The judicial reaction against the public utilities changes: using consumer law in telecommunications' demands in Brazil
| Autor | Alexandre Veronese |
| Cargo | Associate Professor of Legal and Social Theory |
| Páginas | 52-88 |
Direito.UnB, Setembro-Dezembro, 2019, V.03, N. 1 52
THE JUDICIAL REACTION AGAINST THE
PUBLIC UTILITIES USING: CONSUMER LAW IN
TELECOMMUNICATIONS’ DEMAND IN BRAZIL
Alexandre Veronese
Associate Professor of Legal and Social Theory.
Coordinator of the Telecommunications Law Research Group, Faculty of Law, University of Brasilia (Brazil).
Associate Researcher of the European Law Research Centre, Law School, University of Minho (Portugal).
Paper presented in the 2008 Joint Meeting of the Law and Society Association (LSA) and the
Canadian Law and Society Association (CLSA), in Montreal (May 29 to June 01).
ABSTRACT
The public utilities privatizations, which were carried on many Latin American countries in
the nineties, had many political dierent reactions. In Brazil, it became visible the judicial
consumer reaction against the new regulatory model in most public utilities. There were some
factors that allowed the judicial system to be ooded with the network industries lawsuits.
The hypothesis of the paper is that one of the causes was the absence of a suitable legal and
institutional framework to channel the consumer demands. On the other side, some new types
of judicial procedures (like class actions, on one side, and special claim courts, otherwise)
gave the strength to the Brazilian judicial power to raise as a central player in order to decide
and directly determine the legal details of the public utilities production and distribution.
Keywords: Judicialization. Public policies. Consumer law. Telecommunications. Brazil.
RESUMO
As privatizações das empresas estatais de serviços públicos, ocorridas em muitos países da
América Latina nos anos 90, foram recebidas com diferentes reações. No Brasil, cou clara
a reação judicial dos consumidores contra o novo modelo regulatório em muitas empresas
privatizadas. Alguns fatores permitem explicar porque o judiciário brasileiro foi inundado por
ações judiciais contra as empresas de serviços públicos. O artigo traz a hipótese de que uma
das causas foi a ausência de um quadro institucional e jurídico para canalizar as demandas dos
consumidores. De outro lado, alguns tipos novos de procedimentos judiciais (como as ações civis
públicas, de um lado; e os juizados especiais cíveis, de outro) ofertaram capacidade ao Poder
Direito.UnB, Setembro-Dezembro, 2019, V.03, N. 1 53
Judiciário brasileiro para se armar como um ator central para decidir e diretamente determinar
detalhes jurídicos da produção e distribuição desses serviços públicos de telecomunicações.
Palavras-chave: Judicialização. Políticas públicas. Direito do consumidor. Telecomunicações. Brasil.
1. INTRODUCTION
The Brazilian new constitutional order, declared in October 31 of 1988, represented much
more than a political transition. It was based in a constitutional framework that gave political power
thatmadepossibledierentbehaviorfrommanyemergentstateinstitutions.Inthissense,thepower
of constitutional text can be understood by the degree of legitimacy imposed to new political actors
as they struggle to reinterpret the meaning of many statutes and regulatory legal concepts. The clearer
example of this empowerment can be seen in the new state and federal prosecution powers and
functions in Brazil.
The constitutional text of 1988 had almost fty-two amendments in twenty years. These
modicationsalsoderivedfromthepoliticalandjudicialstruggles.Theghttowardsthedenitionof
the content the constitutional meaning has an intense importance in the political life. Those conceptual
denitions,takenfromthelegaltexts.Thosemeaningscanbeusedeitherasobstaclesorascombat
tools in the defense of perceived social interests. It is clear that the statutes and the regulatory rules,
related to them, play a key role in the settlement of the social actors’ strategies.
As NANCY REICHMAN (1997) shows, there are two types of theoretical possibilities
to depict the relation between the political power and the law within the sociological analysis of
thecontemporary regulation phenomenon.Therstpossibility is to comprehendlawasa product
build from political relationships somewhat outside from the regulatory scenario. An example of this
solutioncouldbeperceivedinthenormsthatsustainbothpunishments(asnes)andbenets(taris
exemption or public funding to certain activities). Those norms are then understood as direct products
of the political clashes that were to be enforced by the governmental agencies. They are related to the
law environment, but they are not created by it. The law serves as a way to consolidate the political
victories of the winners. The second way to understand the regulatory phenomenon through the
sociological lenses is proposed by ROBERT KAGAN (1990). In his point of view, the norms have a
Direito.UnB, Setembro-Dezembro, 2019, V.03, N. 1 54
double function. It can be used to advance and transform social life and it has a “status quo” function
aswell.Inhisownwords:lawisbothshieldandsword.Thatdenitionisveryinterestingbecauseit
recognizes the active role of the legal actors (lawyers, administrators, judges and others) and it also
opens analytical possibilities to the classic object of the Sociology of Law: the disjunction between
the legal directives and the social practices. It is compatible with the scope of this paper which is to
understand the relationship between the recently privatized Brazilian telecommunications enterprises
and the judicial pressure directed to change some market practices. The courts pressure comes from
two kinds of lawsuits: representative class actions and special claim courts’ lawsuits. There are two
empiricalsourcesinthis paper.Therst isthe socialandnormativesystemof theregulatory legal
frame. The second is the objections directed against it, represented by the judicial process.
Therstpartofthispaperexamines both the privatization and upheaval of a competitive
market to the telecommunications public utilities oerings. It will be described the formation of
aspecicagencyasapiece ona majorplan toerectanewlogictobeappliedin thepublic goods
supply. That adaptation of the Brazilian state only can be understood as related to an international
scenarioof stimulus to major alterations in thepublicservices.The conclusion of the rst part is
that the consumer role was neglected during the transition between the once state-based supplies to
the new market-oriented scenario. That problem can be depicted by the legal terminological dispute
over the role of persons who actually consume those once state-owned public utilities services: are
theyconsumersorusers?Iftheyfallintotherstcategory,therelationshipisprimarilyprivate,but
with a lot of prerogatives granted to the consumer by the pertinent federal statute (Federal Statute n.
8.078, of 1990, named as Consumer Code). If they are really public service users, they won’t receive
any additional prerogative, since the Brazilian parliament has not approved any law to grant special
protection to them. That absence of political action happens despite the approval of a constitutional
amendment in 1998, which proclaimed that such norm was to be sanctioned in ninety days. That
constitutes a typical example of legal gap. During that juridical debate, the regulation enacted by the
new agency paid little attention to the consumers needs in a pure contradiction of both the political
speeches from its directors and the statute basic text that permitted the privatization, and the creation
of the agency.
The second part of the paper deals with the possibility of understanding of that ood of
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