Briefly
The Third Specialized Constitutional Court of the Supreme Court of Justice of Lima rendered judgment on File No. 6119-2021-0-1801-JR-DC-03, ruling thereon on Articles 6 and 7 and the first supplementary and final provisions of the law. No. 31207 does not apply to the mobile operator who filed the lawsuit.
- On June 2, 2021, the Minimum Connection Speed Act was published with the aim of ensuring and promoting the optimal provision of Internet service, as well as the effective quality, speed and control of contractual provision by Internet Service Providers.
- The mobile operator requested that Articles 6 and 7, as well as the first supplementary and final provision of the Minimum Communication Speed Act, and the single transitive supplementary provision of Board Decision No. 138-2021-CD / OSIPTEL not apply to it. They state the following.
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Minimum connection speed rule Article 6 – Amending Article 5 of Law 29904 regarding broadband promotion and building the national fiber optic network |
Rule 5. Minimum speed for broadband Internet access The Ministry of Transportation and Communications (MTC) sets and annually updates the minimum connection speed to be considered broadband Internet access, which will be applicable regardless of the geographical location of users. ISPs must guarantee 70% of the minimum speed provided in contracts with consumers or users, and stipulated in their plans. (postpaid, prepaid, etc.) advertised in various media. The Oversight Agency for Private Investment in Telecommunications (OSIPTEL), through the National Internet Service Monitoring and Control Registry, monitors Internet speed and other technical attributes of broadband Internet connections and updates them periodically. |
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Minimum connection speed rule Article 7 Inclusion of No. 66.8 in Article 66 of Law 29571, Consumer Protection and Defense Law |
Article 66 – Ensuring protection for users of regulated public services […] 66.8 A user of public Internet services has the following rights: a) Defend their interests, guarantee their right to access electronic communication services under appropriate conditions of choice, price and quality, and enhance their ability to access or distribute information or use applications and services of their choice, in particular through open access to the Internet. b) Have at their disposal tools to measure Internet service speeds for broadband download and upload. These carrier-provided apps can be accessed over the web. These records are used in the proceedings and are considered means of evidence. c) Obtain a guaranteed minimum speed for the broadband internet service they contract for. This speed cannot be less than 70% of the contracted download and upload speed in urban and rural areas. d) In the advertising of telecommunications products, the minimum guaranteed speed of the Internet service, the number of megabytes purchased per month and the number of channels included in the cable service provided are clearly and explicitly specified. |
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| The minimum connection speed of the supplementary and final first law |
The Executive Authority, through MTC and OSIPTEL, will be responsible for adapting, supervising and updating the General Regulations on the Quality of Public Telecommunications Services and will verify compliance with the provisions of this Law. Similarly, OSIPTEL will establish mechanisms for the provision of Internet services, establishing symmetry and maximum asymmetry between upload and download speeds, all such information being expressly declared in the user contracts. |
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Board Resolution No. 138-2021-CD / OSIPTEL The only transitional complementary provision |
Operators must adapt the terms of service provision for fixed and mobile Internet access to: (i) all subscribers with whom you maintain a valid service provision contract; and (ii) the contracts they sign since the entry into force of this rule, in accordance with the provisions of subsections 6.1.1 and 6.1.3 of Article 6 of the General Regulations for the Quality of Public Telecommunications Services, until December 3, 2022. This sufficiency must be communicated to its subscribers. Where sub-section 6.1.1 of Article 6 of the General Regulation for the Quality of Public Telecommunications Services is appropriate, the following step-by-step scheme will be considered:
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- In the ruling, the Supreme Court ruled that there was no violation of the right to freedom of contract. In this regard, she indicated that the unified text of the terms of use of public telecommunications services enables operating companies to unilaterally modify the conditions of service provided as long as they are favorable to the customer, which was proven in this case by increasing the percentage of the minimum guaranteed speed.
- The Supreme Court concluded that the right to freedom of action was violated. In this regard, it considered that ensuring an internet speed of 70% means building more antennas in the country, which in turn requires an investment decision for the operating company. In the opinion of the Supreme Court, this legal requirement would guide the organization of the operating company, as well as the investments in infrastructure deployment it should make, which constitute a decision of the company, which should not be imposed by law.
- In light of the principle of preventing arbitrariness, the Supreme Court concluded that the operating company cannot guarantee 70% of the contracted Internet speed, while the state does not have the necessary infrastructure for this. Thus, the claim to comply with this obligation is arbitrary.
- It should be borne in mind that this Supreme Court ruling is formally only in favor of the mobile operator that filed the lawsuit, therefore, other operators must comply with these regulations, because they are valid and do not have a positive ruling declaring inapplicability. Although this provision may constitute a reference provision for the interpretation of existing regulations, it does not have the character of a binding precedent, nor for constitutional interpretation which should be a compulsory reference for other judges, as do the rulings of the Constitutional Court.
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