Responsive Regulation in Personal Mobile Service infrastructure sharing contracts

Between regulation of the telecommunications sector and antitrust policy

Abstract

[Purpose]  To investigate the nature of responsive regulation of agreements regarding shared infrastructure for personal mobile service, which can be evidenced both by the regulatory framework of the Brazilian ICT regulator (ANATEL), under Law no. 9.472/1997, the General Telecommunications Law (LGT), and the change in approach undertaken by the Administrative Council for Economic Defense in the analysis of Concentration Acts related to this type of contractual arrangement (CCI). Thus, CADE's a narrower decisory criteria in the treatment of Personal Mobile Service agreements seems to indicate an escalation in a pyramid of incentives and sanctions established by ANATEL's regulatory provisions on the subject - of a broadly authoritative nature, although with clear indications of desirable and undesirable behaviors by the regulated agents -, given the growing threats to consumer well-being (art. 88, 5, §5, Law No. 12,529/2011) and, consequently, the universalization and quality of telecommunications services – the meeting point between the objectives of both specific regulatory policies.

[Methodology/approach/design] The paper seeks to analyze the legal framework of ANATEL and the LGT on CCIs in SMP, as well as the precedents of CADE, under Law No. 12,529/2011, in the analysis of such agreements. Additionally, a literature review is carried out to support the themes addressed throughout the study.

[Findings] Based on the analysis undertaken, it is possible to verify that the regulation of CCI em Personal Mobile Services indicates two aspects of responsiveness. In the foreground, the regulatory framework of LGT and the regulatory agency on such contracts has an essentially authoritative nature, moving away from command-and-control regulatory strategies, even if it signals the existence of desirable or undesirable behaviors on the part of the regulated actors, establishing a pyramid of incentives and sanctions. n the background, the resurgence of CADE's positioning can be seen within the theoretical paradigms of the theory of responsive regulation as a way of climbing this pyramid, as there was greater materiality of risks in the activity of the providers - within the objectives and general prohibitions established by ANATEL's specific sectoral regulation on such contractual arrangements.

[Practical implications] The main implications of these conclusions consist in the understanding of the regulation as a complex phenomenon, even within the very sense of responsive regulation. In this way, independent decision-making centers are able to operate together and collaboratively within the same pyramid of incentives and sanctions. Additionally, the antitrust policy, albeit in a subsidiary way, can be operated as a sectoral regulatory mechanism, making it possible, in the absence of specific provisions by specific regulatory agencies, to safeguard regulatory and competition objetives.