The virtual trial of Direct Action of Unconstitutionality (ADI) 7,321 was concluded on June 2, 2023. The action was proposed by the National Association of Mobile Operators (Acel) against provisions of Law 6.787/06 of the [1] state of Alagoas, which deals with the requirement of environmental licensing for the installation of Transmission Network of Telephone System and Base Radio Stations and Wireless Telephony Equipment.
According to Acel, the contested articles violate the exclusive competence of the Union to legislate on telecommunications, as well as to exploit these services, as provided for in the Federal Constitution. In addition, ACEL claimed that the contested provisions would be in dissonance with Federal Law 9,472/1997, General Telecommunications Law, and Federal Law 13,116/2015, known as the Antenna Law.
Based on these arguments, Acel requested the granting of a precautionary measure to suspend the effects of the contested provisions and, on the merits, the declaration of unconstitutionality of the legal provisions in question.
In a judgment initiated on May 26, 2023, by the rapporteurship of Justice Gilmar Mendes, the Plenary of the Federal Supreme Court (STF) decided, by majority, for the validity of ADI 7,321, declaring the unconstitutionality of the provisions of the Alagoas law.
In accordance with the vote of the rapporteur, the Arts. 19, X, and 150 of the General Telecommunications Law establish the competence of the National Telecommunications Agency (Anatel) to issue rules on the provision of telecommunications services and to regulate the deployment, operation and interconnection of networks, ensuring the compatibility of the networks of the different providers, aiming at their harmonization at the national and international level.
According to the rapporteur, the Union's exclusive competence to legislate on the subject stems from the need for a broad and deep integration of networks, equipment and systems at national and international levels.
Minister Gilmar Mendes also asserted that, despite the intention of protecting and defending the environment, the state law invades the private competence of the Union to legislate on the matter and directly interferes in the contractual relationship formalized between the granting authority and the concessionaires to the extent that it creates an obligation for companies providing telecommunications services and stipulates criteria for the installation of telecommunication infrastructures.
The rapporteur stated that the Supreme Court has extensive jurisprudence that state law should be declared unconstitutional when it provides for telecommunications, even for protecting health, the environment or consumers.
Minister Gilmar Mendes also stated that the state law is in dissonance with Federal Law 13.116/15, which provides for general rules applicable to the process of licensing, installation and sharing of telecommunications infrastructure to make it compatible with Brazil’s socioeconomic development.
In Article 7, the legal diploma mentioned provides that "the necessary licenses for the installation of support infrastructure in urban areas will be issued through a simplified procedure, without prejudice to the manifestation of the various competent bodies during the administrative process."
Article 8 of Federal Law 13,116/15 also determines that "the competent bodies may not impose conditions or prohibitions that prevent the provision of telecommunications services of collective interest, under the terms of current legislation." Therefore, according to the rapporteur, by subjecting the installation to new conditions, the state law enters into a normative domain reserved for the Union.
Finally, the rapporteur also declared the unconstitutionality, by dragging, of items 10.5. and 10.6 of Annex VI of State Law 6,787/06, which establish different sizes for telecommunications networks and stations and, consequently, offend the private competence of the Union.
In a dissenting vote, Justice Edson Fachin expressed the understanding that the declaration of unconstitutionality of the contested provisions would mean that any enterprise regulated by the Union would necessarily be licensed by it as if the private competence functioned as an attractive route of all environmental law.
According to Minister Edson Fachin, Complementary Law 140/11 and Federal Decree 8,437/15, which regulates some of its provisions, establish that infrastructure installation works to support communication networks are not the competence of the Union.
Thus, according to the dissenting vote, recognizing the private competence of the Union to license this type of enterprise would impact the way licensing has occurred in Brazil and reward the inaction of the Union, which could even represent the unconstitutional exemption of licensing for these activities.
Against the judgment were opposed embargoes of declaration, which still await trial.
[1] Items 10.5 and 10.6 of Annex I, object of article 4, paragraph 1 of said law.
