Mundie Advogados

With the General Regulation of Consumer Rights of Telecommunications Services - RGC/ANATEL, approved by Resolution No. 632 of March 7, 2014, Anatel aimed to make more concise the rules regarding the rights and duties of consumers and providers of various telecommunications services.

The regulation has been a subject of much discussion both within and outside the Agency, with some of its provisions being put to the test not only for compliance with the natural evolution of the market. In this regard, we have seen several public consultations conducted by ANATEL in recent years, but also some legal discussions aimed at assessing the formal and material validity of its provisions in relation to our legal system.

This is precisely the case with article 46 of the RGC/ANATEL which states that "All offers, including those of a promotional nature, must be available for contracting by all interested parties, including current Consumers of the Provider, without distinction based on the date of subscription or any other form of discrimination within the geographical area of the offer”.

In order to remain competitive in the market, it is common to observe a continuous activity of the providers to develop and structure new offerings that reach the interests of new and potential customers. And of course, article 46 of the RGC/ANATEL always comes up to ensure compliance with legal criteria, especially the non-discrimination of users.

However, article 46 seems to be not only a reminder of compliance, but also of the non-discriminatory treatment as to the conditions of access and fruition of the service - already included in article 3, III of the LGT. In a deeper analysis, however, it is possible to glimpse an intervention in the economic activity of the providers in violation of the principles of economic freedom and free private initiative.

Article 46 of the RGC/ANATEL has been under legal discussion for some time, with emphasis, at the federal level, on the actions filed by TELCOMP and ABTA against ANATEL and, at the state level, on the Public Civil Action filed by the Public Ministry of the Federal District and Territories against Claro S/A.

In 2016, the application of article 46 was suspended in a preliminary injunction, which was quickly revoked by a sentence of merit by the Federal Court of the Federal District, after recognizing that the rule had legal and constitutional support. The lawsuits are awaiting judgment of the appeals of TELCOMP and ABTA by the Federal Regional Court of the 1st Region.

More recently, on November 4th, 2023, at the state level, the Court of Justice of the Federal District and Territories - TJDFT, through its Special Council, declared the formal and material unconstitutionality of article 46 of the General Regulation of Consumer Rights of Telecommunications Services - RGC/ANATEL.

The incident of unconstitutionality argued the need for the telecom service provider to extend its new promotions to all pre-existing consumers, in attention to the provisions of the debated article of the RGC.

ANATEL, which was summoned to manifest itself in the incidental plea of unconstitutionality, defended the constitutionality of its regulation, under the allegation that article 46 of the RGC/ANATEL is supported by the constitutional guarantee of consumer protection and the fundamental guarantee of equality, provided in article 5, caput and XXXII, and article 170, V, of the Federal Constitution.

The Regulatory Agency also sustained that "the guideline of not discriminating users contained in art. 46 of the RGC does not intend to harm free competition, since it does not condition how the offer will be made, it only determines that the offer is available to any user, whether or not he is already a member of the provider′s base”.

The Public Prosecutor′s Office of the Federal District expressed itself for the constitutionality of the text, "in view of the fact that the rule essentially deals with consumer protection, in order to curb abusive practices", being "necessary to relativize the principle of free competition and private initiative in face of the material vulnerability of consumers in the acquisition of products and services".

On the other hand, the provider argued that article 46 of RGC is unconstitutional, on the grounds that such provision conflicts with the constitutional principles of free enterprise and free competition, guaranteed in articles 1, IV and 170, IV of the Brazilian Federal Constitution. The provider filed an opinion prepared by LCA Consultores, which highlights that "the obligation contained in article 46 of the RGC will reduce competition among operators, to the clear and evident detriment of both new and existing subscribers, as well as those who are not subscribers of any operator. They also referenced a study conducted by Professor Dr. Arthur Barrionuevo from Fundação Getúlio Vargas, asserting that "the obligation contained in article 46 of the RGC is extremely detrimental to competition among operators, causing harm to consumers and benefiting operators new to the market”.

When analyzing the issue, the Special Council of TJDFT concluded that article 46 of the RGC (Regulation of General Court Regulations) is formally unconstitutional, "since it exceeds the limits of the regulatory power granted to the Regulatory Agency by Law 9472/1997, and innovates in the civil legal system and in telecommunications law, concerning matters reserved for law in the strict sense and the exclusive legislative competence of the Union, under the terms of arts. 22, I, IV and 175, of the Federal Constitution" and by the material unconstitutionality "for violation of the perfect juridical act, in affront to art. 5, XXXVI, of the Federal Constitution", to the extent that "the imposition contained in the norm edited by ANATEL would require the telecommunication service providers to amend contracts entered into lawfully and in accordance with the free will of the parties".

Specifically in relation to the material unconstitutionality, the Special Council of the TJDFT concluded that, "in the case in question, the material unconstitutionality of art. 46 of ANATEL Resolution No. 632 is verified, as it violates arts. 1º, IV, 5º, XXXVI and 170, IV, of the Brazilian Federal Constitution, by obliging telecommunication service providers to extend the effects of new plans and promotions to all active contracts, "...without distinction based on the date of adhesion or any other form of discrimination within the geographic area of the offer”.

