Mexico has problems in various sectors of the economy, either because they are highly concentrated and competition is far from effective, or simply because the government, instead of helping, hinders. The telecommunications sector is one of them. I find it very worrying that even after the magnificent constitutional reform of 2013, which provided the Federal Telecommunications Institute (IFT) with a solid legal framework (so much so that President López Obrador has already given up on disappearing it or co-opting it through his unconditional supporters) and teeth to impose relevant sanctions, we still maintain concentration levels above 60%. I tend to think that no matter how solid the institutions are, it is the character of men that really makes the difference. It is in times of storm that the captain gains his prestige. At the National Electoral Institute, Lorenzo Córdova has gallantly managed to avoid all the regime’s attacks. What can we say about the IFT commissioners? At least, that they have not been able to take advantage of the tools that were granted to them.
After the constitutional reform, the Supreme Court of Justice of the Nation has been consistently expanding the sphere of competence of the IFT, to the extent that in matters that require specialized technical expertise, its regulation and resolutions may even go against what established by law. However, the IFT seems to lack objective, precise and measurable goals, both in terms of sector concentration, the best and most efficient use of the radio spectrum, and the scope of the telecommunications sector itself. Regarding this last aspect and by way of example, the IFT tried to limit the scope of the definition of restricted television services with a clear political purpose, without realizing that it was shooting itself in the foot by excluding pay television services. online, such as Netflix, Amazon Prime, Disney Plus and many others. It should be noted that the Federal Economic Competition Commission did not waste the opportunity to claim jurisdiction over them.
But perhaps the most serious case in which the IFT has faltered in the exercise of its powers is that of rights for use of the spectrum. Although it is true that the Federal Rights Law contemplates them long before the 2013 reform, it is also true that the reform granted the IFT the exclusive power for “the regulation, promotion and supervision of the use, exploitation and exploitation of the radioelectric spectrum ”, which, obviously, includes the power to establish the consideration for its use in the terms established by the Federal Telecommunications and Broadcasting Law.
Surprisingly, the IFT has never tried to assert these powers against the collection effort of the Ministry of Finance and the Congress of the Union. It is true that he has sent timid opinions in which he explains the technical reasons why the very high fees for spectrum discourage its use, hinder connectivity and restrict competition. Both the government and Congress have ignored the opinions of the IFT and it has stood idly by while the companies return spectrum, the State collects less, very high barriers to entry remain for competitors and the alarming concentration of wireless services.
On several occasions I have explained the feasibility of the IFT filing a constitutional dispute against the Congress of the Union and the Federal Executive, so that the Supreme Court declares its exclusive jurisdiction in the administration of the spectrum and thus correct the distortions indicated by the IFT. Obviously, the affected companies can also sue for protection. The problem is the procedural opportunity to do so, since on at least two occasions, both the IFT and the companies let it pass. If we want first-world connectivity, everyone in the telecommunications ecosystem has to do our part, because what we have seen so far is the comfortable inertia of those who, like Juanito el Postman, prefer to avoid fatigue.
@gsoriag
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.