The president commissioner of the Federal Institute of Telecommunications (IFT) referred to the analysis that it is carrying out regarding the request presented by Claro TV to obtain a concession that allows it to provide television services. It should be noted that, contrary to what was stated in several journalistic notes, the prohibition for América Móvil and all the other companies that make up the preponderant economic agent in telecommunications (AEPT) to provide television services, was not established in the asymmetric regulation that is imposed, but in the 1990 Telmex concession title, which literally reads: “[Telmex] it will not be able to exploit, directly or indirectly, any concession of television services to the public in the country ”. Therefore, what must be analyzed is whether or not the provision of television services by Claro TV, using Telmex’s infrastructure, implies the indirect provision of these services, in violation of Telmex’s concession title.
According to the president of the IFT, one of the elements that they are evaluating is the fact that Claro TV was not constituted when all the companies of the Slim family were declared as AEPT. In reality, this is irrelevant because, as I mentioned, the prohibition to provide television services does not derive from AEPT’s declaration but from Telmex’s concession title.
It is an open secret that some IFT officials, in a superficial way, would think that: (i) because it was created after the declaration of preponderance, it does not apply to Claro TV; and (ii) that the prohibition only applies to Telmex subsidiaries and not to affiliated companies. These alleged “legal” arguments, which are not shared by everyone within the regulator itself, much less by various commissioners, are fallacious because: (i) the IFT has already considered companies incorporated after the declaration of the AEPT as members of the AEPT. preponderance (as in the case of Telesites, América Móvil’s tower company); and (ii) there is no legal provision in the entire Mexican legal order that distinguishes between subsidiaries and affiliates for the purposes of concessions or economic competition. It is clear that no law or administrative act can be applied retroactively, but it is nonsense that the regulation does not apply to new members of the economic agent controlled by the Slim family.
It would be ironic that the IFT did consider Inbursa part of the AEPT and claims that Claro TV, a 100% subsidiary of América Móvil (like Telmex), is not. But beyond this, the unquestionable fact that Claro TV would use Telmex’s infrastructure to provide television services is more worrisome. If a company controlled by the Slim family provides television services using the infrastructure of another Slim family company, this constitutes indirect exploitation here and in any other legal system.
It is not worth going into a lot of technicality, but there are solid judicial precedents that establish that an economic agent does not identify or have a relationship with the legal concept of person (physical or moral), since it does not respond to a “who”, but to a “how” to participate in the markets. The concept of economic agent is not associated with a particular legal person, but with the way in which subjects intervene in the markets. Thus, the concept of economic interest group alludes to an inherently dynamic figure, which is configured based on the common control and influence exercised over a group and the significance of its activity in markets and competition. But at the end of the day, this group seems to have several non-compliances: it has not fulfilled the requirements to give video, it has not started the reconstruction of Line 12 of the subway and it has a significant lag in the Mayan Train. All of them sensitive issues in Q4.
@gsoriag
President of IDET
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Lawyer specialized in regulated sectors. President of the Institute of Telecommunications Law (IDET). Doctoral student in modern letters at the UIA.
Reference-www.eleconomista.com.mx