Multiprogramming in México is not a gift, is abdication

“The Federal Telecommunications Institute (FTI) seems to have forfeited the last regulatory opportunity to promote competition and pluralism in over-the-air radio and television broadcasting”

Mony de Swaan* / Mexico, 2015.

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The Federal Telecommunications Institute (FTI) seems to have forfeited the last regulatory opportunity to promote competition and pluralism in over-the-air radio and television broadcasting. The Abdication (or “give-away” as some have called it[1]) happened last February 9 with the approval of the General Guidelines for Access to Multiprogramming. This was a long-awaited decision following the constitutional and legal reforms that gave the regulator ample and sufficient powers to use multiprogramming as a regulatory tool to promote pluralism and content diversity.[2]

However, the Institute opted for a conservative reading of the Federal Telecommunications and Radio Broadcasting Act (LFTR), downplaying their own powers and arguing that the law doesn’t offer them any other options. It thus ignores article 6 of the Constitution (which underlines) the obligation to ensure broadcasting services provided in a competitive and pluralistic manner. Neither does it adhere to the arguments in article 28 that refer to the efficient development of broadcasting, and provide full powers in terms of competence and, in particular, with regard to the regulation and monitoring of the use and exploitation of the spectrum (which multiprogramming is certainly part of).

The more documents related to this decision are reviewed, the more worrying the whole situation becomes. The statement, interventions, the Agreement of the Plenary and the Guidelines published in the Official Journal are all so simplistic. At the time of voting, most of the Institute’s commissioners seem to have not read anything other than articles 158 and 159. The requirement of a harmonious and comprehensive reading of the Constitution and the Law was put off until some future date.

Debatable Points:

1. The moment: the FTI decided to extend the maximum period specified by Law in order to issue these Guidelines.[3] Since the publication of the LFTR, the Institute knew that it had to regulate access and understood the importance of the issue. Multiprogramming had been analyzed, discussed and voted for by the former Federal Commission of Telecommunications (Cofetel), thus there was more than enough experience and knowledge in terms of technical areas. The public consultation lasted just 21 days (coincidently, right in the middle of the vacation period). For the TV bidding process the definitions in this area were a key topic. It is not the same to compete against a dominant economic player who is expressly forbidden from multiprogramming than against one who can do so (and free of charge). The regulator should have issued the Guidelines at sometime between the publication of the Law (July 2014) and the formal start of the bidding process (September 2014).
2. Not charging: the FTI has decided not to charge for multiprogramming, arguing that such a stance a) promotes a more efficient use of the spectrum, b) promotes pluralism, c) incorporates a tax burden favouring the State and d) that charges would generate distortions for those license holders who had previously received authorizations. While I am convinced that multiprogramming does not merit recompense, I do not share all the arguments and note their lack of substance. The basis for not charging has been developed on a sheet of paper with some real somersaults, basically related to a public consultation in which the license holders argued that they should not be charged. It is false, moreover, that the policy of DTT represented an insurmountable obstacle. The FTI has modified it more than once, for example, to postpone the dates for analogue switch offs. It is pointless to promote more efficient usage if a few lines later multiprogramming turns into a power of the license holders.
3. Access: «access to multiprogramming is voluntary on the part of license holders,» states the eighth guideline, to then round off ten articles later with: «license holders can freely enter into contracts for access to Multiprogramming Programming Channels». The Institute thereby turns a constitutional mandate, a public policy, a key regulatory instrument, into a mere business expectation that license holders may or may not obey, according to their whim. Far off and forgotten is the responsibility to manage the spectrum or promote its efficient use: for the FTI, it is the license holders who must take the decisions regarding its administration or lucrative marketing potential.
4. Competition: although Article 24 of the Guidelines provides that in applications for multiprogramming, verifications will be made as to whether the applicant possesses a concentration of frequencies, not even in these cases is the possibility of rejecting such requests considered. If the going gets tough, conditions will be imposed on the dominant license holder (without clarifying what kind). The license holder for the San Luis Rio Colorado radio station -owner of each and every commercial station that makes up this entity- can rest easy; if the holder wants to begin multiprogramming, in the worst case scenario they will be authorized new programming channels with a few conditions attached.
5. The predominant: the only limit included in all the guidelines is imposed on the dominant economic actor (Televisa). For this purpose, the FTI makes no more effort than to copy clause II of Article 158 which sets a ceiling of 50% of all programming channels authorized to other license holders (but please note, to all of them, whether private, public or social). We thus wait to see the way in which the FTI will interpret this provision; however, written and copied as it is it doesn’t represent a limit of any real consequence. Furthermore, and taking into account just the marketing concessions and the start-up of two new TV stations, Televisa could be authorized up to five additional transmission signals in the Federal District.
6. Plurality: the big loser. With the present legal framework, the Institute had in its hands the ability to completely transform broadcasting in Mexico: the options were practically limitless. From clear limits on access to criteria for spectral efficiency, the provision of public capacity, programming channels aimed at independent producers or providing an impulse for community-based content.

With regard to the abdication of the Institute there are those who find some comfort, asserting that radio broadcasting will «find its way» over other platforms offering more dynamic content. However, Mexico, like many other Latin American countries, still faces structural problems for this to be the case. While radio broadcasting reaches virtually every household in the country, pay-to-view television only covers 60% of the population,[4] and mobile broadband is used by less than 15%.[5] Radio broadcasting in our country has a weight (economic, social, political and democratic) and will continue to have one as long as the penetration of such services does not make any progress.

As this occurs, and except for rare exceptions, our radio broadcasting services will continue to be as monotonous as we have known them up to now. The FTI bears much of the responsibility for this state of affairs.

*Former president of the Federal Telecommunications Commission

 

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