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In the last three installments I have commented on the various arguments being analyzed within the Federal Institute of Telecommunications (IFT) to see if they authorize or not the provision of restricted television services to Claro TV, a subsidiary of Telmex and a subsidiary of America Móvil, who are part of the Preponderant Economic Agent in Telecommunications (AEP-T). If everything goes according to schedule, the IFT Plenary will analyze the matter today.

Telmex is expressly prohibited from providing television services, directly or indirectly. For its part, the AEP-T cannot provide additional services to those it provided on the day it was declared preponderant. However, both the Constitution and the Federal Telecommunications and Broadcasting Law (LFTR) expressly establish the requirements and the procedure for the IFT to be able to (I) eliminate the prohibition of Telmex’s concession title, and (II) authorize the AEP-T the provision of some additional service, such as restricted television. So, why is it intended to evade the requirements and the procedure established in the Constitution and the LFTR, pretending that they are not applicable to Claro TV?

You will find the answer yourself. The fourth transitional article of the 2013 Constitutional Reform establishes the specific requirements that the AEP-T must meet in order to be authorized to provide additional services, including effective compliance with the preponderance measures and that no damage is caused to economic competition. For its part, the eleventh transitory article of the LFTR establishes that harm is caused to economic competition when “said authorization may have the effect of increasing the participation in the corresponding sector of the preponderant economic agent or of the economic interest group to which Concessionaires whose concession titles contain any prohibition or restriction to provide certain services belong to the participation determined by the Federal Institute of Telecommunications in the resolution by which it was declared a preponderant economic agent in the corresponding sector.

These same requirements were established by the IFT on May 28, 2014, through the publication in the Official Gazette of the Federation of the Guidelines to authorize the provision of additional services. The Guidelines resumed the obligation of the AEP-T to comply with the legislation, as well as with its concession title and with the asymmetric measures that were imposed on it, as a condition for the provision of the additional television service to be authorized. Likewise, the authorization is also subject to the condition that it does not generate adverse effects on competition.

Based on the foregoing, it must be concluded that in order for América Móvil or any of the members of its economic interest group to be able to provide television services, either directly or indirectly, the following conditions must be met:

1. That it is in full compliance with all applicable legislation;

2. That it is in effective compliance with the asymmetric measures that have been imposed on it, and

3. That the authorization of the service cannot have the effect of generating an increase in the participation of the AEP-T with respect to that determined by the IFT in the preponderance resolution.

To date, there is no study or document prepared by the IFT that establishes that the AEP-T (I) complies with all legislation; (II) has effectively complied with the preponderance measures, or (III) by authorizing the television service there is no risk that the AEP-T will increase its participation in the telecommunications sector. Without compliance with these requirements, any authorization for the AEP-T to provide television services would be fraudulent.

For this reason, the AEP-T prefers not to have to comply with the requirements, knowing that the brave person has not yet been born in the IFT who dares to sign that the AEP-T meets all the established requirements and that there is no possibility of to increase its participation in the sector if it is authorized to provide television services.

@gsoriag

Gerardo Soria

President of IDET

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Lawyer specialized in regulated sectors. President of the Telecommunications Law Institute (IDET). Doctorate in modern letters at the UIA.




www.eleconomista.com.mx

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