film trailers containing obscene, indecent or pornographic material, it is essential to extend the prohibition of Section 6-B of Act No. 5 of April 23, 1973, as amended, to include advertisement on the radio. In this manner, the adults and children that listen to radio in the Commonwealth of Puerto Rico shall be assured that none of its agencies, dependencies or instrumentalities advertise or sponsor television and radio broadcasts of material that is sexual, obscene, indecent, and pornographic in nature, or containing violence or offensive language.
Section 1.- The first paragraph and subsections (1), (4) and (5) of Section 6-A of Act No. 5 of April 23, 1973, as amended, are hereby amended to read as follows:
The Advisory Board of the Department of Consumer Affairs on Television Programs, Video Games and Hazardous Toys Rating Systems, hereinafter "Advisory Board or Board," is hereby created to advise the Secretary on the design of guidelines for the classification of television programs and video games according to their content, and on the norms applicable to hazardous toys or that could induce or promote violence in children. In order to comply with these purposes, the Board shall have the following duties: (1) Advise the Secretary on the television programs rating system, adopted voluntarily by television stations and share its experience and opinion with the Director of the Citizen's Orientation Office Against Obscenity and Child Pornography in Radio and Television. (2) $\ldots$ (4) Prepare and adopt a plan to recommend to the Secretary the norms to coordinate and guide other public agencies in the implementation of the public policy regarding sponsoring or advertising in television and radio programs, as provided in Section 6-B of this Act. (5) Grant dispensations to public agencies to be excluded from compliance with Section 6-B of this Act for the causes set forth in subsections (1) and (2) of Section 6-C thereof; and to intervene and resolve requests for review of the determinations of the Secretary for failure to comply with said Section.
The Advisory Board shall adopt the regulations needed to exercise the duties assigned in this Act. The Secretary shall provide it with the office space, equipment and services needed to perform its duties. The Board and the Secretary shall prepare an annual joint report of its activities, which shall include its achievements, goals, objectives and recommendations, in accordance to the functions and purposes for which the Board is created. Said report shall be rendered by calendar year, and shall be submitted to the governor and the Legislature of Puerto Rico on or before January 31 following the year to which it corresponds.
The Advisory Board shall be constituted be seven (7) members representing the public interest appointed by the Governor with the advice and consent of the Senate of Puerto Rico. They shall be persons of recognized interest in the problem of messages involving violence and sex that are transmitted to children and youths through the television and radio, video games and toys for their entertainment. The initial appointments shall be two (2) for a term of one (1) year, two for a term of two (2) years and three (3) for a term of three (3) years. Subsequent appointments shall be for a two (2) year term. The members of the Board shall carry out their functions until their successors are appointed and take office. The Governor shall designate a Chairperson from the members of the Board.
The members of the Board shall be entitled to per diems equal to the minimum per diem established in the Political Code for the members of the Legislature, with the exception of the Chairman of the Board who shall receive a per diem equal to one hundred and thirty-three percent (133%) of the per diem received by its other members."
Section 2.- Section 6-B of Act No. 5 of April 23, 1973, as amended, is hereby amended to read as follows:
"Section 6-B. Prohibitions It is hereby prohibited that any agency, department, bureau, office, dependency, instrumentality, public corporation or subsidiaries thereof, municipalities or political subdivisions of the Government of Puerto Rico sponsor or advertise in a segment that transmits a television program that is not classified, recommended for adult viewing or has a sexual content, strong language and intense violence or adult themes, profane language, graphic violence and explicit sexual content, according to the classification system adopted voluntarily by the television stations. Likewise, they shall not sponsor or place adds in radio programs containing indecent material as defined and regulated by the Federal Communications Commission. The prohibitions established above are extended to any promotional or public service agreement. The Secretary is hereby authorized to impose an administrative fine of not less than five hundred (500) dollars nor greater than one thousand $(1,000)$ dollars for each violation to the provisions of this Act. From the penalty imposed, one fourth shall be paid from the private money of the Secretary, Executive Director or Head of the public agency that incurs the violation. The funds generated from these fines shall be covered into a special account to defray the operating expenses of the Advisory Board.
The administrative fine shall be rendered ineffective in the event of one of the following circumstances: (1) $\ldots$ (2) $\ldots$ (3) $\ldots$
(4) evidence is produced that the Advisory Board expressly dispensed it from compliance of this Section for any of the exceptions established in subsection (1) and (2) of Section 6-C of this Act.
Any person who disagrees with the fine imposed by the Secretary may request a review of said determination to the Advisory Board. The Board, in accordance to the information furnished by the Secretary and the affected official may ratify, modify, or render ineffective the fine imposed. The determination of the Advisory Board shall be final and may not be appealed.
All that is herein provided is expressly excluded from the provisions of Act No. 170 of August 12, 1988, as amended, known as the "Uniform Administrative Procedures Act."
