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Law No. 9.472, of 16 July 1997

Published: Thursday, July 17 1997 10:00 | Last Updated: Monday, August 15 2016 13:49 | Hits: 10907

Regulation

Explanatory Memorandum No. 231/MC, of December 10, 1996, which delivered the bill of the General Telecommunications Law.

Provides for the organization of telecommunications services, the creation and operation, of a Regulatory Agency and other institutional aspects, pursuant to the provisions of the Constitutional Amendment n° 8 of 1995.

 

Note: This text does not replace the one published on the DOU of July 17, 1997.

 

THE PRESIDENT OF THE REPUBLIC The National Congress decrees and I approve the following Law:

BOOK I

FUNDAMENTAL PRINCIPLES

Article 1. It is the responsibility of the Union, through its regulatory organ and under the government policies set forth by the Executive and Legislative Powers, to organize the exploitation of telecommunication services.

Sole Paragraph. The organization includes the regulation of the performance, commercialization and use of services, and the implementation and operation of telecommunication networks, as well as the use of orbit resources and radio-frequency spectrums.

Article 2. The Government shall:

I - provide access to telecommunication services, at reasonable tariffs and prices, and under adequate conditions to the entire population;

II - stimulate the expansion of telecommunication network and service utilization for services of public interest in order to benefit the Brazilian population.

III - adopt measures that foster competition and diversity of services, that increase the supply and that provide standards of quality compatible with user requirements;

IV - strengthen the regulatory role of the State;

V - create investment opportunities and stimulate technological and industrial development, under a competitive scenario;

VI - provide conditions so that the industry development is in consonance with the social development goals of the country.

Article 3. The user of telecommunication services has the right:

I - of access to telecommunications services, with standards of quality and regularity adequate to its inherent nature, anywhere within the National Territory;

II - to freedom of choice relative to his/her service provider;

III - of non discrimination as to the access and utilization conditions of the service;

IV - to the adequate information regarding the conditions for rendering services, the respective tariffs and prices;

V - to the inviolability and to the secrecy of his/her communication, except under constitutional hypotheses and conditions legally provided for under such instances;

VI - to the non-disclosure of his/her access code, upon request;

VII - to the non-suspension of the service rendered under the public system, except due to debit directly related to the utilization of the service or non-fulfillment of contract provisions;

VIII - to the prior knowledge of the suspension clauses of the service;

IX - to petition the regulatory organ and consumer protection agencies against the service provider;

X - to obtain responses from the service provider regarding complaints;

XI - to petition the regulatory organ and consumer protection agencies against the service provider;

XII·- to indemnification on damages arising from violation of his/her rights.

Article 4. The user of telecommunications services has the obligation to:

I - Adequately utilize telecommunications services, equipment and networks;

II - Respect public property and those oriented towards the use of the public in general;

III - Communicate authorities any irregularities and illegal acts committed by telecommunications service providers.

Article 5. In the economic relationships within the telecommunications industry, the following constitutional principles shall be observed: national sovereignty, social role of property, free initiative, free competition, consumer protection, reduction of regional and social disparities, restraint of economic power abuse, and continuity of service rendered under the public system.

Article 6. The telecommunication services shall be organized based on the principle of free, ample and fair competition among all providers, having the Government to act towards promoting them, as well as to correct the effects, of imperfect competition and to repress violations against economic order.

Article 7. General protection rules to the economic order are applicable to the telecommunications sector, when same do not conflict with this law.

Paragraph 1. The acts involving a telecommunications service provider, under public or private system, aiming at any form of economic concentration, either through merger or incorporation of companies, establishment of holding companies to control enterprises or any form of partnership conglomerate. Shall be subject to controls, procedures and conditions provided in the general protection regulations to the economic order.

Paragraph 2. The acts provided in the preceding paragraph shall be submitted to the appraisal of CADE - Economic Defense Administrative Council, by means of the regulatory organ.

Paragraph 3. The telecommunications service provider will be in violation of economic order who, upon entering into contracts for rendering goods and services, adopts practices which may limit, falsify or any way hinder free competition or free initiative.

BOOK II

THE REGULATORY AGENCY AND SECTORIAL POLICIES

TITLE I

CREATION OF THE REGULATORY ORGAN

Article 8. The National Telecommunications Agency is hereby established, an entity integrating the indirect Federal Public Administration, subject to special government agency rules and connected to the Ministry of Communications, acting as the telecommunications regulatory organ, with headquarters in the Federal District (Brasilia), and with powers to set up regional units.

Paragraph 1. The Agency shall have the Board of Directors as its maximum entity, having also an Advisory Board, a General Councel Office, an Internal Affairs Office, a Library and an Ombudsman, besides the specialized units holding various functions.

Paragraph 2. The special government agency nature granted to the Agency is characterized by administrative independence, lack of hierarchical subordination, fixed mandate and stability of its directors, as well as financial autonomy.

Article 9. The Agency shall act as an independent administrative authority, providing itself with the necessary prerogatives to adequately exercise its authority.

Article 10. The executive Branch shall install the Agency and its regulations and structural organization shall be approved by decree of the President of the Republic.

Sole Paragraph. The publication of the regulations shall establish the installation of the Agency, automatically vesting same with the exercise of its duties.

Article 11. The Executive Power will submit, within 90 days from the date of publication of this Law, a memo disclosing the Agency’s effective staff to the National Congress, and will be allowed to reassign positions available within the Ministry of Communications.

Article 12. The special nature commissioned positions and the Group Management and Higher Staff – DAS, are hereby created, with the purpose of integrating the structure of the Agency, as provided in Attachment I. (as amended by Law Nr. 9986 of 18th July 2000).

Article 13. The positions by appointment designated Telecommunications Commissioned Functions - FCT, are hereby created, and same will be occupied solely by public federal employees or employees of public companies or private and public joint stock companies controlled by the Union, working at the Brazilian Telecommunications Agency, in numbers and amounts as set forth in Attachment II hereto. (as amended by Law Nr. 9986 of 18th July 2000).

Paragraph 1. The employee vested in the Telecommunications Commissioned Position shall bear the responsibilities of advice and technical coordination and shall be compensated pursuant to the effective position or permanent job, in addition to the compensation for the Position to which he/she has been designated. (as amended by Law Nr. 9986 of 18th July 2000).

Paragraph 2. The assignment for the Staff Position is not cumulative with the assignment or appointment to any other form of commissioning, and the payment thereof shall be ceased during situations of absence of the employee, including those considered of effective exercise, except for the periods referred to in items I, IV, VI, VIII, “a” through “e”, and X of article 102, of Law nº 8112, of December 11th, 1990. (as amended by Law Nr. 9986 of 18th July 2000).

Paragraph 3. The Executive Branch may provide on quantitative changes and distribution of Telecommunications Commissioned Functions – FCTs within the organizational structure, observing the hierarchical levels, the corresponding compensation values and the respective global cost established in Attachment II hereto. (as amended by Law Nr. 9986 of 18th July 2000).

Article 14. The Agency may request employees from agencies and entities integrating the direct, indirect or foundation federal public administration upon costs, regardless of the positions to be carried out. (as amended by Law Nr. 9986 of 18th July 2000).

Paragraph 1. During the first 24 months following the installation of the Agency, the requests referred to herein, shall be incontestable when submitted to Executive Branch organs and entities and as long as approved by the Minister of Communications and the Minister and Chief of Staff to the President.

Paragraph 2. When the request results in a reduction in the compensation amount in the employee being requested, the Agency is authorized to complement it up to the compensation limit of the effective position in the organ of origin. (as amended by Law Nr. 9986 of 18th July 2000).

Article 15. The setting up of budget appropriations of the Agency in the Annual Budget Law, and its budget and financial schedule, will not be subject to limiting its values for use and commitment.

Article 16. The Executive Branch is authorized to provide for expenses and investments necessary for the installation of the Agency, and may reorganize, transfer or use budget balances, employing them as appropriation resources intended for final and administrative activities by the Ministry of Communications, including the Fund for Telecommunications Inspection – FISTEL.

Sole Paragraph. The technical and equity assets, as well as liabilities and assets of the Ministry of Communications, corresponding to the activities imposed to it by this Law shall be transferred to the Agency.

Article 17. Termination of the Agency shall only occur by means of specific Law.

TITLE II

AUTHORITY

Article 18. In accordance with the provisions of this Law, the Executive Branch shall, by means of decree:

I - Implement or eliminate the rendering of services in the public system classification, with or without the rendering of services in the private system classification;

II - Approve the general granting plan for services rendered under public system;

III - Approve the general objective plan towards a progressive universalization of services rendered under public system;

IV - Authorize the participation of Brazilian companies in intergovernmental consortia or organizations destined to providing means or rendering of telecommunications services.

Sole Paragraph. Taking into consideration Brazilian interests within the context of its relations with other countries, the Executive Branch may establish limits regarding foreign participation in the capital composition of telecommunications service providing entities.

Article 19. The Agency shall take the necessary measures to satisfy the public interest and for the development of telecommunications in Brazil, acting independently, impartially, legally, impersonally and publicly, and especially:

I - within the scope of its attributions, to implement the national telecommunications policy

II - to represent Brazil before international communications entities, under the coordination of the Executive Branch;

III - to develop and propose to the President of the Republic, through the Minister of Communications, the adoption of measures that refer to item I through IV of the previous article, submitting them in advance for public comments those relative to items I through III;

IV - to enact rules on grant, rendering and use of telecommunication services under the public system;

V -to enact grants and extinguish the right of exploiting the service under the public system;

VI - to enter into and manage grant contracts and supervise the rendering of services under the public system, imposing sanctions and making interventions;

VII - to control, monitor and revise tariffs for services rendered under the public system, and to set tariffs according to the conditions provided by this Law, as well as to ratify adjustments;

VIII - to manage the radio-frequency spectrum and the use of orbits, issuing the respective rules;

IX - to issue grant acts and extinguishing rights of use of radio-frequency and orbit, supervising and applying sanctions;

X - to enact rules on rendering telecommunication services under the private system;

XI - to grant and extinguish authorizations to render services under a private system, supervising and applying sanctions;

XII - to issue norms and standards to be followed by telecommunication service providers regarding equipment utilization;

XIII - to issue or recognize product certification, in accordance with norms and standards established by the Agency;

XIV - to issue norms and standards that ensure compatibility to the integrated operation and interconnection between networks, also encompassing terminal equipment;

XV - to perform search and seizure of goods within its authority;

XVI - to decide within the administrative scope, on the interpretation of the telecommunications legislation and provide on default cases;

XVII - to settle conflicts of interest among telecommunication service providers;

XVIII - to repress violations to user rights;

XIX - to exercise legal authority in connection with telecommunications, in the control, prevention, and repression of violations against the economic order, except for the authority belonging to the Economic Defense Administrative Council - CADE;

XX - to propose to the President of the Republic, through the Ministry of Communications, declaration of public interest for purposes of expropriation or establishment of public easement of goods necessary to the implementation or maintenance of the service under the public system;

XXI - to collect and apply its revenues;

XXII - to decide as to the performance, change or termination of its contracts, as well as to the hiring and dismissal of employees, using the necessary procedures as provided by the regulation;

XXIII - hire personnel, for undetermined periods of time, pursuant to the provisions of Law nº 8.745, of December 9th, 1993;

XXIV - to acquire, manage and dispose of its assets;

XXV - to decide ultimately on matters within its competence, appeals being always permitted to the Board of Directors;

XXVI - to submit the budget plan to the Ministry of Communications;

XXVII - to approve its internal rules;

XXVIII - to prepare an annual report of its activities, emphasizing compliance with the sector's policy as defined in the previous article;

XXIX - to send the annual report of its activities to Ministry of Communications, and to the National Congress by way of the Presidency of the Republic;

XXX - periodically review plans listed in items II and III of the previous article submitting them to the President of the Republic for approval, by way of the Ministry of Communications;

XXXI - to promote integration with telecommunications administrations of Mercosul member countries, with the objective of achieving common interest goals.

TITLE III

HIGHER BODIES

Chapter I

The Board of Directors

Article 20. The Board of Directors shall be composed by five Counselors and shall decide by absolute majority.