The Special Council of the TJDFT also consigned that, "according to the understanding of general repercussion signed by the Supreme Court in the trial of Direct Action of Unconstitutionality (“ADI 6191”), is materially unconstitutional, for affront to arts. 1, IV and 170, IV, of the Federal Constitution, the legal rule that imposes on telecom companies the compulsory amendment of contracts entered into in the consumer market, for price fixing according to new offers, because the principles of free enterprise and economic freedom prevent state interference in the right of operators to carry out promotions or introduce plans more attractive to new customers”.

ADI 6191 was filed by the National Confederation of Teaching Establishments - CONFENEN in face of State Law no. 15.854/2015 of the State of São Paulo, "to obtain the declaration of the full unconstitutionality of Law no. 15.854, of July 3, 2015, of the State of São Paulo, especially Article 1, sole paragraph, item 5, and Article 3, I, which oblige private educational institutions to extend the benefit of new promotions to pre-existing students and set criteria for calculating unreasonable and disproportionate fine in light of the reality of the sector”.

The same matter concerning the unconstitutionality of State Law 15.854/2015 of the State of São Paulo was also the object of ADI 5399, filed by the National Association of Cellular Operators - ACEL, for which reason they were judged together, and the Supreme Court restricted the effects of the unconstitutionality of the rules to the services belonging to the Associations, namely, mobile telecommunication services and education services.

After regular proceedings in the Supreme Court, the partial unconstitutionality of article 1, sole paragraph, items I and V of Law 15.854/2015 of the State of São Paulo was declared, fixing the thesis that "it is unconstitutional state law that imposes on private providers of education and cell phone services the obligation to extend the benefit of new promotions to pre-existing customers”.

In its reasons for judgment, the Federal Supreme Court established that "it is lawful for service providers to offer promotions and discounts in order to attract new customers, without this meaning unfair conduct or failure to provide service to pre-existing customers", for which reason "the contested provisions are also unconstitutional for violation of the principles of free enterprise (art. 170 of CF/1988) and proportionality".

The decision of the Special Council of the TJDFT is a new chapter in the discussions involving the General Regulation of Consumer Rights of Telecommunications Services established by ANATEL, especially in view of its binding character on the TJDFT itself, although it lacks erga omnes efficacy, since the decision was handed down in a diffuse control of constitutionality.

The judicialization of the issue is far from being overcome, in view of the lack of analysis by the Supreme Court on article 46 of the RGC and the lack of res judicata of the decisions handed down at the federal and state levels.

Moreover, as announced by ANATEL in its regulatory agenda for the 2023/2024 biennium, one of the priorities set by the agency is the re-evaluation of the regulation on consumer rights of telecommunication services, established by the RGC, in order to analyze the points of the regulation that were observed as problematic during its implementation.

In this sense, the theme involving the updating of the RGC has been worked on by ANATEL since 2017, with emphasis on the process 53500.061949/2017-68, and the last public consultation on the changes was held at the end of 2020 (CP 77/2020).

Specifically in relation to article 46 of the RGC, ANATEL′s suggestion, consolidated by Council Member Emmanoel in his Analysis No. 139/2022/EC after the considerations of the sector and society in CP 77/2020, was to maintain the scope of the offers for all consumers, including those already adhered to the operators′ customer base. However, the Agency, accepting the contributions of the providers, pointed out that "consumers who choose to adhere to a new offer must bear the burden resulting from any unfulfilled permanence period".

An interesting point on the subject is that, in opposition to what was discussed before the TJDFT that culminated with the declaration of unconstitutionality of article 46 of the RGC, ANATEL pondered in the referred administrative proceeding that "free enterprise and economic freedom are not absolute principles, so much so that the State sometimes intervenes in economic activity to protect certain public interest, especially consumers. The Federal Constitution guarantees both free competition and consumer protection, both principles to be observed in the economic order (art. 170, items IV and V, Federal Constitution)".

ANATEL′s suggestion, consolidated by Council Member Emmanoel in his Analysis for amending the RGC, has not yet been analyzed by ANATEL′s Board of Directors. However, in view of the recent decision handed down by the Special Council of the TJDFT and because of the pending actions in the Federal Court, it is up to the Agency to evaluate the impacts of the judicial understandings on the new regulation, with a view to conferring greater harmony to the Brazilian legal system.

Given this context, it is clear that it is necessary to seek a balance between the interests of private enterprise and consumers in order to promote the advancement and evolution of the market. And, in this sense, it seems crucial to us the establishment of a new regulation, which aims to ensure a fair and balanced environment, as well as having the power to put an end to the constant clashes related to the aforementioned article 46 of the RGC.

Camila Strafacci Tostes 

Beatriz Lindoso 

Cesar R. Carvalho