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The action, brought by Abrin - Brazilian Association of Internet and Telecommunications Providers, is reported by Minister Alexandre  and was taken to the physical plenary after a request for emphasis by Minister  Mendes.

 

 

STF reaffirms the Union's competence to regulate telecommunications

 

Minister Rosa Weber (currently retired) disagreed with the majority and was accompanied by ministers André  and Mendes.

 

 

Lawyer Alan Silva , representing Abrin, argued that the new requirements provided for by law could cause confusion among consumers, especially in relation to the information on invoices.

 

According to him, terms such as "download" and "upload" do not refer to the contracted speed or the consumption allowance, which can mislead the consumer, considering that most contracts in the sector do not include a data allowance.

 

highlighted that the Brazilian telecommunications sector, recognized as a global benchmark, is made up of more than 15,600 small companies. He pointed out that the confusion in the market stems from the legislation itself, which requires companies to present complex information on invoices, generating an estimated cost of R$1.5 billion for adapting data analysis systems and issuing detailed invoices.

 

Furthermore, the lawyer highlighted that already regulates what must be included in invoices through resolution 765, which does not require the inclusion of the daily download and upload average.

 

The lawyer warned that allowing state laws to regulate aspects of the telecommunications sector could weaken the national regulator, creating what he called "regulatory islands" that could diverge from what is provided for at the federal level.

 

Consumer protection

 

Attorney  Schwarz Viana, representing the State of Mato Grosso do Sul, defended the importance of federalism in Brazil, highlighting the participation of States in building a consumer protection network.

 

He emphasized that the law in question, consisting of only three articles, was drafted with simplicity so as not to interfere in technical aspects of concession, but rather to address the informational asymmetry between consumers and service providers.

 

He argued that the law is not just a question of concurrent jurisdiction, but also a constitutional obligation of the State to protect the consumer, as provided for in art. 5, XXII of the Federal Constitution.

 

He questioned the companies' claims of losses and costs, saying it was not clear how such requirements would negatively impact the provision of services. On the contrary, he suggested that the transparency provided by the law would allow consumers to better understand what was being offered.

 

The prosecutor argued that overcoming informational asymmetries is the central objective of the state rule, highlighting that the State was careful to draft the provisions to preserve the exclusive competence of the Union.

 

He stated that the law contributes to federalism, bringing different perspectives and solutions to common problems, without invading the space of the Union's general rules.

 

He concluded by stating that the consumer, being the most vulnerable party in the consumer relationship, has the right to transparency, as guaranteed by the CDC. In this sense, he reinforced that the state law did not violate the Union's jurisdiction, but rather contributed to a healthy federalism, promoting a more transparent consumer democracy and guaranteeing the consumer the right to know what he is paying for.

 

The case questions the validity of State Law 5,885/22 , which requires providers of post-paid mobile internet and broadband services to record, on monthly invoices, data on the daily delivery of data receiving and sending speeds. 

 

According to the entity, the requirement may generate inequality in the treatment of users throughout the country. Furthermore, it states that it is the exclusive competence of the Union to legislate on telecommunications and that it is up to  - the national telecommunications agency - to assess whether the provision of the service is in accordance with the goals established in the concession, in addition to creating obligations and regulating the sector. 

 

Rapporteur's vote

 

In the virtual plenary, Minister Alexandre, rapporteur of the action, had voted for the constitutionality of the MS legislation. 

 

His Excellency acknowledged that the Federal Constitution established specific powers for each federative entity. In the case of telecommunications, legislative power is exclusive to the Union.

 

However, he stated that the state law did not interfere with the technical or operational aspects of the telecommunications service, but with the transparency of the information provided to the consumer. 

 

Thus, it considered that the rule has a consumerist nature, allowing for concurrent action by States in consumer protection.

 

The minister reaffirmed that free enterprise is a fundamental principle, but not absolute, and that the State has the prerogative to regulate economic activity to guarantee objectives of public interest, as long as there is proportionality. 

 

Thus, the state law, which aims to ensure transparency and consumer protection, has objectives aligned with the constitutional principles of consumer protection and economic order.

 

Furthermore,  emphasized that the obligation to report internet speed does not compromise the economic and financial equation of contracts, nor does it harm the competitiveness of companies. On the contrary, according to the rapporteur, transparency in information strengthens the consumer relationship without imposing a disproportionate burden on service providers.

 

Divergence

 

Inaugurating a divergence, Minister Rosa Weber (currently retired) understood that the exclusive competence to legislate on telecommunications is the Union's exclusive, according to articles 21, XI, and 22, IV, of the CF. 

 

Furthermore, the operation of telecommunications services, including the definition of the obligations of providers, is the exclusive responsibility of the Union, even if the execution of these services is delegated to private individuals through authorization, concession or permission.

 

She stressed that the state law, by requiring the disclosure of daily internet speed on invoices, interferes with administrative contracts signed at the Federal level. For the minister, the interference goes beyond the consumer relationship between the user and the provider company, affecting the trilateral legal relationship that also includes the granting authority, holder of the public telecommunications service.

 

In his vote, he mentioned precedents from the STF that reaffirm the exclusive competence of the Union to legislate on telecommunications and the unconstitutionality of state laws that establish additional obligations for companies providing telephone and internet services.

 

Among them, ADI 5,569 , which deals with a similar obligation to present internet speed, and AD 4,478 , which addressed the prohibition of charging a basic subscription fee for fixed and mobile telephone services.

 

Process : AD 7.416

 

link: https://www.migalhas.com.br/quentes/413370/ao-vivo-stf-julga-lei-que-obriga-velocidade-da-internet-em-fatura