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Publication of the Guidelines for the registration and control of frequencies classified as protected spectrum in the 129.900-132.025 MHz segment for aeronautical operational control.

On January 23, 2023, the Agreement by which the Plenary of the Federal Institute of Telecommunications issues the Guidelines for the registration and control of frequencies classified as protected spectrum in the 129.900-132.025 MHz segment for aeronautical operational control (the “Guidelines“) was published in the Official Gazette of the Federation.

According to the agreement, the purpose of the Guidelines is to establish the procedure, terms and conditions to be followed to use a radioelectric spectrum frequency for aeronautical operational control, which will allow the Federal Institute of Telecommunications to manage the frequencies of the 129.900-132.025 MHz segment, destined to Aeronautical Operational Control communications, for the provision of Flight Dispatch Services.

The Guidelines will become effective the day after their publication in the Mexican Official Gazette, this is, on March 24, 2023.

Acedo Santamarina, S.C. is ready to provide advise and assist you with the compliance and interpretation of the Guidelines. We remain at your service

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Publication of the Regulatory Provisions regarding Communications via Satellite

On January 23, 2023, the Resolution through which the Plenary of the Federal
Institute of Telecommunications issues the Regulatory Provisions regarding
Communications Via Satellite was published in the Mexican Federal Official
Gazette (the “Regulatory Provisions”).

As established in the aforementioned resolution, the purpose of the Regulatory
Provisions is to have a flexible regulatory framework that provides legal certainty in
the satellite sector environment, in accordance with reality, and allows attracting
investments and new services, as well as the development of technologies for the
benefit of end users.

The Regulatory Provisions contain provisions that regulate, among others: (i) the
reserve of the State's satellite capacity; (ii) the mechanisms to grant concessions
for orbital resources; (iii) the operation of satellite systems and earth stations; (iv)
the operation of domestic and foreign satellite systems; (v) the operation of
transmitting earth stations, and (vi) other provisions related to satellite files.
In this regard, as a result of the issuance of the Regulatory Provisions, rights and
obligations are established for the concessionaires of orbital resources, individuals
or entities authorized to exploit the rights to transmit and receive signals and
frequency bands associated with foreign satellite systems and individuals or
entities authorized to install, operate and exploit transmitting earth stations.

According to the transitory articles of the Regulatory Provisions, these replace the
Satellite Communication Regulations, which will no longer apply. They also
establish the deadlines for submitting, as applicable: (i) in case of not having done
so, the replacement plan pursuant to the provisions of Title Three, Chapter II,
Section I, of the Regulatory Provisions, the non-compliance of which will be a
cause for revocation; (ii) in case of not having done so, the contingency plan
pursuant to the provisions of Title Three, Chapter I, Section III of the Regulatory
Provisions; (iii) the current status of the nominal useful life of the satellites and the
estimated date of the end thereof, and (iv) the notice as to whether the satellite file
in coordination complied with the notification to the International
Telecommunication Union or the status thereof.

Finally, the Regulatory Provisions will become effective 30 business days after
their publication in the Mexican Official Gazette, this is, on March 7, 2023.
In Acedo Santamarina, S.C. we are ready to advice you and help you with the
compliance and interpretation of the Regulatory Provisions . We remain at your
service.

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Amendments to the Regulations of the General Law for Tobacco Control

On January 15, 2023, the decree amending, adding and repealing several provisions of the Regulations to the General Law for Tobacco Control (the “Amendment”) became effective. The main purpose of this Amendment is to tighten restrictions on the exposure, commercialization and consumption of all tobacco-related products.

This Amendment has been celebrated by national and international health authorities, and on the other hand, it has been strongly criticized, specifically by the tobacco industry. Dr. Tedros Adhanom (WHO Director General) sees the Amendment as “such a bold move on tobacco control”. In contrast, Héctor Tejada, chairman of the Confederation of National Chambers of Commerce, Services and Tourism (Concanaco, by its initials in Spanish), highlights that the application of these amendments will harm 1.5 million businesses in the country, from grocery stores to restaurants and hotels.

Some of the measures included in this Amendment are the following:

  1. Consumption. Tobacco products must not be consumed in restaurants and bars (even outdoors), shopping malls, beaches, parks or spaces attended by children or teenagers, stadiums, courts or arenas, entertainment centers, amusement parks, among others.
  2. Exclusive Zones. Exclusive smoking areas remain active in restaurants, bars, hotels and entertainment venues; however, the Amendment introduces the following requirements that exclusive smoking areas must follow: (i) be located 10 meters away from the premises’ accesses and air ducts, (ii) no services of any kind may be offered or served in such areas (including food and beverages), and (iii) no more than 10% of the surface of the facility should be designated for such exclusive areas.
  3. Marketing restrictions. The Amendment also prohibited the direct or indirect display of tobacco products in shelves, drawers, showcases and display cabinets. Now, these products should not be visible to customers in any location where tobacco products are sold (including supermarkets, convenience stores, grocery stores, etc.).

