Las telecomunicaciones en la propuesta de constitución en el Ecuador

Hugo Carrión, 3 de septiembre de 2008

El 2008, ha sido un año especial para el Ecuador, pues hasta el mes de julio la Asamblea Nacional Constituyente trabajó en la formulación de una propuesta de nueva constitución que será sometida a referéndum popular el próximo 28 de septiembre. Más allá de las encuestas y los pronósticos respecto de la aprobación o no de la nueva constitución, es importante y pertinente realizar un análisis de los aportes que se incluyen en ésta, con respecto a las telecomunicaciones.

Haciendo un revisión en orden de aparición, ya el artículo 4, al referirse al territorio nacional se menciona que “…El Estado ecuatoriano ejercerá derechos sobre los segmentos correspondientes de la órbita sincrónica geoestacionaria, los espacios marítimos y la Antártida”,  lo cual en términos de soberanía espacial podría considerarse un avance importante aunque en la práctica, quizás poco se pueda hacer en el corto plazo para ejercer esta soberanía.

El artículo 16, por su parte sorprende positivamente al incluir dentro de los derechos del “buen vivir” al derecho al acceso universal a las tecnologías de información y comunicación, así como al acceso en igualdad de condiciones al uso de frecuencias del espectro electromagnético.

Complementa lo anterior, el artículo 17, cuando refiere que el Estado “Garantizará la asignación, a través de métodos transparentes y en igualdad de condiciones, de las frecuencias del espectro radioeléctrico…” . Queda esperar conocer qué métodos se incluirán en las leyes correspondientes y demás normas secundarias, que hagan realidad esta declaración. Cobra especial importancia esta propuesta de asignación transparente de frecuencias, toda vez que aún están vigentes denuncias del llamado “festín de las frecuencias” que implicó más de 300 frecuencias asignadas sin cumplir requisitos técnicos y relacionadas en la mayoría de los casos con políticos y grupos económicos.

El artículo 261, incluido en el régimen de competencias declara que el Estado tendrá competencias exclusivas sobre “El espectro radioeléctrico y el régimen general de comunicaciones y telecomunicaciones; puertos y aeropuertos”.  Al respecto la oposición ha denunciado la propuesta de estatización de las telecomunicaciones, mientras que el oficialismo ha reivindicado el derecho del Estado de tener competencia exclusiva sobre estos sectores, sin excluir la posibilidad de concesionar servicios. Por ello será papel de la nueva e impostergable Ley Orgánica de Telecomunicaciones aclarar este tema.

Continuando con el análisis que tiene que ver con las telecomunicaciones, el artículo 313 menciona que “El Estado se reserva el derecho de administrar, regular, controlar y gestionar los sectores estratégicos, de conformidad con los principios de sostenibilidad ambiental, precaución, prevención y eficiencia.”  Y dos párrafos después incluye a las telecomunicaciones y al espectro radioeléctrico como sectores estratégicos. Y además el artículo 326 prohíbe la paralización de los servicios públicos de telecomunicaciones y correos entre otros. Nuevamente este artículo ha puesto los pelos de punta a los operadores privados, pues al parecer ya no solamente la regulación y control de las telecomunicaciones estarán bajo su responsabilidad, sino que se reserva el derecho de gestionarlas. Desde luego que el concepto de concesión de servicios parecería implícito, no obstante esta y otras propuestas que la oposición ha calificado como “estatizante” son los argumentos que utilizan para persuadir a los ciudadanos a que rechacen el proyecto de constitución.

Otro de los artículos que sorprende de forma positiva, es el 347, incluido dentro de las responsabilidad del Estado respecto de la Educación, que menciona el “incorporar las tecnologías de la información y comunicación en el proceso educativo y propiciar el enlace de la enseñanza con las actividades productivas o sociales”. Lo que es digno de destacar es que el uso de las TIC en la educación haya sido elevado a principio constitucional, su aplicación y llevada a la práctica, no parecería ser tan idealista, toda vez que el Plan Nacional de Conectividad 2008-2010, presentado hace un par de semanas contempla la inversión de 78 millones de dólares en conectividad para escuelas y centros educativos en los próximos dos años.

Finalmente, al referirse a los recursos naturales el artículo 408, menciona que “Son de propiedad inalienable, imprescriptible e inembargable del Estado los recursos naturales no renovables…así como la biodiversidad y su patrimonio genético y el espectro radioeléctrico”  En particular este artículo ha causado polémica, por la frase que a continuación hace referencia a que “El Estado participará en los beneficios del aprovechamiento de estos recursos, en un monto que no será inferior a los de la empresa que los explota”. Por su parte los medios de comunicación han denunciado que se trata de una propuesta confiscatoria y que atenta contra el derecho de propiedad, mientras que los defensores de la nueva constitución han argumentado que ese no es el espíritu de la propuesta, aunque las aclaraciones no han sido del todo convincentes.

Una observación, que podría escaparse del análisis, pero es digna de mención, es que la propuesta de constitución aprovecha la última transitoria para disponer al Fondo de Solidaridad el transformar al régimen de empresas públicas las empresas privadas eléctricas y de telecomunicaciones de su propiedad. Esta disposición transitoria es la que facilitará el proceso de fusión de las telefónicas Andinatel y Pacifictel en una sola empresa pública de telecomunicaciones, en el plazo de un año.

Como vemos la propuesta de nueva constitución incorpora nuevos y positivos principios y derechos. Además varios artículos reivindican para el Estado el papel no solo de regulador, sino de administrador de las telecomunicaciones y le otorgan competencia exclusiva. Un nuevo marco regulatorio del sector deberá aclarar las condiciones del régimen de libre competencia, la gestión de espectro radioeléctrico, la forma de participación de operadores privados, entre otras aspectos fundamentales. Respecto a la constitución vigente, la propuesta definitivamente contiene avances y aportes importantes para el sector de telecomunicaciones, sin embargo existen un par de puntos que deben ser aclarados para tranquilidad de algunos sectores.

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