Chilean operators take 700MHz legal fracas to constitutional court

Chile's constitutional court has agreed to hear cases from mobile operators Entel and Movistar that are seeking to nullify a ruling by the country's supreme court that ordered the companies to return excess spectrum that takes them over the permitted limit.

The move is another step in a drawn out and complex legal battle that market observers have said could threaten to set back Chile's plans to auction spectrum for 5G by several years.

In June last year, Chile's supreme court ruling ordered operators Entel, Claro and Movistar to return the equivalent amount of spectrum they had won in a 2014 tender for the 700MHz band in order to comply with a previously established total spectrum cap of 60MHz.

Though appealed by the companies, antitrust tribunal TDLC nonetheless ratified the supreme court ruling that originated from a lawsuit filed by consumer protection agency Conadecus.

Conadecus claimed that the 60MHz spectrum cap imposed for the award of the AWS band in 2009 also applied to the 2014 tender for the 700MHz band.

The operators have rejected that argument, saying that 60MHz is an unrealistic limit given the growth in the mobile industry at present.

Since then, telecoms regulator Subtel has filed with the TDLC a consultation on a new national spectrum plan in which it would raise the spectrum limits for low, medium and high bands. That consultation is still ongoing.

In any case, Subtel's public consultation about raising the spectrum caps is a separate issue from the supreme court ruling, meaning that the spectrum will have to be returned unless the operators can win their case in the constitutional court.

According to Cristian Reyes, lawyer with Estudio Bravo, which is representing Conadecus, the operators are seeking to change the focus of the court case, taking it out of the realm of the competition court, whose decision cannot be appealed, and making it a fight between the supreme court and the constitutional court.

"This is their last option," Reyes told BNamericas.

According to Reyes, the supreme court has rejected appeals from Movistar and Entel and the rejection of Claro's appeal is still pending. Once that happens, that will pave the way for the showdown between the supreme court and the three operators in the constitutional court.

Nothing is likely to happen until at least March given that the constitutional court will be closed in February for summer recess.

The lawyer added that the national economic prosecutor's office FNE can participate in the case in the constitutional court, as can Conadecus and other mobile operators not directly implicated, such as VTR and WOM.

Reyes said that Estudio Bravo was still studying the steps to follow with its client Conadecus. Consulted by BNamericas, a spokesperson for Subtel also said the watchdog was evaluating what steps to take with its lawyers.