Communications Landscaping - North and Latin American Transnational Communities: Normative / Legal Regulatory Environment Review

Elements of the Enquiry

3. Normative / legal regulatory environment review

In order to establish a panorama of the legal and regulatory framework related to the infrastructure of communications and their use, as well as the regulatory environment and to gather data on telephony and its scope, on the Internet, radio, and television, and on economic indicators relevant thereto, we identified the main regulatory agencies for these services in each nation, as well as the laws, decrees, articles, and plans related thereto.

Regulation and who applies it in our present environment of competition, supply, service quality, and rates, as well as the separation between regulatory agencies and operators, the concept of universal service and guaranteed access, requirements to obtain concessions, permits, and licenses, and, generally speaking, the role of the State and the autonomy of regulation have all had great strength in the new proposals of modernization and internationalization of these companies.

Summary

In order to establish an overview of the frameworks and legal regulations relating to the infrastructure of communications and their uses, as well as the regulatory environment and to compile data on telephony and its scope, on the Internet, radio and televisions and on certain economic aspects relevant to the subject, the main regulatory institutions for these services were identified, as well as the pertinent laws, decrees and plans and certain indicators on the telecommunications sector for each country (Mexico, Guatemala, El Salvador, Dominican Republic, Haiti, as well as Nicaragua, Costa Rica and Honduras).

The outstanding legal elements in this overview are the regulations and those who apply them within the new situation of competition, supply, service quality and tariffs, as are the division between regulators and operators, the concept of universal service and guaranteed access, the authorization documents for the concession, permits and licenses and, in general, the role of the state and regulatory autonomy, among others. These aspects have strongly influenced in the new proposals of modernization and insertion into the internationalization of these societies.

En general se encuentra una tácita política hacia el régimen de competencia y subsecuente regulación por el mercado y la desregulación de las telecomunicaciones y la comunicación masiva.

The new concept of telecommunications, with a new legal framework, was formally introduced in the nineties. In all the countries, without exception, the new framework stipulated, on the one hand, the creation of regulator entities and, on the other, telecommunication services operation, that is, state monopolies of the provision of this service - which, in turn, had acted as regulators of their own operation - ended and the competitive regime was introduced. The regulatory bodies arose within the concept of modern states, with characteristics of autonomy and general competition, but which differed from country to country. Almost all depended on their Ministries of Communications and, in some cases, directly by the executive branch.

In all cases, except Costa Rica, telecommunication carriers were privatized with more or fewer restrictions regarding private investment and foreign capital.

Regulation is also aimed at technical aspects: radio-electrical spectrum rationalization through frequency, interconnectivity, and coverage attribution charts; the Public Utility concept applied for basic telephony services and, in some countries, for the social purpose of radio and television; the criteria for awarding contracts is established to provide and exploit the different services in discretionary concession categories via invitations to bid, permits and authorizations for different categories of general interest and of special interest. In some cases, such as Mexico and Costa Rica, tariffs were established by Government initiatives or legal provisions or by direct provision of the service.

These two countries, in addition to being outstanding for their conception and application of guidelines for telecommunications management. The management and direct intervention of the Government, through three Ministries (Secretariats) is clear in the regulations for the concession, content, rights, national production and promotion, is clear in the case of Mexico. Costa Rica, for its part, grants the regulatory entity executive powers, but maintains a State monopoly of the operation and provision of the services. In both cases, the State is involved, both formally and in practice, linked to the public concept, according to which the service guarantor is the State itself. How effective is this? It is difficult to answer, but they are the only two countries which at least outline a political map of telecommunication in their development plans and strategies for the sector.

Precisely, it is in the public aspects of the regulation under study that there is a trend seen towards understanding it from a more private perspective and towards reducing the State's intervention both in direct service provision and in its role as regulating body. To illustrate, in the cases of El Salvador, Guatemala, Honduras, Dominican Republic and Nicaragua, the trend is towards the establishment of minimum regulations or, at least, categorization of the service in such a way that there will be fewer and fewer requirements and finally the services will be non-regulated and, likewise, private providers will guarantee the services with minimum State intervention. This is the reason why this trend or concept in the administration, regulation and provision of the services, tending towards greater participation of private enterprise, apparently guaranteeing free and fair competition and the resulting internationalization of the service is so interestingIn most of the cases, foreign investment will be welcome, at least in some of the services; however, it requires a guarantee of regulation or, even better, of minimum regulation, in which the principle or policy of competition is established as well as support to the concessions, permits or authorizations.

In the majority of cases, and perhaps with the exception of Mexico, only the technical aspects of the mass media, radio and television are regulated. The majority proclaim these media as either a public service or, at least, in the general interest and try not to impose requirements concerning content or the protection of national production. In these countries, only excepting Mexico, there is no regulation regarding the content, only on general statements regarding service functions and the right of operators to inform and recreate. Although some refer to the rights of the users, they are referring to service quality and access but not to rights as TV viewers – citizens, regarding how to be informed or regarding their right to a reply or to reparation; nor is any reference made to the corporate purpose and identity of these media.

The majority of the countries have policies to provide funds for the development of telecommunications to guarantee universal access as subsidies for communities unable to cover the costs or which are not included in the authorized scope of the operators, because they are not profitable for the countries. Then, there is an unsatisfied need that must somehow be fulfilled by the State through mechanisms such as funds for telecommunications development because the service provision by private companies will not cover it.

Interest in the technological, administrative, economic and content management and in digitalization in the near future is also considerable. The respective legal frameworks exist, as well as development and strategic plans, which were available to us, a certain directioning towards the only authorization documents hat is, the provision of several services: mobile and international telephony, added value, open and restricted television and radio, ISP and VolP, etc., may be granted to a single operator.

For some of the members of the panel or collaborators in this study from the different countries (see Methodology), the deregulation and the competition policy are a myth only sketched on paper because the telecommunications monopolies or near-monopolies still remain. So, it is possible that the legislation does not fully represent the restrictive, protectionist practices and the superiority of company interests and / or State interests. So, although the regulations that the competition intends to enforce in benefit of the user through statements of reducing State intervention and expounding neo-liberal principles, everything remains status quo in the provision of these fundamental services, and this is an obstacle to modernization, internationalization and, thus, to the development of the country, although there are doubts regarding such a cause-effect relation.

For information and reference purposes, at the end of the information corresponding to El Salvador, Guatemala, Nicaragua, Honduras, Mexico and Dominican Republic, we have included some indicators regarding the telecommunications sector. One of the relevant aspects in the regulations, although not directly related to the telecommunications sector, but that will have a great impact on it, is the laws or bills of law for free access to public information in Panama, the Dominican Republic, and similar projects being promoted in countries such as Honduras. This perspective of free access to public information will enable citizens to be aware of government decisions in a timely, proper manner, and there is no doubt that this will imply a promotion of democratic participation in aspects related to public life. However, it will also influence these decisions in the private sphere, regarding the access to information, furnishing information to individuals, decisions as to public interest services, among others. As a result, it will have a direct implication on the telecommunications sector with regard to its policy and development plans, and also indirect implications because certain citizens may consider this information confidential; for example, when it has to do with their private lives.

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