Supreme Court and TDLC to consider challenges over spectrum

30 Nov 2018

Chile’s Supreme Court is set to rule again on the return of excess spectrum, following appeals by the affected providers Diario Financiero writes. The apex court ruled in June this year that Movistar, Entel and Claro had broken rules regarding spectrum holding limits by bidding for spectrum in the 700MHz band in 2014, and ordered the providers to return an amount of spectrum matching their allocations from the auction: 2×10MHz each for Movistar and Claro, 2×15MHz for Entel. The operators were permitted which frequencies to keep and which they could return, however. Then, earlier this month, the Antitrust Tribunal (Tribunal de Defensa de la Libre Competencia, TDLC) ordered the providers to comply with the order, rejecting arguments from the trio that they could not return airwaves as the Department of Telecommunications (Subsecretaria de Telecomunicaciones, Subtel) has not defined a mechanism to do so. In addition, the cellcos claimed that there was no need to return the frequencies, as Subtel is currently revising the spectrum cap. Entel, Movistar and Claro have now challenged the TDLC’s ruling, requiring the Supreme Court to rule on the matter once more.

In a related development, Movistar has submitted a complaint to the TDLC regarding Subtel’s partial freezing of the 3.5GHz band, arguing that it will provide Entel and Claro with an advantage in launching 5G services. Subtel suspended use of the range in June this year on the basis that the spectrum was not being used efficiently – 73% of locations it tested had no signal – and that it needed to conduct an in-depth study of the band for its potential use in the development of 5G in Chile. Following complaints from Claro and Entel, however, Subtel partially reversed its decision, allowing the operators to use the airwaves where they were using the spectrum to provide fixed-wireless broadband access. According to Movistar, the partial reversal gives Entel and Claro an anti-competitive advantage in bidding for 5G spectrum and launching 5G services that would ‘allow them to exclude their competitors in the mobile telecommunications industry and compete outside the concessional structure of the market.’ The Spanish-owned cellco stressed its point, noting that Claro and Entel’s use of the spectrum already falls outside of the remit of their concessions, as it was originally intended for fixed-wireless telephony.