Consequences for non-compliance with the new regulations include fines ranging from $1,000 to $3,100 pesos, approximately. For businesses that fail to comply these regulations, fines, closures, and even revocation of administrative licenses to operate will be imposed.

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Towards a new reality: Teleworking and home-based work.

More than two years ago, the largest pandemic in modern times began, caused by SARS-coV-2 (COVID-19). This pandemic, in the eyes of many of us, began as something distant, as something that would take months to reach Mexico or that would probably not affect us at all, a thought that changed abruptly in the last days of February 2020, when the first case of COVID-19 was detected in Mexico.

Shortly after, this virus would lead to the declaration of a worldwide alert by the World Health Organization, and countries began to take protective measures for their populations, which is how the so-called “quarantine” came about. Before returning to the new normality, this quarantine forced us to make our homes an office, a school and a place to rest. Our parents and siblings would no longer only be our family, but also play the roles of teachers, co-workers and playmates.

The quarantine resulted in a great number of consequences. Because of the quarantine, many businesses had to close, and many jobs were lost, many others were suspended, and while activities were being resumed, where was the income for basic necessities?

It was because of this great need to resume work activities that two institutions were used. The first, already foreseen by the Federal Labor Law (“LFT”, for its acronym in spanish), “home-based work” and one that derived from the pandemic, which was “Telework”, as of January 11, 2021, after a reform to the LFT.

Both institutions are colloquially referred to as “home office” and are commonly confused, since both, as remunerated and subordinate activities, are performed by workers who perform their work in places other than the employer’s establishment (where work is usually performed). However, it is important to note that both figures have distinctive points that we will analyze below.

The first of the differences consists in that the work-based home is performed without an immediate supervision and direction of the employer, likewise, the worker can be helped by the members of his family for the accomplishment of his labors; on the other hand, in the telework is primarily the use of technologies of the information and communication precisely so that there is a contact and command between the worker and employer.

As a distinguishing feature of home-based work, in addition to what has already been mentioned, the legislator also considered as such the situation in which the employer sells raw materials or objects to his worker or workers, so that they transform them at home and subsequently resell them to their employer. This provision allows the recognition of the quality of worker to the person who performs these subordinate and remunerated activities, which does not allow them to be confused with service providers.

Regarding the remuneration of work at home, the worker has two essential protections in his salary, since the law establishes that these workers cannot be paid less for similar work performed in the company, and in addition, a minimum salary is fixed for the different work at home by the National Commission of Minimum Wages, taking into consideration market prices, the nature of the work, its quality and the estimated time to perform it.

Teleworking has as another of its distinctive points the time, if the work activities are performed less than forty percent of the time at the worker’s home, it cannot be considered as teleworking; also, in case of working on-site, in order to change to the teleworking modality, it must be stated that the change is voluntary and must be made in writing.

Now, how does telework and home-based work impact employers?

Home-based work imposes certain obligations on the employer, such as: (i) such as registering in the “Register of home based work employers”, (ii) delivering to the worker the copy of the working conditions that are in writing; (iii) keeping a record book of their home workers; (iv) delivering to their workers a foliated and authorized notebook; and v) they must also comply with the special obligations set forth in Article 324 of the LFT, which in a few words establishes that they must fix the wage rates (respecting at all times the protections assigned by law as mentioned above), provide the workers with the materials and tools, and provide the authorities indicated by the LFT with the information requested by such authorities.

For its part, telework imposes special obligations on employers which are contained in article 330-E of the LFT, such as providing, installing and maintaining the equipment used for teleworking, assuming the costs derived from the work, keeping a record of inputs delivered to workers, implementing mechanisms that preserve the security of information, respect the right to disconnection of workers, and ensure the training and counseling mechanisms that are necessary to ensure the adaptation of workers to the technologies.

In this regard, in the telework modality, it is also applicable to employers and workplaces the NOM-037-STPS-2022, which establishes obligations of mandatory compliance and some other non-mandatory provisions, that have a character of recommendations, which helps with the determination of safety conditions in the development of teleworking.

After the pandemic, these figures are increasingly useful, because although many people´s life were complicated by the modality in the beginning, it is also true that many others were granted a better quality of life. Teleworking and home-based work, in most cases are carried out informally and although they are already regulated, the implementation of the law is still in its early stages. In conclusion, we can say that even when the regulation of these figures is little applied by employers and workers, they are used by millions of people in the world, so it is true that they open the way towards a new reality.

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DIGITAL JUSTICE ON ITS WAY

There is no doubt that we are living through one of the most technologically and scientifically advanced times in the world. We have gone from formal, written communication – which involved stamps, post offices, envelopes, and paper – to simply picking up our phone and being able to contact anyone around the world.

It is true that those who do not adapt to these technological changes run the risk of becoming socially maladapted entities. This is the case of the Mexican legal system, since to carry out some proceedings they continue to prefer solutions that today are outdated.  Despite this, the judiciary of the federation and of each state have been slowly adapting to the Internet and technology. For example, in some states of the Republic, we are beginning to know about online trials such as Nuevo Leon or the Federal Court of Administrative Justice, which allows us to promote writs through their web pages.

