On Monday, Marco Antonio Mares in El Economista, and on Tuesday, Darío Celis in El Financiero, gave the news that, apparently, the Federal Telecommunications Institute (IFT) would be evaluating granting América Móvil the authorization to provide restricted television services through Claro TV, using, of course, the infrastructures of Telmex and Telnor (hereinafter, Telmex). According to the information shared by the respected journalists, there is a document prepared by the IFT which they called “Convergence Study”, in which it is concluded that having requested the concession through a recently constituted company, called Claro TV, The prohibition established in the Telmex concession title, which prevents it from providing, directly or indirectly, television services to the public would not be applicable.
The first thing that stands out, in addition to the lack of legal depth of said conclusion, is that the IFT seems to overlook the fact that Claro TV lacks its own infrastructure, so it would necessarily have to use Telmex’s infrastructure to provide the service of restricted television, which, without a doubt, would imply the indirect provision of the service in flagrant violation of the provisions of the Telmex concession title. It seems difficult for the IFT to have made a study with this conclusion, given that there is the Dish-Telmex precedent, which merited a sanction, which dates back to January 7, 2015. When resolving this matter, it was established that the contractual relations between Telmex and Dish México constitutes a concentration that should have been notified before it was carried out.
Claro TV is a 99.99% subsidiary of Sercotel, which, in turn, is a 99.99% subsidiary of América Móvil. Telmex is also a 98.70% subsidiary of América Móvil, therefore, both Telmex and Claro TV are subsidiaries of América Móvil and affiliated with each other, with which the precedent of Telmex-Dish applies even more so. América Móvil, Telmex, Telcel, Carso and Inbursa, together with all their affiliates, subsidiaries or associates constitute the Preponderant Economic Agent in Telecommunications (AEPT).
Thus, the only possibility that Telmex has to offer the video service is for the company to request it directly. In fact, a request in this regard was rejected by the IFT this year, as incomplete. Now, the Constitution and the law establish the path that the AEPT would have to follow in the event that it intends to be authorized to exploit an additional service such as video, any strategy that results in avoiding all obligations and conditions that you would have to meet in order to obtain the intended authorization is simply a fraud of the law.
As we have already indicated, Telmex is expressly prohibited from directly or indirectly exploiting any concession of television services to the public in the country, as would be the case if Claro TV obtains the concession. It seems to me that someone is leaking erroneous information that has nothing to do with the discussions, documents and precedents that are in the IFT.
It is valid to conclude that, if the IFT indicated that América Móvil and subsidiaries are an economic interest group, the nominal designation of its members is not exhaustive, since this resolution implies the recognition that other people can join that group in a function of common control and influence that, in real terms, is shared with the originally identified economic agents.
What is published in the Marco Mares note is striking, in the sense that the IFT would authorize Claro TV to provide television services, but at the same time it would force it to comply with the asymmetric regulation established by the AEPT. This shows the lack of solidity of the “Convergence Study”: if Claro TV has to comply with the asymmetric regulation of the AEPT, then it is part of the same economic interest group as Telmex and, therefore, the provision of the television service by Claro TV would necessarily imply the indirect provision of said service by Telmex, in violation of its concession title.
Someone is simply taking advantage of the legal ignorance of serious journalists to put pressure on the IFT and the government of President López Obrador.
@gsoriag
President of IDET
Backup
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