The Federal Telecommunications Institute (IFT) is 19 days away from remaining with a plenary session made up of only four commissioners. This is not a minor issue, since said plenary is in charge of issuing resolutions such as the merger of companies, regulations for companies in the telecommunications and broadcasting sector, as well as the granting of radio spectrum concessions, among other functions.
Adolfo Cuevas, current interim commissioner president of the IFT, will end his term on February 28, after assuming that role as head of the telecommunications regulatory body on March 1, 2020, after concluding the term of Gabriel Contreras Saldívar.
Cuevas’ interim assignment was made provisionally while the Senate determined who would head the Institute, but after almost two years, the Upper House has never appointed a commissioner president of the telecommunications regulatory body.
If this happens again, Javier Juárez Mojica, current commissioner of the IFT, would be the new interim president of the Institute, because he is the longest-serving official within the Plenary of the Institute, having been in office for six years.
However, even with Javier Juárez Mojica at the helm, the IFT plenary session would only have four commissioners out of seven, because the Institute has had two vacancies for commissioners for more than a year and a half. In December 2021, the Evaluation Committee published the list of the five candidates to fill these positions, but President Andrés Manuel López Obrador has not chosen any profile. This situation puts several faculties of the IFT at risk, such as the issuance of resolutions on barriers to competition, or regulatory provisions. In addition, its internal regulations could be curbed, with which it could not establish guidelines or technical guidelines.
“There is a rule in the statute that refers to the issue of quorum and says that there must be a quorum of four commissioners, the problem is that if there were someone who had to excuse himself, someone could argue that there is no quorum,” he warned. Lucía Ojeda, partner in the Mexican firm SAI Law & Economy and expert in economic competition.
Although the IFT will not be able to perform certain functions, a plenary session of four commissioners would still have the power to issue preponderance averages, merge companies, grant concessions, launch bids, among others. The Institute itself assured in December of last year that it would seek to modify its internal statute so that it does not affect the performance of its functions as much as having only four commissioners.
This year, the IFT plans to implement specific obligations to Televisa for having been declared an economic agent with substantial power in 35 relevant pay TV markets in Mexico in 2020. It also plans to launch a tender for spectrum bands that are suitable for 5G.
For Ojeda, the absence of a pronouncement by the Executive on who should occupy these positions is not a coincidence.
“There is not much interest in allowing them to fully exercise their functions. Cofece has undertaken a constitutional controversy due to the lack of appointments of commissioners, and this could be a path that the IFT could follow”; assures the specialist. “It is a pity to have an autonomous constitutional body with diminished powers. You do not allow it to exercise its maximum splendor, it is difficult for you to criticize the plenary because at the end of the day your hands are tied, you are co-responsible for it not working, “he concludes.
