Regulatory State and Judicial Decisions in Telecommunications in Mexico
| Autor | Clara Luz Alvarez |
| Cargo | Member of the Mexican National Researchers System (level II) and researcher of the Universidad Panamericana (Mexico). She received the National Journalism Award for spreading democratic culture for her program Código Democracia at the Congress Channel (2014). Clara Luz is author of the books Telecomunicaciones y Radiodifusión en México (2018), ... |
| Páginas | 15-36 |
Regulatory State and judicial decisions in telecommunications in Mexico (p. 15-36) 15
ALVAREZ, C. L.
Regulatory State and Judicial Decisions in Telecommun ications in Mexico
.
The Law, Stat e
and Telecommun ications Review
, Brasilia, v. 10, n. 1, p. 15-36, May 2018. [DOI:
https://doi.org/10.26512/lstr.v10i1.21498]
Regulatory State and Judicial Decisions in Telecommunications in
Mexico
Submitted
: 15/02/2 018
Clara Luz Alvarez*
Revised
: 13/03/201 8
Accepted
: 14/03/201 8
Abstract
Purpose –
To a ssess th e role of the judiciary in defining the Regula tory Stat e and in
regulating tel ecommunications in Mex ico after almost 5 years of the creation of a n
independent regulator for te lecommunications a nd broadcasting (In stituto Federal de
Telecomunicac iones) with authority i n antitrust matters.
Methodology/appr oach/design –
To identify the most relevant judicial decisions in
telecommunica tions and antitrust matte rs, research upon the context in which t hey w ere
adopted, analyze the content of the decisions and identify the impact of suc h judic ial
decisions in the co nstruction of the Mexican Regulatory Stat e, and in the law , in
regulation/act s of the regulator.
Findings –
The main fi ndings are that: (1) the Me xican Reg ulatory Sta te is a reality
now, even if it is in its beginnings; (2) C ongress is receptive to Judiciary´s de cisions; and
(3) deferen ce by judiciary to the regulator is not a blan k check, even if there are com plex
technical issue s and a discretionary de cision.
Practical implications –
The identif ication of a Regulatory St ate in Mexico evidences
that there ar e deep changes in t he traditiona l relationshi p between Congress and
regulators. A lso, the deference grant ed by the courts to re gulators must b e considered as a
consequence of such Regulatory State. Nonetheles s and despite the deference to
regulators, Judiciary´s role in building the telecommunications and broadcasting s ector is
paramount, be cause judicial decisions ul timately define it.
Originality/value –
Major changes to telecommunications and broadc asting have taken
place in Mexico in the last years. Therefo re, there ha s been scar ce research a nd analysis
about the new role of re gulators, legislators, and judges, in t he so called Reg ulatory State
in Mexico. Moreover, the experienc e of Mexico may be v aluable for other scholar s which
*
Member of the Mexican National Researchers System (leve l II) and researcher of the
Universidad Panameric ana (M exico). She rece ived th e Nation al Journ alism A ward for
spreading democratic cultu re for her program Código Democra cia at the Congress
Channel (20 14). Clara Luz i s author of the books Telecomunicaciones y Rad iodifusión en
México (2018), Telecomunicaciones en la Co nstitución (2017), El Regulador de
Telecomunicacione s (2017), Derecho de las Telecomunicaciones (3rd ed., 2014) and
Internet y Derecho s Funda menta les (2011), and coordinator of the boo k
Telecomunicacione s y Tecnologías de la I nfor ma ción (2012). She was rapporteur for the
International Telecommuni cations Uni on's study group of ICT accessibilit y for persons
with disabilities (2006-2011), and Commissioner for the Mexican Telecommunications
Commission (Cofetel, 2003 -2006). Addre ss: Universidad Panamericana. F acultad de
Derecho. Augusto Rodi n 498, Méx ico, Ciudad de México, 03920, Méx ico. Emai l:
claraluzalvarez@gmail.com, calvarezg@up.edu.mx. Web site: www.claraluzalvarez.org.
16
Please write here the title followed by suspension points if needed ... (p. 15-36)
ALVAREZ, C. L.
Regulatory State and Judicial Decisions in Telecommun ications in Mexico
.
The Law, Stat e
and Telecommun ications Revi ew
, Brasilia, v. 10, n. 1, p. 15-36, May 2018. [DOI:
https://doi.org/10.26512/lstr.v10i1.21498]
are assessing public po licy in their own Lat in America n countries or in cou ntries with
similarities to them.
Keywords: r egulatory state, telecommu nications, courts, defe rence, discretionary
Introduction
The Regulatory State concept has entered to the legal and regulatory
debates in Mexico, via judicial d ecisions of telecommunication cases. Also, the
Mexican Supreme Court and the specialized courts in telecommunications,
broadcasting and antitrust hav e been setting the last point in regulation since the
Constitution was amended in such matters and the independent regulator was
created in 2013.
This article reviews the most significant cases in telecommunications
decided by the judiciary in Mexico, assessing the role that the judiciar y has had
to start defining the Regulatory State and the impact of such decisions in the
Mexican legal framework. This is important because in telecommunicatio ns
there is much more literat ure and research done regarding the regulators than
upon the judiciary, yet t he judiciary has one of the most significant participation
in shaping telecommunications and broadcasting.
The background of telecommunications and broadcast is presented in
Part I, referring to the emergence of such services in last century under the
natural monopoly concept and passing to the privatization and liberalization of
telecommunications markets in the 1990s. Then, it describes t he creation of the
first telecommunica tion regulator in Mexico with the main challenges it faced,
which contributed to justify the Constitution´s a mendment in 2013 and the
creation of a new regulator (the Instituto F ederal de Telecomunicaciones or IFT)
and of courts specialized in telecommunications, broadcasting a nd antitrust
matters (hereinafter referred as Specialized Courts).
Part II starts with the acknowledgement that there is no unique concept of
a Regulatory State, to continue with the analysis of the Mexican Supreme
Court´s decision that is the milestone for the co nstruction of the Mexican
concept of Regulatory State, as well as for the relations hip between law and
regulation. The Zero Tariff case is then studied due to its implications o f the
scope of authority of the regulator within the framework of the Regulatory State.
Part III expounds a case brought by an indigenous poet and j ournalist
against t he Telecommunications and Broadcasting Law which was decided by
the Supreme Court. Although the case had no obligation whatsoever upon
Congress, it decided to amend the law in order to comply with the Court´s
interpretation.
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