Operators question Rio’s laws on telemarketing and loyalty in the Supreme C...

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The Brazilian Association of Fixed Switched Telephone Service Providers (Abrafix) and the National Association of Cellular Operators (Acel) filed, in the Federal Supreme Court, two direct unconstitutionality actions against laws in the state of Rio de Janeiro that deal with telephone service.


ADI 5,962, reported by Minister Marco Aurélio, goes against Law 4,896/2006, amended by laws 7,853/2018 and 7,885/2018. The rule obliges companies providing fixed and mobile telephony operating in the state to create a special register of subscribers who express opposition to receiving, by telephone, offers for the sale of products or services, and provides for other measures for telemarketing.

ADI 5,963, reported by Minister Rosa B2B Lead Weber, challenges Law 7,872/2018. The law prohibits clauses that require loyalty in service provision contracts and, in the event of the sale of services regulated by specific legislation, requires companies to inform the end of the loyalty period on monthly invoices.

In both actions, the associations claim that it is not up to the state Legislature to establish obligations relating to telecommunications services, whose legislative competence is exclusive to the Union, under the terms of article 22, item IV, of the Federal Constitution. Furthermore, they point out that the standards seriously interfere with the contractual relationship between the granting authority and telecommunications companies, therefore legislating on Civil Law, a matter whose jurisdiction is also exclusive to the Union.

In ADI 5,962, the entities argue that the National Telecommunications Agency (Anatel) has the power to regulate the sector and supervise it, including establishing obligations and duties in relation to the rights of users/consumers. They also point out that the STF, in the judgment of ADI 3,959, declared the unconstitutionality of the São Paulo law that created a special registry of telecommunications service subscribers interested in the sales system through telemarketing.



In turn, in ADI 5,963, Abrafix and Abracel highlight that Anatel's resolution establishes that telecommunications service providers can offer benefits to consumers and, in return, require them to remain bound to the contract for a minimum period, which cannot be longer than one year.

“Anatel expressly allows the use of a loyalty clause (or retention clause) in contracts involving telecommunications service providers and their consumers/clients/users, and state law cannot prohibit it or insert new obligations in order to determine that providers inform the end of the loyalty period on their monthly invoices”, note the associations.