Sole Paragraph. Each Counselor shall vote with independence, thus substantiating his/her respective vote.

Article 21. The sessions of the Board of Directors shall be recorded in minutes, which will be Field with the Library, and shall be made available for general awareness.

Paragraph 1. When disclosure endangers the safety of the Country, or violates protected secret or someone’s intimacy, the corresponding records shall be kept in secrecy.

Paragraph 2. During the Board of Directors' sessions aimed at solving pending issues between economic agents, and between economic agents and consumers and users of telecommunications services and products, shall be public, their recording being permitted as well as the right to obtain copies of said meetings.

Article 22. The Board of Directors shall:

I - submit modifications of the Agency's regulations to the President of the Republic, by means of the Minister of Communications;

II - approve adequate bidding and contracting rules;

III - propose the establishment and changes in governmental telecommunications policies;

IV - issue standards on matters of the Agency's authority;

V - approve bid notices, grant adjudication, as well as decide on extensions or renewals, transfers, intervention and termination thereof, in relation to the grants to render services under the public system, pursuant to the plan approved by Executive Power;

VI - approve the general authorization plan for services rendered under the private system;

VII - approve invitations to bid ratify adjudication, as well as decide on extensions or renewals transfers, and termination, in relation to authorizations too render services under the private system, pursuant to the internal regulation;

VIII - Approve the radio-frequency band destination and orbit occupation plan;

IX - approve the structural plans te1ecommunication networks pursuant to the internal regulation;

X - approve the internal regulations;

XI - decide on the acquisition and disposal of assets;

XII - Authorize outsourcing according to legislation in force.

Sole Paragraph. Third parties are prohibited to perform inspection activities under the Agency's jurisdiction, except those related to support activities.

  • See article 14, § 2, of Decree No. 2.338, of October 7, 1997, as amended by Decree No. 4.037, of November 29, 2001, which defined the activities that constitute inspection support.

Article 23. The Members of the Board shall be Brazilian citizens, bear highly regarded reputation, have university education and high reputation in connection with his/her specialization, and shall be chosen and appointed by the President of the Republic, upon approval by the Senate, pursuant to the terms of item f III of Article 52 of the Federal Constitution.

Article 24. The term of the Members of the Board of Directors shall be five years. and renewal thereof shall not be allowed. (as amended by Law Nr. 9986 of 181h July 2000).

Sole Paragraph. In the event of vacancy during the office term, same shall be completed by successor, vested likewise who in turn shall carry out the duties of his/her predecessor in the remainder of the term.

Article 25. The terms of the first members of the Board of Directors shall be three, four, five, six and seven years, to be set forth pursuant to the appointment decree.

Article 26. The members of the Board of Directors will only lose their office by virtue of resignation, of final judicial decision or of administrative disciplinary proceedings. (as amended by Law Nr. 9986 of 181h July 2000).

Paragraph 1. In addition to the provisions set forth in the penal law and in the administrative improbity law, the non observance by the Director, of duties and impediments inherent to the position, including those relative to the fulfillment of the polices established by the Executive and Legislative Powers for the sector, shall be sufficient to cause loss of commission.

Paragraph 2. The Minister of Communications shall begin administrative disciplinary proceedings, which shall be carried out by a special commission, whereby the President shall determine the preventive withdrawal of said when applicable and grant the decision in the connection therewith.

Article 27. The regulation shall discipline the replacement of Directors on their absences, as well during vacancy.

Article 28. Directors are not allowed to exercise any other professional, entrepreneurial, union or political management activity, except for the position of university professor that shall be performed during compatible hours. (as amended by Law Nr. 9986 of 181h July 2000).

Sole Paragraph. It is forbidden to the Directors, likewise, to have significant participation, either direct or indirectly, in companies involved in the telecommunications business, as provided in the regulation.

Article 29. Directors shall also hold management positions in administrative functions of the Agency.

Article 30. Up to one year after leaving office, the ex-Director shall be forbidden to represent any person or interest before the Agency.

Sole Paragraph. Furthermore, the ex-Director is forbidden to use privileged information obtained during his/her term office, subject to penalty of incurring into administrative improbity.

Article 31. The President of the Board shall be appointed from among the members of the Board of Directors by the President of the Republic, for a period of three years or the remaining term of his/her mandate, renewal thereof shall not be allowed. (as amended by Law Nr. 9986 of 181h July 2000).

Article 32. The President of the Board shall be responsible for representing the Agency, the hierarchic command of personnel and services, and shall further exercise all corresponding administrative duties in connection therewith, and shall further preside the meetings of the Board of Directors.

Sole Paragraph. The legal representation of the Agency, with Tax proceeding prerogatives, shall be exercised by the office of the attorney general.

Chapter II

The Advisory Board

Article 33. The Advisory Board is the Agency’s entity for social institutional participation.

Article 34. The Board shall be formed by representatives appointed by Federal Senate, by the House of Representatives, by the Executive Branch and by the class entities for telecommunications service providers, entities representing users and entities representing society, as provided for in the regulations.

Sole Paragraph. The President of the Advisory Board shall be elected by the member thereof, and shall take office for the term of one year.

Article 35. The Advisory Board shall:

I - provide advisory opinion on the general grant plan prior to submittal to the Ministry of Communications, as well as on the general plan of goals towards the globalization of services rendered under the public system and other governmental policies concerning telecommunications;

II - advise on the establishment or termination of services rendered in the public system;

III - review the annual reports of the Board of Directors;

IV - request information and make proposals on actions referred to in Article 22.

Article 36. The members of the Advisory Board, who will not be remunerated, shall have a three year term of office, with no renewal.

Paragraph 1. The terms of office of the first members of the Board shall be one, two and three years, in the proportion of one-third for each period.

Paragraph 2. One-third of the members of the Board shall be renewed on an annual basis.

Article 37. The regulations shall provide for the operation of the Advisory Board.

TITLE IV

ACTIVITY AND CONTROL

Article 38. The activity in connection with the Agency shall be legally bound by the principles of legality, purpose, reasonability, proportionality, impersonality, equality, due process of law, publicity and morality.

Article 39. Exception made to documents and proceedings which publication may violate the safety of the Country; protected secret or someone's intimacy, all others shall be open to public consultation, without formalities, and shall be available at the Library.

Sole Paragraph. The Agency shall ensure confidential treatment of technical, operational, economic-financial and accounting information requested from telecommunication service providing entities, according to the regulations.

Article 40. The acts of the Agency shall always be accompanied by a formal explanation of motives that justify said acts.

Article 41. Normative acts shall only be effective upon publication in the Official Gazette of the Union, and those of private scope, following their respective notification.

Article 42. The drafts of normative acts shall be submitted to public consultation, formalized by publication in the Official Gazette of the Union, and comments and suggestions shall deserve analysis and remain available to the public at the Library.

Article 43. Prior manifestation on the part of interested parties will be granted upon nullification of acts and contracts.

Article 44. Any party will have the right to petition or appeal against any act by the Agency within a maximum time limit of thirty days, whereby the Agency's decision shall be made within ninety days.

Article 45. The Ombudsman shall be appointed by the President of the Republic for a two year term, one renewal being admitted.

Sole Paragraph. The Ombudsman shall have access to all matters and shall have the necessary administrative support, being thus responsible to produce critical evaluations on a timely basis regarding the Agency's performance, forwarding same to the Board of Directors, to the Advisory Board, Ministry of Communications, other offices of the Executive Branch and to Congress, thus publishing them for general awareness.

Article 46. The office of Internal Affairs shall permanently monitor the performance of the Agency's employees, evaluating their efficiency and fulfillment of their functional duties and performing disciplinary proceedings.

TITLE V

REVENUES

Article 47. The product of the collection in connection with installation and operating inspection fees, to which Law nº 5070 dated July 7th, 1966 shall be forwarded to the Telecommunications Inspection Fund - FISTEL, created by said Law.

Article 48. The concession, permit or authorization to exploit telecommunication services, and the use of radio-frequencies for any services will always be charged, and it is hereby authorized charging the respective price pursuant to the conditions, established in this Law and regulations, and the product of such collection will constitute a revenue for the Telecommunications Inspection Fund – FISTEL.

Paragraph 1. The payment due by the concessionaire, licensee or authorized agent may be made in whole or in several installments, or annual installments as established by the Agency, for which its value shall alternatively be:

I - determined by the regulations;

II - determined by the Tender Invitation Document;

III - established as per the winning proposal, when it becomes a judgment item;

IV - established in the concession contract or license act, in the cases where bidding is not required.

Paragraph 2. Upon creation of the universal telecommunications fund mentioned in item II, Article 81, part of the collection product to which the caption of this article refers to will be destined to this fund, pursuant to the terms of the corresponding law.

Article 49. The Agency shall submit to the Ministry of Communications its annual budget plan, as well as FISTEL's, which will be forwarded to the planning and Budget Ministry to be included in the annual budget bill to which Paragraph 5, Article 165 of the Federal Constitution refers to.

Paragraph 1. The Agency which include in its budget proposals a multi-year planning statement of its revenues and expenses, with the objective of balancing its budget and finances over the next five years.

Paragraph 2. The multi-year planning will estimate the amount to be transferred to the universalization fund referred to in item II, Article 81 of this Law, and balances will be transferred to the National Treasury;

Paragraph 3. The annual budget law will designate the allocation of costing and capital expenses of the Agency, as well as the amount of transfer funds from FISIEL to the National Treasury and universalization fund, relative to the fiscal year it refers to.

Paragraph 4. The transfers to which the above mentioned paragraph refers to will be formally made by the Agency at the end of each month.

Article 50. The Telecommunications Inspection Fund – FISTEL, created by Law nº 5070, dated July 7th, 1966, shall be transferred to the exclusive administration of the Agency, as from the date or implementation thereof, with the existing balances, including revenues resulting from the collection referred to in Article 14 of Law 9295, dated July 19th, 1996.

Article 51. Articles 2, 3, 6, and their paragraphs, Article 8, § 2, and Article 13 of Law nº 5070, dated July 7th, 1966, shall henceforth read as follows:

"Article 2 - The Telecommunications Inspection Fund – FISTEL is composed of the following sources:

a) appropriations consigned in the Federal General Budget, from special credits, assigned budget transfers, and financial transfers;

b) the product of credit operations contracted in the Country and abroad, and income from financial operations made.

c) those in connection with the exercise of the granting power in telecommunication services, under the public system, including payments in connection with the grant, fines and indemnification;

d) those in connection with the exercise of granting power in telecommunication services under the public system, including payments in connection with the grant, fines and indemnification;

e) those in connection with the exercise of granting power in connection with the right of use of radio-frequency for any purposes, including fines and indemnification;

f) inspection fees;

g) resources from agreements and contracts entered into with entities, organs and companies, either public or private, national or foreign;

h) donations, legacies, subventions and other resources that may be assigned to the Agency;

i) the product or fees, prices or fines, the amounts arising from the sale or leasing of assets, as well as those resulting from publications technical data and information, including those for bidding purposes;

j) those arising from amounts received by the approval of product inspection reports, and from the rendering of technical services by entities of the National Telecommunications Agency.

l) eventual income."

"Article 3. Besides the transfer to the National treasury and the telecommunications service globalization fund, the resources of the Telecommunications.Inspection Fund FISTEL shall be used exclusively.by the National Telecommunications Agency:

...................................................................................

d) in the settlement of other current and capital expenses incurred by the Agency in the exercise of its authority."

"Article 6. The supervision fees referred to in “f” of Article 2, are those in connection with installation and operating fees.

Paragraph 1. Installation Inspection Fee is that due by the holder of concessions, permits and Authorizations of telecommunication services and for the use of radio-frequency, at the moment of the issuance of license certificate for the operation of the stations.

Paragraph 2. Operating Inspection Fee is that due by the holder of concessions, permits and authorizations of telecommunication services and use of radio-frequency, to be paid on an annual basis in connection with the operation inspection of stations."

"Article 8. The operation inspection fee shall be paid on an annual basis, until March 31st, and its values shall be equivalent to 50% (fifty percent), of those established for the Installation Inspection Fee.

