Regulatory and institutional structure
Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services?
The Brazilian telecommunications sector has as its basis Law No. 9,472/1997, the General Telecommunications Law, which sets forth that the national government is competent to organise the exploitation of telecommunications services, as per the terms of policies established by the executive and legislative branches. The organisation of telecommunications services includes the regulation and inspection of the services’ execution, trade and use, deployment and operation of telecommunications networks, in addition to the use of orbit resources and radio frequencies spectrum. Moreover, telecommunications services’ organisation is based on free, broad and fair competition among providers thereof.
The National Telecommunications Agency (Anatel) is the sector’s regulatory body, having the competence to implement the national telecommunications policy, issue rules concerning the grant, provision and enjoyment of telecommunications services in the public and private regimes, administer the radio frequencies spectrum and the use of orbits, conduct inspections and apply sanctions, in addition to other roles.
Broadcasting services in Brazil, in turn, are regulated by Law No. 4,177/1962 and Decree No. 52,795/1963, according to policies instituted by and subject to the control of the Ministry of Communications. The Federal Constitution, moreover, sets forth that radio and television broadcasters’ productions and programmes shall:
- give preference to educational, artistic, cultural and informative purposes;
- promote national and regional culture and stimulate independent production aimed at dissemination thereof;
- regionalise cultural, artistic and journalistic production; and
- respect ethical and social values.
However, as opposed to free-to-air television broadcasting, pay television services are called conditioned access services, which are deemed telecommunications services, being subject to the provisions of Law No. 12,485/2011.
Anatel does not regulate broadcasting services, except for certain technical aspects concerning radio frequency use and compliance of equipment. The National Cinema Agency regulates audio-visual content regarding the registration of works and implementation of governmental policies intended to develop the national cinematographic sector.
In general, there are no restrictions concerning foreign ownership, but telecommunications service providers shall be companies organised by Brazilian laws, having their headquarters and administration in Brazil. Broadcasting companies, however, shall be owned by native Brazilians or individuals naturalised as Brazilian citizens for over 10 years, or by legal entities organised under Brazilian laws, headquartered in Brazil. Additionally, at least 70 per cent of the total capital and voting capital of broadcasting companies shall be directly or indirectly held by native Brazilians or individuals naturalised as Brazilian citizens for over 10 years, who will mandatorily manage their activities and establish the programming content, thus limiting foreign ownership.
Describe the authorisation or licensing regime.
Only companies organised according to Brazilian law, with headquarters and administration in Brazil, having as their corporate object the provision of telecommunications services, might be granted the relevant licences. Capacity to bid and enter into agreements with the public authority, and a technical qualification to provide the services, in addition to other requirements, also apply. Moreover, a company might not hold more than one licence to provide the same kind of service in the same area. The transfer of both concessions and authorisations depends on approval by Anatel.
Fixed-switched telephone services (FSTS) are the only telecommunications services provided under the public regime, although they might also be provided under the private regime. Concessions are granted using a bidding procedure for a period of up to 20 years, renewable for equal terms, provided the applicable conditions for this purpose have been fulfilled.
Mobile services and multimedia communications services are provided under the private regime, with authorisations being granted for up to 20 years, renewable for equal terms. Spectrum for the deployment of 3G, 4G, and 5G technologies (the latter available since 2022) has been granted in bidding procedures.
The cost for issuing an authorisation is 400 reais (approximately US$80), but regarding the bid for spectrum, the highest offer is to be paid by the winning party. Other fees might also be due, such as the installation inspection fee and the operating inspection fee.
According to Brazilian regulations, the provision of satellite capacity does not constitute a telecommunications service. However, when there is communication with earth stations in Brazil, satellite exploitation over the country’s territory is dependent on the grant of the right to exploit satellites (which authorises the use of orbit resources and radio frequencies for satellite control and monitoring, satellite communications, and provision of satellite capacity over the country’s territory, whether by a Brazilian or a foreign satellite), in addition to other requirements, depending on the specific case. The party interested in being granted such rights shall be a private or public legal entity, organised under Brazilian laws, with headquarters and administration in Brazil, have the legal and technical qualifications to exploit satellites, in addition to other requirements, and submit an application in this regard to Anatel. Once the right to exploit satellites is granted, the respective operator might provide the satellite capacity to companies holding a concession, permission or authorisation to provide telecommunications and broadcasting services, or even to the armed forces. Satellite operators are not forbidden to be telecommunications services providers as well. The exploitation right might be granted for up to 15 years, extendable for further 15-year periods for the remainder of the authorised satellite’s useful life. The need to conduct bidding procedures for an orbital position was eliminated. Compliance with the Radiocommunication Regulations of the International Telecommunication Union and guidelines of the United Nations Office for Outer Space Affairs might be applicable.
Public wi-fi services were instituted by Decree No. 7,175/2010 (the National Broadband Plan), later revoked by Decree No. 9,612/2018, which provides on telecommunications public policies. Presently, the Wi-Fi Brasil programme makes available high-speed connectivity in more than 20,000 points throughout the country, especially to socially vulnerable communities, benefitting schools, healthcare units, indigenous villages and others.
Flexibility in spectrum use
Do spectrum licences generally specify the permitted use or is permitted use (fully or partly) unrestricted? Is licensed spectrum tradable or assignable?
According to the General Telecommunications Law, the spectrum of radio frequencies is a limited resource and public asset, which might only be used as authorised by Anatel according to a prior licence. In this regard, it should be noted that in the destination of radio frequency bands, Anatel takes into consideration the rational and economic use of spectrum, as well as the existing attributions, distributions and consignations, to avoid damaging interference. (continue)
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