On July 29, 2015, the Constitutional Chamber of the Supreme Court of Justice declared unconstitutional the omission of the Telecommunications Act to regulate alternative mechanisms to the public auction, to award concessions on frequencies of the radio-electric spectrum; it also declared unconstitutional the automatic extensions of the concessions for the exploitation of frequencies for the provision of radio and television broadcasting services of free reception.
In its ruling, the Chamber established that Congress is obliged to take into account other criteria, other than the economic factor, for the allocation of the radio-electric spectrum, by which the auction method cannot be the only mechanism of allocation of the radio-electric spectrum. The unconstitutionality is declared by omission, since a regulation ensuring alternative mechanisms to the public auction for the purchase of the right to exploit the radioelectric spectrum was not included in the Telecommunications Act.
On the other hand, the Chamber also pointed out that automatic extension of concessions to exploit frequency of radio and television broadcasting services of free reception, is an unreasonable limitation to free competition, because it hinders the participation of other bidders that are also technically and financially prepared for the provision of such services.
As a result of the ruling, taking place on December 31 of this year, at the latest, Congress shall issue regulations to normalize in a clear, precise, organized and systematic way, alternative mechanisms to award concessions for the exploitation of the radio-electric spectrum that will operate in addition to the public auction of the Telecommunications Act. In addition, it shall develop regulations regarding the conditions in which the extensions on such services will be carried out, regulations which shall contain, at least, the government’s obligation to assess the fulfilment of the established conditions, the management of the involved assets and resources and the responsibility of the concessionaires.
Another aspect worth mentioning is that the Constitutional Court in the judgment in question orders the General Superintendence of Electricity and Telecommunications ("SIGET"), to refrain from processing applications for anyone interested in obtaining a concession of frequencies, making any tender procedure and to award concessions related to the radio spectrum for radio and television until the Digital Terrestrial Television is implemented in El Salvador.