...................................................................................

Paragraph 2. Failure to pay the operating inspection fee within sixty days, shall determine the forfeiture of the concession, permit or authorization, without the right to appeal any indemnification by the interested party.

...................................................................................

"Article 13. The following are exempt from FISTEL fees: the National Telecommunications Agency, the Armed Forces, the Federal Police, the Military Police, the Federal Highway Police, the Civil Police, and the Military Fire Brigades."

Article 52. The values Installation and Operating Inspection fees set forth in Attachment I of Law nº 5070, dated July 7th, 1966, shall be those provided in the Table of Attachment III of this Law.

Sole Paragraph. The terminology of services listed in the Table, shall be valid until a new regulation is issued, based on this Law.

Article 53. The values referred to in items i and j of Article 2 of Law nº 5070, dated July 7th, 1966, with the text provided by this Law, shall be established by the Agency.

TITLE VI

CONTRACTING

Article 54. The contracting of civil engineering works and services shall be subject to the bidding procedures provided for in the general law for the public Administration.

Sole Paragraph. For those cases which are not foreseen in the head of this article, the Agency may use its own procedures for contracting, in the categories of quotation (consultation) and floor.

  • See Law No. 10.520/2002, which established the bidding model called pregão (trading sessions).

Article 55. The quotation and floor shall be disciplined by the Agency, pursuant to the provisions of this Law, and especially;

I - the purpose of the bidding procedure is - by means of a fair competition among interested parties - to obtain an economic, satisfactory and secure agreement for the Agency;

II - the calling instrument shall identify the purpose (object) of the competition, shall circumscribe the universe of the proponents, shall set up criteria for acceptance and judgment of the proposals, shall regulate the procedure, indicating applicable sanctions and shall set forth the provisions in the agreement;

III - the object shall be .precisely determined, sufficiently and clearly stated, without specifications that, when deemed excessive, irrelevant or unnecessary, may limit competition;

IV - the qualification - which is required regardless who the proponents are - shall be compatible with and proportional to the object, aiming at ensuring the fulfillment of future obligations;

V -as a condition for the acceptance of the proposal, the interested party shall declare to be in good standing before Public Finances and Social Security, supplying registration codes, said evidences are an indispensable condition to the execution of the agreement.

VI - the judgment shall observe the principles of bonding to the calling instrument, objective comparison and fair price, a tie being decided by means of a public drawing;

VII - the procedural rules shall ensure adequate disclosure of the calling instrument, reasonable terms for the preparation of proposals, the claim and appeal rights, as well as transparency and supervision;

VIII - the qualification and the judgment of the proposals may be decided in a single phase, and the qualification, in the case of floor procedures, may only be verified in relation to the winning bidder;

IX - when the winner does not sign the contract, other participants shall be called pursuant to the order of classification;

X - only registration certificates issued by the Agency shall be accepted, and same shall be valid for 2 (two) years. The bidding file registration shall always be open for the enrollment of interested candidates.

Article 56. The contest for the supply of common goods and services may be carried out by bidding in the form of floor, restricted to those who were previously registered, who will be called to bid during a public session.

Sole Paragraph. Upon closure of the competitive stage, the Committee shall analyze the best offer with regards to the object, form, and value.

Article 57. In the following events the floor bidding shall be opened to any interested party, regardless of registration, however the subjective qualification and the acceptability of the proposal shall be verified right away following the competitive stage:

I - for contracting high value common goods and services, pursuant to the regulations;

II - when the number of registered parties in the class is lower than five;

III - for the registration of prices, which shall be valid for two years;

IV - when the Board of Directors so decides.

Article 58. The bidding in the category of consultation, aims at the supply of goods and services which are not provided for in Articles 56 and 57 herein.

Sole Paragraph. The decision will consider costs and benefits of each proposal, considering the qualification of the bidder.

Article 59. The Agency may use technicians or specialized companies, through contracting, including independent consultants and external auditors, to perform activities in connection with its authority, the contracting for inspection activities being prohibited, except for corresponding support activities.

BOOK III

ORGANIZATION OF TELECOMMUNICATION SERVICES

TITLE I

GENERAL PROVISIONS

Chapter I

Definitions

Article 60. Telecommunication service is a set of activities that allow for the offer of telecommunications.

Paragraph 1. Telecommunication is the transmission, emission or reception, by wire, radio, optical means or any other electromagnetic process, of symbols, characters, signals, writing, images, sounds or information of any nature.

Paragraph 2. Telecommunications station is the set of equipment or apparatus, devices and other means necessary to carry out telecommunications, its accessories and peripherals, and, whenever the case, the installations holding and complementing same, including portable terminals.

Article 61. Value added service is the activity that adds value to the telecommunications service that supports same, and with which new features related to the access, storage, presentation, handling or recovery of information are not mistaken.

Paragraph 1. Value added service is not a telecommunications service, however, the provider thereof is classified as user of the telecommunication service providing support thereto, with the rights and obligations inherent to this condition.

Paragraph 2. Access to the utilization of telecommunications service networks for rendering value added services is assured to interested parties, for which the Agency shall regulate the conditions as well as organize the relationship between same and the telecommunications service providers.

Chapter II

Classification

Article 62. As to the scope of interests they comply with, telecommunication services are classified into collective interest services and restricted interest services.

Sole Paragraph. The restricted interest services shall be subject to the necessary conditions so that the exploitation thereof does not hinder collective interests.

  • See Act No. 3.833, of June 20, 2013, which approved the Classification of Telecommunication Services in regard to the interests they serve, whether collective or restricted.

Article 63. As to the legal system of their rendering, telecommunication services are classified into public and private.

Sole Paragraph. Telecommunication services under the public system are those rendered by means of concession or permit, for which the provider shall be responsible for universalization and continuity obligations.

Article 64. Public system services shall include those types of services of collective interest, which existence, universalization and continuity the Union has the obligation to ensure.

Sole Paragraph. Included in this case are the different types of fixed telephone service of any scope and destined for the public in general.

Article 65. Each category of service shall be intended to be rendered:

I - exclusively within the public system;

II - exclusively within the private system;

III - both within public and private systems.

Paragraph 1. Categories of collective interest service that, being essential, are subject to universalization, shall not be left to exploitation only in the private system.

Paragraph 2. the exclusivity or coexistence referred to in the head of this article may occur at national, regional, or local levels, or within specific areas.

Article 66. When a certain service is at the same time exploited under the public and private systems, certain measures shall be taken so as to preclude the economic impossibility of its rendering in the public system.

Article 67. Restricted interest telecommunication services shall not be rendered in the public system.

Article 68. It is hereby forbidden, for a legal entity to exploit, either direct or indirectly, the same mode of service in the public and private systems, except in distinct regions, locations or areas.

Chapter III

Common Rules

Article 69. the modes of service shall be defined by the Agency, in view of their objective, scape of supply, form, means of transmission, technology employed or other features.

Sole Paragraph. Form of telecommunication is the specific way of transmitting information deriving from particular features of transduction, transmission, presentation of information, or a combination thereof, and telephony, telegraphy, data communication and image transmission shall be considered, among others, as forms of communications.

Article 70. Behaviors hindering free, ample and fair competition among service suppliers, in the public or private systems, shall be repressed, especially those in connection with:

I - the practice of subsidizing to artificially reduce prices;

II - the use, aiming at competitive advantages, of information obtained from competitors, in connection with agreements of service supply;

III - the omission of relevant technical and commercial information in connection with the rendering of services by a third party.

Article 71. In order to foster effective competition and prohibit economic concentration in the market, the Agency may establish restrictions, limits or conditions for companies, or groups of companies, regarding obtaining and transferring concessions, permits and authorizations.

Article 72. A provider may not utilize information regarding the individual use of services by users, except when performing its activities.

Paragraph 1. the disclosure of individual information shall depend upon the user's express and specific approval.

Paragraph 2. the service provider may disclose aggregate information on the use of its service to third parties, provided same does not allow direct or indirect identification of the user, or the violation of his/her intimacy.

Article 73. The telecommunications services providers of collective interest will be entitled to the use of poles, ducts, conduits and rights of way, belonging or controlled by the telecommunications service provider or the provider of .other services of public interest on a non-discriminatory manner and under fair and reasonable price conditions.

  • See Article 10 of Law No. 11.934, of May 5, 2009, which provides for the limits of human exposure to electric, magnetic and electromagnetic fields.

Sole Paragraph. the regulatory agency of the licensee whose means are to be utilized will be responsible for defining the conditions necessary to satisfy the provisions of this article.

Article 74. The telecommunications service concession, permit or authorization does not exempt the provider from fulfilling the engineering regulations and municipal state and Federal District laws regarding civil construction and cable and equipment installation in public places.

Article 75. As defined by the Agency, telecommunications activity restricted to a single building, or property shall not depend of concession, permit or authorization.

Article 76. Service providing companies and manufacturers of telecommunications products which invest in research and development projects in Brazil, within the telecommunications products which invest in research and development projects in Brazil, within the telecommunication segment shall obtain incentives as established by law.

Article 77. The Executive Branch shall submit to the National Congress, within 120 days after publication of this Law, message creating a Brazilian Telecommunications Technological Development Fund, with the objective of stimulating research and development of new technologies, improve human resource skills, increase number of jobs and promote the access of small and medium size companies to capital funding, so as to increase competition in the telecommunications industry.

Article 78. The manufacturing and development of telecommunication products in the country shall be fostered through the adoption of credit, tax and customs policy instruments.

TITLE II

SERVICES RENDERED IN THE PUBLIC SYSTEM

Chapter I

Universalization and Continuity Obligations

Article 79. The Agency shall regulate the universalization and continuity obligations imposed to the service providers under the public system.

Paragraph 1. Universalization obligations are those that aim enable and provide access by any person to telecommunication services, regardless of his/her location and social-economic status, as well as those destined to permit utilization of essential telecommunication in services of public interest.

Paragraph 2. Continuity obligations are those that aim at enabling users the fruition of services in an uninterrupted form, without unjustifiable stops, thus having said services available, in adequate conditions of use.

Article 80. The universalization obligations shall be the objects of goals set from time to time, depending on the specific plan prepared by the Agency and approved by the Executive Branch, referring, among others, to the availability of collective or individual usage installations, as well as to the availability to handicapped, to rural areas, to remote regions or institutions of public or social nature.

Paragraph 1. The plan shall detail the sources of financing for the universalization obligations that shall be neutral in relation to the competition, in the national market, among service providers.

Paragraph 2. The resources of the universalization fund which item II of Article 81 deals with may not be used to cover costs of universalization of services which, as established in the concession agreement, are the responsibility of the service provider itself

Article 81. The complementary resources intended to cover the portion of cost exclusively attributable to the fulfillment of universalization obligations of the telecommunications service provider and which cannot be recovered with the efficient exploitation of the service, may originate from the following sources:

I - Federal, State, Federal District and city General Budgets;

II - specific fund constituted for said purposes, for which public and private system telecommunication service providers shall contribute pursuant to the provisions of the law, which message creating such fund shall be submitted to the National Congress, by the Executive Branch, within 120 days after publication of this Law.

Sole Paragraph. While the fund referred to in item II is not created, the following sources may also be adopted:

a) subsidies among telecommunication categories of service, or among user segments;

b) payment of an additional amount to the interconnection value.

Article 82. The non fulfillment of the obligations in connection with the universalization and continuity shall imply in the application of sanctions in the form of penalties, forfeiture or decree of intervention, pursuant to the case.

Chapter II

The Concession

Section I

The Grant

Article 83. The exploitation of the service under the public system will depend upon a prior grant, by the Agency, by means of a concession, and this shall imply in the right of use of the necessary radio-frequencies, pursuant to the regulations.

Sole Paragraph. The telecommunication service concession is the assignment of its rendering by means of a contract, for a determined period of time, under the public system, thus subjecting concessionaire to business risks, being remunerated by the charging of tariffs from users or by means of other alternate revenues, and being directly liable for the obligations and damages that same may cause.

