The Supreme Court (STF) will decide whether municipalities can implement inspection fees for cellular activities. The matter will be discussed at the Extraordinary Appeal (RE) 776594, which had general repercussion recognized by Virtual Plenum of the Court.
TIM Celular S / A has already requested an injunction to suspend the payment of License Inspection Fee for the Operation towers and transmission antennas and reception of data and voice, established by municipal law of Estrela d’Oeste (SP). For the tele, the collection invades the competence of the Union, only able to monitor the activity.
According to the company, the fee calculation base comprises 450 Tax Units of São Paulo (UFESP), resulting in approximately R $ 10,500, which does not correspond to the actual costs of an inspection on its base stations (BTSs) and presents clear confiscatory when compared to other fees already paid by the sector Anatel . Still, the company maintains that the fee violates the principles of retributividade, reasonableness and proportionality, by setting double taxation, since the regulatory agency already charges antennas inspection fee.
After unfavorable decision in the first instance, the company appealed to the São Paulo Court of Justice (TJ-SP), which found no illegality in the collection. According to the TJ-SP, municipalities are responsible for establishing rules on the use and occupation of land, which covers rules setting limits for the installation of towers and cellular service antennas.
For the São Paulo court in judgment, although the Union by Anatel, be authorized to create installation and operating costs of the antennas, there is an institutional basis (Article 145, item II) and legal (Article 77 of the National tax Code) for municipalities to establish and require the rate because of the police power, which shall occur with the supervisory requirement from the moment it occupies the ground for towers and antennas. After the judgment, TIM appealed to the Supreme Court.
Minister Luiz Fux, rapporteur of RE 776,594, noted that the issue should be referred to the Supreme Court for review, as the discussion goes beyond the particular interests of telecom and reaches a federative sphere of competence between the Union and the counties.
“Moreover, the multitude of cases in which it discusses the matter, considering that there are currently over five thousand cities in the country, entails careful examination of this Court from the perspective of the limits of municipal powers to rates institution, based on local interest, on activities relating to the telecommunications industry, “he says.
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