In 2022, the current Telecommunications Undersecretariat (SUBTEL) instructed an internal audit after detecting the non-collection of payments for using the radio spectrum from several companies in the sector as of December 31st, 2021.
In 2023 , it became public that at least since 2013 (Piñera I, Bachelet II and Piñera II administrations), SUBTEL had “forgotten” to collect 7,700 million pesos for using the spectrum from the companies Telefónica, Claro and Will (currently part of Entel).
After this, the agency under the Ministry of Transport and Telecommunications reported itself before the Comptroller’s Office to leave a record of the situation and initiated an internal summary proceeding seeking to clarify the reasons why the payment was not made. At that time, technical and also political reasons were disclosed as possible reasons for this “oversight”, with the resulting fiscal damage.
This incident became news again in September 2024, when the Comptroller’s Office issued its report. Among other issues, it established that SUBTEL does not have clarity on how many and which concessions or permits in force it has granted for radio spectrum use.
Additionally, the supervising body instructed the opening of disciplinary procedures to investigate potential administrative responsibilities related to the irregularities detected at SUBTEL, forwarding the records to the Public Prosecutor’s Office and the State Defense Council (CDE).
Finally, the recommendations of the comptroller include updating current regulations, improving supervision and control mechanisms, and implementing an automated collection system.
The radio spectrum is a natural, intangible resource of increasing demand due to the great amount of uses and applications it makes possible. Traditionally, it has been considered a scarce or limited resource.
Article 2 of General Telecommunications Law 18.168 (1982) establishes that the spectrum is a national asset that belongs to the nation, which justifies the impossibility of its appropriation by privates and that authorizations of usage be essentially temporary.
All of these particular characteristics of the radio spectrum substantiate the collection of payments for its use, which applies to concessionaires, permit holders and holders of telecommunications service licenses. Although 93% of non-executed collections are concentrated in 12 telecommunications companies, the problem would also encompass sound broadcasting, free-to-air television and limited television services.
What happened with this “oversight” brings to light the big issue of SUBTEL as a government agency that supervises and develops the public policy at the same time: “It does not seem right that whoever issues the regulations is also who oversees and sanctions them,” read the message with which the bill for a Superintendence of Telecommunications entered parliament in 2011, which, among other things, intended to resolve this tension while also thinking about reducing “the risk of a phenomenon known as‘regulatory capture’”.’”.
However, at #regulaciónconvergente, we think that the leap should be a bit bigger 13 years later: in this bill for a new institutionalism, despite including proposals for selecting relevant positions through high public management, the designation of the superintendent continued to be a direct prerogative of the president of the Republic.
Also, this superintendence did not take control of television -so we continued to leave the issue of regulatory convergence unsolved- or incorporate a human rights perspective in communications to understand access to connectivity.
It is to be expected that this episode and its implications constitute a lesson on the importance of having autonomous convergent regulatory bodies that are well equipped in terms of both irreproachable and competent human resources and high-level technical facilities to do their job.
By Chiara Sáez, December 2024
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