Article 84. The concessions shall not be exclusive, and same shall have to follow the general grant plan, with definition as to the division of the Country into areas, to the number of service providers for each one of them, their terms and the time set forth to allow admission of new providers.

Paragraph 1. The exploitation areas, the number of service providers, concession terms and terms for allowing new providers shall be defined considering the competition environment, in conformance with the principle of the greatest benefit to the user and to the social and economic interest of the Country, in order to provide fair remuneration to the service provider within the public system.

Paragraph 2. The opportunity and the period of grants shall be determined in a way so as to avoid the concomitant expiry date of concessions within the same area.

Article 85. Each service mode shall be object of a distinct concession, with clear assignment of rights and duties of the concessionaire, of the users and of the Agency.

Article 86. The concession shall only be granted to companies established pursuant to the Brazilian laws, with headquarters and administration in the Country, created to exclusively exploit telecommunications services object of the concession.

Sole Paragraph. The participation in the bidding for concession, of a company that does not comply with the provisions herein, shall be conditioned to the commitment of adapting itself to set up a company with the adequate characteristics prior to the execution of the contract.

Article 86. The concession shall only be granted to companies established pursuant to the Brazilian laws, with headquarters and administration in the Country, created to exploit telecommunications services only. (As amended by Law 12.485, of 2011).

Sole Paragraph. The criteria and conditions for the provision of other telecommunications services directly by the Holder of Concession shall comply, among others, with the following principles, in accordance with Anatel regulation. (As amended by Law 12.485, of 2011).

I - guarantee of users interests, in the mechanisms of tariff adjustment and revision, by the sharing of economic gains arising from the rationalization resulting from the provision of other telecommunication services, or even by the full transference of economic gains that do not derive from the efficiency or business initiative, pursuant to the provisions of paragraphs 2 and 3 of Article 108 of the present law. (As amended by Law 12.485, of 2011).

II - Government’s acting to propitiate the free, wide and fair competition, repressing the economic order violations, pursuant to the provisions of Article 6 of the this law. (As amended by Law 12.485, of 2011).

III - the existence of mechanisms that ensure the adequate public control regarding reversible goods. (As amended by Law 12.485, of 2011).

Article 87. The grant to an enterprise or a holding group that, in the same region location or area, already renders the same mode of services, shall be conditioned to the obligation of transferring the service previously exploited to a third party, within a maximum period of eighteen months from the date of execution of the contract, subject to forfeiture and other sanctions provided in the grant process.

Article 88. The concessions will be granted by means of a tender process.

Article 89. The tender process will be disciplined by the Agency, pursuant to constitutional principles, provisions of this Law, and especially:

I - the purpose of the process is, by means of a contest among interested parties, to choose whoever can perform, expand and globalize the service under the public system, with efficiency, safety and with reasonable tariffs;

II - the draft of the calling instrument shall be submitted to a prior public consultation;

III - The calling instrument shall identify the service object of the contest and the conditions of rendering, expansion and globalization thereof, same shall define the universe of bidders, establish factors and criteria for the acceptance and judgment of proposals, shall regulate the procedure, determine the number of phases and their objectives, indicate applicable sanctions and establish the contract provisions for concession;

IV - the technical-operational or professional and economic-financial qualifications, as well as the guarantees of the proposals and of the contract, required indistinctly from the bidders, shall be compatible with the object and in proportion to its nature and dimension;

V - the interested party shall prove that same is in good standing before the Public Treasuries and the Social Security;

VI - the participation of a consortium, that will constitute itself in a company before the concession is awarded, shall always be admitted;

VII - judgment shall observe binding principles to the calling instrument and to the objective comparison thereof;

VIII - the judgment factors may be those of the lowest tariff, best offer for the grant, best service quality and best demand satisfaction - either independently or together - always respecting the principle of objectivity;

IX - a tie shall be settled by means of a drawing;

X - the procedural rules will ensure the adequate publication of the calling instrument, compatible periods of time allowed for the preparation of proposals and the right to claim, the right to appeal and to legal defense.

Article 90. A company which is not allowed to bid or contract with the Public Power, or that has been declared unfit, as well the company which has been punished within the last two years prior to the decree of forfeiture of the concession, permit or authorization for telecommunications services, or of forfeiture of the right of use of radio-frequency, shall not be allowed to take part in the bidding process or to be awarded a concession.

Article 91. The bidding shall not be required when - by means of an administrative proceeding carried out by the Agency - the contest is considered not feasible or unnecessary.

Paragraph 1. The contest shall be considered unfeasible when only one of the interest parties can perform the service, under the conditions set forth for said purposes.

Paragraph 2. The contest shall be considered unnecessary in those cases where the exploitation of services is admitted by all interested parties that comply with and meet the required conditions.

Paragraph 3. The procedure to verify the non requirement of a bidding procedure shall comprise a public invitation so as to assess the number of interested parties.

Article 92. In the event of non requirement of a bidding procedure, the grant will depend upon an administrative procedure subject to the principles of publicity, morality, impersonality and contesting, to verify the fulfillment of conditions in connection with technical-operational or professional and economic-financial qualifications, in connection with the tax standing and with the contract guarantees.

Sole Paragraph. The conditions shall be compatible with the object and proportional to its nature and dimensions.

Section II

The Contract

Article 93. The concession contract shall indicate:

I - the object, area and term of the concession;

II - the procedure, form and conditions for rendering services;

III - the rules, criteria, indicators, formulas and parameters defining the implementation, expansion, change and modernization of the service, as well as of its quality;

IV - duties pertaining the universalization and continuity of the service;

V - the amount owed for the grant, the form and payment terms;

VI -extension or renewal conditions, including criteria to set forth the establishment of the value;

VII - the tariffs to be charged to users and criteria for adjustment and revision thereof;

VIII - the possible alternate revenues, either complementary or accessory, as well as those arising from associated projects;

IX - the rights, guarantees and obligations of users, the Agency's and of the concessionaire;

X - the form of settling accounts and inspection;

XI - the reversible assets, if any;

XII - general conditions for interconnection;

XIII - the obligation to maintain during the term of the. Agreement all qualification conditions required in the bid;

XIV - the sanctions;

XV - the jurisdiction and the means for settling out-of-court disputes in connection with the contract.

Sole Paragraph. A summary of the contract shall be published in the Official Gazette of the Union, as a prerequisite for its effectiveness.

Article 94. In the performance of its duties, and in accordance with the conditions and limits established by the Agency, the concessionaire may:

I - employ someone else’s equipment and infrastructure in performing the services;

II - contract with third parties on the development of inherent, accessories or complementary activities to the service, as well as the implementation of associated projects.

Paragraph 1. In any case, the concessionaire shall continue being liable to the Agency and users.

Paragraph 2. The concessionaire's relationship with third parties - who shall have no rights in connection with the Agency, as observed in the provisions of Article 117 - shall be ruled by common law.

Article 95. The Agency shall allow adequate periods of time for the concessionaire to adapt to the new obligations that may be imposed on it.

Article 96. The concessionaire shall:

I - provide technical, operational, economic-financial and accounting information, or other related information requested by the Agency;

II - keep separate accounting records by service, in case same exploits another mode of telecommunication services;

III - submit the draft of the standard agreement to be executed with users to the approval of the Agency, as well as the operating agreements that are intended for execution with foreign providers.

IV - disclose the lists of subscribers, in compliance with items VI, and IX, of Article 3, as well as Article 213 herein;

V - submit itself to the regulation of the service and inspection thereof.

VI - present periodic reports regarding the fulfillment of universalization goals contained in the concession agreement.

Article 97. The split, merger, transformation, incorporation, reduction in company capital or the transfer of stockholders control, shall depend upon the previous approval of the Agency.

Sole Paragraph. The approval shall be granted if the measure is not harmful to competition, and does not place under risk the performance of the contract, observing the provisions of Article 7.

Article 98. The concession agreement may be transferred upon approval of the Agency, provided that, cumulatively:

I - the service has been in operation, for at least three years, with regular compliance with obligations in connection therewith;

II - the concessionaire fulfills all requirements of the grant, including those in connection with guarantees, legal and tax regularity, and technical and economic-financial qualification;

III - the measure does not hinder competition and does not place the performance of the contract in risk, observing the provisions in Article 7.

Article 99. the maximum concession term shall be of twenty years, and may be renewed or extended only once, for an equal period, provided the ,concessionaire has fulfilled the concession conditions and expressly shows interest in renewing same, at least thirty months prior to termination of the contract.

Paragraph 1. Renewal of the concession term will imply the payment, by the concessionaire, for the right to exploit services, as foreseen in the contract, and of the right of use of associated radio-frequencies, and may include new conditions at the Agency's own choice in view of conditions in effect at the time.

Paragraph 2. Should the concessionaire give up the request for renewal without a cause after same is granted, concessionaire shall be subject to the sanction of fine.

Paragraph 3. In case of proven need to reorganize the object or the area of the concession so as to adjust to the general grant plan or too current regulations, the Agency may reject the request for extension or renewal thereof.

Section III

Assets

Article 100. Real estate or chattel necessary to carry out the service may be declared of public interest, for the purpose of expropriation or easement, and concessionaire shall be responsible for implementing the measure and payment of indemnification and other expenses involved.

Article 101. The sale, taxation of substitution of reversible assets shall depend upon the prior approval of the Agency.

Article 102. The termination of the concession will automatically assign the possession of reversible assets to the Union.

Sole Paragraph. The reversion of assets, prior to expiration of the term of the contract, shall give cause to the payment of indemnification for the installments of investments bound to same, not paid or depreciated yet, which have been disbursed with the purpose of guaranteeing the continuity and updating of the service provided.

Section IV

The tariffs

Article 103. It is the responsibility of the Agency to establish the items that will integrate the tariffs structure for each mode of service.

Paragraph 1. The establishment, readjustment and revision of tariffs may be based on a value that corresponds to the weighted average of the values of tariff items.

Paragraph 2. The subsidies among the categories of services and users segments are prohibited, exception made to the provisions set forth in the Sole Paragraph of Article 81 of this Law.

Paragraph 3. The tariffs hall be established and provided in the concession contract, pursuant to the bid notice or to the proposal submitted at the time for bidding.

Paragraph 4. In the event of a grant without the need for a bidding procedure, tariffs shall be set by the Agency and shall be included in the concession contract.

Article 104. After at least three years from the execution of the contract, the Agency may submit concessionaire to freedom of tariff system, if there is ample and effective competition among service providers.

Paragraph 1. In the aforementioned system, the concessionaire may determine its own tariffs, thus having to inform same to the Agency, seven days prior to their effective validity.

Paragraph 2. Should an arbitrary increase in profits or other damaging practices to competition occur, the Agency shall reestablish the previous tariff system, without damage to applicable sanctions.

Article 105. At the time of implementation of new services, utilities or features in connection with the object of the concession the tariffs related thereto shall be previously forwarded to the Agency, for approval, together with the corresponding analysis.

Sole paragraph. Considering user interests, the Agency may decide to set the tariffs or to submit same to the freedom of tariff system, and any collection before said approval shall be forbidden.

Article 106. The concessionaire may charge lower tariffs than those established, provided the reduction is based on an objective criterion and favors all users, indistinctly, however the abuse of economic power is forbidden.

Article 107. Tariff discounts shall only be allowed when same are extensive to all users who fit

the precise and equal conditions, for the enjoyment of such benefits.

Article 108. The mechanisms to readjust and revise tariffs shall be foreseen in the concession contracts, observing the specific legislation, where applicable.

Paragraph 1. Tariff reduction or discount shall not imply the revision of tariffs.

Paragraph 2. The economic gains resulting from modernization, expansion or rationalization of services, as well as from alternative, sources of income, shall be shared among users, pursuant to the terms ruled by the Agency.

Paragraph 3. Economic gains that do not arise directly from business efficiency, in the cases of reduction in taxes or legal burdens, and of new service rules, shall be transferred in full to the users.

Paragraph 4. The burden resulting from new rules for service by extraordinary economic measures, as well as from increases in legal charges and taxes, except for income taxes, will imply a contract revision.

