📋 Tender Overview
As of today, Wednesday, May 31, 2023, the operating companies Claro, Entel and Bitel must ensure that their mobile applications implemented for the sale of the mobile public service are used only in those contracts that are made through the home delivery marketing channel (delivery) in which the personnel of the same company duly registered intervene.
This is in compliance with the precautionary measures ordered, ex officio, by the Permanent Collegiate Body of the Supervisory Agency for Private Investment in Telecommunications (OSIPTEL), through which conditions were imposed to ensure that these mobile sales-contracting applications are used correctly and thus prevent them from being used in the ambulatory sale of mobile chips.
The three companies were also ordered to remove from the stores of applications or distribution or download platforms for mobile operating systems (such as Play Store or App Store), any application or mobile computer program with which sales or contracting of the mobile public service can be made.
As it is recalled, prior to this decision, Telefónica filed a complaint against its three main competitors, indicating that there was unfair competition in the sale and contracting of the public mobile service, considering that these companies engaged in conduct contrary to the requirements of good business faith.
The precautionary measures granted a period of five working days to the denounced companies to comply with the order, from the notification of the resolution, which was fulfilled on May 30, 2023. Now, after that period, they have three working days to accredit the actions taken in compliance with the provisions of the Permanent Collegiate Body of OSIPTEL.
It should be noted that the companies Claro, Entel and Bitel had five working days to file their appeal against the precautionary measures issued, which – if necessary – will be resolved by the Dispute Resolution Tribunal of Osiptel.
Administrative sanctioning procedure
The Deputy Technical Secretariat of the Collegiate Bodies of OSIPTEL initiated administrative sanctioning proceedings against the operating companies Claro, Entel and Bitel, for the alleged commission of acts of unfair competition, in the form of infringement of the general clause of the Law on the Repression of Unfair Competition (LRCD).
With regard to the alleged infringements, it was found that the companies complained of had violated the general clause of the CCPR by developing commercial strategies contrary to good business faith, which would aim to distort the conditions of competition in the mobile public services market, in order to obtain an illicit profit.
One of the strategies would be the development, implementation and massive use of mobile sales applications as facilitating elements for obtaining an illicit benefit, as they are intended to promote itinerant or ambulatory sales of their services on public roads, which are prohibited by current regulations.
In this regard, there are indications that in these contracts for mobile sales applications that are carried out using portable devices, sufficient security mechanisms would be omitted, making it possible for distributors and sellers of the operating companies denounced to be fully authorized and encouraged to use them in the sales and contracting of the mobile service on public roads.
Another strategy would be that the companies denounced would have developed a system of economic incentives, benefits or promotions aimed at their distributors and sellers, for a number of sales of mobile lines that are carried out, mainly, through the itinerant channel on public roads.
With this, according to the imputation formulated by the Deputy Technical Secretariat of the Collegiate Bodies of OSIPTEL, the companies denounced would have obtained a greater sales force by using an unauthorized channel (sale on public roads or itinerant sale), so they would encourage their authorized distributors to maintain the use of these mobile applications, which allows you to increase your market share and unduly decrease your sales costs, to the detriment of your competitors.
The resolutions that initiated the sanctioning proceedings grant Claro, Entel and Bitel a period of 15 working days to present their defenses against the accusations made.
