On a recurring basis, in different forums, conferences and conventions, the commissioners of the Federal Institute of Telecommunications (IFT) have explained the reasons why the high fees that concessionaires pay to the government inhibit universal coverage of services. In the words of Mónica Aspe, the general director of AT&T in Mexico, “the radio spectrum in Mexico is the most expensive in Latin America and one of the most expensive in the world, it is five times more expensive than in Germany. This inhibits coverage, digital inclusion, because it is much more expensive to go further and have more capacity in our networks”. To this must be added that the way in which rights are charged today is anti-competitive because it represents a higher percentage of their total costs for competitors than for the incumbent. In other words, the more participation the preponderant agent has in the sector, the less rights it pays per user, and vice versa, the fewer users a competitor has, it pays a higher percentage for each of them. Simply put, all industry experts know what needs to be done to bring more services to more people and more populations. The only one who doesn’t know is the government, which keeps throwing money at occurrences, like CFE Telecom, and trying to collect more despite the impact this has on the digital rights of Mexicans.
However, versions have circulated in the sense that in the economic package for 2023, the Executive and Congress intend to modify the Federal Rights Law in some aspects related to the use of the radio spectrum. Although it is still not clear to me what would be modified, what is a fact is that, if this reform were made, the Congress of the Union would once again be invading the original and exclusive powers of the IFT, which would open the door for he sues Congress in constitutional controversy, and for the concessionaires to sue the amparo for the same reason. In the case of dealers, their possibility of suing depends directly on the damages that the reform could cause each one of them. This is because we still do not know for sure what items would be modified and what grievances can be caused to each particular dealer based on their spectral possession.
If the Federal Law on Radio Spectrum Rights is modified, the IFT would have 30 working days to sue the constitutional controversy as soon as the corresponding reform is published. For their part, the concessionaires would have 30 working days to demand protection against the reform of the law from its entry into force.
There are many precedents in which the Supreme Court interpreted in favor of the original power of the IFT to regulate its sectors, even in those cases in which some law establishes something different. Although it is true that the Federal Law of Rights taxes the use of the radioelectric spectrum since long before the constitutional reform of 2013, 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.
Even more, if the Supreme Court maintains the coherence with which it has been ruling on the scope of the powers of the IFT, it should resolve that the objective of the administration of the radio spectrum is to expand the coverage and quality of services, not collect taxes. . So much so, that there is an express provision that establishes that the economic factor will never be the determining factor in the assignment of the right to use and exploit the spectrum.
In my opinion, it is likely that we are facing a unique opportunity for the Supreme Court to ratify the exclusive control that the IFT has over the radio spectrum, its considerations and uses, in order to be able to meet the constitutional objectives of expanding coverage and improve telecommunications services, in order to guarantee Mexicans’ access to the new digital economy.
@gsoriag
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