Article.109. The Agency shall establish:

I - the mechanisms to the assessment and follow up of tariffs offered by the concessionaire, including the prior requirement to be observed in the communication of tariff changes;

II - the cases of free service, like those in connection with emergencies;

III - the mechanisms to guarantee the publicity of tariffs.

Section V

Intervention

Article 110. The Agency may decree intervention at the concessionaire, in case of:

I - Services are discontinued without a cause;

II - inadequate of insufficient services are rendered, and same is not resolved within a reasonable period of time;

III - economic-financial disparity resulting from improper administration, thus risking the continuity of services;

IV - recurrent practice of critical violations;

V - repeated non observance of the fulfillment of universalization goals;

VI - unjustifiable refusal of interconnection;

VII - violation to the economic order, pursuant to the terms and conditions of the specific legislation.

Article 111. The intervention act shall indicate its term of validity, its objectives and limits, and same shall be determined in view of the reasons that have given rise to such intervention, and appoint an intervenor.

Paragraph 1. The decree of intervention shall not affect the regular course of business of the concessionaire nor its normal operation and shall immediately produce the withdrawal of management thereof.

Paragraph 2. The intervention shall be preceded by an administrative proceeding carried out by the Agency, in which ample defense from the concessionaire is secured, except when decreed as a temporary restraining order, case in which the proceeding shall commence on the date of intervention and shall terminate within up to 180 (one hundred and eighty) days.

Paragraph 3. The intervention may be exercised by a committee or by a company, whose remuneration shall be paid with resources of the concessionaire.

Paragraph 4. The acts of the intervenor allow for appeals to the Agency.

Paragraph 5. For the acts of selling and disposition of the concessionaire's assets, the intervenor shall need prior authorization from the Agency.

Paragraph 6. The intervenor shall settle accounts and shall be responsible for the acts carried out during the intervention.

Section VI

Termination

Article 112. The grant shall terminate upon expiration of the term set forth in the contract, expropriatian, forfeiture, rescission or annulment.

Sole Paragraph. Upon termination, the rights and duties in connection with the rendering of services return to the Union.

Article 113. Expropriation is considered as the repossession of the service by the Union during the period of concession, in view of extraordinary public interest, by means of an authorizing law, and following prior payment of indemnification.

Article 114. The forfeiture or the grant shall be decreed by the Agency, in the following events:

I - violation of the contents of Article 97 or the dissolution or bankruptcy of the concessionaire;

II - irregular transfer of the contract;

III - the non compliance with the commitment to transfer, as provided in Article 87;

IV - where an intervention would be·appropriate, but the enactment thereof becomes inconvenient, harmless, unfairly beneficial to the concessionaire or unnecessary.

Paragraph 1. The intervention shall be unnecessary when the demand for the services object of the concession can be satisfied by other providers, on a regular and immediate manner.

Paragraph 2. The enactment of forfeiture shall be preceded by administrative proceedings, carried out by the Agency; in which ample defense shall.be guaranteed to the concessionaire.

Article 115. The concessionaire shall have the right to terminate the contract when, by action or default of the Public Power the performance of the contract becomes excessively·burdensome.

Sole Paragraph. The termination may be carried out amicably or judicially.

Article 116. The annullment shall be decreed by the Agency in case of irreparable and critical irregularity of the concession contract.

Article 117. Once the concession is terminated prior to the end of the term of the contract, the Agency, without harm to other appropriate measures, may:

I - temporarily occupy, properties and chattels, and use personnel hired in the rendering of services, necessary for the continuity thereof;

II - honor contracts entered into by the concessionaire and third parties, based upon the provisions in items I and II of Article 94, for the period of time and conditions which were initially agreed .upon.

Sole Paragraph. In the event of item II of this article, the third parties that interrupt the fulfillment of the obligations undertaken shall be responsible for the, default.

Chapter III

Permit

Article 118. The permit shall be granted by the Agency, for the rendering of telecommunication services in the event of an exceptional situation jeopardizing the service operation that, in view of its peculiarities, cannot be conveniently complied with in an adequate time frame, upon intervention in the concessionaire's company or by the grant of a new concession.

Sole Paragraph. The permit for telecommunication services is the administrative act by which the duty to render telecommunication services in the public system and in a transient nature, is assigned to someone until the exceptional situation that has brought about the permit status is back to normal.

Article 119. The permit shall be preceded by a simplified bidding procedure, entered by the Agency, under the terms regulated by same, exception made to cases of non requirement provided in Article 91, complying with the provisions of Article 92 of this Law.

Article 120. The permit shall be formalized by the signing of a document, stating:

I - the object and area of the permit, as well as the estimated minimum and maximum periods of validity;

II - the method, form and conditions for rendering the service;

III - the tariffs to be collected from users, criteria for adjustment and revision thereof and possible sources of income alternatives;

IV - the rights, guarantees and obligations of users, of the grantor and of the grantee.

V - the general conditions of interconnection;

VI - the rendering of accounts and supervision methods;

VII - the assets delivered by the grantor to the administration of the permittee;

VIII - the sanctions;

IX - the reversible assets, if any;

X - the jurisdiction and form of out-of-court arrangement in the event of disputes arising therefrom.

Sole Paragraph. A summary of the permit act shall be published in the Official Gazette of the Union, as a condition for its effectiveness.

Article 121. Once the permit is granted as a result of the bidding procedure, the unjustified refusal by the concessionaire in the execution of the respective document, shall subject same to the sanctions provided for in the calling instrument.

Article 122. The permit shall be extinguished by lapse of time, pursuant to the contents of Article 124, as well as by revocation, forfeiture annullment.

Article 123. The revocation shall be based upon reasons of convenience and opportunity, and same shall be relevant and supervening to the permit.

Paragraph 1. The revocation, which may be carried out at any time, shall not imply any rights to indemnification.

Paragraph 2. The revocation act shall establish the term for the permit holder to return the service, which shall not be less than sixty days.

Article 124. The permit may be sustained, even if the maximum validity thereof has expired, if the exceptional situation that gave way to such event persists.

Article 125. The Agency shall regulate the permit system, thus complying with the principles and objectives of this Law.

TITLE III

SERVICES RENDERED UNDER THE PRIVATE SYSTEM

Chapter I

General Exploitation System

Article 126. The exploitation of telecommunications services under the private system shall be based on the constitutional principles of the economic activity.

Article 127. The regulation of the exploitation of services under the private system, shall aim at the feasibility of compliance with the laws, especially those in connection with telecommunications, as regards the economic order and consumer rights so as to guarantee:

I - the diversity of services, the increment of the offer and quality thereof;

II - free, ample and fair competition;

III - the respect for user rights;

IV - the coexistence among the service modes and among providers under the private and public systems, thus observing the prevalence of the public interest;

V -the balance in the relationships among providers and users of the services;

VI - the impartiality of treatment in connection with providers;

VII - the efficient use of the radio-frequency spectrum;

VIII - the fulfillment of the social role of the service of collective interest, as, well as the duties resulting therefrom;

IX - the technological and industrial development of the sector;

X - the permanent inspection.

Article 128. Upon imposing administrative conditioning to the right of exploiting the various forms of service under the private system, either in the form of limits, duties or subjection, the Agency shall observe the requirement of minimum intervention in the private life, thus ensuring that;

I - freedom shall be the rule, prohibitions, restrictions and interference of the Public Power being the exception;

II - no authorization shall be denied, except for a relevant reason;

III - the conditions shall be related and adequate to specific and important public objectives;

IV - the collective benefit generated by the conditioning shall be proportional to the deprivation imposed by same;

V- there shall be a balance relation between the duties imposed to providers and their recognized rights.

Article 129. The price of services shall be free, except for the contents of Paragraph 2 of Article 136, all damaging practice to competition, as well as the abuse of economic power being repressed, pursuant to the terms and conditions of the specific legislation.

Article 130. The service provider in the private sector shall not have the vested right to permanence of current conditions at the time of issuing of the authorization or at the beginning of activities, thus having to follow any new condition imposed by the law and by the regulation.

Sole Paragraph. The rules shall allow sufficient time for adaptation to the new conditions.

Article 130-A. Service providers under private regimes are allowed to lease their networks so that missing persons tracking systems may be implemented. (Included by Law No. 12.841, of 2013)

Sole paragraph. The system referred to in the heading of this article is subject to market rules, in accordance with article 129 of this Law. (Included by Law No. 12.841, of 2013)

Chapter II

Telecommunication Service Authorization

Section I

The Attainment

Article 131. The exploitation of service under the private system shall depend upon previous authorization from the Agency which will generate the right of use of the necessary radio-frequencies.

Paragraph 1. The telecommunications service authorization is the binding administrative act that allows for the exploitation, under the private system, of a category of telecommunications service, when the necessary objective and subjective conditions are met.

Paragraph 2. The Agency shall define the cases that will not depend upon authorization.

Paragraph 3. The service provider that does not depend upon authorization shall previously notify the Agency with regards to the beginning of its activities, except in the cases provided for in the corresponding regulations.

Paragraph 4. The effectiveness of the authorization shall depend upon the publication of its summary in the Official Gazette of the Union.

Article 132. The objective conditions for obtaining a service authorization are:

I - availability of the necessary radio-frequency; in case of services in need thereof;

II - presentation of a technically feasible project, compatible with applicable standards.

Article 133. The subjective conditions for obtaining a collective interest service authorization are:

I - the company must be established pursuant to the Brazilian laws, having headquarters and administration in the Country;

II - the company cannot be prohibited from bidding or contracting with the Public Power, cannot be declared unfit, nor having been punished, within the two previous years, with the enactment of forfeiture of concession, permit or authorization of telecommunications service, or the forfeiture of the right of use of radio-frequency;

III - the company must bear the necessary technical qualification to properly render the service, good economic-financial standing, tax compliance regularity and further be in good standing before the Social Security system;

IV - the company may not be in charge of rendering the same mode of service in the same region location or area.

Article 134. The Agency shall regulate the subjective conditions for the acquisition of restricted interest service authorization.

Article 135. The Agency exceptionally may, in view of important public nature reasons, condition the issuance of authorization to the acceptance by the interested party of obligations of collective interest.

Sole Paragraph. The obligations referred to in the head of this article shall be object of regulation, by the Agency, following the principles of reasonability, proportionality and equality.

Article 136. There will be no limit to the number of service authorizations, except for technical impossibility or, exceptionally, when the excess number of competitors may hamper the rendering of a service mode of collective interest.

Paragraph 1. The Agency shall determine the regions, locations or areas covered by the limitation, and shall regulate the possibility of the provider acting in more than one of them.

Paragraph 2. The providers shall be selected through a bidding procedure, as provided in articles 88 through 92 herein, therefore subjecting the transfer of authorization to the same conditions set forth in Article 98.

Paragraph 3. Winning bidders shall be required Proportional consideration to the economic gain enjoyed, in the form of obligations connected with user interests.

Article 137. The non compliance with conditions or commitments undertaken in connection with the authorization shall subject the provider to the sanctions of fine, temporary suspension or forfeiture.

Section II

Termination

Article 138. the authorization of telecommunications service shall not have its validity subjected to final term, being, terminated solely by disfranchisement, forfeiture, lapsing, waiver or annullment.

Article 139. Disfranchisement is the administrative act that withdraws the service authorization in the presence of loss of the indispensable conditions for its delivery or maintenance.

Sole Paragraph. The termination of the authorization of the respective radio-frequency shall determine the termination of the service authorization.

Article 140. Forfeiture is the administrative act that withdraws the service authorization upon the practice of critical violations, of the irregular transfer of the authorization or recurrent non fulfillment of commitments undertaken before the Agency.

Article 141. The lapsing shall be decreed by the Agency by means of an administrative act if, by force of exceptional public significance, the rules prohibit the type of activity object of the authorization or otherwise cancel its exploitation under the private system.

Paragraph 1. The enactment of rules referred to in the head of this article does not justify the lapsing, unless when the keeping of the authorizations already issued is not compatible with the public interest.

Paragraph 2. Having been decreed the lapsing, the provider shall have the right to maintain its own regular activities for a minimum period of five years, except in case of expropriation.

