The Federal Supreme Court (STF) overturned a law in Rio de Janeiro that prohibited the fines for breach of loyalty by telecom operators such as Claro, Oi, TIM, Vivo and regional providers. The court ruled that the text was unconstitutional, even after a favorable report was presented by the Attorney General’s Office.
The legislation was questioned by the Brazilian Association of Internet and Telecommunications Providers (Abrint). In a Direct Action of Unconstitutionality (ADI), the entity claimed that the law violates the Federal Constitution, which establishes exclusive competence for the union to legislate on telecom services.
In the process, Abrent argued that the choice for contractual loyalty is made by the customer, who can refuse the clause to leave the operator at any time. In practice, this is actually possible, but companies usually offer fewer benefits or charge more for plans with no minimum time limit.
The rapporteur of the case, Alexandre de Moraes, assessed that the fine for non-compliance with contractual clauses is significant for the maintenance of the economic and financial balance in the provision of services. The minister also stated that loyalty is a counterpart to the benefits offered to consumers, including cost reductions for acquiring devices or plans.
Most ministers followed the rapporteur, prevailing the understanding that the Rio de Janeiro law interfered with the regulatory core of telecommunications. Therefore, the court decided that it would only be up to the Union and not to the states to discipline the limits and possibilities in the loyalty clauses.
The rapporteur’s understanding was not shared by ministers Ricardo Lewandowski, Carmen Lúcia and Rosa Weber, who voted for the constitutionality of the state law.
Law was created to protect consumers in the pandemic
In June 2020, the government of Rio de Janeiro sanctioned the law that prohibited the application of fines for breach of fidelity in telecommunications contracts for the duration of the COVID-19 pandemic. This included internet, pay-TV and similar services.
The objective of the legislation was to protect the consumer from the financial impacts that the pandemic could have on the population, considering the risks of default and the importance of communications services during the period of greater social isolation.
Operators that fail to comply with state law should pay a fine of 500 UFIR (Fiscal Reference Units), which is equivalent to approximately R$2,045.
The report of the Attorney General’s Office also pointed out the Rio de Janeiro law as constitutional. The PGR considered that the law revolves around consumer law rules, and not as a regulation of telecom services.
With information: Federal Court of Justice