On June 11, 2013, the Constitutional modifications for telecommunications were published. These were aimed at enhancing competition in the sector in order to improve quality and broaden the access to services at better prices. According to the terms of these modifications, 180 days after their entry into force, the secondary legislation that would provide a true life to the reform should have been issued. However, we are still waiting for them to be released.
The complexity to regulate the sector relies in the few stakeholders with great power that engage in it. The law has been overtaken by the interests of the three companies with a larger participation in the market and their struggle on not conceding ground. A clear example of the aforementioned is the dispute caused by the decision of the Dish cable company to rebroadcast the open signal TV channels of TV Azteca and Televisa, with the basis of what was established in the eighth transitory article, as well as the resistance of these companies by demanding a license request for the re-broadcast. Who is right, then? At this moment, and with the absence of secondary legislation for the must carry and must offer, is not clear by any means. The resolution of this disagreement will be the first of many that will probably end up being contested in specialized tribunals while the sector is not adequately regulated.
In addition, the discussion of the telecommunication sector’s secondary legislation seems to not be occurring at the most appropriate time for Congress. The list of pending issues is long and the legislative period is short. The matters related with telecommunications and radio broadcasting involves modifying around 11 laws and substituting current Telecommunications, Radio and Television laws. In addition, the institutional framework under which the Federal Institute of Telecommunications (IFT) can be provided with clear and specific faculties still needs to be defined in order to comply with the established resolutions of Constitutional reforms. It seems a complicated task for a Congress that is saturated with pending issues in different sectors that have recently been reformed. Likewise, the lack of sanctions to legislators for not complying with the deadlines that they themselves established for the issuing of secondary legislation eliminates any sort of pressure to accelerate legal speed and opens up opportunity spaces to generate opaque negotiations amongst political stakeholders and businessmen. On the other hand, the delay of the rules of the game creates uncertainty in the private sector, hindering the attraction of new direct investments, both national and foreign, which should provide greater competitiveness. The legal vacuum that pending judiciary issues for establishing criminal offenses and regulating the right of reply, the exploitation of the radio broadcasting space and the telecommunications network as well as the provision of different services should also be mentioned. The case exemplifies the inherent complexity of the secondary legislation and anticipates the problems that will undoubtedly characterize the other reforms that are in process of being issued.
Everything seems to point out that the negotiation effort coming from all political factions with the major private companies leads the way of the legislation as well as the dynamics of a clearly concentrated sector that is closed to the entry of new competitors. It is worrying that the hailed Constitutional reform is not accompanied with a clear vision regarding the development of the sector and an efficient and cutting-edge regulation that will protect it from the imminent and prompt changes in the platforms and technologies and the constant anti-competition stances of the stakeholders in the aforementioned markets. How long must me wait? Could it be that once again the technological changes and the particular interests will continue to overcome our legislators? Perhaps, more importantly: is there a vision of development that goes beyond of approving a reform?
CIDAC
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