Peru: Judicial branch declares minimum broadband internet speed is inapplicable to mobile operator

In short

The Third Specialized Constitutional Court of the Superior Court of Justice of Lima issued a judgment on file no. 6119-2021-0-1801-JR-DC-03, by which it resolved articles 6 and 7 and the first provision complementary and final to the law. No. 31207 as inapplicable to the mobile telephone operator which brought the action.

On June 2, 2021, the Law on Minimum Connection Speed ​​was published with the aim of guaranteeing and promoting the optimal provision of Internet service, as well as the effective quality, speed and control of the supply contracted by service providers. Internet services. The mobile operator requested that Articles 6 and 7, as well as the first additional and final provision of the Minimum Connection Speed ​​Law, and the single transitional additional provision of Board Resolution No. 138-2021 – CD/OSIPTEL does not apply to it. They state the following.

Minimum Connection Speed ​​Law

Article 6 – Modification of article 5 of law 29904, law on the promotion of broadband and the construction of the national fiber optic network

Article 5. Minimum speed for high-speed Internet access The Ministry of Transport and Communications (MTC) determines and updates annually the minimum speed for a connection to be considered as high-speed Internet access, which will be applicable regardless of or the geographical location of the users.

Internet access providers must guarantee 70% of the minimum speed offered in contracts with consumers or users, and established in their packages (postpaid, prepaid and others) advertised in the various media.

The Agency for Monitoring Private Investments in Telecommunications (OSIPTEL), through the National Registry for Control and Monitoring of Internet Services, periodically monitors and updates Internet speed and other technical characteristics of connections Broadband Internet.

Minimum Connection Speed ​​Law

Article 7 – Incorporation of number 66.8 into article 66 of Law 29571, Consumer Protection and Defense Code

Article 66. Guarantee of protection of users of regulated public services

[…]

66.8 The user of public Internet services has the following rights:

a) The defense of their interests, by guaranteeing their right of access to electronic communications services under appropriate conditions of choice, price and quality, by promoting their ability to access, disseminate information or use the applications and services of their choice, in particular through free access to the Internet.

b) Have at their disposal tools for measuring the speeds of the high-speed Internet downloading and downloading service. These applications provided by telecommunications companies are accessible via the web. These recordings are used in proceedings and are considered as evidence.

c) Obtain a minimum guaranteed speed of the broadband Internet service they contract. This flow cannot be less than 70% of the downflow and upflow of the flow contracted in urban and rural areas.

d) That, in the advertising of telecommunications products, the guaranteed minimum speed of Internet service, the number of megabytes per month purchased and the number of channels included in the cable service offered are clearly and prominently displayed.

Law on minimum connection speed First additional and final provision

The executive power, through the MTC and OSIPTEL, will be responsible for adapting, supervising and updating the General Regulations on the quality of public telecommunications services and will verify compliance with the provisions of this law. Likewise, OSIPTEL will establish the mechanisms for providing Internet services, establishing the maximum symmetry and asymmetry between download and download speeds, all this information being explicitly declared in the user contracts.

Resolution of the Board of Directors No. 138-2021-CD/OSIPTEL

The Single Transitional Additional Provision

The operating companies must adapt the conditions for providing the fixed and mobile Internet access service to: (i) all of its subscribers with whom it maintains a current service provision contract; and (ii) the contracts they enter into on or after the entry into force of this standard, in accordance with the provisions of subsections 6.1.1 and 6.1.3 of Article 6 of the General Regulation on the quality of services public telecommunications companies, until December 3, 2022. This adequacy must be communicated to its subscribers. In case of adequacy of sub-section 6.1.1 of article 6 of the general regulation on the quality of public telecommunications services, the following progressive scheme will be considered:

Up to: Percentage of guaranteed minimum speed March 3, 2022 52% December 3, 2022 70% In the judgment, the superior court ruled that there was no violation of the right to freedom of contract. On this point, she indicated that the Single Ordered Text of the Conditions of Use of Public Telecommunications Services allows operating companies to unilaterally modify the conditions of the service provided as long as they are favorable to the customer, which has been demonstrated in l species by increasing the percentage of guaranteed minimum speed. The Superior Court concluded that the right to freedom of enterprise had been violated. In this regard, he estimated that guaranteeing 70% Internet speed implies the construction of more antennas in the country, which in turn implies an investment decision for the operator. In the view of the superior court, this legal requirement would direct the organization of the operating company, as well as the investments in the deployment of the infrastructure that it must make, which is a decision specific to a company, which does not should not be required by law. . In view of the principle of prohibition of arbitrariness, the superior court concluded that it was not possible for the operator company to guarantee 70% of the contracted internet speed, while the country does not have the necessary infrastructure to that. Therefore, requiring compliance with such an obligation is arbitrary. It should be kept in mind that this decision of the Superior Court is only formally favorable to the mobile operator who brought the lawsuit, therefore, other operators must comply with these regulations, as they are in force and do not have a favorable decision declaring their inapplicability. Although this judgment may constitute a reference judgment for the interpretation of the regulations in force, it does not have the character of a binding precedent, nor of a constitutional interpretation which must necessarily serve as a reference for other judges, such as the make the judgments of the Constitutional Court. .

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