The São Paulo Court decided to deny Vivo an appeal to revoke a R$ 8.3 million fine imposed by Procon-SP in 2014. According to the agency that works in consumer protection, the operator injured the CDC (Defense Code of the Consumer) when practicing unfair terms, failure to provide telecommunications services, unfair commercial practice, among other irregularities. The company will re-evaluate the decision on a new appeal.
The decision to reject Vivo’s request to revoke the Procon-SP fine is taken by the 3rd Chamber of Public Law of the Court of Justice of the State of São Paulo (TJ-SP). In a ruling, the judges reached the conclusion that it is up to the Judiciary Power to intervene only when there are illegalities, which was not the case with the Procon-SP fine.
To sue Vivo, the institution heard complaints from the company’s customers in the municipalities of Bragança Paulista, Cotia, Guarulhos, Ourinhos, Socorro and São Paulo.
Based on the reports, Procon-SP reached the conclusion that the operator practiced unfair terms in broadband contracts; loyalty of the TV service; offer of inappropriate service for use in the neighborhood of Jardim Fortaleza (Guarulhos); failures in the provision of telecommunications services in Ourinhos; and quality defects in the services provided in Bragança Paulista, Cotia, São Paulo and Socorro. All of them violate the CDC.
Vivo filed a fine, but lost
Vivo filed a first instance appeal against the accusations made by Procon-SP. In it, the company defends that “grouping the complaints from different regions reduces and compromises its possibility of defense”.
In Socorro, the operator claims that there is a civil inquiry to investigate the irregularity of the services provided, but it was shelved. In Bragança Paulista, the company says that there is a certificate from Anatel confirming the legality of its operation in the region. For Vivo, the process in Ourinhos was not “sufficiently instructed”, while in São Paulo and Cotia, poor service provision was not proven.
As for the complaint by Procon-SP in Guarulhos, Vivo says that “it was not demonstrated that the plaintiff sold broadband services”. Finally, regarding the television contract, the operator claims that it was fined based on a “revoked” device.
However, in 2019, the fine was maintained by the lower court. According to judge Maria Fernanda de Toledo Rodovalho, from TJ-SP, Vivo’s infractions were proven. Consumers could not move away from unfair terms in the operator’s contract, which constitutes a violation of the CDC.
Vivo takes the case to the 2nd instance, but loses again
Vivo then filed a new appeal at the 2nd instance to annul the sentence. Again, the TJ-SP decided to keep the fine.
In the analysis of the case of Vivo, the rapporteur and judge Camargo Pereira, of the 3rd Chamber of Public Law, affirms that it is not the role of the Judiciary Power to review decisions rendered in the “administrative sphere”. Pereira also pointed out that the 1st and 2nd instance judgment “adequately considered the allegations” and valued all the evidence gathered by both Procon-SP and the operator.
For the judge, the procedure adopted by Procon-SP based on customer complaints was regular, and there was no illegality in the administrative procedure, which resulted in a fine of R$ 8.3 million.
In note to the Techblog, Vivo says:
“The aforementioned decision refers to the Court’s interpretation of the investigation conducted by Procon of alleged consumer violations in 2014. The legal proceeding in question was initiated by Vivo’s request to review a fine penalty with which it disagrees . The decision is not final, and will still be reviewed at the appeal level.”
With information: Legal Consultant