Operators question the values of TFI and TFF rates on the telecom sector in the STF

Operators question the values of TFI and TFF rates on the telecom sector in the STF

Acel and Abrafix say that from 2017 to 2025 more than R$7,620 billion in TFI and TFF were collected, but the amount spent by Anatel on inspection did not exceed R$270 million

Luísa Carvalho

Credit: Reproduction/ Abratel

The National Association of Cellular Operators (Acel) and the Brazilian Association of Fixed Switched Telephone Service Concessionaires (Abrafix) question before the Federal Supreme Court (STF) the values of installation inspection fees (TFI) and operating fees (TFF) that apply to companies in the sector. The associations point to surplus revenue from the National Telecommunications Agency (Anatel).

The authors of the action argue that, based on the values established by Law 5,070/1966, which created the Telecommunications Inspection Fund (Fistel), the change in the collection of taxes would be unconstitutional as it violates part of article 145 of the Constitution, which says that the fees are taxes within the common competence of the federative entities and associates their institution with the exercise of police power or the provision of public services. According to the operators, the values ​​do not meet the principle of “reasonable equivalence” between the cost of inspection and the amounts charged to their taxpayers. Therefore, they do not comply with the constitutional provision.

The TFI and TFF are two of the main taxes in the telecommunications sector. The installation inspection fee (TFI) is charged once, when the license for the operation of the station is issued. The value is equivalent to the fixed rate defined by law for each type of station and type of service.

The operating fee (TFF), charged annually, covers the expenses incurred with the continuous monitoring of the operation of stations and other telecommunications equipment. The value corresponds to 33% of the TFI.

The associations are not asking the Supreme Court to declare the TFI and TFF rates themselves unconstitutional, but rather the way in which their value is calculated. The rates are set out in Annex I of Law 5,070/66. The operators ask for the unconstitutionality of sections of laws 9,472/1997, 13,097/2015, 13,649/2018 and 14,173/2021, with ex tunc effects, that is, they want the STF's decision to take effect from the creation of the rules in question.

Law 5,070/1966 establishes that revenue from fees must be used to fund Fistel, whose function is to “provide resources to cover expenses incurred by the Federal Government in carrying out inspections of telecommunications services”. But, for Acel and Abrafix, the amounts currently paid in fees, provided for by subsequent laws, are disproportionate to the real cost of the inspection, conducted by Anatel.

In the petition, the operators' representatives state that, according to information from the regulatory agency itself, in the period from 2017 to January 2025, more than R$7.620 billion in TFI and TFF were collected. However, the total amount committed to cover the total costs of regulatory inspection by Anatel in the same period of time did not exceed R$270 million.

“The amount collected as inspection fees will – or should be – allocated to FISTEL and applied by ANATEL exclusively to fund inspection activities”, say lawyers Marcus Vinícius Furtado Coêlho and Eduardo Maneira, who defend the associations. “However, analyzing FISTEL’s financial data, as well as ANATEL’s inspection expense reports, what can be seen is that, for years, an unacceptable (and unconstitutional) situation of excess collection of TFI and TFF by the Federal Government at the expense of telecommunications companies has been established,” they add.

The case will be judged by the Supreme Court in Direct Unconstitutionality Action (ADI) 7,787, filed on Thursday (27/2). Minister Alexandre de Moraes was selected as rapporteur for the action.

https://www.jota.info/tributos/operadoras-questionam-no-stf-valores-das-taxas-tfi-e-tff-sobre-o-setor-de-telecom