Article 142. The waiver is the unilateral formal, irrevocable and unchangeable act, by which the service provider manifests its lack of interest towards the authorization.

Sole Paragraph. The waiver shall not give cause to penalties to the authorized party, nor shall exempt same from its obligations before third parties.

Article 143. The annullment of authorization shall be decreed, judicially or administratively, in case of irreparable irregularity of the act causing its issuance.

Article 144. The annullment of authorization through administrative act shall depend upon previous procedure, ensuring appeal and ample defense rights of the interested party.

TITLE IV

TELECOMMUNICATIONS NETWORKS

Article 145. The implementation and operation of telecommunication networks intended to give support to the rendering of collective interest services, under the public or private systems, shall observe the provisions of this Title.

Sole Paragraph. Telecommunications networks intended to render service in the private system shall be exempt from the provisions stated in the head of this article, in whole or in part, pursuant to the regulation issued by the Agency.

Article 146. The networks shall be organized in the form of free circulation integrated highways, under the following terms:

I - the interconnection among networks is mandatory, pursuant to the regulation;

II - the integrated operation, of the networks shall be guaranteed; on the national and international level;

III - property rights on the networks shall be conditioned to the duty of compliance of their social role.

Sole Paragraph. Interconnection is the link among functionally compatible telecommunications networks, so that service users of one of the networks may communicate with service users of another, or access services therein available.

Article 147. The interconnection of telecommunications networks referred to in Article 145, requested by service provider under the private system, is mandatory, pursuant to the terms of the regulation.

Article 148. Pursuant to the regulation, the interconnection among networks supporting the rendering of telecommunication services under the private system is free.

Article 149. The regulation shall establish the cases and conditions of interconnection with international networks.

Article 150. The implementation operation and interconnection of networks, shall follow the regulations issued by the Agency, ensuring the compatibility of networks of the various providers, aiming at their harmonization at national and international levels.

Article 151. The Agency shall provide on the numbering plans of services, ensuring their administration in a non discriminatory manner and stimulating competition, thus in compliance with international commitments.

Sole Paragraph. The Agency shall provide on circumstances and conditions that the telecommunications service provider whose user transfers to another provider, will be obligated to intercept the calls directed to the user’s previous access code and provide his/her new code at no cost.

Article 152. The provisioning of interconnection shall be made in non discriminatory manner, under adequate technical conditions, thus ensuring equal and fair prices, complying with the strict requirements to the rendering of services.

Article 153. The conditions for the interconnection of networks shall be object of free negotiation among the interested parties, by means of an agreement, observing the provisions of this Law and pursuant to the terms of the regulations.

Paragraph 1. The agreement shall be formalized by contract, whose effectiveness will depend upon certification by the Agency, filing one copy thereof in the Library for consultation purposes from any interested party.

Paragraph 2. Should there not be an agreement among interested parties, the Agency – by means of a call addressed by one of them·- shall arbitrate the conditions for the interconnection.

Article 154. The telecommunication networks may be, secondarily utilized as service support to be rendered by a third party, of collective or restricted interest.

Article 155. In order to foster competition the telecommunications service providers of collective interest shall, pursuant to the cases and conditions established by the Agency, make their networks 'available to other telecommunications service providers of collective interest.

Article 156. The connection of terminal equipment without certification issued or accepted by the Agency, in the case of networks referred to in, Article 145, may be prohibited.

Paragraph 1. Telecommunications terminal is the equipment or device that allows the user access to telecommunications services, and same may incorporate transducer stage, may be incorporated to equipment intended for performance of other functions or further, to incorporate secondary functions.

Paragraph 2. The certification is the acknowledgment of compatibility of specifications of a given product with the technical characteristics of the service it is made for.

TITLE V

SPECTRUM AND ORBIT

Chapter I

Radio-Frequency Spectrum

Article 157. The radio-frequency spectrum is a limited resource, constituting public property, managed by the Agency.

Article 158. Upon compliance with the band allocation pursuant to international treaties and agreements, the Agency shall keep a plan with the allocation, distribution and destination of radio-frequencies, and the necessary detailing of use of the radio-frequencies associated to the various services and telecommunications activities, fulfilling their specific needs and expansion thereof.

Paragraph 1. The plan shall designate radio-frequencies for:

I - exclusive military purpose;

II - telecommunication service to be rendered under the public and private systems;

III - broadcasting services;

IV - emergency and public security services;

V -other telecommunication activities.

Paragraph 2. The designation of radio-frequency bands for exclusively military purposes shall be made in conjunction with the Armed Forces.

Article 159. In the designation of radio-frequencies, the rational and economic use of the spectrum, as well as the existing allocations, distributions, and assignments, shall be considered, aiming at avoiding degrading interference.

Sole Paragraph. Harmful interference is considered any emission, radiation or induction that obstructs, seriously degrades or repeatedly interrupts the telecommunication.

Article 160. The Agency shall regulate the efficient and adequate utilization of the spectrum, and may restrict the use of certain radio-frequencies or bands, upon consideration of the public interest.

Sole Paragraph. The use of the radio-frequency shall be conditioned to its compatibility with the activity or service to be rendered, particularly in relation to its power, the transmission band and the technique employed.

Article 161. At any time, the assignment of radio-frequencies or bands may be modified, as well as a change in power or other technical characteristics may be ordered, provided the public interest or the compliance with international conventions or treaties so determine.

Sole Paragraph. An adequate and reasonable period of time shall be determined for the performance of the aforementioned changes.

Article 162. The operation of radio communication transmitting station shall be subject to previous operation license, and to permanent inspection, pursuant to the terms and conditions of the regulations.

Paragraph 1. Radio communication is the telecommunication that uses radio-electric frequencies not confined to wires, cables or other physical means.

Paragraph 2. The utilization of radio-frequency emitting equipment without certification issued or accepted by the Agency shall be prohibited.

Paragraph 3. The issuance or cancellation of the license in connection with the maritime or air navigation support station, as well as to the maritime or aeronautical radio communication station, shall depend upon the favorable opinion of the competent authorities in charge of ship and aircraft inspection.

Chapter II

Authorization for Use of Radio-Frequency

Article 163. The use of radio-frequency, either on exclusive or non-exclusive grounds, shall depend upon the previous grant from the Agency, by means of an authorization, pursuant to the regulations.

Paragraph 1. Authorization of use of radio-frequency is the binding administrative act associated to the grant, permit or authorization to render telecommunications service that assigns the right of use of radio-frequency to the interested party, for a determined period of time under the legal and regulatory conditions.

Paragraph 2. The following shall not depend upon a grant:

I - the use of radio-frequency by means of restricted radiation equipment defined by the Agency;

II - the use, by the Armed Forces, of radio-frequencies in bands destined exclusively for military purposes.

Paragraph 3. The efficiency of the authorization of use of radio-frequency shall depend upon the publication of a summary thereof in the Official Gazette of the Union.

Article 164. If there is technical limitation as to the use of radio-frequency and upon interest in its utilization by more than one bidder, for the purpose of service expansion and, in having or not other parties interested in rendering the same form of service, the following shall be observed:

I - the authorization of use of radio-frequency shall depend upon a bidding process, the form and conditions set forth in Articles·88 through 90 herein, and same shall always be charged for;

II - the winner of the bid shall receive, depending on the case, the authorization for the use of the radio-frequency, for the purpose of expanding the service, or the authorization to render said service.

Article 165. For the purposes of verification of the need to open or not the bidding provided in the aforementioned article, the provisions in Articles 91 and 92 of this Law, shall be abided by.

Article 166. The authorization of use of radio-frequencies shall have the same validity term of the concession or permit to render the telecommunications service to which same is bound

Article 167. In case of authorized services, the validity term shall be twenty years, extendible once for an equal term.

Paragraph 1. The extension may be requested up to three years prior to the termination date of the original term, and the request shall be decided within a maximum of twelve months.

Paragraph 2. The denial may only occur if the interested party is not making rational and adequate use of the radio-frequency, if repeated violations have been committed in its activities or if it is necessary to change the destination of the radio-frequency use.

Article 168. The authorization for use of radio-frequencies is not transferable, without the corresponding concession, permit or authorization transfer of the concerned service.

Article 169. The authorization of use of radio-frequencies shall terminate at the end of its final term or in case of its irregular transfer, as well due to forfeiture, lapsing, renouncement or nullification of the authorization to render the telecommunications service same utilizes.

Chapter III

Orbit and Satellites

Article 170. The Agency shall provide on the specific requirements and criteria for the performance of telecommunications service that utilize satellites, geostationary or not, regardless of whether the access to it occurs from the national territory or from abroad.

Article 171. For the performance of telecommunications service via satellite regulated by this Law, preference to the use of a Brazilian satellite shall be given, when this provides equivalent conditions to those of foreign satellites.

Paragraph 1. The use of foreign satellites shall only be admitted when its contracting is made with a company established pursuant to the Brazilian laws and said company holds headquarters and administration in the Country, under the condition of legal representative of the foreign operator.

Paragraph 2. Brazilian satellite is the one that utilizes orbit resources and radio-electric spectrum notified by the Country and whose control and monitoring station is installed within the Brazilian territory.

Article 172. The right to exploit a Brazilian satellite for the transport of telecommunications signals ensures the occupation of the orbit and the use of radio-frequencies destined for the control and monitoring of the satellite, and to telecommunications via satellite, for the period of up to fifteen years, which may be extended or renewed only once, pursuant to the terms and conditions of the Law.

Paragraph 1. Immediately after the application for satellite exploitation that implies in the utilization of new orbit or spectrum resources, the Agency will evaluate the information, and upon deciding on its conformity with the regulations, shall submit the corresponding notice to the International Telecommunication Union, this not implying in a grant commitment to the applicant.

Paragraph 2. If bidding is not required, as stated in Articles 91 and 92 herein, the right of use shall be granted by means of an administrative procedure established by the Agency.

Paragraph 3. In case there is a need for bidding, the procedure established in articles 88 through 90 herein shall be followed, thus employing the provisions of this article, when applicable.

Paragraph 4. The right shall be granted for consideration, and the payment as determined by the Agency may be made in one or more installments, or in annual installments or, in complement to that, by offering capacity, as provided by the regulations.

TITLE VI

SANCTIONS

Chapter I

Administrative Sanctions

Article 173. The violation of this Law or of other applicable rules, as well as the non observance of the duties resulting from concession contracts of from acts in connection with permits, service authorizations or authorization of use of radio-frequency, shall subject offenders to the following sanctions, applicable by the Agency, in addition to those of civil or penal nature:

  • See Article 18 of Law No. 11.934, of May 5, 2009, which provides for the limits of human exposure to electric, magnetic and electromagnetic fields.

I - admonition;

II - fine;

III - temporary suspension;

IV - forfeiture;

V - declaration of unfitness.

Article 174. All accusations shall be circumstantial, remaining in secrecy until its final assessment.

Article 175. No sanction shall be applied without prior opportunity to ample defense.

Sole Paragraph. Only urgent temporary restraining orders may be taken prior to the defense.

Article 176. Upon the application of sanctions, one shall consider the nature and severity of the violation, the damage resulting therefrom for the service and for the users, the advantage gained by the offender, the aggravating circumstances, the preceding records of the offender and the specific recurrence thereof.

Sole Paragraph. Specific recurrence should be understood as the repetition of the fault of equal nature after receiving prior notification.

Article 177. In violations carried out by a corporation, its administrators or relevant shareholders shall also be punished with the sanction of penalty, when acting in a malicious manner.

Article 178. The existence of a prior sanction shall be considered as an aggravating factor in the application of another sanction.

Article 179. The fine may be imposed in isolation or in conjunction with other sanction, and shall not be higher than R$ 50,000,000.00 (fifty million reais), for each violation.

Paragraph 1. In applying the fine, the economic condition of the offender and the principle of proportionality between the seriousness of the fault and the intensity of the sanction.

Paragraph 2. The application of a fine resulting from violation of the economic order to a telecommunications service provider, shall follow the limits set forth in the specific legislation.

