Brazil Opens Public Hearing To Reassess Pole Sharing Between Electric And Telecommunications Industries

• Published date: 04 January 2022
• Subject Matter: Media, Telecoms, IT, Entertainment, Energy and Natural Resources, Energy Law, Oil, Gas & Electricity, Mobile & Cable Communications
• Law Firm: Tauil & Chequer
• Author: Mr Henrique Bastos Rocha, Juliana Deguirmendjian and Leticia Rodrigues Vicente

The Brazilian National Electric Energy Agency (ANEEL) approved, on November 30, 2021, the opening of Public Hearing No. 73/2021, which aims to obtain comments on the Regulatory Impact Analysis (AIR) and the proposed regulatory review of infrastructure sharing between the electricity and telecommunications industries.¹ This is a joint effort between ANEEL and the Brazilian National Telecommunications Agency (ANATEL) to improve the regulatory environment for infrastructure sharing, providing greater legal certainty for negotiation between players in the two industries and incentives for the use of regular, standardized electricity distribution poles for housing antennas, cables and other telecommunications equipment.

Currently, infrastructure sharing between telecommunications and energy companies is regulated by the Joint Resolution ANEEL/ANATEL/ANP No. 01/1999 (which also applies to the oil sector) and by the Joint Resolution ANEEL/ANATEL No. 04/2014, which establishes the reference price and other conditions for sharing posts.² This regulation, however, has not been enough to put an end to informal and disorderly use of energy distribution poles by telecommunications operators, one of the objectives of Joint Resolution ANEEL/ANATEL No. 04/2014.³

According to a 2019 survey by ANEEL, only 42 percent of telecommunications operators had a contract with the electricity distributor responsible for the infrastructure they used. In addition to the problems arising from the informality of such relationships, the irregular use of poles can generate serious risks as a result of non-compliance with safety standards.4

Given this scenario, a substantial innovation in the draft presented by ANEEL is the possibility of assigning the right to commercially use the shareable space on the poles of the energy distributors' networks, with the creation of a new market to intermediate infrastructure sharing agreements: business use of poles by third parties ("polecos," similar to "towercos"). The main aim of the new model is to get energy distributors rid of the burden of inspecting poles, allowing them to concentrate their efforts on their main activity. Although, it is worth mentioning that the proposed regulation would have them remain responsible for the management of distribution assets and for the fulfilment of the obligations of concession and permission contracts.

The draft also proposes that infrastructure operators be required to prepare annually a Priority Poles...