The burial of telecommunications networks is unconstitutional

For months, the government of Mexico City has been working on an initiative to force all telecommunications companies to invest in ducts so that their wiring is underground and does not hang from the posts of the Federal Electricity Commission (CFE). and from Telmex. The reason, they say, is to solve the visual pollution that aerial wiring represents. So far you can agree.

The problem, however, is much more complex; both from the point of view of the investment that would be required by the concessionaire companies and from the constitutional perspective and the model of the Regulatory State. On the first issue, I refer the reader to the magnificent analysis by Ernesto Piedras published in El Economista last Thursday. According to his article, the cost of migrating aerial telecommunications infrastructure to the subsoil would be $3.3 million pesos per kilometer; a sum that could exceed $46 billion pesos if we take into account the 14 thousand kilometers that would need to be covered. Without a doubt, this would imply a considerable increase in the price of telecommunications services, which according to the Constitution already constitute a human right.

From a legal point of view, Mexico City (CDMX) and all other states lack the power to legislate on the subsoil or airspace. These powers are exclusive to the federation in accordance with article 27 of the Constitution. In addition, only the Congress of the Union can legislate on general communication channels and the Federal Telecommunications Institute (IFT) is responsible for regulating public telecommunications networks and telecommunications services in general.

Articles 73, section XVII, of the Constitution; 3 of the Law of General Communications Routes, and 4 and 5 of the Federal Telecommunications and Broadcasting Law, expressly establish that general communication routes, civil works and rights of way, use or road fall under federal jurisdiction. , associated with public telecommunications networks and the services provided therein.

In an attack of sincerity, the head of government of CDMX, Claudia Sheinbaum, recognized a few days ago that the true objective of this claim is to strengthen local collection through the payment of rights for allowing the burial of networks that they intend to impose. Perhaps José Merino, the head of the Digital Agency for Public Innovation, can explain to you (if you know) that article 5 of the Federal Telecommunications and Broadcasting Law expressly states that “contributions or other additional economic considerations may not be imposed on those that the concessionaire has agreed to cover with the owner of a property to install its infrastructure”. He should also know that under tax law rights are contributions.

Reading doesn’t hurt, so the CDMX bureaucracy could take thirty seconds to read the fourth paragraph of the same article and find out that “the States, the Municipalities and the Government of the Federal District [hoy CDMX] within the scope of their attributions, they will collaborate and grant facilities for the installation and deployment of infrastructure and provision of public services of general interest of telecommunications and broadcasting. In no case may the installation of telecommunications and broadcasting infrastructure be restricted…”.

In addition, one would have to ask why Sheinbaum intends to force telecommunications companies to bury their networks and does not do so with the CFE’s electrical network. The logic of visual pollution and civil protection is exactly the same. Is it just about raising more to fill yellow envelopes with contributions from good people? If this is not the case, burial can be planned in the medium term through agreements between the industry, the IFT, the CFE and the CDMX government, or alternative investments such as public-private associations or Fibras could be sought. Can visual pollution be eliminated? Yes, but in the medium term and intelligently; not through capricious and unconstitutional impositions.

@gsoriag