Article 180. The temporary suspension shall be imposed, in relation to the service authorization or to the use of radio-frequency, in the event of a serious violation, circumstances of which do not justify the enactment of forfeiture.

Sole Paragraph. The period of suspension shall not be longer than thirty days.

Article 181. The forfeiture shall result in the cancellation of the concession, permit, service authorization or authorization of use of radio-frequency, in the cases provided for in this Law.

Article 182. The declaration of unfitness shall be imposed to those who have carried out illegal acts aiming at the preclusion of the objectives set forth in a bidding procedure.

Sole Paragraph. The period of validity of the declaration of unfitness shall not exceed five years.

Chapter II

Penal Sanctions

Article 183. To illegally develop telecommunications activities:

Punishment - confinement of two to four years, increased by a half term if damage is done to third parties, and a fine of R$ 10,000.00 (ten thousand reais).

Sole Paragraph. Those concurring directly or indirectly for the crime shall incur the same punishment.

Article 184. The following are effects of the penal conviction transited in rem judicatam:

I - to confirm the obligation to indemnify the damage caused by the crime;

II - the loss, in benefit of the Agency, or of the assets employed in the clandestine activity, without damage to their provisional custody seizure, exception made to the right of the victim or bona fide third parties.

Sole Paragraph. It is hereby considered clandestine the activity developed without the proper concession, permit or service authorization, or authorization for the use of radio-frequency and exploitation of a satellite.

Article 185. The crime defined in this Law is of public criminal proceedings, without mitigating conditions, and the Public Prosecution Service shall be entitled to bring suit.

BOOK IV

RESTRUCTURING AND PRIVATIZATION OF FEDERAL TELECOMMUNICATIONS COMPANIES

Article 186. The object of restructuring and privatizing federal telecommunications companies is to comply with the obligations put forth in Article 2 of this Law.

Article 187. The Executive Branch is hereby authorized to promote the restructuring and privatization of the following telecommunication service providers, controlled, direct or indirectly by the Union, and supervised by the Ministry of Communications:

I - Telecomunicações Brasileiras S.A. - TELEBRÁS;

II - Empresa Brasileira de Telecomunicações - EMBRATEL;

III - Telecomunicações do-Maranhão S.A. - TELMA;

IV - Telecomunicações do Piauí S.A - TELEPISA;

V - Telecomunicações do Ceará·- TELECEARÁ; (Não tem o S.A.??)

VI - Telecomunicações do Rio Grande do Norte S.A. - TELERN;

VII - Telecomunicações da Paraíba S.A. - TELPA;

VIII - Telecomunicações de Pernambuco S.A. - TELPE;

IX - Telecomunicações de Alagoas S.A. - TELASA;

X - Telecomunicações de Sergipe S.A. - TELERGIPE;

XI - Telecomunicações da Bahia S.A. - TELEBAHIA;

XII - Telecomunicações de Mato Grosso do Sul S.A. - TELEMS

XIII - Telecomunicações de Mato Grosso S.A. - TELEMAT;

XIV - Telecomunicações de Goiás S.A. - TELEGOIÁS;

XV - Telecomunicações de Brasília S.A. - TELEBRASÍLIA;

XVI - Telecomunicações de Rondônia S.A. - TELERON;

XVII - Telecomunicações do Acre S.A. - TELEACRE;

XVIII - Telecomunicações de Roraima S.A. - TELAIMA;

XIX - Telecomunicações do Amapá S.A. - TELEAMAPÁ;

XX - Telecomunicações do Amazonas S.A. - TELAMAZON;

XXI - Telecomunicações do Pará S.A. - TELEPARÁ;

XXII - Telecomunicações do Rio de Janeiro S.A. - TELERJ;

XXIII - Telecomunicações de Minas Gerais S.A. - TELEMIG;

XXIV·- Telecomunicações do Espírito Santo S.A. - TELEST;

XXV - Telecomunicações de São Paulo S.A - TELESP;

XXVI - Companhia Telefônica da Borda do Campo - CTBC;

XXVII -·Telecomunicações do Paraná S.A. - TELEPAR;

XXVIII - Telecomunicações de Santa Catarina S.A. - TELESC;

XXIX·- Companhia Telefônica Melhoramento e Resistência - CTMR.

Sole Paragraph. The subsidiary companies exploiting cellular mobile service, and established as a result of Article 5 of Law Nº 9295, dated July 19th 1996, are included herein.

Article 188. The restructuring and privatization will have to make the areas of activity of these companies compatible with the general grant plan referred to in Article 84 herein as well as observe the restrictions, limits or conditions established according to Article 71.

Article 189. To restructure the companies listed in" Article 187, the Executive Branch is authorized to adopt the following measures:

I - split, merger and incorporation;

II - company dissolution or partial deactivation of its businesses;

III - reduction in the company's corporate capital.

Article 190. In restructuring privatizing Telecomunicações Brasileiras S.A. – TELEBRÁS mechanisms shall be provided to ensure preservation of the company's existing technological research and development capacity.

Sole Paragraph. In order to fulfill the provisions of this caption, the Executive Branch is authorized to form an entity which will incorporate the TELEBRÁS Research and Development Center, in one of the following formats:

I - State-owned mixed capital company or not, including by means of a split referred to in item I of the previous Article;

II - Governmental, public or private foundation.

Article 191. The privatization is characterized by the disposal of rights which ensure the Union prevalence in social decisions and the power to appoint the majority of the company's Administrators to the company, either direct or indirectly and same may be carried out by the use of the following operating categories:

I - disposal of shares;

II - assignment of rights of preference to the subscription of shares in increases in capital.

Sole Paragraph. The privatization shall not affect concessions, permits and authorizations held by the company.

Article 192. In the privatization of companies referred to in Article 187, part of the shares may be reserved for their employees or former retired employees at privileged prices and conditions, including the use of FGTS (Government Severance Indemnity Fund for Employees).

Article 193. The privatization of companies or groups of companies mentioned in Article 187 shall imply the immediate opening to competition in the respective area, of services rendered in the public system.

Article 194. The stock control of fixed switched telephone service providers and that of the cellular mobile service providers may be subject of joint disposal.

Sole Paragraph. The new controller is forbidden to promote the incorporation or merger of fixed switched telephone service provider with cellular mobile service provider.

Article 195. The restructuring and privatization model of companies listed in Article 187, upon submittal to public consultation shall be approved by the President of the Republic; coordination and follow up of all acts and procedures in connection with the privatization shall be assigned to Special Supervisory Committee, to be appointed by the Minister of Communications.

Paragraph 1. The execution of operational procedures necessary to the privatization, may be Assigned, through a contract, to a financial institution of widely known experience in the matter that integrates the Federal Administration.

Paragraph 2. The remuneration of the contracted party shall be provided with part of the net value collected from the disposal thereof.

Article 196. Third party specialized services may be used in the restructuring as well as in the privatization, and same shall be contracted by means of a special bidding procedure, pursuant to the following terms:

I - The Ministry of Communications shall maintain an organized file according to business field, which shall be open to national or international companies and institutions, of widely known specialization in the area of telecommunications, and evaluation and auditing of companies, in planning and executing the sale of properties and stock and related legal matters;

II - for the purposes of file records, the interested parties shall comply with the requirements so defined by the Special Supervisory Committee, with approval of the Minister of Communications;

III - only the registered parties may take part in the bidding procedure, which shall be called by means of a letter, with the specification of the services object of the bid;

IV - those convoked either independently or by means of a consortium, shall submit their proposals within thirty days, from the date of the call;

V - further to other requirements included in the call, the proposals shall contain details of the services, execution methodology, and indication of the technical personnel to be employed as well as the price intended for said purposes

VI - the judgment of the proposals shall be based on the criteria of technique and price;

VII - the contracted party, under the exclusive responsibility and with the approval of the party to contract, may partially subcontract the services object of the contract;

VIII - The contracted is obliged to accept, on the same contractual conditions, the increases or reductions deemed necessary to the services, of up to 25% of the initial value of the adjustment.

Article 197. The special privatization process shall follow the principles of legality, impersonality, morality and publicity, and may adopt the form of an auction or bidding, or further, of sale of stock in a public offer, as established by the Special Supervisory Committee.

Sole Paragraph. The process may include a pre-qualification stage, being restricted to those qualified to take part in the subsequent stages.

Article 198. The special privatization process shall be initiated with the publication of ads related to the bid notice in the Official Gazette of the Union, and in newspapers of major circulation nationwide and same shall necessarily include:

I - the conditions for qualification of the candidates;

II - the conditions for acceptance of the proposals;

III - the judgment criteria;

IV - draft of the concession contract;

V - information in connection with the companies object of the process, such as short and long term liabilities and .economic and financial standing thereof, thus providing specifics on profits, losses and internal and foreign debt of the previous fiscal year;

VI - summary of the assessment studies;

VII - criterion to establish the minimum sale value, based on the assessment studies;

VIII - an indication, if applicable, that a special class of shares shall be created in the capital stock of the company object of the privatization, to be subscribed by the Union, and of the special powers that shall be assigned thereto, which shall be incorporated into the company's by-laws.

Paragraph 1. Access to all assessment studies and other confidential information may be restricted to those qualified, who will undertake to keep same in confidentiality.

Paragraph 2. The sale of the equity control, if performed by means of the sale of shares in a public offer, shall exempt the inclusion of the data related to items I through III herein in the bid notice.

Article 199. With the objective of universalization of telecommunications services tender documents shall contain commitment clauses regarding the expansion of services to the population, in consonance with that put forth in Article 80.

Article 200. For the purposes of qualification, evidence as to the experience in the rendering of telecommunication services, technical, economic and financial capacity shall be required from bidders, thus always observing the necessary compatibility with the size of the companies object of the process.

Sole Paragraph. The participation of consortiums shall be accepted, pursuant to the terms and conditions of the bid notice.

Article 201. In the course of the privatization process, the acquisition by the same shareholder or group of shareholders, of the direct or indirect control of companies acting in distinct areas of the general grant plan is prohibited.

Article 202. The transfer of the shareholding control or of the concession upon privatization, can only be made when the period of five years is elapsed, in compliance with the provisions in term II and III of Article 98 herein.

Paragraph 1. Having elapsed the period referred to in the head of the article, the transfer of stock control or concession that results in the direct or indirect control, for a same shareholder or group of shareholders, of concessionaires acting in distinct areas of the general grant plan, cannot be made while such restraint is considered by the Agency as necessary for the fulfillment of the plan.

Paragraph 2. The restriction to the transfer of the concession does not apply when same is made among companies acting in the same area of the general grant plan.

Article 203. The acquisition prices shall be paid exclusively in the currency, however, payment in installments is accepted pursuant to the terms and conditions of the tender document.

Article 204. Up to thirty days following the closing of each privatization process, the Special Supervisory Committee shall publish a detailed report on the process.

Article 205. Among the duties of the financial institution contracted for the execution of the privatization acts and procedures, the supply of full legal assistance to the members of the Special Supervisory Committee and to all other members responsible for the managing of the privatization, may be included, in the event they are prosecuted as a result of acts practiced in the exercise of their duties.

Article 206. The administrators of companies subject to privatization are responsible for the supply of information needed for the preliminary proceedings, within the period of time established by the Special Supervisory Committee, or by the contracted financial institution.

FINAL AND TRANSITORY PROVISIONS

Article 207. Within a maximum period of sixty days from the date of publication of this Law, the current fixed switched telephone service providers intended for the use by the public in general, including those referred to in Article 187 herein, as well as for the service of trunks and their international connections, shall request the execution of a concession agreement, which shall be effected within up to 24 months from the publication of this Law.

Paragraph 1. The concession, object of which shall be determined in view of the general grant plan, shall be made at no cost, with a final term set forth for December 31th, 2005, ensuring the right to a one time extension or renewal, upon a cost, thus observing the overall provisions of Title II of Book III of this Law.

Paragraph 2. The following provisions shall apply to the provider who does not comply with the provisions of the head of this article:

a) if concessionaire, same shall continue subject to the concession agreement currently in force, which shall not be transferred, renewed or extended;

b) if not concessionaire, its right to exploitation of the service shall be terminated on December 31th, 1999.

