Life After Death for Social Concessions?

Supreme Court takes up complicated XHFRC-FM case

On February 12, it was revealed that the Suprema Corte de Justicia de la Nación has taken up a case out of Monclova, Coahuila, involving the fate of one of the last actual permit stations in operation without a social concession: XHFRC-FM 98.7, a wolf started by Melchor Sánchez Dovalina.

The case, in progress since 2019, asks a question for which the Ley Federal de Telecomunicaciones y Radiodifusión has no answer: What can you do with a social concession when its holder dies?

No Answer

Articles 91 and 110 of the LFTR, which are the articles that the SCJN’s competency focuses on in this case, set out the conditions for the transfer of three of the four types of telecommunications concessions.

Artículo 91. Las concesiones de espectro para uso público que presten servicios de radiodifusión sólo se podrán ceder, gravar o enajenar total o parcialmente a entes públicos. En todo caso, se mantendrán vigentes los compromisos y condiciones establecidos en su título de concesión.

and

Artículo 110. Sólo las concesiones para uso comercial o privado, esta última con propósitos de comunicación privada, podrán cederse previa autorización del Instituto en los términos previstos en esta Ley. […]

So public concessions can be transferred to other public agencies, and commercial and private concessions (the latter for private communication uses, like industrial land mobile users) can also be ceded to others.

But what of social concessions? Of which there are nearly 400 in broadcasting alone, including the community and indigenous subtypes?

The problem at hand here really began in 2014, with the death of Melchor Sánchez Dovalina at the age of 79. Sánchez, who was born in Rosita, was a real broadcasting pioneer in Coahuila and made little Monclova home to the state’s first FM outlet (XHMS-FM 99.5), a decade before larger Torreón got one. In his later years, he also helped to start XHSDD television.

XHFRC-FM was permitted on July 9, 1999, and is known as “Espacio”, offering noncommercial cultural programming. The permit passed to his estate; his business is run by his only son, Melchor Sánchez de la Fuente, a former federal deputy, and he also was survived by four daughters: Irasema, Martha, Liliana and Rosy.

In recent years, the Fundación de la Radio Cultural, A.C., has opened new Espacio stations in Ciudad Acuña, Cuatro Ciénegas, Piedras Negras, Sabinas and Ríoverde, San Luis Potosí. Per the IFT’s ownership records, this civil association is owned jointly by the estate of Sánchez Dovalina and Sánchez de la Fuente.

This is not the first time a noncommercial station in Mexico will have changed hands upon the death of the person whose name was on the paper. In 2002, Víctor Díaz, who owned XHLNC-FM (then at 90.7 MHz) in Tijuana, died, and he was replaced as concessionaire by his widow, Martha Margarita Barba de la Torre. (She died in February 2020.) However, that was in the days of permits, which were considerably less regulated than the social concessions that served as their replacement for private groups running noncommercial broadcast stations, and before the passage of the LFTR.

Mind the Gap

The problem that the Sánchez family faces here has highlighted a problem serious enough to merit the highest court’s attention. It also likely merits fixing the gap in the LFTR.

Social broadcast stations need to be transferable to allow them to be properly utilized in any of a number of scenarios:

• Death of the concessionaire when it is a person, to allow for the adjudication of assets
• Lack of financial capacity to operate the station
• Mergers of organizations

There is one other situation in which the holding of a social concession has been transferred in recent years. This is specific to a handful of pre-2014 indigenous stations that were owned by civil associations and, as part of the transition from their permits, are now considered direct properties of the indigenous communities that run them. For instance, XHJP-FM’s permit was held by Kukoj, A.C.; the concession is now listed under “Comunidad de Santa María Tlahuitoltepec, Mixe, Oaxaca”. This was a pro forma transfer: in 2004, the General Assemblies of this indigenous community voted to create Kukoj, A.C., to manage the radio station permit filing and, later, operations.

However, there are also potential abuses of this process, especially with some of the other pre-LFTR social stations, which were awarded under more lenient permit guidelines. There are a lot of social wolves, of course, and there should be disincentives, similar in spirit to those in the IFT’s station award criteria, against behavior that promotes their existence. Any mechanism to permit the transfer of social concessions will need to be structured such that:

• An economic competition analysis be made in the transfer, particularly for potential concessionaires that already own commercial radio stations in the same market or in others, except for in the event of the death of a concessionaire.
• New concessionaires meet the requirements to provide radio service (e.g. are not registered religious ministers).
• In the community and indigenous broadcast services, concessions can only be transferred to other groups that meet the LFTR requirements set forth for these categories of stations.

It’s worth noting, of course, that this gap cannot be filled by the IFT or by the courts, but only by Congress in a bill to amend the LFTR. In the meantime, it will be up to the highest court in the land to determine what happens with XHFRC.