Fondecyt Project 1230748 on Regulatory Institutionalism of Convergence in Communications (IRCC, Institucionalidad Reguladora de la Convergencia en Comunicaciones) is a research project that systematizes information of various international experiences with constituting regulatory institutions of convergence in communications in order to identify best practices in these processes that can be replicated in the Chilean context.

In the early 2010s, Brazil, Chile and Mexico were considered to be the Latin American countries with the best conditions for developing a convergent regulation. However, Chile is currently the only Latin American country belonging to the Organization for Economic Cooperation and Development (OECD) without a convergent regulatory institutionalism, while Mexico and Colombia have created the Federal Institute of Telecommunications (IFETEL, Instituto Federal de Telecomunicaciones) and the Communications Regulation Commission (CRC, Comisión de Regulación de Comunicaciones), respectively. At an international level, countries as seemingly dissimilar as Italy, Malaysia, the United Kingdom and South Korea already had convergent institutions that regulated telecommunications, spectrum allocation and contents in a single entity at the time. From the latter, we have chosen Ofcom the Office of Communications (OFCOM) and the Canadian Radio-Television and Telecommunications Commission (CRTC) as case studies.

Although there is consensus that digitalization is the technological principle that allows for the convergence of communications, it disappears when its regulatory and political implications are questioned. 

The possibility offered by digitalization to reduce any message to binary code regardless of the source and output medium has had an impact on various sectors of the economy. In the case of cultural and media industries, it meant shifting from various media (radio, paper, TV, film, records) to a common data transmission language. That is why we can listen to music and record videos on our phone and watch shows on our computer today. 

This causes changes in the value chain of these industries, in addition to the creation of new business niches and other tradable goods. 

In the analog context, printed press, radio and television have different forms of regulation. Radio and network television, for example, use a scarce resource, the radio spectrum, which is managed by nation states through concessions. This imposes more requirements and considerations on the concessionaires, as opposed to the freedom to create print media, which has fewer restrictions.

In the digital context, in which the boundaries between the different media are blurred, as well as the differences between sender and receiver (as we can all be content creators), why and how to regulate becomes relevant.**

That is how many countries that had regulatory state agencies for radio and television in the 20th century are transitioning toward a regulatory institutionalism of convergence. In 2008, the OECD identified some aspects that needed to be covered by a convergent regulation and addressed by the authorities in charge of the sectoral policy. They are:

• infrastructures; 
• net neutrality; 
• spectrum allocation;
• integration of broadcasting and telecommunications.

Although convergence was originally thought of mostly as the regulatory integration of the telecommunications and broadcasting sectors, nowadays, one speaks of three necessary sectors that should be convergently regulated due to the increasing intersections between them: radio and television, telecommunications, and Internet. This makes the discussion more complex, as Internet is a service that operates beyond national frontiers. However, new services -as well as tensions between different actors- increasingly emerge that are causing some countries to consider regulating some aspects of the Web. This is the case, for instance, of the regulations recently developed by Australia and Canada to address the relationships between web browsers and media companies at a national and local level in order to guarantee the existence of a national media market and the communication rights of the users.

As new technological developments generate new opportunities and new risks for the exercise of citizenship, it is necessary to develop a regulatory convergence that follows media convergence.

The Regional Debate

The telecommunications consultant René Bustillo was the first to propose an institutional model for regulating convergence based on and for the Latin American context in 2011. It defines convergence as “**the blending of traditionally different technologies, networks, services and industries into new combined forms”** motivated by technological developments around digitalization.

Thus, a convergent regulation assumes the blurring of the boundaries between broadcasting, Internet and telecommunications companies, as well as the services they deliver.

A study published in 2020 by the Argentine researcher Ana Bizberge compared digital convergence policies in Argentina, Brazil and Mexico from 2000 to 2017. The study found that although the discourse of regulatory convergence among audiovisual and telecommunications industries emphasizes the promotion of competition, in the Latin American context, it has actually tended to serve as an excuse to deregulate networks, deepening concentration and reducing competition to the same usual actors.

This becomes more complex when we incorporate digital platforms into the equation, as their influence in some debates, as well as some of their self-regulation measures, have been a source of concern for researchers and civil society organizations at a continental level.

