On June 11, 2013, a Decree was published in the Official Gazette of the Federation amending and adding various provisions of the Political Constitution of the United Mexican States regarding telecommunications and economic competition (the “Telecommunications Reform”).
One of the purposes of the reform was to recognize the rights of audiences at the constitutional level, and therefore Article 6 of the Political Constitution of the United Mexican States was amended to expressly include the rights of information, expression and reception of audiences. Likewise, the Federal Telecommunications and Broadcasting Law enacted on July 14, 2014 (the “LFTR”), in Articles 256 to 261, included the rights of the audiences, as well as the provisions applicable to the ombudsman’s office.
The last paragraph of Article 256 of the LFTR established the obligation of broadcasting, television or restricted audio concessionaires to issue Codes of Ethics in order to protect the rights of audiences, which were to be prepared in accordance with the guidelines issued by the Federal Telecommunications Institute (the “IFT”), which were to ensure compliance with the rights established in the sixth and seventh articles of the Constitution, as well as to guarantee that the concessionaires had full freedom of expression, programmatic freedom and editorial freedom.
In compliance with the aforementioned Article 256 of the LFTR, on December 21, 2016, the General Guidelines on the Defense of the Audiences (the “Guidelines”) were published in the Official Gazette of the Federation, which would enter into force 30 business days after their publication. The purpose of the Guidelines was to regulate the defense of the audiences, establishing mechanisms and limitations for the election of the defenders of the audiences, as well as to guarantee compliance with the rights of information, expression and reception of content in terms of the provisions of Articles 6 and 7 of the Political Constitution of the United Mexican States.
Notwithstanding the foregoing, due to certain constitutional controversies filed before the Supreme Court of Justice of the Nation by the Federal Executive and the Senate of the Republic, which were admitted on February 1, 2017, pursuant to the agreements published in the Official Gazette of the Federation on February 8, 2017 and August 11, 2017, respectively, the IFT modified on two occasions the transitory regime of the Guidelines, in order to defer the entry into force of the Guidelines until November 16, 2017.
Prior to the resolution of the Constitutional Controversies filed and prior to the entry into force of the Guidelines, on October 31, 2017, several amendments to the LFTR (the “LFTR Amendments”) were published in the Official Gazette of the Federation. Through the Reforms to the LFTR, among other things: (i) the powers of the IFT to order the precautionary suspension of transmissions that violate the rules established in the LFTR regarding audience rights were eliminated; (ii) the right of audiences to clearly differentiate news information from the opinion of the person presenting it was eliminated; (iii) the IFT’s authority to issue guidelines on audience rights was eliminated, and (iv) a self-regulatory scheme was established for the preparation and implementation of the concessionaires’ codes of ethics, without any scrutiny by the IFT, thus weakening the independence of the ombudsman’s office, since the latter is appointed by the concessionaire at its discretion. Likewise, the second transitory article of the Reforms to the LFTR abrogated the regulatory and administrative provisions that were opposed to the LFTR Reforms, including the Guidelines.
In January 2018, the Mexican Association of Defenders of the Audiences, A.C. (“AMDA”), as well as several members of the same who served as defenders of the audiences, filed an amparo lawsuit against the amendment to the last paragraph of Article 256 of the LFTR dated October 31, 2017, which established the self-regulation regime for concessionaires in relation to the preparation of codes of ethics and the elimination of the powers of the IFT to issue guidelines on audience rights, arguing the unconstitutionality of the second and third paragraph of Article 256 of the LFTR and the abrogation of the Guidelines.
On August 7, 2019, the First District Judge in Administrative Matters in Mexico City granted the injunction requested by AMDA declaring the unconstitutionality of the second and third paragraphs of Article 256 of the LFTR, based on the following arguments:
a) Infringement of the principle of reserve of law by virtue of delegating to the concessionaires the regulation of an aspect reserved to the legislator by express constitutional provision;
b) The challenged portion of the law creates an unnecessary tension between the requirements that concessionaires must comply with when performing the public service entrusted to them and the economic interests they may have in order to establish a more restrictive procedural regulation for hearing defenders, which negatively impacts the political dimension of the right to freedom of expression; and
c) The challenged precepts establish an unjustified restriction to the rights of the defenders of the audiences, since they restrict the procedural remedies available to them, since by establishing that the codes of ethics may not be validated or reviewed by any authority, nor must they comply with criteria, guidelines, directives or any type of regulation issued by the IFT or any other authority, they prevent them from challenging the aforementioned codes and, in addition, abrogate the guidelines that they could previously invoke as a parameter for review.
Subsequently, as a result of the appeals filed by the Deputies of the Mexican Congress and the President of the Republic against the judgment issued by the First District Judge in Administrative Matters in Mexico City, the Supreme Court of Justice of the Nation decided to assume jurisdiction over the matter. On May 12, 2021, with four votes in favor and one against, the Second Chamber of the Supreme Court of Justice of the Nation confirmed the sentence issued by the District Judge, with the following effects remaining firm:
1. The obligation of the Congress of the Union and the Constitutional President of the United Mexican States to render ineffective, within thirty business days following the execution of the judgment, the issuance and promulgation of the decree through which the challenged articles were issued, exclusively with respect to the regulatory portions declared unconstitutional, thus restoring the validity of Article 256, second paragraph, of the LFTR prior to the reform;
2. The reestablishment of the IFT’s power to issue guidelines regarding the rights of audiences, whereby it may set a date for the beginning of the Guidelines’ effectiveness or the issuance of new ones.
Accordingly, the rights of the audience are currently established and regulated in the Political Constitution of the United Mexican States and in the LFTR, but there are not sufficient means for the effective exercise of such rights, since their exercise and protection depend entirely on the provisions of the codes of ethics of each of the concessionaires.
In this regard, the ruling of the Supreme Court of Justice of the Nation opens the door for the IFT to issue guidelines to provide citizens with the elements they need to exercise their rights. However, it will be necessary for the Congress of the Union and the Constitutional President of the United Mexican States to comply with the ruling, so that the IFT can set a date for the entry into force of the Guidelines or issue new ones, which to date has not happened.
It is worth mentioning that the articles that were not contested in the amparo filed by AMDA did not undergo any changes and continue to be in force in accordance with the provisions of the amendments to the LFTR.
