03/16/2024 – 12:05
A legal process that has been going on since the beginning of the pandemic generated an embezzlement of R$11.689 billion from public coffers. The amount refers to what cell phone operators failed to pay to the Telecommunications Inspection Fund (Fistel) between 2020 and 2024.
Created by law 5,070, of 1966, Fistel aims to cover expenses with the inspection of telecommunications services. The resources collected go to the National Treasury, which transfers part of it to make up the budget of the National Telecommunications Agency (Anatel).
In April 2020, to minimize the impacts of the covid crisis, Jair Bolsonaro's government issued Provisional Measure (MP) 952, which authorized telcos to postpone the collection of the sectoral fund. Even after the MP expired, companies did not pay again.
The telecoms appealed, arguing that the amount collected by Fistel is many times higher than what is, in fact, used to supervise the sector, and, therefore, defended the definitive cut in the charge. “There is an excess of revenue that does not make sense in terms of complying with public policy,” said a representative of the operators, who preferred to remain anonymous. “The rest was being used to try to create a surplus”, she added.
Between 2020 and 2024, the Union transferred R$3 billion to compose Anatel's budget (nominal value consolidated in the period, without considering inflation). This represents a slice of around 25% of the total that would have been raised by Fistel.
The telcos' argument was temporarily accepted by the Court, and Fistel's charge was suspended by means of an injunction until there is a decision on the merits of the matter. The process is taking place at the Federal Regional Court (TRF), where two judges have already voted, one in favor and the other against maintaining the charge. There is no deadline for completion. Fistel's next payment was due at the end of March.
Among the companies, the highest outstanding value is from Telefônica Brasil (owner of Vivo), with R$4.3 billion. Next come: TIM (R$3.0 billion), Claro (R$2.8 billion), Oi (R$1.3 billion), Algar (R$124 million) and Sercomtel (R$3 million).
“The usefulness of Fistel has already lost the nature of what it was used for,” said the president of Telefônica, Christian Gebara, at a press conference last week. “We didn’t pay during the pandemic. Afterwards, she lost her role. Therefore, we question the need to make the payment”, he added.
Resources at risk
The case is now under evaluation by the Attorney General's Office (AGU) and, in the meantime, Anatel's operation has been maintained by other sources that make up the General Budget of the Union.
In the view of Anatel president, Carlos Baigorri, the biggest problem in this dispute is the loss in public revenue. “I already did what I had to do, I spoke to the judges and presented our arguments. The person who has to be worried is (Fernando) Haddad (Minister of Finance). Call him and ask him what he thinks about having almost R$12 billion missing from the budget”, said Baigorri, when asked by the press if he is worried about the impact of Fistel's suspension on the functioning of the regulatory agency.
Baigorri warned that the amounts under discussion have not been deposited in court by the companies, which raises doubts about their ability to pay in the future in the event of a decision favorable to the Union. “We are in a legal discussion. The guys don't want to pay, and we're going to fight. What worries me is that they are not depositing it in court. They are accumulating debt if they ever lose,” he said.
Companies
The report sought out the companies to clarify why the amounts under discussion were not deposited in court and what their provisioning policy was. Vivo, Claro, TIM and Oi did not want to answer the questions and directed the report to Conexis, the association that represents the companies. This, in turn, also did not provide further details: “Conexis informs that the operators are awaiting the decision on the appeal,” it said in a note.
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