Anatel (National Telecommunications Agency) approved, this Tuesday (5), the collection of a bill of R$ 22.5 billion for operators to renew their fixed telephony contracts, which will follow the rules of the new Law General of Telecommunications.
The value surprised the concessionaires, which have already been fighting a legal battle with Anatel in an arbitration at the risk of returning the fixed telephony concessions, leaving consumers without service if they lose the dispute.
The agency and the telecoms discuss a settling of accounts around the concession contracts signed shortly after the privatization of telephony, at the end of the 1990s, and which were being renewed with new investment targets.
The companies say that, in fact, Anatel is the debtor (something around R$ 36 billion), while the regulator says that it is up to the operators to reimburse the Union (in R$ 22.5 billion) for, in large part, investments that should have been made in the past and were not.
This breakdown is due to several regulatory changes over the last few decades that replaced goals defined in the past with others that made more sense with technological evolution. Some of these changes were imposed by the agency and others, requested by the companies themselves.
When the contracts were signed, fixed telephony was the flagship of the sector in the country. However, in a few years, cell phones and the internet gained popular taste, requiring more investments — although they were not the focus of the planned investments.
In one of these exchanges, the agency decided to reduce targets so that tariff readjustments would be postponed, a way for former President Lula to avoid a tariff at the beginning of his government.
With fewer investment obligations, the telecoms accepted a 2% readjustment, according to Anatel technicians who followed the discussions at that time.
The companies agreed to postpone this settling of accounts, but, according to the technicians, the operators never filed the request for financial rebalancing – now prescribed, according to the agency.
According to the calculations presented by the reporting advisor for the case at the agency, Arthur Coimbra, Oi will have to disburse R$ 12.2 billion (R$ 3.9 for the region covered by the former Brasil Telecom, and R$ 8.2 billion for the area of Telemar ); Vivo will have to pay R$ 7.7 billion; Claro’s (Embratel) account is R$ 2.2 billion; and Algar and Sercomtel will pay R$275 million and R$167 million, respectively.
With no agreement between the companies and the agency, Oi and Vivo — the largest concessionaires in the country —, had already chosen to trigger a clause in the contract providing for arbitration, a process that can be completed in 2024, one year before the expiration of the current contracts. grant.
Oi and Vivo threaten not to migrate to the new concession contracts if this account is not redone.
According to the General Telecommunications Law, updated in 2019, the contracts provide for the possibility of migrating the fixed telephony concession to a simple authorization term, as was already the case with other services (cellular, internet and pay TV).
In this new regime, the allocation of investments in fixed telephony becomes freer, prioritizing what is of public interest. Instead of allocating a lot of money to payphones, for example, they invest in internet infrastructure.
If operators do not migrate, they will have to return the concession and fixed-line customers will be without service.
This is because, according to Anatel’s legal department, it will not be possible to carry out a bidding process in view of the impasse over the concession contracts.
The agency’s president, Carlos Baigorri, stated that it takes at least two years to prepare for the event.
Even so, councilor Arthur Coimbra considers the possibility of carrying out a bidding process.
For Baigorri, there is a risk that the concessionaires will win. Although the industry regulation is clear in relation to the statute of limitations, it may be that the arbitrators understand the opposite, favoring the companies. And in this case, there would be no appeal.
The companies say they intend to wait for the arbitration decision to decide on the next steps.
This account will weigh on the companies’ cash, which will have heavy investments in the coming years to build a network exclusively for 5G cellular telephony.
This Tuesday (5), Anatel approved that the service begins to be commercially explored in Brasília from this Wednesday (6).
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