December 08 2010 International Law Office Newsletter
The National Telecommunications Agency (ANATEL) has approved the Regulation on the Exploitation of Personal Mobile Services via Virtual Networks, thus enabling the supply and resale of mobile telecommunications services through mobile virtual network operators (MVNOs).
In accordance with the regulation approved by the agency, the model that was initially proposed has been maintained – that is, MVNOs may operate either as agents or as virtual network licensees.
An agent represents the personal mobile service provider through the establishment of a representation agreement, which must be ratified by ANATEL. The agent’s activity is not defined as a ‘telecommunications service’ and is of significant interest to companies that operate in other sectors, such as large retailers, banks and football teams.
However, the activity of the virtual network licensee does fall within the definition of ‘telecommunications service’ and is thus subject to all applicable rules. The virtual network licensee is required to enter into a network-sharing agreement with existing carriers and must request a grant from ANATEL.
The main innovation brought by the new regulation is the deregulation of the activity of agents (ie, the representatives of the mobile providers), which was overly burdened by the original text of the regulation and, as such, was widely criticised.
The most relevant amendments are as follows:
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agents need not have a prior qualification with ANATEL;
- agents’ obligations under the agreement may be entered into with the mobile providers;
- an agent may be an affiliate, subsidiary or parent company of the mobile provider, in the same area; and
- if an agent becomes a virtual network licensee or changes its associated mobile provider, the user base may migrate.
Under the regulation, agents are still obliged to maintain a commercial relationship with only one mobile provider in one same service area.
With the publication of the regulation, it is expected that interested companies will enter into agreements to begin providing the service in early 2011.
For further information on this topic please contact Ricardo Barretto Ferreira Da Silva, Fabio Ferreira Kujawski or Thays Castaldi Gentil at Barretto Ferreira, Kujawski, Brancher e Gonçalves – Sociedade de Advogados (BKBG) by telephone (+55 11 3897 0300), fax (+55 11 3897 0330) or email (barretto@bkbg.com.br, kujawski@bkbg.com.br or gentil@bkbg.com.br).
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