Franchise in Fixed Broadband: What the Law Says?

“Operators have a fragile basis for support,” says lawyer on consumption limit

With all the euphoria about the limits of consumption adopted by broadband companies, we decided to clarify some legal questions on the subject. After all, how we got here? How can we turn?Operators have a legal basis to apply the franchise? There is how to reverse the measure?

To dispel doubts on the subject, interviewed Raphael Rios Chaia, lawyer expert in electronic law and professor at the Catholic University Don Bosco (UCDB), Campo Grande (MS).

Also read: All you need to know about the end of the fixed broadband unlimited

TL; DR

This interview reveals, among other important details, that:

  • The neutrality imposed by the Civil Marco network gives freedom to consumers using the internet to whatever you want.The limited franchise takes this freedom. He also says that the internet can only be cut in case of non – payment of the bill.
  • However, Raphael says this argument is moot because the operator can argue that the user connection was not interrupted while he was consuming the franchise.The Civil Marco says nothing about franchises , so the situation is open to interpretation.
  • Theinvestigation of the prosecution can block the measure in the syndication argument  or support of the Consumer Protection Code (CDC).
  • Thepublic hearing of the Senate can create a bill to ban the limit .
  • Avaaz petition has no legal validity.However, you can sign this legislative idea on the Senate website to promote a bill.
  • Consumers who feel wronged cantrigger the Procon or open an action in small claims court . “Complain at Anatel ‘s no use because it supports the measure,” he says.

 

 

Out site – Considering the voracious consumption that we do broadband, how damaging this limit is for consumers?

Raphael Chaia –  For the consumer is bad because it will no longer be able to use the internet the way he would like. The Civil Marco Internet requires that we call  network neutrality , which concerns the consumer to have the freedom to use the internet  for what you want .

If you come to tell me that I have a limited franchise, I will not be able to use for whatever you want. For if I, for example, like to use to Netflix, I will no longer be able to use more because four episodes of a series already will consume me 50 GB. If I want, for example, use one virtual disk for sending and receiving files, I will not be able to use both, because I know it will end up consuming my franchise.

The major problem concerns the old contracts. Today operators say they will not move the old contracts. I prefer to believe that they really are not going to move, but we have no guarantee it.

Why do I say this? Because we have the resolution 632/2014 of Anatel, it says in Art. 52 that “operators can modify unilaterally the contract, or they may terminate the contract only with a prior notice of 30 days to the consumer.” That is, if I have an old contract saying that my connection is unlimited, and the operator wants to come to me and say that my contract will not be worth more here 30 days, according to Anatel they can do it.

Also read: consumption limit in the fixed broadband is beneficial, according to Anatel

But this violates the Consumer Protection Code (CDC) in Art. 51, which says that “adhesion contracts can not be changed unilaterally without a new consumer acceptance.” Then, by law, if I have a contract with the operator, it can not move without my permission. But according to Anatel, can.

Even if use this argument that Anatel support operators and Anatel allows the change, the law does not allow. The principles of contractual good faith do not. Can you question in court [small claims] and gives to question justice. Can you trigger the Procon. As the Procon the Federal District is doing: investigating whether it is legal if it is valid, if cartel formation or not, and so on.

Out site – This is an interesting point, because the very DF prosecutors are investigating. The promoter who is taking care of the investigation is concerned that the limit can hurt the free network access. In what can result this investigation of the prosecution? They have some power to stop anything?

Raphael – Yes, they have the power to stop this measure, for sure. We were discussing those internet franchises, 300 GB, 130 GB, etc. We need to remember that these franchises are the most expensive packages. The overwhelming majority of users in Brazil use cheaper packages of 5 Mb / s and 2 Mb / s, for example. And the franchise is 50 GB only.

That is, the population ends up being bad and the MP’s right. Let’s take the example of a house that has four people sharing 50 GB, this franchise will be cutting access to information, access to social networks, access to online courses. We live today a phase of popularization of very large online courses, distance learning (ODL) is very strong. Large universities now offer online courses, video with audio. You kill an entire educational sector.

The MP can bar can ban? Can. Under that argument? The cartel formation. Now, in order to declare that there is formation of a cartel, you must have all completed features, check that all are following the same policy, will charge similar or proportional values, and so on. Today, no one can claim that there is a cartel. So much so that the MP will investigate to define it. Having well-defined and characterized cartel characteristics, gives the MP bar that measure.

Out site- So this argument of free access to the network with CDC support is weak for the prosecution to use?

Raphael –  No, on the contrary, is very strong. They can and should use it. It was like I told you: the CDC prohibits you stir in contracts, and also requires that policies are favorable to the consumer. It is impractical you imagine that consumer prosecutor will accept a change in a service that has already been done for years in a way, to one that will be harmful to the consumer without any change of the amount charged.

Out site – So if they do not prove that there is formation of a cartel, they can use this support CDC?

Raphael – Absolutely. Can and should. Thus, at the beginning it will be many individual complaints, but we must remember that the collective actions also have a lot of strength.

“UNDERSIGNED HAS NO LEGAL VALIDITY.”

One thing the staff also need to know: petition has no legal validity, because you have no way digitally certify signatures. But there are legislative propositions on the Senate website, which if signed, are valid.