In 2019, Martín Becerra and Guillermo Mastrini published the document The Convergence of Media, Telecommunications and Internet from the Perspective of Competition: Toward a Multi-Understanding Approach for UNESCO, where they discuss convergence in Latin American terms based on the need to integrate two approaches in its institutional development: i) competition theories and antitrust policies on one hand; and ii) freedom of expression theories and the promotion of pluralism on the other.

According to these authors, the changes in the value chain of cultural industries have caused a current interrelation among factors whose regulation was separate until recently: “inclusion of users in the value chain (more active role in the production of contents), new intermediaries (Google-Alphabet, Amazon), new forms of financing and price systems (micropayments, payments per consumption), and new strategies of communication groups (mergers and acquisitions)”. 

In the eyes of Becerra and Mastrini, the economic activities of information and communication are considered just another commodity, without regard to their specificity as a sector of cultural industries: “In the few instances of interventions by competition agencies regarding communication issues, their intervention was excessively permissive of mergers and was based on analyses of relevant markets that did not account for the multiplicity of sectors involved in the operations” (Ibid.). They distinguished between two forms of intervention (ex-ante and ex-post) as part of the defense of free competition in relation to information and communication systems. The latter is more common in the American continent, but its main problem is that the regulator starts to participate only once the situation that eventually requires correcting is already consolidated and difficult to reverse. 

Local Reality

As for Chile, there is no convergent regulatory institutionalism of communications in the country to date. Regulatory powers and functions belong to different bodies of various scope and nature.

During the first government of President Sebastián Piñera, a bill to create a Superintendence of Telecommunications was submitted to the parliament. Following OECD recommendations, this superintendence was conceived as a supervisory and sanctioning agency independent from the Telecommunications Undersecretariat (SUBTEL, Subsecretaría de Telecomunicaciones). It was also conceptualized as a more technical and neutral agency. The aim was to try to resolve the so-called “regulatory capture dilemma” with this institution” (Cfr. Cfr. Stigler, 1971).)

However, the appointment of the potential superintendent continued to be a direct prerogative of the president. Additionally, it did not include the television medium or a communication rights perspective for understanding -for instance- access to connectivity. The debate was halted in 2014 for budgetary reasons, and the discussion in the Senate was only reopened in 2020, with no further progress.

In turn, the National Television Council (CNTV, Consejo Nacional de Televisión) )has produced several publications that place the focus on the convergence of audiovisual media consumption and how it concerns it as a content supervisor. Nonetheless, the CNTV doesn’t consider itself an agency engaging in matters related to telecommunications, ownership concentration problems in the audiovisual sector or issues linked to the active promotion of the most precarious actors in the industry, such as local, regional and community television. It focuses mainly on the regulation of certain contents of nationwide network TV, while there are no institutions regulating the radio industry beyond the allocation of frequencies by SUBTEL.

Lastly, Chile has two institutions responsible for regulating markets: the Court for the Defense of Free Competition (TDLC, Tribunal de Defensa de la Libre Competencia) and the National Economic Prosecutor’s Office (FNE, Fiscalía Nacional Económica). However, neither the TDLC nor the FNE have specialized knowledge regarding the markets of convergence. They also do not consider the specificity of radio and TV as cultural industries.

In Chile, there are several institutions and bodies that intervene in the regulation of telecommunications and broadcasting. But this regulatory institutionalism suffers from various imbalances and results in several issues that affect freedom of expression, the right to communication and free competition, such as: concentration of ownership and the relevant markets in the media and telecommunications industry; predominance of commercial projects to the detriment of public and community projects; application of criminal law to freedom of expression issues; low citizen participation; concealed collusions; scattered and opaque information about spectrum distribution; insufficient public funds; lack of differentiation of the media industry regarding other markets; failure to comply with the law; governmentalization of some regulation areas; low protection of journalistic work; and weak self-regulation mechanisms of the written press (Sáez, 2021). 

In conclusion, Chile is in debt regarding the development of a convergent regulatory institutionalism, behind the countries we consider case studies. Here lies the relevance of this research for fueling a well-founded public debate in a topic regarding which there is no systematic academic research in Chile.