Mexico: Telecoms reforms enacted Borna_Mirahmadian
As a consequence of the constitutional reform in telecommunications published in June, we are witnessing the process of integration of the new telecom regulator and specialized courts for telecom, broadcasting and economic competition matters. This is extremely important since the regulator willdeal with the application, interpretation and implementation of the new regulatory framework, including the secondary legislation that is being drafted.
The new regulator
The reform provides the creation of the Federal Institute of Telecommunications (“IFETEL”) as a constitutional body which is composed of seven commissionaires, including its president, designated on a staggered basis.
A new organ called the Evaluation Committee was created specifically to evaluate the candidates for commissionaires for both the IFETEL and the Federal Economic Competition Commission. Such process shall be conducted considering the following principles: transparency, publicity and maximum attendance. The head of the following constitutional bodies integrate the Evaluation Committee: (i) the Central Bank of Mexico, (ii) the National Institute of Education Evaluation, and (iii) the National Institute of Statistics and Geography. The decisions shall be taken by majority of votes, having the member with longer tenure casting vote and will be the president of the Committee.
On June 18, 2013, the Evaluation Committee published the call and operation rules to certify that the applicants comply with the requirements set forth in the Constitution. The process was divided in three consecutive stages: (i) registry and submission of information and documentation by the applicants; (ii) take an exam in law, economics and engineering (prepared with the help of five universities, although the requirement is at least two), and (iii) integration and delivery of seven lists of the finalists to the President, which shall include from three to five names in each list.
The numbers for IFETEL are the following: (i) 401 candidates registered; (ii) 206 candidates submitted documentation; (iii) 85 candidates had the right to take the exam; (iv) 82 candidates took the exam (153 questions of multiple choice in a computer), and (v) the first 35 candidates with the highest grades were divided in seven lists. Such lists were delivered to the President and published on August 12, 2013.
The President selected one candidate of each list and sent its proposal (including the term for each candidate, on a staggered basis) for the approval of the Senate on August 19, 2013. The profile of the candidates proposed are the following: (i) five men and two woman; (ii) two engineers, two economists, and three lawyers, and (iii) five current public servants and two from the private sector.
Although it was intended for the Senate to approve the candidates, in an extraordinary meeting on August 23, the voting was postponed for the second ordinary period that started on September 1. On September 10, in due time, the Senate finally approved (two-thirds of the votes of the attending senators) the list of all candidates proposed by the President and selected the president of IFETEL.
The new courts
The legislation also made provisions for the establishment of specialized judges and courts in broadcasting, telecommunications and economic competition matters. To this end, the Federal Judiciary Council resolved on August 9 to transform two auxiliary district judges (first instance) and two circuit courts (second instance) into the judicial bodies specialized in administrative law that will have jurisdiction in economic competition, broadcasting and telecommunications. Such bodies will be based in Mexico City with jurisdiction throughout the country.
Although the current two judges and six magistrates (three in each circuit court) started their functions on August 10, they will be replaced by the Federal Judiciary Council. Such Council has published a call to invite judges and magistrates to participate in the process of appointment as judges or magistrates for the specialized courts. Such process is in course. The new judges and magistrates will not have a fixed term in their positions, but will rotate periodically.
In addition, the Federal Judiciary Council organized a course in economic competition and telecommunications’ law available to certain administrative judges, magistrates and chief secretaries.
As can be seen, the constitutional reform in telecommunications not only will bring new rules, but also new actors. On one hand, Mexico will have a constitutional body that will be the maximum administrative and regulatory authority in broadcasting and telecom matters, including economic competition in both sectors. IFETEL will not depend on the Executive branch, but it is subject to some accountability mechanisms that both the President and the Congress will have.
The Evaluation Committee acted in due course. However, there are issues that can be improved in future cases, particularly as the procedure of selection and designation of the commissionaires cannot be challenged. All of the following can be looked at: from the possibility of clarification by candidates to the production of less documents; more flexibility and accuracy of the exam to be applied, and more transparency in the process. Also, the President and the Senate followed the procedural rules for the designation of the first commissionaires of IFETEL. At the end, this first experience was not as controversial as expected.
Although some of the individuals on the new IFETEL were criticized, only time will tell if their appointments were correct.
On the other hand, there will be specialised judges and courts that will only review telecom, broadcasting and economic competition matters. IFETEL’s acts could only be appealed via indirect amparo (and would not be stayed through injunctions) that will be resolved by such judges and courts.
Even though the Federal Judiciary Council is in the process of designating the corresponding judges and magistrates, it has not been as clear and transparent as desirable.
The prompt, objective, impartial and accurate designation of the judges and magistrates is essential for the success of the objectives of the reform, so the Federal Judiciary Council has a great responsibility in completing this process.