ANATEL initiates Request for Comments to address a future regulation of digital platforms and the need for “fair share”

Brazil’s National Telecommunications Agency (“Anatel”) initiated Request for Comments 13/2023, in order to gather information on its evaluation project regarding the need for regulation of duties assigned to telecommunication service users, provided for in item 6 of the 2023-2024 Regulatory Agenda.

Anatel plans to discuss the need for regulation of the digital ecosystem and over-the-top (“OTT”) digital platforms, in accordance with articles 61 and 4 of the Telecommunications Law (“LGT”), which establish:

• that Value Added Services (“VAS”), such as OTT platforms, are not classified as telecommunication services, and their provider is classified as a user of the telecommunication service that provides support to such provider, including the rights and duties inherent to this condition; and
  .
• the duties of telecommunication service users to make appropriate use of telecommunication services, equipment and networks.

The Request for Comments includes 28 questions, which address, among others, the following topics:

• The impact of new business models and players on the digital ecosystem of telecommunication networks and services, as well as any evidence that networks are struggling to process consumers’ data demand.
  .
  
• The contribution of OTT platforms to the improvement, expansion and maintenance of the network infrastructure that supports their services and needs, as well as the pros and cons of implementing a regulation that establishes the remuneration for the use of telecommunication networks (“network fee”/”fair share”).
  .
• Matters that must be taken into consideration in the regulation regarding the abusive use of networks, such as excessive/bulk use of the networks (for communication purposes) and piracy of audiovisual content, as well as the measures aimed at effectively combating fraud and trust issues within the use of networks, services and platforms.
  .
  
• The aspects that must be considered regarding the protection of individuals’ personal data by both telecommunication service providers and OTT platforms.
  .
  
• The need for regulation of the relationship between network infrastructure owners, such as telecommunication service providers, and owners of Content Delivery Networks (“CDN”); and
  .
  
• Possible market failures in the digital market, which require Anatel to take action, as well as potential strategies to preserve the right to competition in light of the activities of large OTT platforms.

The Request for Comments will be available on platform Participa Anatel until June 30, 2023, and related documents are available for consultation through this link.

Demarest’s Telecommunication, Media and Technology (“TMT”) team has been monitoring this topic closely and is available to provide any further clarifications that may be necessary.