What is Emisiones Radiofónicas?
The court precedent that gave the IFT Pleno the final word on frequency changes — and more
In 2016, the IFT opened the door for dozens of AM stations in areas where there had previously been no room to migrate to move across to FM.
There were no frequencies set aside for commercial stations in Ciudad Juárez, Chihuahua, because the presence of two non-community FMs above 106 MHz that could not be relocated meant that the two identified frequencies of 98.7 and 101.3 MHz had to be reserved, per the principle of Article 90 reciprocity.
That did not stop Grupo Siete, which owns XEROK-AM 800 and XEWG-AM 1240. They filed to move the stations to FM on August 11, 2016 — three months before the IFT published the second-wave migration rules, which did not include any Juárez frequencies. The Director General of Broadcast Concessions (DGCR) ruled against them on January 24, 2017, for what should seem like obvious reasons. Grupo Siete then found a way to try and make its case again.
On December 21, 2016, four days before Christmas, the Grupo Siete concessionaire in Ciudad Juárez, Emisiones Radiofónicas, S.A. de C.V., filed for an amparo against the IFT in telecommunications court (218/2016). On June 1, 2018, the judge ruled in Grupo Siete’s favor. Within two weeks, both parties appealed the ruling (and Grupo Siete dropped challenges to portions of the LFTR). On May 27, 2019, the appeals court let the decision in district court stand in part.
It ended up meaning much ado about nothing, because the IFT Pleno took an identical action and denied the Grupo Siete FM applications. So why does it matter?
Whose Power Is It Anyway
Grupo Siete’s lawsuit was successful on some very technical grounds. The company alleged that the DGCR was not competent to deny the applications that were filed, pursuant to Article 34 of the IFT’s internal statute, which lays out the competencies of the Directorate General of Broadcasting Concessions.
Section XIII of Article 34 read as follows (it has since been modified to remove the portion referring to permits):
Tramitar las solicitudes para el cambio de bandas de frecuencias del espectro radioeléctrico de concesionarios y permisionarios en materia de radiodifusión y, previa opinión de la Unidad de Competencia Económica y de la Unidad de Espectro Radioeléctrico, someterlas a consideración del Pleno;
Grupo Siete argued that the failure to get opinions from the Economic Competition and Spectrum Units and then submit the whole thing to the Pleno for approval was an overstepping of the DGCR’s boundaries, and that the Pleno has the exclusive and nondelegable right, as set forth in the LFTR, to provide final rulings on frequency changes and reallocations (Article 15 Section XV defines this as an IFT competency; Article 17 says that these powers exclusively belong to the Pleno).
The court ruled this was correct and that the IFT Pleno was the only body that could rule on the Grupo Siete applications per IFT statute and the LFTR. This didn’t matter much to Grupo Siete, since the Pleno’s ruling wound up being the same as that of the DGCR.
From Migrants to Vencidas
Eerily similar is a case adjudicated this year pertaining to one of the 17 concesiones vencidas that appeared in the July 30, 2019, IFT letter about expirations.
The Radiodifusora XEMI-AM, S.A. de C.V. (XHEMI-FM Cosoleacaque–Minatitlán, Ver.) case came down to a similar problem, and telecommunications district and appeals courts found similarly: it ruled that the DGCR did not have the sole power to determine that the station had not paid on time and the concession was expired.
That belonged to the Pleno, which on May 12 issued a resolution pertaining to the case in order to comply with the court ruling. Alas, for Organización Radiofónica Mexicana, it represented the same Pyrrhic victory that the Emisiones Radiofónicas case was.
En este sentido y en cumplimiento de la ejecutoria señalada, coincido en determinar como improcedente la solicitud presentada por Radiodifusora XEMI-AM, S.A. de C.V. el 24 de mayo de 2018, para obtener una segunda ampliación del plazo establecido para presentar el pago por contraprestación correspondiente a la prórroga de vigencia y concesión única otorgada a favor de dicho concesionario a través de la Resolución aprobada mediante el Acuerdo P/IFT/110517/232, toda vez que ello implica modificar sus condiciones y términos, y este órgano colegiado se encuentra imposibilitado jurídicamente para ello. — Sóstenes Díaz González
There is one other noteworthy item from the May 12 meeting transcript. The Director General of Broadcast Concessions, Álvaro Guzmán Gutiérrez, unexpectedly left the IFT on May 11 after more than 15 years between Cofetel and its successor. The reasons aren’t clear.
Some material from a blog post on the WTFDA Forums dated August 2, 2019.
