Anatel approves regulation on pole sharing

This is a machine translation of Anatel's press release

Anatel's Board of Directors approved this Tuesday (10/24) regulations on sharing poles between electricity distributors and telecommunications service providers. A Public Consultation was also approved on the proposed methodology for Pricing Fixing Points on poles for a period of forty-five days.

In accordance with the reevaluation proposal, Infrastructure Explorers are created, legal entities assigning the right to commercial exploitation of Infrastructure Spaces. According to the analysis of the reporting advisor, Alexandre Freire, the selection of those interested in the exploration of infrastructure must be carried out through a public call promoted by sectoral agencies (Anatel and Agência Nacional de Emergia Elétrica – Aneel)

“It is noted that it will be up to the sectoral agencies to ensure the adequate and regular performance of the assignees in the management of shareable space, so that, at any time, if the terms of the instrument of assignment of the right to explore the space in infrastructure are not met, the distributor can terminate the relationship with the current explorer, resuming the right to explore, until a new public call is made to select another agent”, explained the rapporteur.

In his analysis, he recalled that on October 19, 2023, Presidential Decree No. 11,738 was published, the scope of which is the institutionalization of the Institutional Capacity Strengthening Program for Management in Regulation (PRO-REG), with the purpose of supporting the implementing good regulatory practices and improving the coordination of the regulatory process in direct, autonomous and foundational federal public administration.

Thus, he made a point of emphasizing that the Agency's decision “is aligned with the objectives defined by the Program, especially those relating to improving coordination and strategic alignment between sectoral policies and the regulatory process, insofar as the regulation that is submitted to the deliberation of Anatel's Board of Directors - which must also be scrutinized by its equivalent at Aneel - is in alignment with public policy jointly promoted by the Ministry of Communications and the Ministry of Mines and Energy, through Interministerial Ordinance MCOM/MME no. 10,563, of September 25, 2023, which established the National Pole Sharing Policy (“Legal Pole) between electricity distributors and telecommunications service providers”.

Likewise, the rapporteur added that “the measure adopted also aims to promote progress in adherence to the Sustainable Development Goals and the idea of resilient cities and the Sendai Action Framework, developed within the scope of the UN”.

He highlighted that “the purpose of the regulation is to deal with the precarious use of inputs (poles) of critical infrastructures – energy distribution networks and telecommunications networks – which, at the margin, are more compromised by this state of irrationality, to which they must The deterioration in the quality of the urban environment and the various accident events that injure or even fatally kill several people can be added, as can be seen in the news that circulates in the press”.

He concluded that “the approved regulation is a necessary step in reversing this historical gap between the reality experienced by Brazilians and the values and principles promoted by the United Nations (UN) in the actions mentioned here to promote their dignity as citizens, consumers and users of regulated services”.

General rules for sharing poles between electricity distributors and telecommunications service providers were also established, with criteria to be followed when installing equipment, such as limits and minimum distances, highlighting the need to identify this equipment.

The joint competence of Anatel and the National Electric Energy Agency (Aneel) was established for the fixing point pricing methodology - which must be cost-oriented. It was defined that Aneel, even when the exploitation of the infrastructure is object of commercial assignment, in a specific act, determine the prices for the use of this fixing point, by distributor.

Regarding contracts in progress, he highlighted that, in the proposal submitted to Public Consultation, a balance was sought between stimulus and promotion, adaptation of contracts, and the freedom of negotiation currently in force for contracts in progress. Adaptation to the conditions of the new Regulation is encouraged without imposing compulsory rearrangement or termination of current contracts.

Interested parties who wish to maintain the current contractual conditions, in turn, will not be able to modify the object of the contract - either to expand its scope or to approve new projects - and, in this case, they must adhere to the reference offer and the new Regulations.

At this point, he explained that this rule complies with article 23 of the Law of Introduction to the Norms of Brazilian Law (LINDB), in the sense that the Public Administration must strive for transparency and predictability of its actions and seek to reveal, as much as possible, how will act in similar cases in the future, following the adoption of transitional rules. “The transition from one regime to another cannot be unpredictable, in compliance with the principle of protecting legitimate expectations”, highlighted Freire.

Regarding the provisional reference price that will be in force until the publication of the Act establishing the price for the use of a fixing point for sharing poles, Anatel's technical areas suggested that the one fixed in the Resolution be maintained as the provisional reference price Joint No. 4/2014, corrected by the Broad National Consumer Price Index (IPCA), until a specific act is published by Aneel.