The recent constitutional controversy sued by the Federal Telecommunications Institute (IFT) against the Federal Economic Competition Commission (Cofece) for invasion of powers will mark a true milestone in the regulation of the telecommunications and broadcasting sectors. Normal cases of jurisdictional conflicts between the IFT and Cofece are resolved in a special procedure followed before the collegiate circuit courts specialized in economic competition, broadcasting and telecommunications. However, the procedure before the specialized courts must be initiated before there are definitive resolutions by the IFT or Cofece, both in the case of concentrations and in investigations of substantial power or monopolistic practices. The constitutional controversy now demanded by the IFT is appropriate because it is already a final resolution issued by the Cofece, which the IFT considers invades its powers.
According to the 2013 constitutional reform on telecommunications, the IFT has exclusive powers in matters of economic competition for the telecommunications and broadcasting sectors, there is no question about this. The problem consists of delimiting which economic activities are included in the telecommunications and broadcasting sectors and which are not, and this is where it seems that Cofece is exceeding itself. Although the collegiate courts have determined that Cofece is competent in cases such as Uber-Cornershop, social networks or cloud computing services, the truth is that the resolutions suffer from a certain superficiality and lack of technical knowledge.
For example, a collegiate court decided that WhatsApp services are not telecommunications. Have you considered that WhatsApp telephone services today are an almost perfect substitute for traditional mobile telephony? What is the difference between an SMS message and one on Telegram or WhatsApp? Although they use different technology, the service and the utility for the client are exactly the same. Even so, the courts have ruled that those things that are identical to telecommunications and serve the same purpose, are not telecommunications. I make it more complicated: specialized courts have said that mobile operating systems are telecommunications and, therefore, are the exclusive responsibility of the IFT. Is FaceTime on your iPhone part of the mobile operating system? And if so, why is FaceTime the competence of the IFT and video calls by WhatsApp are the competence of Cofece? Or even more: if mobile operating systems are the competence of the IFT, the operating system of my laptop (let’s say Microsoft’s Windows), which is also portable and connects to Wi-Fi using the radioelectric spectrum, is it also the exclusive competence of the IFT?
The courts ruled that Uber is not a telecommunications service, although you can speak to the driver by phone using the app. Uber, for its part, says that its service only puts the customer in contact and communicates with the private driver who will give him a ride, so they are in no way taxis. So where do we agree? Do you only communicate the customer with the driver (if so, would they be telecommunications) or are they pirate taxis without a concession? Wow, you can’t whistle and eat pinole at the same time.
The case of streaming platforms is even more scandalous. For Cofece, they are not telecommunications services, however, they fall perfectly within the definition of restricted television and audio service established by the Federal Telecommunications and Broadcasting Law: associated audio or audio and video telecommunications service that is provided to subscribers, Through public telecommunications networks, by contract and periodic payment of a pre-established amount. As you can see, Netflix, Amazon Prime, Disney Plus, Blim, and even Spotify are, by law, telecommunications services.
Without a doubt it will be very interesting to know the arguments of the parties in the constitutional controversy and the deliberations of the distinguished ministers. Very good for the IFT, it was time for me to take out the breed given the constant interference of the Cofece in its material field of competence.
@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