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It is a war without quarter and the case is just beginning. A few hours after the July 24 National Consumer Service (Sernac) announce the filing of a class action lawsuit against VTR due to poor quality of internet service in the midst of a pandemic, the subsidiary of Global Freedom sent a press release regretting the legal action. One month and nine days later, the company he raised the tone of the discussion in court and accused suffering a “popular trial”, warning a “herd effect” on social networks.
For Sernac, in times of pandemic VTR has committed a series of failures in the provision of the internet service, such as “constant intermittences”; “Non-compliance with the contracted navigation levels, both in the minimum and maximum levels, as well as deficiencies in its customer service and technical service”. According to the authority, “only from March to June, it received more than 11 thousand complaints against VTR, which represents an increase of almost 270%, the majority due to signal problems in Internet services.”
Doubly, last Friday and later on Saturday, VTR -represented by lawyers Nicole takes and Nicolás Ubilla, partners of FerradaNehme- presented two key briefs in the process. The first is an appeal for reconsideration against the August 5 resolution that declared Sernac’s claim admissible. While the second is his opposition to the precautionary measure that requested -on September 1- the authority to freeze the collection of internet plans that have been questioned by its users.
These are charges for services not provided -suspension, interruption or intermittence of the service- or poorly provided, with respect to the three internet plans incorporated in the demand and in VTR advertising, that is, the Mega 200 Plan; the Mega 500 Plan and, finally, the Mega 600 Plan. However, before acceding to the petition, the court requested to know the position of the defendant and instructed the Chilean Undersecretariat of Telecommunications (SUBTEL) to Report the number of claims made against VTR Comunicaciones SpA., corresponding to the fixed internet service, or home internet, from the period October 2019 to date.
Faced with the request, VTR launched a fierce opposition to Sernac’s request, even arguing that it could end in bankruptcy.
“Sernac does not even specify which clients the precautionary measure should benefit from. Despite claiming there are thousands of claims, a great majority of the total universe of VTR clients have not expressed disagreements with the services. In fact, VTR has not lost customers substantially during the pandemic, revealing that the complaints received are far from being massive or generalized, especially for a company that presented, as of March 2020, according to the data provided by Subtel, 1,331,835 customers subscribed to the internet service “, he maintained in a brief presented to the court last Saturday.
“The requested precautionary measure does not turn out to be provisional or instrumental, since, if it is decreed in the broad terms that Sernac requests it, it will end up being a resolution that makes the VTR operation unviable and condemns it to bankruptcy”, Assured the company. “The invitation that Sernac makes to deprive VTR of the income that it legally obtains in the exercise of a strongly regulated economic activity, would not only imply putting VTR (or any company with respect to which a similar measure is requested) at serious risk. ), but also incur in a kind of undue expropriation in prejudice of VTR, as well as an enrichment without cause for those who use the service for free”, He finished.
In addition, the measure -according to VTR- will produce a very serious consequence not only for the company, but also for the industry in general, since It does not determine which is the set of clients that your request would reach, nor the time range for which it is requested. In fact, it warns that if it is accessed, VTR could be prevented from collecting the fee from its subscribers for the internet service for six to eight years, a time that generally collective procedures such as the one initiated by the lawsuit last. “This, irreparably, would lead the company to a critical financial situation, with which it would be prevented from serving its thousands of clients, this time permanently”, he finished.
As a basis for the opposition, VTR attached a report prepared by Juan Carlos Marín González, professor of Procedural Law at the University of Chile and professor of Civil Law and General Theory of the Process at the Tecnológico de Monterrey (TEC). The expert concludes that “the measure is extremely harmful and invasive with respect to the defendant’s assets, without any benefit for the actor in return. The measure, therefore, does not comply with the principle of proportionality that our legislation provides in art. 298 of the CPC ”.
In this regard, Sernac replied: “The measure would be with respect to those who are not receiving the service, however, we will probably provide more information, and along the way it may undergo modificationss according to the progress of the process, as it has not yet been granted by the court. In any case, regardless of this, it does not affect the result of this trial for the consumer and the final objective ”.
“The lawsuit (of Sernac) seems to be based, as if this were a popular judgment, on a series of statements made on social networks against VTR, without them, individually or collectively considered, having sufficient merit to found the exercise of a collective action ”, VTR warned. This after on August 5, the court declared the claim admissible.
When Sernac was consulted on this point, he replied: “Any antecedent or discharge made by the company, must be part of the trial and must be evaluated by the court, so it is not for us to pronounce on it.” In addition, he reiterated the arguments presented in his application, such as that VTR users more than tripled their claims and that the company also leads the requests for the termination of the contract on the platform “Me Quiero Salir”, with more than 8,000 requests, confirming that it continues to have problems with service and with retention practices ”.
According to VTR, the Sernac demand is nothing more than a “Sum of references to alleged claims or citations to comments made by users of social networks”, which -to his understanding- “realize that the internet service is being provided by the provider with constant failures and deficiencies.” In his opinion, “the lawsuit does not contain a clear statement of the facts because it is based on a series of comments from social networks and websites that do not give a necessary account of any infraction or non-compliance ”.
At this point, VTR assured that “the lawsuit reproduces a series of tweets from users of the social network Twitter alluding to VTR, coming from accounts such as the deputy Renato Garin (@GarinDiputado) The Mario Aguilar placeholder image (@AguilarMario), among others, and refers to certain publications of other press media ”. Indeed, Sernac in his lawsuit not only cited the tweets of the parliamentarian and the former TVN journalist, but also the comment of the former Interior Minister of the first government of President Sebastián Piñera, Rodrigo Hinzpeter, who said that “VTR has a crappy service, disgraceful. Those who are thinking of hiring you, DO NOT do it! You will be disappointed! ”.
For VTR, Sernac is limited to “Reproduce a series of publications in the media, social networks and websites to immediately conclude tautologically that such publications would account for the alleged deficiencies in the internet access service”. In his opinion, “the application does not contain a clear statement of the facts and on what it is based, since such facts cannot correspond to a collection of statements made on websites or social networks, where it is not only unknown who or who would have made said statements (they correspond to non-individualized subjects and who are not part of this judgment), but also inasmuch as a herd effect develops, which includes the interest in gaining prominence through likes -like or heart signs-, insults and aggressiveness, all frequent and totally unpunished attitudes in digital media”, He finished.
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