There is now a bill in the Senate public gathering signatures ( see here ). I was in the house of 5000 the last time I looked [to the time of this writing there are 11 thousand signatures]. Just to put into law a ban on franking the fixed internet. This is a point that is worth the personal highlight. Everyone is very concerned about doing that the undersigned of Avaaz, and ends up playing where information should not. If played in this legislative Senate filing, we definitely would have much faster results.

Out site – Right. Another action that is happening in the Senate is a public hearing. Last week, the Committee on Science and Technology (CCT) of the Senate convened the public hearing to discuss this limit operators. What exactly is the processing of that audience?

Raphael – Well, the public hearing will be discussed in a committee. The committee will examine the technical aspects of the project. Passed by the committee, then it will be voted on in the houses, in the event as a Senate bill will be voted on in the Senate.

But it is that before you go to vote, these discussions made in committees are technical in nature. To check features, concepts of the standard, etc. All the bill passes by a committee. The commission depends on the subject matter. It may be a Committee on Constitution and Justice (CCJ), can be a Human Rights Commission (CDHM), can be a Science and Technology Committee (CCT).

How is a bill that deals with internet connection, broadband, providers, etc., go through the CCT. This committee invites technical people, teachers, professionals, invites the authors of the project to discuss and trim the edges. Trimmed, solved the draft, then sends the bill to vote to be able to turn the project.

Out site – Several senators have proven contrary to fixed broadband limit. There are hopes that audience stop the wave operators and Anatel to establish this limit?

Raphael –  Look, whereas some operators are already going back and already desdizendo some things, can you have a good hope yes. You can expect a good result.Because the reactions were very negative and very inflamed. Many people spoke outagainst the operators, there were many smaller operators with clear intention to expand markets because of that, the example of the Algar, which operates in the Federal District, and in some cities in the interior of several states.

So operators saw took ill. That was bad for them. And they know that, legally speaking, they have a weak base for support. They know that if there are questions in court they may have to go back.

For example, Vivo, saying it would apply the limit, already said it will apply, but also will offer unlimited packages. NET talked applying the franchise since 2004, but it will not change anything, but continue with the reduction. TIM said it will not make reduction.The Hi did not comment.

That is, they have gone back on that original intention only popular pressure. Having this pressure now public, you enter a bill, make public hearings, have the MP investigation of pressure to check cartel formation … They are digging up complaints of 2013 against Anatel because of this case.

I think all this pressure that is being made will be positive, but there is a good chance to stop this measure.

Out site – So, in your opinion, is it possible that this limit does not happen?

Raphael – is possible. There is a chance yes, I would say 50%. Okay half and half.

Out site – And what is the most viable solution to this wave is curbed? Or are all these measures the MP, the Senate together, pressing the operators?

“COMPLAINT IN ANATEL NO USE.”

Raphael – Look, it’s good to note that, for the common consumer complaint at Anatel does not help, because Anatel supports the measure. So there’s no use wasting time on it. Ideally same complaint with the consumer prosecution, Procon, or promote an action in court, or in the extreme case, if there is the option, the boycott.

That is, from a smaller provider for local, which does not adopt the limit, such as Copel, Parana, Algar Telecom, in Mexico City, and so on. But the most effective measures would still be the court, or the Procon. Anatel is a card off the deck.

Out site – Unfortunately, in some regions, the boycott is not feasible because the major carriers are the only ones available.

Raphael – Exactly, and that’s where all this new bureaucracy of discussion that is imposed for the installation of new providers. Here in Brazil, we work with an average of five to seven providers while the United States has an average of 80 providers.

So we do not have options often, even in big cities, or big cities, you have the three acting. Here in Campo Grande, which is the Mato Grosso do Sul capital, has no fiber Vivo, TIM has Live. We only have two internet options: GVT, which is now live, or NET.Ended up.

Out site – You want to highlight some more point about the data limit in fixed broadband?

Raphael – is an unjustifiable retrogression. We are seeing the world working with policies increasingly popularization of the Internet, Facebook with Wi-Fi cities projects, Google popularizing the internet …

We increasingly faster connections outside Brazil and here an internet that is precarious, an infrastructure that still uses copper wire in most coverage, very expensive, the most expensive internet in the world, and even to help, will limit the franchise of data ?

“WE ARE MOVING AGAINST THE GLOBAL TRENDS.”

We are moving against the global trends. We need to have access to the Internet not only for entertainment but is a matter of knowledge, access to information, education. Already it proved that today people are surfing the internet to see news more than watching television. The internet has already become today the primary means of news reading is emerging as a major center of education, with the popularization of the EAD, the online preparatory courses, etc.

And all this requires constant connection. We’re kind of going against the global trend.This can be detrimental not only to the consumer but also for commercial sectors, entrepreneurs and even the country’s technological development.

Tecnocast.zip 001 – Do not, my friends, Become addicted to the internet

We recorded a special edition of Tecnocast to discuss the limits in fixed broadband. The business model of operators is at risk, because all services are ceasing to exist and moving into the internet. It is true that you can not pay the piper, but there is no free lunch. What to do? Give the play!