Paragraph 3. In relation to all other services rendered by entities referred to in the head of this article, the respective authorizations or, if applicable, concessions shall be issued, observing the provisions of this article as applicable and in Article 208 herein below.

Article 208. The concessions for cellular mobile service providers shall be granted in the form and conditions set forth by Article 4 and its sole paragraph of Law nº 9295, dated July 19th, 1996.

Article 209. Partial or total concession transfers that are necessary to adapt the areas of action of the current providers to the general grant plan are hereby authorized.

Article 210. The concessions, licenses and authorizations of telecommunications service are exclusively governed by this Law, and Laws nº 8666 of June 21th, 1993, nº 8987, of February 13th, 1995, nº 9074, of July 7th, 1995, and amendments thereto shall not apply.

Article 211. The granting of broadcasting (radio and TV) services is hereby excluded from the jurisdiction of the Agency, and same shall remain within the authority of the Executive Branch, having the Agency to prepare and maintain the respective channel distribution plans, taking into consideration the technological aspects.

Sole Paragraph. The inspection, as to technical aspects, of the respective stations shall be attributable to the Agency

Article 212. The cable TV service, including acts, conditions and grant procedures, shall continue being governed by Law 8977, of January 6th, 1995, the responsibilities attributed to the Executive Branch by the law being transferred to the Agency.

Article 213. The publication of fixed switched telephone service directories, intended for use by the general public shall be free to any interested party.

Paragraph 1. Upon compliance with the provisions of items VI and IX of Article 3 herein, the service providers undertake to supply the list of their subscribers to those wishing to publish same, thus charging for said supply a non discriminatory manner, within reasonable periods of time.

Paragraph 2. The service provider is obliged to supply telephone directories to all subscriber at no charge, directly or indirectly through third parties, as determined by the Agency.

Article 214. In the application of this Law, the following provisions shall be observed:

I - the regulations, standards and other rules currently in force shall be gradually replaced by the regulations to be issued by the Agency, in compliance with this Law;

II - while the new regulations are not issued, the concessions, licenses and authorizations shall continue being governed by the current regulations, standards and rules;

III - until the issuance of the regulations arising from this Law, the services disciplined by Law nº 9295, of July 19th, 1996, and the respective acts and grant procedures in connection therewith, shall continue being governed by it.

IV - the concessions, licenses and authorizations granted prior to this Law, not provided by article 207 herein, shall remain in force pursuant to the terms set forth therein;

V - upon consent of the interested party, the adaptation of concession, license and authorization instruments, referred to in items III and IV herein, may be carried out, pursuant to the provisions of this Law;

VI - the renewal or extension, when provided for in the acts referred to in items III and IV herein can only be carried out in the presence of the adaptation set forth in item V.

Article 215. The following acts are hereby revoked;

I - Law nº 4117, of August 27th, 1962, except as to the penal matter not covered herein and as to the provisions in connection with broadcasting;

II - Law nº 6874, of December 3rd, 1980;

III - Law nº 8367, of December 30th, 1991;

IV - Articles 1, 2, 3, 7, 9, 10, 12 and 14, as well as the head of the articles, and Paragraphs 1 and 4 of Article 8, of Law nº 9295, of July 19th, 1996.

V - Item 1 of Article 16 of Law nº 8029 of April 12th, 1990.

Article 216. This Law is effective as from the date of publication hereof.

Brasília, July 16th, 1997; 176th year of Independence and 109th of the Republic.

Fernando Henrique Cardozo
Iris Resende
Antonio Kandir
Sergio Motta
Cláudia Maria Costin

ANNEX I

DEMONSTRATIVE CHART OF AT-WILL APPOINTED POSITIONS OF THE UPPER MANAGEMENT AND ADVICE GROUP - DAS OF THE NATIONAL TELECOMMUNICATIONS AGENCY

(Revoked by article 39 of Law No. 9.986, of July 18, 2000)

TITLE/POSITION

CODE/ NE/DAS

QTY.

SUPERINTENDENT

NE

5

DEPUTY SUPERINTENDENT

101.6

5

GENERAL MANAGER

101.5

12

SPECIAL ADVISOR

102.5

2

ATTORNEY

101.5

1

MANAGER

101.4

36

INTERNAL AFFAIRS OFFICER

101.4

1

CUSTOMER ADVOCACY

101.4

1

MANAGER OF REGIONAL OFFICE

101.4

11

ADVISOR

102.4

6

MANAGER OF OPERATING UNIT

101.3

38

HEAD OF OPERATIONS DIVISION

101.2

10

HEAD OF OPERATIONS SERVICES

101.1

16

TOTAL

 

144

 

ANNEX II

DEMONSTRATIVE CHART OF TELECOMMUNICATIONS COMMISSIONED POSITIONS – FCT OF THE NATIONAL TELECOMMUNICATIONS AGENCY

(Revoked by article 39 of Law No. 9.986, of July 18, 2000)

CODE/FCT

QTY.

VALUE

FCT V

38

1,170.20

FCT IV

53

855.00

FCT III

43

515.00

FCT II

53

454.00

FCT I

63

402.00

TOTAL

250

161,308.00

 

ANNEX III

TABLE OF VALUES OF THE INSTALLATION’S SUPERVISION FEE PER STATION (AMOUNTS IN R$)

(ANNEX I OF LAW NO. 5.070 OF JULY 7, 1966 – See article 52 of such Law)

(Table amended by Law No. 9.691, of July 22, 1998)

SERVICE

 

VALUE OF TFI (R$)

1- Mobile Service

a) base

1,340.80

b) repeater

1,340.80

c) mobile

26.83

2- Public Road Mobile Service /Telestrada

a) base

134.08

b) mobile

26.83

3- Public Radiotelephone Service

a) up to 12 channels

26.83

b) above 12 and up to 60 channels

134.08

c) above 60 and up to 300 channels

268.16

d) above 300 and up to 900 channels

402.24

e) above 900 channels

536.32

4- Aeronautical Public Radio-Communication Service – Restricted

a) base

6,704.00

b) mobile

536.60

5- Private Limited Service

a) base

134.08

b) repeater

134.08

c) fixed

26.83

d) mobile

26.83

6- Specialized Mobile Limited Service

a) base in an area of up to 300,000 inhabitants

670.40

b) base in an area of above 300,000 and up to 700,000 inhabitants

938.20

c) base in an area of above 700,000 inhabitants

1,206.00

d) mobile

26.83

7- Optical Fibers Limited Service

 

134.08

8- Private Mobile Limited Service

a) base

670.40

b) mobile

26.83

9- Paging Private Limited Service

a) base

134.40

b) mobile

26.83

10- Road Limited Service

a) base

134.40

b) mobile

26.83

11- Aeronautical Mobile Limited Service

 

134.08

12- Maritime Mobile Limited Service

a) coast

134.08

b) port

134.08

c) mobile

26.83

13- Special Services for Scientific or Experimental Purposes

a) base

137.32

b) mobile

53.66

14- Special Radio-Message Service

a) base

670.40

b) mobile

26.83

15- Special Paging Service

a) base in an area of up to 300,000 inhabitants

670.40

b) base in an area of above 300,000 and up to 700,000 inhabitants

938.20

c) base in an area of above 700,000 inhabitants

1,206.00

d) mobile

26.83

16- Standard Frequency Special Service

 

Exempt

17- Special Timing Services

 

Exempt

18- Special Radio Determination Service

a) fixed

670.40

b) base

670.40

c) mobile

26.83

19- Special Supervision and Control Service

a) base

134.08

b) fixed

26.83

c) mobile

26.83

20- Special Radio Autocine Service

 

134.08

21- Special Weather Forecasting Service

 

Exempt

22- Special Cable TV Service

 

2,413.00

23- Secondary Audio and Image Broadcasting Special Service

 

335.20

24- Functional Music Special Service

 

670.40

25- Special Service of Secondary Channel of FM Station

 

335.20

26- Repeat Television Special Service

 

400.00

27- Satellite Repeat Television Special Service

 

400.00

28- Television Retransmission Special Service

 

500.00

29- Satellite-Supported Service

a) system terminal for global communication via satellite

26.83

b) small ground station with transmission capacity and bottom antenna diameter lesser than 2.4 m, controlled by central station

201.12

c) controlling central ground station for data networks applications and others

402.24

d) large ground station with transmission capacity, used for audio, video, data or telephony signal and other applications, with antenna diameter higher than 4.5 m

13,408.00

e) ground mobile station with transmission capacity

3,352.00

f) geostationary space station (via satellite)

26,816.00

g) non-geostationary space station (via system)

26,816.00

30- Signal Multichannel Multipoint Distribution Service

a) base in an area of up to 300,000 inhabitants

10,056.00

b) base in an area of above 300,000 and up to 700,000 inhabitants

13,408.00

c) base in an area of above 700,000 inhabitants

16,760.00

31- Radio Service Access

 

335.20

32- Taxicab Service

a) base

134.08

b) mobile

26.83

33- Amateur Radio Service

a) fixed

33.52

b) repeater

33.52

c) mobile

26.83

34- Citizens Radio Service

a) fixed

33.52

b) base

33.52

c) mobile

26.83

35- Cable TV Service

a) base in an area of up to 300,000 inhabitants

10,056.00

b) base in an area of above 300,000 and up to 700,000 inhabitants

13,408.00

c) base in an area of above 700,000 inhabitants

16,760.00

36- TV Signals Distribution Service by Physical Means

 

5,208.00

37- Closed-Circuit Television Service

 

1,340.80

38- Medium Wave Radio Broadcasting

a) power output from 0.25 to 1 kW

972.00

b) power output above 1 up to 5 kW

1,257.00

c) power output above 5 up to 10 kW

1,543.00

d) power output above 10 up to 25 kW

2,916.00

e) power output above 25 up to 50 kW

3,888.00

f) power output above 50 up to 100 kW

4,860.00

g) power output above 100 kW

5,832.00

39- Short-Wave Radio Broadcasting Service

 

972.00

40- Tropical Wave Radio Broadcasting Service

 

972.00

41- Modulated Frequency Radio Broadcasting Service

a) community

200.00

b) class C

1,000.00

c) class B2

1,500.00

d) class B1

2,000.00

e) class A4

2,600.00

f) class A3

3,800.00

g) class A2

4,600.00

h) class A1

5,800.00

i) class E3

7,800.00

j) class E2

9,800.00

l) class E1

12,000.00

42- Sound and Image Radio Broadcasting Service

a) stations installed in cities with population over 500,000 inhabitants

12,200.00

b) stations installed in cities with population between 500,001 and 1,000,000 inhabitants

14,400.00

c) stations installed in cities with population between 1,000,001 and 2,000,000 inhabitants

18,600.00

d) stations installed in cities with population between 2,000,001 and 3,000,000 inhabitants

22,500.00

e) stations installed in cities with population between 3,000,001 and 4,000,000 inhabitants

27,000.00

f) stations installed in cities with population between 4,000,001 and 5,000,000 inhabitants

31,058.00

g) stations installed in cities with population over 5,000,000 inhabitants

34,065.00

43- Auxiliary Broadcasting and Similar Services – Connection for Transmission of Programs, External Reporting, Communication of Orders, Remote Control, and others.

43.1- Radio Broadcasting

 

400,00

43.2- Television

 

1.000,00

43.3- Pay-TV

 

1.000,00

44- Fixed Switched Telephone Service (STFC)

a) up to 200 terminals

740,00

b) from 201 to 500 terminals

1.850,00

c) from 501 to 2,000 terminals

7.400,00

d) from 2,001 to 4,000 terminals

14.748,00

e) from 4,001 to 20,000 terminals

22.123,00

f) above 20,000 terminals

29.497,00

45- Switched Data Communications Service

 

29.497,00

46- Switched Texting Service

 

14.748,00

47- Distribution Service of Pay-Television and Audio Signals via Satellite (DTH)

a) base with national coverage capacity

16.760,00

b) large ground station with capacity for transmission of audio or television signals, or both

13.408,00

 

registrado em:
Assunto(s): LGT , Law 9472 , Law 9472/1997 , Anatel
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