Esta ley enmienda la Ley Núm. 121 de 8 de agosto de 2002 para clarificar las facultades y poderes del Procurador de las Personas con Discapacidad en relación con la implementación de dicha ley, específicamente en cuanto al uso de subtítulos y lenguaje de señas en anuncios de servicio público televisados pagados con fondos públicos. La enmienda busca evitar conflictos con la regulación federal de telecomunicaciones y limitar el rol del Procurador a la asistencia y orientación en la presentación de quejas y la colaboración con las estaciones de televisión.
(Approved December 25, 2002)
To amend Section 3 of Act No. 121 of August 8, 2002, in order to clarify the faculties and powers of the Advocate for Persons with Disabilities regarding the implementation of said Act, taking into account the provisions of Act No. 2 of September 27, 1985, as amended.
With the purpose of ensuring access to information to hearing impaired persons, the present Public Administration approved the following Acts: No. 80 of June 9, 2002 and No. 121 of August 8, 2002. The first of these provides for the use of sign language in all local televised news broadcasts and the "closed caption" system in Emergency Alert System bulletins that are transmitted in all local television stations, whether public or private, whenever it is activated; and empowers the Advocate for Persons with Disabilities to establish joint agreements; and for other purposes.
On the other hand, Act No. 121, supra, provides that the subtitle system, also known as "closed caption" shall be used combined with sign language in all public service announcements that involve the use of any environmental sound, sound effect, dialogue or spoken message transmitted by any of the licensed public or private local televisions stations that have been defrayed, in whole or in part, with public Commonwealth or Municipal funds.
What is new about Act No. 121, supra, is that it is the first Commonwealth precedent, to wit, of Puerto Rico, in which the use of public, state and/or municipal funds destined to defray televised public service announcements is conditioned to the fact that persons with disabilities be ensured access to them.
Section 3 of Act No. 121, supra, empowers the Advocate for Persons with Disabilities to establish the regulations needed to comply with the objectives of this Act. The term "regulations" as well as the terms "objectives of this Act" are not entirely clear or explicit, which may create confusion and cause controversies.
With regard to telecommunications, in general terms, the field is governed by federal regulations approved therefor. Therefore, since the regulating power granted to the Advocate for Persons with Disabilities is not entirely clear, it can interfere with the powers vested in the Federal Communications Commission (FCC) through federal legislation. This is because the term "objectives of this Act," in Act No. 121, supra, may be interpreted in two ways. On one hand, it may be interpreted as referring to complying with the objectives of the Act, specifically with regard to Section 2, in which a series of responsibilities is adjudicated to the Advocate for Persons with Disabilities. If this is the case, there would not be any interference with the regulations, but that is not thus expressly defined in the text of the Act. On the other hand, it may be interpreted to refer to the objectives of Act No. 121, supra, to wit, globally. Under this interpretation, some sort of interference with federal regulations could arise thus violating the Act's supremacy principle and invalidating that legislation that is not in harmony with the federal law.
Therefore, the powers that shall be granted to the Advocate for Persons with Disabilities cannot interfere with the powers of the FCC. On the other hand, state governments are not completely limited to establish legislation which regulates said matter provided they are in harmony with federal laws and regulations. Section 601
(c) (1) of the Telecommunications Act of 1996 provides that neither said Act nor its amendments shall modify, substitute or impede any state, federal, local law unless it is otherwise expressly provided by said Act.
Pursuant to the opinion of the Department of Justice issued on S.B. 1199 approved as Act No. 121, supra, the power granted by Section 2 of Act No. 121, supra, to the Advocate for Persons with Disabilities to establish collaborative agreements with local television stations, whether public or private, is valid since the FCC regulations give such stations the primary opportunity to correct any violation. Therefore, the fact that the Advocate for Persons with Disabilities acts as the advisor and coordinator of the efforts to provide "closed caption" services in programming paid with public funds, is congruent with the federal regulations.
Pursuant to the opinion of the Department of Justice, the power of the Advocate for Persons with Disabilities shall be limited to assist and orient persons with disabilities in the filing of complaints before television stations and use his/her faculties and powers to collaborate with said stations so that the service may be provided. Faculties and powers that arise by delegation under Act No. 2 of September 27, 1985, as amended.
In view of the above, it is imperative that the present legislation become effective as soon as possible, so that the vested rights of persons with disabilities by virtue of Act No. 121, supra, especially to hearing impaired
persons, are not affected by possible juridical controversies owing to the lack of clarity or precision of the text thereof.
Section 1.- Section 3 of Act No. 121 of August 8, 2002, is hereby amended to read as follows: "Section 3.- The Advocate for Persons with Disabilities shall use his/her powers and faculties delegated through Act No. 2 of September 27, 1985, as amended, to comply with provisions of Section 2 of this Act."
Section 2.- This Act shall take effect immediately after its approval.
I hereby certify to the Secretary of State that the following Act No. 303 (S.B. 1776) of the $4^{ ext {th }}$ Session of the $14^{ ext {th }}$ Legislature of Puerto Rico:
AN ACT to amend Section 3 of Act No. 121 of August 8, 2002, in order to clarify the faculties and powers of the Advocate for Persons with Disabilities regarding the implementation of said Act, taking into account the provisions of Act No. 2 of September 27, 1985, as amended, has been translated from Spanish to English and that the English version is correct.
In San Juan, Puerto Rico, today $30^{ ext {th }}$ of September of 2004.
Elba Rosa Rodríguez-Fuentes Director