The possibility that the IFT (Federal Telecommunications Institute) of Mexico grants América Móvil a concession so that it can provide the television service, through the Claro TV brand, has highlighted the weakness of the regulatory frameworks that contain the activity, threaded with rules, some of them contradictory.

It also makes it possible to visualize the weakness of regulations when verifying the AEP (proposed structural transformations, especially the reduction of the weight of the preponderant economic agent) in the sector, in order to facilitate competition and, with it, the improvement of the service and the reduction of prices paid by the end user.

In the Mexican case, the concrete issue is that there are very high possibilities that the IFT will grant América Móvil the license in a framework in which it is still, by far, the AEP in telecommunications. By adding a new business, the economic and financial weight of América Móvil - largely consolidated by its preponderant situation in the telecommunications markets - will turn over with irresistible force for the incumbents of that segment.

It should be remembered that the IFT's liberalization policy has an immediate precedent: the granting to América Móvil the freedom to set toll rates for its competitors to access its network. The regulator's argument was that competition had grown so much in the 52 municipalities analyzed that América Movil was no longer the AEP in each of those territories.

Legal knot. This is what regulatory experts and the sector's own companies, such as Televisa and TV Azteca, warn. According to Gerardo Soria Gutiérrez, president of the IDET (Telecommunications Law Institute), “the prohibition for América Móvil and all the other companies that make up the AEPT (preponderant economic agent in telecommunications) to provide television services, was not established in the asymmetric regulation imposed on it, but in the 1990 Telmex concession title," the letter of which reads" [Telmex] will not be able to exploit, directly or indirectly, any concession of television services to the public in the country."

The expert observed that, "what must be analyzed is whether the provision of television services by Claro TV, using Telmex's infrastructure, implies or not the indirect provision of these services, in violation of Telmex's concession title."

Adolfo Cuevas, interim president of the telecommunications regulatory body, already anticipated his favorable position to the concession in statements to the Mexican press: “The basic issue is whether the provision of restricted television services by Claro TV is an indirect exploitation or not, that Telmex has prohibited "due to its concession, Cuevas said. “There is the point where companies of the predominant economic agent, such as Claro TV, are left out, which do not hang on Telmex. And that particular company is not subject to the restrictions, because it was not declared on the list of the preponderant economic agent."

"In fact, this is irrelevant because the prohibition to provide television services does not derive from AEPT's declaration but from Telmex's concession title," observed Soria Gutiérrez.

According to Cuevas, IFT’s analysis is now ready and will be released once the issue is dealt with by the full regulator, which may happen during the last two weeks of December.

According to the reports, IFT's arguments to grant the license to Claro TV would be two: the first, that the declaration of preponderance does not apply to Claro TV because it was established after that affirmation; and the second, that the prohibition only applies to Telmex subsidiaries and not to affiliated companies.

However, these positions would go against IFT's own jurisprudence, which, for example, considered that Telesites, an América Móvil tower company, was part of the AEP despite having been established after the declaration of preponderance.

Cuevas, from the IFT, assured that Claro TV "does not hang on Telmex." However, everything indicates that, to provide the service, Claro TV would use Telmex's infrastructure. "If a company controlled by the Slim family provides television services using the infrastructure of another Slim family company, this constitutes indirect exploitation and in any other legal system," added Soria Gutiérrez.