Mexico. The importance of the Public Consultations lies in the possibility of generating an additional instrument for the collection of information, a different perspective of analysis and a consequent formation of criteria for the resolution of institutions and regulatory bodies.
According to the International Telecommunication Union (ITU), "public consultations promote two important regulatory objectives. First, they provide the regulator with valuable input from industry members and other stakeholders. Therefore, public consultations help regulators make informed decisions. Second, public consultations help foster a transparent regulatory environment." [1]
The 2nd Public Consultation on the effectiveness in terms of competition of the asymmetric measures imposed on the Preponderant Economic Agents in Telecommunications (AEP-T) culminated on May 27, resulted in the generation of diagnoses on the structure and sectoral competitive dynamics, as well as on the application of the asymmetric measures established in March 2014 and revised, amended and added in March 2017 by the IFT.
In this year, 16 opinion documents were counted, among these, 13 of 16 expressed, in general terms, the scarce/null effectiveness that the preponderance measures have had. It is worth mentioning that these documents legitimately represent the opinions and perceptions about their affectivity, because the rest (3/16) are based on a conflict of interest when they are made by AEP-T itself, the telephonists union and a regular expert in trials promoted by América Móvil.
So 13 of those 16 opinions should be considered as the universe of participants who seek the generation of effective competition in the sector.
When analyzing the diagnoses of these opinions, resounding coincidences are identified. A vast majority (85%) affirm that the measures applied have been insufficient for the creation of a scenario of effective competition, 77% refer to the existence of barriers to effective access to passive infrastructure and inefficiencies for access to wholesale services, as well as 54% point out that the AEP-T has carried out discriminatory and dilatory behaviors in the provision of these.
On compliance with asymmetric measures, 7 out of 10 agree that the AEP-T has not fully complied with the measures imposed.
Among the proposals for regulatory improvement issued by the participants, a general question regarding the quality and efficiency of the Electronic Management System (SEG) stands out, due to the fact that the design has been deficient and the information obtained through this means has not generated a decrease in the asymmetry of information faced by competitors and causes distortions in the business decisions of competing operators.
Another of the most frequent proposals among the opinions was referring to interconnection tariffs, such that the need to maintain or increase the asymmetry of these was emphasized, considering that this measure has a positive influence on the competitive environment.
In general, participants advocate a more active role on the part of the regulator and a reinforcement of asymmetric measures. Namely, 63% agree on the need for an ex-ante review of the commercial packages offered by the AEP-T to avoid discriminatory and anti-competitive effects, which ensures their economic replicability. In addition to the above, 7 out of 10 participants proposed sanctioning non-compliance with asymmetric measures and limiting the discretion currently exercised by the AEP-T in compliance with them.
These opinions must be taken into account by the regulator and avoid that the exercise of public consultation constitutes a farce or simulation in the process of reviewing the regulatory framework. It is necessary to carry out an in-depth analysis of the opinions collected by the Public Consultation, the diagnoses issued by the participants about the effectiveness and compliance of the measures, as well as the proposed measures. Since these represent a crucial indication for the implementation of new asymmetric measures that have the effect of a true scenario of effective competition.
Text written by Ernesto Piedras of The Competitive Intelligence Unit.
