La Nueva Batalla de Puebla
XEZT’s fight for an FM isn’t over
This story was originally published on the WTFDA Forums on September 20, 2019.
One curious thing has been going on at Puebla’s adrift 1250 AM XEZT. The Facebook and Twitter pages are now titled La Magnífica FM; they’re running promos hinting at some sort of new, and probably grupera, format; and I’m confused.
If there’s one thing I’ve learned this year, it seems every contentious matter of this kind has its day in telecommunications court. So I went to the public record, and indeed, the 95.5 award has been subject to litigation — which has gone XEZT’s way in district court and is currently being heard in appeals court.
How We Got Here
July 14, 2017 was the day that the IFT authorized 41 AM-FM migrations under the second-wave agreement of 2016. Of those, 38 stations moved along. Three, however, did not. One was Salamanca’s XEZH, which simply opted not to continue. The other two were cancelled for lack of payment: XEEG to 92.1 and XEZT to 95.5, both in Puebla.
XEZT had gotten unusually far in promoting itself on FM. At the time, XEZT was Puebla’s La Mejor station, and its sister XHPBA-FM was Exa FM in Puebla. “¡Ya Viene en FM!” promotions appeared in the fall of 2017, before the IFT announced in a stealth update to the meeting notes that neither Radio Panzacola (XEEG) nor Radio Principal (XEZT) had paid up. (Thus started one of my first big Mexican broadcasting Twitter threads, a year and a half before @EnFrecuencia.) As late as March 27, 2018, this was being promoted, even though it was already public knowledge that it wasn’t happening.
Two weeks later, at the April 11 Pleno meeting, the course of events took a new turn. The IFT reawarded all three frequencies to other applicants. 92.5 Salamanca became XHSAG-FM, 92.1 Puebla became XHPUE-FM, and 95.5 was awarded to Grupo ACIR dba Radio Poblana, S.A., as XHHIT-FM/Pue. That station went on air within months.
Payment Sheet Problems
Meanwhile, in amparo case 8/2018 (second district), Radio Principal took its case to telecommunications court. However, the entire case had to be reheard when a new interested party was added: Radio Poblana, aka XEHIT. In the court case, we learned why XEZT’s migration attempt was thrown out. Radio Principal had paid the migration fee specified in its resolution. But on October 30, the head of the UCS, Rafael Eslava Herrada, said that the amount paid was not the standard fee for “authorization for frequency change”, proceeding to throw out the application and greenlight the ACIR one. (Cinco Radio had priority over ACIR by date.)
The final sentence was released on August 5, 2019. This first ruling, in 8/2018 and its related case 250/2018, threw out the challenge to the April 11, 2018, reaward of 95.5 to Radio Poblana and found the arguments of the IFT’s legal defense unit unfounded for not providing a well-founded reply to Radio Principal. But Principal won on the discrepancy in fees because the IFT put the wrong amount on its document, an amount less than Principal should have been obligated to pay. To quote the ruling:
En otro orden de ideas, en el tercer concepto de violación la quejosa argumenta que el oficio es inconstitucional porque la hoja de ayuda para el pago en ventanilla bancaria fue emitida por el Instituto Federal de Telecomunicaciones, y en ella se determinó un monto menor al que legalmente correspondía, y derivado de ello, fue que se realizó un pago menor, por lo que lo procedente era prevenir a la quejosa por la irregularidad, y no dejar sin efectos el cambio de la frecuencia.
Afirma que el hecho de que la propia responsable haya emitido la hoja de ayuda con un monto incorrecto, fue lo que provocó que en la resolución, se dejara sin efectos la autorización.
Pues bien, el concepto de violación es fundado y suficiente para conceder el amparo solicitado a la parte quejosa.
The court found that, because the payment sheet contained the wrong amount, Radio Principal could not pay any other amount to the IFT. In its ruling in 8/2018, the court ordered the IFT to nullify the original October 2017 notice of cancellation and allow Principal the opportunity to pay. But it also ordered the IFT to turn back the clock at 95.5 FM and make it unavailable to concessionaires other than Radio Principal:
De igual forma y derivado de lo anterior, acredite haber dictado las actuaciones necesarias para que la banda de frecuencia modulada de [95.5 MHz] regrese al estado de indisponibilidad que guardaba frente a concesionarios distintos de Radio Principal, en virtud de su asignación a través del Acuerdo P/IFT/110418/283.
On Appeal
The IFT has appealed the above ruling in amparo review case 291/2019, in the second appeals circuit. Just this week, the documents were turned over to judge Adriana Leticia Campuzano Gallegos. We’ll have to wait and see what happens.
The consequences are massive. If the sentence in district court is upheld, XHHIT-FM/Pue. may be forced off the air to allow XHZT-FM to sign on — an unprecedented event in Mexican broadcasting history. Additionally, the FM loss that got us here may very well have been a factor in MVS deciding to enter Puebla on its own, taking its franchises from Tribuna and buying XHJE-FM to be the new Exa station in the city. Not to mention that XEZT itself has been rather adrift, with a generic “1250 AM” name, for most of the last 18 months.
Perhaps the La Magnífica FM name is a hope that the appeals court upholds the original finding in district court by Silvia Cerón Fernández. Perhaps the parties are going to settle, though I can’t imagine that given ACIR’s attitude.
Update November 2019: The case was ordered transferred from the second appeals court to the first, apparently because the case was taken by the second court out of turn. A case number has not been assigned by the first appeals court.