However, there is still a long way to go, so that people and lawyers are forced to adapt to a system that is clearly outdated in relation to the current needs of society. To be more specific, at this point I refer to letters rogatory which, in general, are acts that need to be communicated between judges in different countries, which turns out to be extremely complicated due to the time it takes (approximately six months); time in which, by the way, the original proceeding must be suspended.

According to the Ministry of Foreign Affairs, a letter rogatory is “the legal figure used by a jurisdictional authority of a State to request a foreign jurisdictional authority to assist in the performance of acts of mere formality that are necessary for the proceeding of a trial“.

The procedure for the execution of a letter rogatory is included in the Inter-American Convention on Letters Rogatory and is relatively easy; however, the bureaucratic issue in the Ministry of Foreign Affairs is what causes the time to extend sometimes up to six months or more, just to be able to send the documentation to a judge.

The above is unacceptable, since it directly violates the fundamental right recognized in Article 17 of the Political Constitution of the United Mexican States, since it speaks of the prompt and expeditious delivery of justice, which cannot be guaranteed due to this central authority.

This is how the need to create a new channel of communication arises, since as we have seen, not only is access to justice in a prompt manner violated, but also one of the principles of this same article, since in the event that the parties will have to pay for the diligence of these documents, as stated in Article 12 of the Inter-American Convention on Letters Rogatory, with the uncertainty of whether the judicial body to which the letter is addressed may reject the letter.

Under this precept, we feel the need to digitalize this channel of communication as soon as possible. I say as soon as possible, because according to the General Office of Legal Affairs of the Ministry of Foreign Affairs, only in the years from 2000 to 2008, foreign authorities requested the support of 3,210, with an average of 401.24 letters per year.  On the other hand, Mexico requested international cooperation for the diligence of 7158 letters in the same period, with an average of 894.75 letters per year.

The answer lies in an amendment to Article 551 of the Federal Code of Civil Procedures, which would open the possibility of a much shorter procedure than the one currently established by the Ministry of Foreign Affairs. In addition to the above, the amendment should include the use and updating of the digital systems of each Superior Court of Justice of the different entities of the country, as well as of the Mexican embassies only in the countries that are part of the Convention. With this we would achieve that any requesting country approaches the embassy and fills out a form so that it is immediately sent to the Superior Court that the authority has indicated as domicile. Upon receipt, the Court would have a period of no more than 3 days in accordance with the same civil procedural order to turn it to the judicial body it considers competent.

Only with this solution we could meet the needs that a technological society demands, as well as guarantee the prompt and expeditious administration of justice. On the other hand, the Federal Government, through the General Office of Legal Affairs of the Ministry of Foreign Affairs, could save resources, optimize time, and get rid of the enormous amounts of paper that can represent a danger to the buildings and that also implies a possible violation of the parties’ information.

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The burden of proof in the nullity of electronic bank transfers

Wire transfers are services widely used by users of financial services as they are a convenient and fast instrument to make payments from one bank account to another, even between accounts of different banks through systems such as SPEI (Interbank Electronic Payment System), which is operated by Banco de México.

However, the systems used by banks to provide electronic payment services may be violated by persons seeking to obtain an undue economic benefit by making electronic payments without the consent of the holder of the corresponding bank account.

In this regard, Articles 77 and 96 of the Credit Institutions Law provide that banks must establish basic security measures to protect the public, the bank’s assets and its factors and dependents, in addition to carrying out practices that ensure adequate attention to their customers and the security of the transactions in which they are involved.

In accordance with the General Provisions Applicable to Credit Institutions compiled by the National Banking and Securities Commission (the “General Provisions“), credit institutions are required to use authentication factors to verify the identity of their users and the authority they have to perform transactions through electronic banking services, in addition to generating records, logs and audit trails of the transactions performed by electronic means.

Among the information that must be registered by the credit institutions are: (i) the date and time of the transaction, (ii) the number of the origin and destination accounts, (iii) the identification data of the access device used by the customer to perform the transaction, (iv) the addresses of the Internet protocols, and (v) the numbers of the cell phone line used to perform the transaction.

The General Provisions also provide that banks must have mechanisms that prevent third parties from interfering with sessions initiated by a user when using the electronic banking service, such as: (i) terminating the session when the credit institution identifies changes in the range of addresses of the communication protocols or geographic location, or (ii) preventing simultaneous access by a user to more than one session.

In accordance with the foregoing, the First Chamber of the Supreme Court of Justice of the Nation has established that in cases in which a user demands the nullity of electronic bank transfers, the credit institution must demonstrate that it complied with all the security measures set forth in the General Provisions to guarantee the certainty of the disputed transactions and that there were no incidents that compromised the customer’s data. According to the Supreme Court, only in the event that the bank has demonstrated that it complied with the above, the user will be obliged to disprove what was provided in the trial by the credit institution in order to justify the validity of the nullity claim.

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