Naira Mamede, litigation and energy attorney of Tortoro, Madureira & Ragazzi Advogados

Published by Canal Energia, on April 22, 2018

Electricity distributors have ownership of the power poles, which are used as a means for providing the service. However, considering that these poles are essential infrastructure for the telecommunications sector, Law No. 9.472/1997 ensured their right of use upon payment “in a non-discriminatory manner and at fair and reasonable prices and conditions”, thus avoiding cross-subsidization.

In turn, Joint Resolution No. 1/1999 set guidelines for sharing infrastructure among sectors. One of the positive effects of such measure is increasing economic viability, enabling the reduction of costs and the universalization of services in shorter time periods.

However, this matter deserves proper attention as to the risks and difficulties in regard to such sharing.

The sectors involved should appreciate the regular occupation of poles. Thus, obligations are to be undertaken both by the electricity distribution companies (owners) and telecommunications companies (users).

As owners, the distributors must maintain an up-to-date pole occupation record (article 9 of joint resolution No. 04/2014), allowing for effective supervision and improved accuracy in identifying each provider, whether for contractual or liability purposes in case of irregularities. Both providers and users are responsible for ensuring that their facilities comply with current technical and regulatory standards.

However, this does not occur in practice. Although contracts for electricity sharing state that only one point is occupied per pole, the reality of 85% of distributors is different.

In fact, today, only 20% of the 45 million poles in Brazil are regulated and meet the criteria defined in specific regulations. In other words, most of this infrastructure is being occupied in a disorderly manner, with more telecommunications operators than the capacity allowed, with wires in excess and improper installation, or with installation in breach of the technical and safety standards.

Irregular occupations undermine the structure of local distributors, affect the telecommunications market itself due to occupation for reserves and the accumulation of wires, still having an impact on society.

After all, misuse is paid by energy consumers, who are subject to the replacement of this asset, the costs of which is added to the tariffs.

In view of the high rate of sharing structures in disagreement with the criteria defined by regulation, the National Electric Energy Agency (Aneel) and the National Telecommunications Agency (Anatel) decided to bring Open Court Hearing No. 3/2019, in order to receive comments and suggestions about changes capable of increasing the adequacy of regulations.

One possible solution, to be the object of this public consultation, would be for regulations to ensure fighting against clandestine occupation, establishing charges for actual occupation and appreciate contractual regulation, holding offenders liable and penalizing them for irregularities. Such a measure would inevitably lead to an improvement in registrations and the effective use of the structures.

The fact is that, despite the agencies’ efforts, such adequacy needs planning to be made by the public spheres responsible for urban furniture. Without clarity and reasonableness in public policies regarding this matter, its judicialization is expected, which will inevitably divert resources that would be more properly used if converted into investment in the strategic sectors involved.