Covid-19: what will be the impact of default on telecommunications?
By Dane Avanzi
While the Covid-19 pandemic begins to slow in some European countries, in Brazil, the number of cases and patients who will need medical help continues to grow. Although the cases are more present in the big capitals, especially in São Paulo and Rio de Janeiro, all states already “register” patients undergoing treatment. “And in addition to health, what is also of concern is the economic impact.
Last week, the Honorable Judge of Law of the 12th Federal Civil Court of São Paulo, Doctor Natália Luchini,? Issued a preliminary injunction obliging Anatel (National Telecommunications Agency), among other federal government agencies, to determine that mobile operators and fixed rates are prohibited from “interrupting” the provision of services to the consumer in the event of default. Despite being an achievement for the population and just in the face of the pandemic of the new? Coronavirus, the big question is: if the consumer does not pay? The bill, who? Will?
That the topic is complex is not discussed. The point is that the decision, whose effectiveness, in my view, is unlikely, took into account social issues to the detriment of the operators’ financial health. Will the state “help” them? Couldn’t the eventual bankruptcy of a major operator cause more damage to the country? Relevant but difficult questions to answer. It is true that the court in question sought to support society, endeavoring ultimately to safeguard the basic principle of the State: the good of all.
Perhaps, in former times, the decision was more plausible, when Telebrás had absolute control over the telecommunications system. In the past, there was an objective obligation of the State to provide the service to all Brazilians. With the universalization of telecommunications in 1997, the service reached more Brazilians and is now accessible to all social classes. In this context, regulatory agencies, such as Anatel, were created with the mission of balancing consumer relations between society and concessionaires, now controlled by multinational companies.
Another point that I consider disproportionate is that, if Anatel issues any legal command in this regard, the decision will be valid for the entire national territory, including in states with a very low number of cases, exempted from quarantine and, in a way, protected from the effects of the deceleration. economic. Whether or not the decision takes effect, the fact is that operators will experience strong pressure to increase costs resulting from the rise in the dollar, which will impact most of the inputs needed to maintain the infrastructure that allows the service to operate at acceptable levels. Of Quality. The decision also does not consider the deleterious effects on the cash position of companies operating mobile and fixed telephony, and it is clear that the largest of them in territorial extension, is in Judicial Recovery.
As can be seen, the scenario of rising costs and reduced revenues, by itself, is already quite challenging. Certainly, there will be negative impacts, which can be enhanced, considering the consumer’s subjective criterion of paying the bill or not.
In this context, it is clear that the now constituted legal imbroglio weakens Anatel as a federal public agency, given the impossibility of obliging third parties to take a judicial decision, due to the emergency moment recognized in the sentence itself, even though formally constituted for this, and oblique, weakens the judiciary itself. I dare to think, as a jurist, that the new times will demand a new type of law, more practical, even if there is to be more procedural savings, fewer resources, greater speed and effectiveness in the jurisdictional protection. More than ever, Brazilian authorities from all federal spheres, as well as from all the powers that, although tripartite – Executive, Legislative and Judiciary, manifest themselves in a single way, will need a lot of systemic vision to, in fact, act in a different way. empathetic, fair and harmonious.