Preponderant agent, what is that?
| Autor | Clara Luz Álvarez |
| Cargo | Member of the Mexican National Researchers System (level II) and researcher of the Universidad Panamericana (Mexico) |
| Páginas | 23-46 |
Preponderant agent, what is that? (p. 23-46) 23
ALVAREZ, C. L. Preponderant agent, what is that?
Journal of Law and Regulation
, Brasilia, v. 1, n. 1, p. 23-46, May
2015.
Preponderant agent, what is that?
Submitted
: 01/04/2015
Clara Luz Álvarez*
Revised
: 17/04/2015
Accepted
: 22/04/2015
Abstract
Purpose –
Preponderant agent is a new instrument for preventing and
reverting adverse impact in competition due to highly concentrated
markets. Therefore, this paper's objective is to present and analyze the
preponderant agent concept in Mexico with emphasis on the broadcast
sector, the telecommunication regulator decisions and the courts'
interpretation.
Methodology/approach/design –
The objectives were achieved by
researching and analyzing the main legal documents, the Congress reports
and debates, the regulator's decisions and other relevant regulator's
documents, as well as final decisions by the courts in connection with
broadcast sector.
Findings –
Among the findings are that certain topics were not duly
addressed by the Mexican regulator, or by the Congress, whereas the
courts were more willing to hold decisions in favor of public interest based
on constitutional intent and deference to the regulator's decision.
Originality/value –
This paper will be valuable for persons interested in
telecommunications, broadcast and antitrust. Although the preponderant
agent concept created in Mexico is not necessarily a “best practice”, it
does provide an alternative instrument in antitrust. Moreover, the courts
decisions also provide criteria regarding regulatory deference for the
regulator.
*
Member of the Mexica n Nation al Researche rs System (level II) and res earcher of the
Universidad Panameric ana (M exico). She rece ived th e Nation al Journ alism A ward for
spreading democratic culture for its pr ogram Có digo Democraci a at the Congress
Channel (2014). Clara Luz is author of the book s Dere cho de las Telecomunicaciones
(3rd ed., 2014 ) and Internet y De rechos Fund amentales (2011), an d coordinato r of the
book Telecomunicaciones y Tecnologías de la Información (2012). She was rapport eur
for the International Telecommunications Union 's study group of ICT accessibility for
persons with disabilities (2006-20 11), and Commission er for the Mexican
Telecommunic ations Commission ( Cofetel). Email: claraluzalvarez@gmail.com.
Website: www.claraluzalvarez.org.
24
Preponderant agent, what is that? (p. 23-46)
ALVAREZ, C. L. Preponderant agent, what is that?
Journal of Law and Regulation
, Brasilia, v. 1, n. 1, p. 23-46, May
2015.
Keywords: telecommunications, broadcast, antitrust, preponderant,
significant market power.
Introduction
Mexico's telecommunication and broadcast sectors are highly
concentrated in a few corporate groups. This is the result of building a countr y –
after the Me xican Revolution started on 1910 – based on monopolistic interests
on a local, regional and national level (Alvarez, 391).
1
Since capital formation
and economies of scale were so vital in develop ing a functional infrastructure,
the governme nt dee med co mpetition as against the public interest and licenses
were granted on a discretionary basis (Alvarez, 389-394).
The Mexican 1990s was character ized by privatizations and economic
liberalization, and telecommunications were no exception. Privatizations
included the telecom historic operator and public monopoly, Telmex (1990), a
public TV broadcasting network (Imevisión – Channels 7 and 13, 1993), and the
satellite monopoly known as Satmex, in 1997 (Alvarez, 396-400, 407-409). The
Telecommunications Law enacted in 1995 (now repealed) opened the telecom
sector to co mpetition. Increased competition was supposed to improve the
quality of services, increase access and lower prices.
Although two decades have passed since the opening of the Mexican
telecom market, the sector is still dominated by a few powerful players:
Fixed telephony = América Móvil (Telmex): 71% of subscribers.
2
Fixed data = América Móvil (Telmex): 60.2% of subscribers.
3
Mobile telephony = América Móvil (Telcel): 69% of subscribers.
4
Mobile data = América Móvil (Telcel): 68.6% of subscribers.
5
Pay TV = Grupo Televisa: 60.1% of subscribers
6
Free-to-air T V = Grupo Televisa: 70% (2012)
7
average share o f
transmissions co mputed from the beginning of the transmission to the
end of it.
1
Example in te lecommunications can be found on the Ley de Vías Generale s de
Comunicación (1940).
2
Instituto Fed eral de Telecomunica ciones, Informe est adístico 3 Trimestre 2014,
http://www.ift.org.mx/iftweb/wp-content/uploads/2015/03/InformeEstadisticoVF.pdf, p.
18.
3
Ibidem, p. 23.
4
Ibidem, p. 27.
5
Ibidem, p. 35.
6
Ibidem, p. 38.
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