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1.
Introduction
Consumer protection
regulations in Peru have a general framework governed by the Consumer
Advocacy Law, whose Amended Consolidated Text was ratified by Supreme
Decree No. 039-2000-ITINCI and which is applicable to consumption
relationships between the suppliers of goods or services and consumers
in general.
These regulations have
provided a framework for the protection of consumers, ensuring that
they benefit from suitable information, effective protection in their
consumption relationships, and legitimacy to protect their interests.
The protection of the rights
of public telecommunication service users is part of the general
consumer advocacy framework; nevertheless, there is a sector framework
that is administered by the regulatory body, OSIPTEL, focusing on the
specific features characterizing telecommunication markets.
2. Performance of OSIPTEL
In the framework of the
protection of the rights of the users of public telecommunication
services, OSIPTEL: (i) provides a legal framework that regulates the
rights and obligations of users, subscribers, and operators; (ii)
resolves conflicts arising between them, and (iii) oversees compliance
with the regulatory framework.
For subparagraph (i), OSIPTEL
has issued the “Conditions of Use of Public Telecommunication
Services.” This regulation adopted by means of Resolution No.
116-2003-CD/OSIPTEL has been in force since March 1, 2004. For
subparagraphs (ii) and (iii), a guideline has been established to
regulate conflict resolution, and it has sufficient authority to
undertake supervisory actions.
3. Main features of the Conditions of Use
The Conditions of Use
consolidate in a regulatory text –applicable to all public
telecommunication services- the rights and obligations of those who
are involved in consumption relationships. They constitute mandatory
rules supplementing the Consumer Advocacy Law.
Their main guarantees and characteristics are
indicated below:
(i)
The right of access to service and that this right not be
turned down without justification.
(ii)
The right to adequate information and to not receive
discriminatory treatment, on the basis of the form of payment for
services, whether prepaid or postpaid.
(iii)
Contracts shall have indefinite time-limits. Mandatory periods
are permitted, as long as there is adequate information and the legal
limit of six months is not exceeded.
(iv)
The right to hire any service separately, without the operator
being entitled to stipulate that the contract is contingent upon
purchase of its own equipment.
(v)
Billing must be diversified, make it possible to understand the
application of rates and be related with hired services.
(vi)
Subscribers are entitled to the temporary suspension of service
at their request and for a period of not over two months for each year
of service; to transfer of service; to detailed billing.
(vii)
Suitable information regarding the use of paid phone cards,
whether physical or virtual, is guaranteed, and minimum time-limits of
validity are established.
(viii)
The use of various contract mechanisms, in addition to written
documents, is allowed, as long as contracting security is granted.
4. Recent amendment of the Conditions of
Use
On January 7, 2007, Resolution
No. 084-2006-CD/OSIPTEL was published; it shall be entering into force
on next April 1. This amendment of the Conditions of Use fine-tunes
the protection of the rights of users. Some of the provisions are
highlighted below:
(i)
New obligations for operators to provide information are
included; for Internet access services, they must report the speed of
hired transmission and the minimum guaranteed speed, as well as any
constraints in the terminal equipment that limit access to the network
of another operator.
(ii)
Unilateral amendments of the contract by operators are
forbidden, except when they are subject to the rules of the regulatory
framework for rates or when they are for the greater benefit of the
subscriber, after approval by OSIPTEL.
(iii) The contracts
must be printed legibly, using letters that are not smaller than three
millimeters, and must be drafted using terms facilitating their
understanding.
(iv) The scenarios and
consequences for service interruption and suspension, as well as the
return of undue payment or overpayment, have been improved.
(v) The time-limits
for the validity of paid phone cards have been extended, specifically
those that authorize service delivery and those that grant traffic and,
in turn, permit service authorization.
OSIPTEL is constantly
evaluating its legal framework so that it can respond to the progress
made in consumer advocacy and technological breakthroughs and
facilitate the delivery of public telecommunication services.
Alejandro Moscol Salinas
Attorney, Legal Management
OSIPTEL |
