Precisions about Claro TV (2)

As I have told you, it has transpired that the Federal Telecommunications Institute (IFT) is analyzing whether or not the provision of television services by Claro TV would violate Telmex’s concession title, to determine whether or not to authorize América Móvil, through Claro TV or any other of its companies, the operation of the television service. But let’s go to the letter of the prohibition that Telmex has had since 1990:

1-9. Distribution of Television Signals

-The distribution of television signals consists of a telecommunication service that is carried out in one direction to several reception points simultaneously.

-“Telmex”, prior authorization from “The Secretariat”, may distribute television signals through its network to companies authorized to provide television services to the public, under the terms of the applicable laws and regulations.

-“Telmex” may not exploit, directly or indirectly, any concession of television services to the public in the country.

Before analyzing the scope of Telmex’s prohibition to indirectly exploit television services in Mexico, it is essential to put the issue in historical perspective. Today, Telmex and Claro TV are almost 100% subsidiaries of América Móvil, but this was not always the case. In reality, América Móvil was born as a spin-off from Telmex itself in 2000 with the same control group headed by the Slim family. Subsequently, América Móvil exchanged shares of Telmex and Telmex became its subsidiary. Lastly, a couple of years ago, América Móvil set up Claro TV, which makes it a subsidiary of Telmex. In a few words, neither América Móvil nor Claro TV are legally separate from Telmex, on the contrary, they are its evolution. That is, they are his successors in title and beneficiaries.

In terms of condition 1-9 of Telmex’s concession title, Telmex is prohibited from providing television services and cannot do so indirectly. In this way, and from the very literalness of condition 1-9, it follows that television services cannot be provided, neither by Telmex, nor through third parties. It is worth mentioning that condition 1-9 does not establish any limitation on the scope of the “indirect” provision of the television service, so the prohibition, in addition to including subsidiaries, affiliates or companies that are part of its economic interest group, covers to any person, physical or legal, that provides services in the name, representation, for the benefit or on behalf of Telmex, regardless of the legal relationship with it.

The foregoing criterion has also been upheld by the IFT itself, ruling on the matter on March 29, 2017 within an administrative procedure for the imposition of sanctions against Telmex¹, where it stated that “the obligations and restrictions imposed on the concessionaire subjectively and directly limit , as well as indirectly to all the people or companies with which it is linked” without distinguishing whether the link is one of subordination, supraordination or any other schematic criterion, it also points out that “by means of the formula ‘directly or indirectly’ the community cannot be ignored. of interests that may exist between the various related parties, since the fact that they are different natural or legal persons is not an obstacle to determining that there is a coordination, intention or common interest […]”.

For this reason, any interpretation that pretends to argue that the prohibition of Telmex to operate television services in Mexico, even indirectly, does not affect Claro TV, as if it were not part of the same group of economic interest and of the Preponderant Economic Agent in Telecommunications and will not ultimately benefit the same people: the Slim family and its partners.

¹ Resolution P/IFT/290317/164, available online in the Institute Portal: http://www.ift.org.mx/sites/default/files/conocenos/pleno/sesiones/acuerdoliga/versionpublicaucpift290317164.pdf.

@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.



Reference-www.eleconomista.com.mx

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