Argentina. The National Communications Agency, Enacom, informed all cable television companies and users that the statement issued by ATVC is erroneous, since the Decree of Necessity and Urgency (DNU) 690/20, ratified by the Legislative Power, is fully in force.
The transitional precautionary measure issued by the Federal Court No. 1 of Córdoba is limited exclusively to the company TV CABLE COLOR S.R.L. of the town of Villa del Rosario, applying the regulations to all other companies in the sector.
Likewise, it should be reported that several companies in the sector have resorted to the Justice to question the constitutionality of DNU 311/20 and 690/20 and the Resolutions issued by ENACOM, and request the application of precautionary measures, with adverse results for all of them.
TELECENTRO S.A. AND ANOTHER C/ EN- EXECUTIVE POWER s/ KNOWLEDGE PROCESS (Expte. CAF No. 12493/2020) is pending before the Federal Administrative Contentious Court No. 4. This file was initiated jointly by the companies TELECENTRO S.A. and DIRECTV S.A. and the proposal is to obtain the declaration of unconstitutionality of DNU 690/20.
In the same way, they requested that the effects and application of the aforementioned decree be suspended as a precautionary measure.
However, on 27/11/2020 the intervening Court rejected the precautionary measure articulated by the plaintiff consortium.
TELECOM ARGENTINA S.A.C/ EN-ENACOM Y OTRO S/ MEDIDA CAUTELAR AUTÓNOMA (Expte. Nº CAF 12.881/2020) is being processed in the Federal Administrative Contentious Court Nº 8. The proposal of the licensee was the suspension of articles 1, 2, 3, 4, 5 and 6 of DNU 690/20, while it considers them null and void for violating articles 14, 17, 19, 28, 31, 32, 33, 42, 75 paragraph 22, 76 and 99 paragraph 3 of the National Constitution and the provisions of article 30 of the Inter-American Convention. Subsequently, he extended the precautionary request against the regulatory resolutions of the decree, issued by the National Communications Entity.
On 29/01/2020, the Fair Court issued a judgment rejecting the precautionary measure requested by the licensee.
TELEFÓNICA MÓVILES ARGENTINA S.A. AND ANOTHER C/ EN S/ PROCESO DE CONOCIMIENTO (Expte. CAF No. 014328/2020) pending before the Federal Administrative Contentious Court No. 5. In this case, the licensee requested the declaration of unconstitutionality of DNU 690/20 and all the regulations that are issued accordingly, while requiring the precautionary suspension of all the regulations in question.
However, to date his proposal does not have any judicial resolution.
In this regard, and in open contradiction with the recently detailed judicial decisions, the Federal Court of Córdoba No. 1 was issued, in a decision that is maliciously misinterpreted by some companies and business chambers, which try to confuse public opinion and give a general scope to a particular decision.
It is not serious to try to apply a particular judicial decision in Argentine law to other companies without legitimacy in the process.
It is not serious for multimedia or multinational companies to argue that their patrimonial situation is identical to that of a small cable in the interior of the country.
Based on the precautionary measure ordered by the Federal Court of Córdoba No. 1, in relation to the suspension of DNU 311/20 and 690/20, ENACOM reiterates and clarifies that it is a measure ordered within the framework of an individual process whose effects are limited to the specific case and is not applicable to all licensees; that is, only for the company TV CABLE COLOR S.R.L. and its less than 1,000 users in the town of Villa del Rosario, in the province of Córdoba.
This decision is only applicable for a specific case, but does not suspend the DNU. The cable TV service provider, which has less than 1,000 subscribers and subscribers, requested that DNU 311/20, which is no longer valid today, and DNU 690/20, including the freeze that was in force until December 31, 2020 and that today is no longer in force, not be applied. It should be noted that this company was authorized to increase by 8% in January and 7% in February.
In the face of the central discussion of the constitutionality of DNU 690/20 and 311/20, the intervening Court did not notify the request for the measure provided through the corresponding procedure to the Executive Power of the Nation (PEN), which is responsible for the procedural defense of said regulations and to ensure the safeguarding of the public interest committed in the case. In this sense, and underhanded under the declaration of unconstitutionality of the Law on Precautionary Measures, the PEN was deprived of rehearsing its argumentation and the appropriateness of the precautionary measure was decided on the basis of the unilateral statements of the plaintiff company.
Likewise, the Court's decision is in open contradiction with the opinion of the federal prosecutor, who, on the occasion of issuing it, with solid and forceful arguments, sponsored the rejection of the precautionary measure issued. Finally, the provisional nature of the precautionary judgment should be highlighted, since its duration is foreseen until the delivery of the judgment of the main action of the case. The State's right of defence was violated and the interests of users were acted upon.
Last December ENACOM, through Resolution 1466/20, regulated DNU 690/20, which authorizes, for the month of January 2021, an adjustment of 5% to be applied by licensees of Information and Communications Technology Services (ICT) that provide Internet access services; subscription broadcasting via physical, radio or satellite link; of fixed telephony, and of mobile communications, all with their different and respective modalities.
In the case of licensees who have less than 100,000 accesses and who had not increased their prices in any of their plans and services during the year 2020, the authorized increase was up to 8% for January. However, SMEs and cooperatives made a presentation to the Agency in which they detailed their cost structures, which are tied to the dollar value in most areas. For this reason, ENACOM authorized "ad referendum" of the next Board meeting an additional increase of 7% as of February 1.
The aforementioned regulation is fully in force and operational, so ENACOM, as the enforcement authority, proceeded to intimate the lending companies to regularize billing immediately, reversing the misapplied increases and reimbursing users the money billed improperly. In turn, the Entity initiated the relevant administrative procedures to apply the corresponding sanctions.
