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Minimum Connection Speed Law
Article 6 - Modification to Article 5 of Law 29904, Law on the Promotion of Broadband and Construction of the National Fiber Optic Network
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Article 5. Minimum speed for broadband internet access
The Ministry of Transport and Communications (MTC) determines and updates annually the minimum speed for a connection to be considered as broadband internet access, which will be applicable regardless of the geographical location of the users.
Internet service providers must guarantee 70% of the minimum speed offered in contracts with consumers or users, and established in their plans (postpaid, prepaid and others) advertised in the different media.
The Supervisory Agency for Private Investment in Telecommunications (OSIPTEL), through the National Registry of Internet Service Monitoring and Surveillance, monitors and periodically updates the internet speed and other technical characteristics of broadband internet connections.
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Minimum Connection Speed Law
Article 7 - Incorporation of number 66.8 to Article 66 of Law 29571, Consumer Protection and Defense Code
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Article 66. Guarantee of protection to users of regulated public services
[...]
66.8 The user of public internet services has the following rights:
a) The defense of their interests, ensuring their right to access electronic communication services under appropriate conditions of choice, price and quality, promoting their ability to access, distribute information or use the applications and services of their choice, in particular through open access to the internet.
b) To have at their disposal tools for measuring the speeds of the broadband download and upload internet service. These applications provided by telecommunication companies are accessible via the web. These records are used in procedure and are considered evidentiary means.
c) Obtain a guaranteed minimum speed of the broadband internet service they contract. This speed cannot be less than 70% of the download and upload of contracted speed in urban and rural areas.
d) That, in the advertising of telecommunication products, the minimum guaranteed speed of the internet service, the number of megabytes per month purchased and the number of channels included in the cable service offered are clearly and prominently stated.
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Minimum Connection Speed Law
First Complementary and Final Provision |
The executive branch, through the MTC and OSIPTEL, will be responsible for adapting, supervising and updating the General Regulation on the Quality of Public Telecommunication Services and will verify compliance with the provisions of this law. Likewise, OSIPTEL will establish the mechanisms for the provision of internet services, establishing the symmetry and the maximum asymmetry between the upload and download speeds, all this information being explicitly declared in the user contracts.
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Resolution of the Board of Directors No. 138-2021-CD/OSIPTEL
The Single Transitional Supplementary Provision
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The operating companies must adapt the conditions of providing service for fixed and mobile internet access to: (i) all its subscribers with whom it maintains a current service provision contract; and (ii) the contracts they subscribe from the entry into force of this norm, in accordance with the provisions of subsections 6.1.1 and 6.1.3 of Article 6 of the General Regulation of Quality of Public Telecommunications Services, until 3 December 2022. Such adequacy must be communicated to its subscribers. In the case of the adequacy of subsection 6.1.1 of Article 6 of the General Regulation on the Quality of Public Telecommunications Services, the following gradual scheme will be considered:
| Up to: |
Guaranteed minimum speed percentage |
| 3 March 2022 |
52% |
| 3 December 2022 |
70% |
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- In the judgment, the superior court ruled that there was no violation of the right to freedom of contract. On this point, it indicated that the Single Ordered Text of the Conditions of Use of Public Telecommunication Services enables the operating companies to unilaterally modify the conditions of the service provided as long as they are favorable for the customer, which was evidenced in this case by increasing the percentage of minimum guaranteed speed.
- The superior court concluded that the right to freedom of enterprise was violated. In this regard, it considered that guaranteeing 70% internet speed implies the construction of more antennas in the country, which in turn entails an investment decision for the operator company. In the opinion of the superior court, this legal requirement would be directing the organization of the operating company, as well as the investments in the deployment of infrastructure that it must make, which constitutes a company's own decision, which should not be imposed by law.
- In view of the principle of interdiction of arbitrariness, the superior court concluded that it was not possible for the operator company to guarantee 70% of the internet speed that is contracted, while the country does not have the necessary infrastructure for this. Consequently, demanding compliance with such an obligation is arbitrary.
- It should be borne in mind that this Superior Court ruling is formally only favorable for the mobile operator company that filed the lawsuit, therefore, other operator companies must comply with these regulations, as they are in force and do not have a favorable ruling declaring their inapplicability. Although this judgment may constitute a referential pronouncement for the interpretation of current regulations, it does not have the character of a binding precedent, nor of a constitutional interpretation that must obligatorily serve as a reference for other judges, as the judgments of the constitutional court do.
We hope that the information has been useful for your company. Do not hesitate to contact us if you require advice on telecommunications services.
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