The controversy over WhatsApp and other services defined by the General Telecommunications Act generically titled “Over the Top” (OTT) seems to be far from over. Vivo’s recent statement that Anatel “needs to get out of the comfort zone” demonstrates a tone of dissatisfaction with the Agency, which in my view has positioned itself correctly on the understanding that smartphone applications (WhatsApp, Skype, Viber among others) are considered value added services and, therefore, Anatel is not in charge of interference with the matter.
Another statement from Vivo’s leadership, as I see it sophistically, deals with the technical and financial issue, concerns Fistel’s fees. Vivo claims to “own” the numbering plan and pay Fistel fees on all of its active numbers (which is true), assuming as a result absolute prerogatives over the use, enjoyment and enjoyment of the acquired right over the numbering plan. by virtue of the concession of a public telecommunications service, of which it is a concessionaire.
Well From the consumer’s point of view, however, the numbering plan can be interpreted as a mere instrument of access to the mobile telephone service, following even international standards, in the case of international telephone calls, whose methodology is defined by the ITU – International Union of Telecommunications In this context, the number does not belong to the telephone company, so that the consumer is guaranteed number portability to any operator at any time. I also understand that by paying the carrier’s data plan, the consumer has the right to use the applications of their choice. This is the case in all countries of the world, why in Brazil would it be different?
As for the nature of Fistel’s fees, these are intended to finance Anatel’s inspection activity in telecommunications equipment and towers that enable the operation of the mobile telephone system in the national territory. They are: installation inspection fee and operating inspection fee, both regulated by federal law. Their payment, therefore, is part of the universality of obligations acquired through the concession of a public service, being indirectly paid by the consumer, as well as Fust, Funttel, ICMS, among others. Thus, it is clear that the nature of the tax is detached from the alleged right of “ownership” of the Numbering Plan. Incidentally, giving rise to this understanding implies in part revoking the prerogative of portability, which brought so many benefits to the consumer of mobile telephony, which would be a major setback.
Finally, some of the national carriers (Claro and Tim, for example) see WhatsApp and social networks as an opportunity to expand their customer base, and to that end have been offering special free franchise data packages for these applications. Now, if OTTs are stimulating competition among operators, why should Anatel intervene? Nothing better for the case than applying laissez faire (the symbolic expression of economic liberalism, in the purest version of capitalism that the market must function freely), let the market adjust. To intervene as little as possible in the market is regular in accordance with best practices of the best telecommunications agencies in the world.
In light of the foregoing, it should be remembered that the increasing use of data by mobile phone users has recently caused backlash from carriers that have now blocked data packets (previously only slowed down), forcing consumers to migrate to more expensive packets. In other words, from an economic point of view, the operators have indirectly “readjusted” their tariffs.
In short, Anatel in the present case has acted in accordance with the principle of legality, free competition and, obliquely, in accordance with the fundamental principles of the Democratic Rule of Law by refraining from the practice of administrative acts incompatible with the law. General Law of Telecommunications. More than that, it has fulfilled its duty independently by applying the law to safeguard the interests of citizens who are consumers of telecommunications services, for which it was instituted.
Dane Avanzi – Lawyer and President of Aerbras – Association of Radiocommunication Companies of Brazil.