Mexican Senate vs. Blackberry and Telcel Services

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Photo credit: blackberry by marissa anderson

Mexican Senate approved on October 12, a motion to formally request Telecommunications Commission (COFETEL) and Ministry of Communications and Transports (SCT) to impose fines to mobile operators that use Blackberry devices.

This fine is based on the grounds that mobile operators did not answered correctly to the Research-in-Motion (RIM) server problem that started around October 11, and lasted for around 3 days.  In lawyer language, that is an actual damage and loss of profit.

It comes to my attention that Senate concludes that Telcel is responsible for the failure of Blackberry “applications”, in particular BB Messenger.  Other third party applications are mentioned but some like Facebook and Twitter are not legally related to either RIM or Telcel, in terms of data/mobile services.  This application is a proprietary application fully developed by RIM, but Telcel is the service provider and in some cases, seller of devices.  Then Telcel would be liable before subscribers, but I guess there must be a “Hold-Harmless” clause between these two companies. The problem was the data services, not the application itself.

Senate indicated that Telcel had to foresee the failure of the Blackberry brand, services and applications. Technology never provides 100% guarantee of results and in fact, it is impossible to “foresee” 100% of future failures.  In Mexico in particular, there is a grey area on consumer-electronics, software and telecom services liability, so it is very hard to define which are the obligations of a services provider or seller to prevent a failure. Do not misunderstand me, there is a civil and commercial liability in several statutes, but they have been outdated and outsmarted by technology.

It is important to note that the Document strongly focuses on Telcel, biggest mobile operator in Mexico, while all operators carry Blackberry line of products. The Blackberry server was the failure and then all operators relying on that server failed, so there is no reason for exemplary fine to only the “Big One”.  By the way, RIM already offered last October 17, $100 USD credit compensation to subscribers for premium apps.

Even more, Senate request COFETEL to consider the repeated failures of Telcel.  This phrase is ambiguous enough to mislead to past failures or current Blackberry failure.

Here is the transcript for your reference:

“SOLE. Senate of the Republic demands to Federal Telecommunications Commission, to propose to Ministry of Communications and Transports to impose a fine to operators and concessionaires that carry out the brand, services and applications Blackberry, for not foreseeing the failure of the same and to force them to bonus the users affected by such failure forthwith, as well as to put pressure to reinstate such services or applications in brief.

Herein is stressed that for calculating the fine, there must be considered the repeated failures of the Company Telcel, on rendering mobile services and applications, in the understanding that this is the company with the major number of users.”

A final thought … the Senate has the authority to present the motion, but SCT will have the final word on imposing or not the fine.  In the terms it has been presented, it appears not to have enough grounds, and of course, after the time COFETEL and SCT completes all red tape, RIM would be working again.

About the author

Alberto Esenaro

I am a Mexican lawyer with experience in technology, energy, automotive, infrastructure and business. Worked for law firms, international companies and Government bodies on business advice, regulatory compliance and litigation.

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By Alberto Esenaro

About Author

Alberto Esenaro

I am a Mexican lawyer with experience in technology, energy, automotive, infrastructure and business. Worked for law firms, international companies and Government bodies on business advice, regulatory compliance and litigation.

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