STF declares unconstitutionality of state law on internet franchise

Unconstitutionality of the Ceará State Law nº 16,734 / 2018

The Federal Supreme Court (STF), by seven votes to four, declared the unconstitutionality of the Ceará State Law nº 16,734 / 2018 that prevented mobile phone operators “from blocking internet access after the data franchise has been exhausted”, under penalty of “payment of a fine in the amount of R $ 10,000.00, increased by 50% in case of recurrence”. The divergence initiated by Minister Dias Toffoli prevailed, which understood the unconstitutionality of the state legal rule for violating the Union’s private competence to provide for telecommunications.

The Association of Cellular Operators (MERL) proposed to ADI maintaining the Union’s private competence to legislate about telecommunication services, as well as to exploit them directly or indirectly, emphasizing that the Union is the only entity entitled to define conditions for the service and obligations to mobile operators. This is because the national telecommunications system depends on a uniform legal system throughout the national territory. In addition, offenses against the principle of equality and free enterprise were pointed out.

It should be noted that the subject of the contested rule had already been the subject of regulation by the National Telecommunications Agency (ANATEL) in Resolution No. 632/2014, which establishes the rules on the provision of telecommunications services, including those relating to contracted internet franchises. mobile and the possibility of a clause that authorizes the interruption of the service once the franchise contracted by the user is exhausted.

Minister Marco Aurélio, rapporteur for ADI 6.089 / CE, voted to recognize the constitutionality of the state law. The vote was based on the understanding that the state legislature “acted, in a supplementary manner, in consumer protection”, with the purpose of “expanding the mechanism to protect the dignity of the final recipients”.

In this way, according to the vote, “preserving the core of regulation, to be exercised by the central entity of the federation”, we would be facing “discipline aimed at protecting the public service user as a consumer”, that is, “Manifestation of the exercise of competing competence of States to legislate on consumer law”. Ministers Alexandre de Moraes, Ricardo Lewandowski and Edson Fachin supported the vote of the rapporteur.

Minister Dias Toffoli, differing from the reporting rapporteur, acknowledged a violation by the state rule of the Union’s competence to legislate and exploit, directly or indirectly, telecommunications services, since “the issue of blocking internet access, once the franchise has been exhausted contracted database ”falls within“ the theme of telecommunications ”. This is also evident, depending on what was voted in the vote, by the existence of specific ANATEL rules on the subject dealt with in the state law of Ceará.

In addition, it was noted that the federal law mentioned in art. 175, sole paragraph, II, of the Constitution, for the purposes of the rights of users of telecommunications services, is Law No. 9.472 / 1997 regarding the relationship of the telephone service concessionaire with its users, and not the Consumer Code, so that this issue does not include “any legislative supplementation by the other federated entities, the regulation of such matter being only up to the Public Power holding the public service”. Ministers Cármen Lúcia, Gilmar Mendes, Luiz Fux, Nunes Marques, Roberto Barroso and Rosa Weber accompanied the divergence.

Wilson Sales Belchior