Expansion in telecommunications infrastructure. Locks Of Municipal And Other Demons

The default penalty procedure for authorizing telecommunications inafrestructura elements must start with a preventive notice, which must contain at least the following: (i) The facts are recognized as a possible infringement, (ii) the expression of possible sanctions, (III) the competent authority and (iv) competition rules, according to that indicated by the numeral 3) Article 234 of Law N º 27444. This is the case, local governments, have been using this complaint, as the primary means to coerce telecommunications companies to pay rights fees, which in most cases are illegal bureaucratic barriers., Often being denatured cel tax rate concept. The notifications are placed ahead of the astronomical fines on companies which creditors would not benefit from the release of the latter. In our experience usually notifications of payment default prevention fee for telecommunications infrastructure elements have the following defects: TUPAS apply retroactively to existing RAS and offenses committed prior to its validity. Invest unlawfully burden of proof, ask your administrator to prove that has the appropriate authorizations.

There is no proper identification of the material facts of infringement, while individually not usually what are the elements of outside plant without identification. Thus, usually the charge is reduced to the formula "For lack of permits X poles, N linear feet of pipe, L cameras, etc.. There is no proper motivation, while only rely on the fact comply with and invoke the supposed rules, however, there is no link between them that makes coherent imputation. Contain an unreasonable calculation of the alleged violation to impose in the event that a fine concrete, violating the limits established in Article 10 of Legislative Decree No. 1014. (100% of the law or 1% of Construction Cost) is not satisfied with the parameters established by Act No. 29022. For example, the anchors do not have as an accessory to the posts.

It is true that in the previous step according to the aforementioned Article 234 º did not require further deepening of the coherence of the charge, which we have been enumerating the vices formally at this stage would not exist prior to the completion of the sanction. However, the big problem is that when local governments to impose the sanction, reproduce exactly the same format used in the Notice of Prevention, which at this stage if the defects manifest that we have listed. This, in As Article 235 of Law No. 27,444 required for the validity of the resolution as follows: (I) Determination motivated acts of infringement, (ii) rules or standards provide for the imposition of sanctions (III) The determination of the penalty. Thus, the sanction issued in the particular case is realized in a fine, it can be challenged through an appeal for reconsideration, which based on a new instrumental test distort the allocation for administration. Then, if reconsideration is dismissed, you can still appeal the contested appeal against the decision rejecting the first appeal. With the decision that the appeal should have been exhausted administratively.

In the event that exhausting administrative remedies be continued with the illegal collection of the penalty imposed under the services listed, then it is possible to use in court of the following defenses: (i) Review of Legality, which is responsible start questioning the enforced collection procedure, and (II) of Administrative Action, which questions the resolution exhausting administrative remedies. Alternatively, in these cases might be further in the alternative the filing of a process under the Constitution to safeguard the right to due process. It is also possible to use the Institute of Competition and Intellectual Property (INDECOPI) for the declaration of illegality and / or unreasonableness of the measures imposed. Finally, it is possible to question the TUPAS by an action of unconstitutionality.