Section 3.- Section 6-C is hereby repealed and a new Section 6-C is hereby adopted of Act No. 5 of April 23, 1973, as amended, to read as follows: "Section 6-C.- Exceptions The Advisory Board may dispense public agencies from compliance with the provisions of Section 6-B of this Act in the following cases: (1) The topic or content of a radio or television program offers the ideal opportunity to show educational advertisements on its same subject matter and the agency that requests the dispensation has the legal mandate to educate on the subject matter of the advertisement. (2) Marketing studies show that the audience of the radio and television program is mostly constituted by the population to which the advertisement is addressed and is not an advertisement to promote carnivals, festivals, patron saints festivities, camps, public shows, exhibitions, anniversaries,
contests, sports clinics, competitions, championships, Olympic games and other of a similar nature.
A dispensation from the Advisory Board shall not be required when the public advertisement is necessary and urgent because: (1) There is a state of emergency declared by the Governor, as provided by the provisions of Act No. 211 of August 2, 1999, as amended, known as the "Commonwealth of Puerto Rico Emergency Management and Disaster Administration Act." (2) There is an emergency caused by a disaster, catastrophic accident or similar situation within the geographic boundaries of a municipality declared as such by the Mayor, pursuant to Section 3.009 of Act No. 81 of August 30, 1991, as amended, known as the "Autonomous Municipalities Act."
Section 4.- A Section 6-C1 is hereby added to Act No. 5 of April 23, 1973, as amended, to read as follows: "Section 6-C1.- Definitions For the purposes of the application of Sections 6-A, 6-B and 6-C of this Act and of Section 3 of Act No. 128 of August 9, 1995, as amended, the term "public agency" shall mean every department, office, agency, administration, bureau, authority, program, commission, board, public corporation and subsidiary thereof, municipality and every other dependency and instrumentality of the Commonwealth of Puerto Rico, regardless of its denomination.
The terms "emergency" and "disaster" shall have the same meaning and scope given to them in Act No. 211 of August 2, 1999, as amended, known as the "Commonwealth of Puerto Rico Emergency Management and Disaster Administration Act" and its regulations."
Section 5.- Section 3 of Act No. 128 of August 9, 1995, as amended, is hereby amended to read as follows: "Section 3.- In order to prohibit Government advertising as established in Section 6-B, which is added to Act No. 5 of April 23, 1973, as amended, the television programs rating system which was adopted voluntarily by the commercial television stations shall be taken into consideration. With respect to the radio, it shall be taken into consideration if the content is of an indecent nature, according to the definition and regulations of the Federal Communications Commission.
Every contract executed to place government advertisement on television shall contain a clause that expressly establishes that no advertisement shall be transmitted on a program that has not been rated, recommended for adult viewing only or with topics of sexual content, strong language and intense violence or of adult themes, and graphic sexual content, according to the rating system adopted voluntarily by the television stations, except as provided in Section 6-C of Act No. 5 of April 23, 1973, as amended. When the Advisory Board of the Department of Consumer Affairs Television Programs, Video Games and Hazardous Toys Rating Systems has granted a dispensation to the public agency to publish the advertisement, an attesting copy thereof shall be included as part of the contract. The contracts for radio advertisements shall include a similar clause.
Furthermore, every contract to place government advertisements on television and radio shall have a penal clause for the purpose to impose a penalty of one thousand $(1,000)$ dollars for every government advertisement transmitted in violation of the prohibition established in Section 6-B of said
Act. The noncompliance with this prohibition shall be sufficient cause to cancel said contract."
Section 6.- The Secretary of the Department of Consumer Affairs, in coordination with the Secretary of State, shall inform the purpose, scope and application of this Act to the Secretaries, Executive Directors, Mayors, Heads of Agencies of the departments, agencies, bureaus, offices, administrations, boards, commissions, public corporations, municipalities and other dependencies and instrumentalities of the Commonwealth of Puerto Rico. This communication shall be made in writing within twenty (20) working days as of its approval.
Section 7.- Effectiveness This Act shall take effect immediately after its approval for the sole purpose that the Secretary of the Department of Consumer Affairs discloses its adoption, but its remaining provisions shall take effect sixty (60) days after its approval.
I hereby certify to the Secretary of State that the following Act No. 146 (S.B. 1593) of the $4^{ ext {th }}$ Session of the $14^{ ext {th }}$ Legislature of Puerto Rico:
AN ACT to amend the first paragraph and subsections (1), (4) and (5) of Section 6-A; to repeal and adopt a new Section 6-C and add a new Section 6-C1 to Act No. 5 of April 23, 1973, as amended; and to amend Section 3 of Act No. 128 of August 9, 1995, as amended, known as the "Organic Act of the Department of Consumer Affairs," in order to extend its provisions to the advertising of government agencies in radio programs or to exclude from said provision certain public advertisements that are essentially educational; etc., has been translated from Spanish to English and that the English version is correct.
In San Juan, Puerto Rico, today $15^{ ext {th }}$ of December of 2004.
Elba Rosa Rodríguez-Fuentes Director