In August 2026, the National Electricity Agency (“ANEEL”) resumed the discussion on pole sharing between power distribution companies and telecommunications services. The matter is currently regulated by Joint Resolution No. 4 of December 16, 2014, issued jointly by ANEEL and the Brazilian National Telecommunications Agency (“ANATEL”), and it has been undergoing an update process since 2023. The new joint resolution depends on approval by both ANEEL and ANATEL. ANATEL completed its approval of the draft resolution in 2023, so that only ANEEL’s position is now awaited. Accordingly, this newsletter summarizes the main normative and regulatory developments since 2023 and analyzes in detail the principal aspects of the new regulation.
Decree No. 12,068/2024 and the assignment model
Decree No. 12,068 of June 20, 2024, which addresses the bidding and the extension of power distribution concessions, established, in its Article 16, that distribution concessionaires must assign to a separate legal entity the space in the distribution infrastructure, the occupation strips, and the attachment points of the poles of the overhead distribution networks intended for sharing with the telecommunications sector. Such assignment must be for consideration and cost-oriented, and the sharing shall be subject to commercial exploitation by means of a reference offer, in accordance with the joint regulation to be issued by ANEEL and ANATEL (currently under discussion). In addition, the assignee shall be subject to the applicable technical conditions, including those established by the assigning power distribution concessionaire, and to the rules for regularization of the occupation strip, and the coverage area may encompass localities with different economic attractiveness profiles.
The controversy between ANEEL and ANATEL
The interpretation of Article 16 of Decree No. 12,068/2024 gave rise to a divergence between ANEEL and ANATEL. ANATEL, as the regulator of the telecommunications sector, has sought to ensure adequate conditions of access to pole infrastructure for telecommunications service providers. As early as 2023, the Agency approved a draft joint resolution that contemplated the mandatory assignment of the commercial exploitation of the shareable pole infrastructure to third parties (the so-called “posteiros,” or pole operators). ANEEL, in turn, at its 40th Ordinary Public Meeting of 2025, approved a draft regulation that treated the assignment as optional, allowing the distributor to elect to exploit the infrastructure directly. In this context, Opinion No. 00004/2026/CONUNI/CGU/AGU, approved on March 6, 2026, by the Office of the Attorney General of the Union (“AGU”), consolidated the understanding that Article 16 of Decree No. 12,068/2024 establishes the mandatory assignment of the commercial exploitation of the shareable pole infrastructure, with the joint regulation between ANEEL and ANATEL, not yet issued, being responsible for governing the operational, technical, and economic aspects of the model. ANEEL, following the settlement of the controversy regarding Article 16, concluded that this understanding is incompatible with the draft approved by ANEEL that treated the assignment as optional, but is aligned with the text previously approved by ANATEL in 2023.
Accordingly, with respect to ANEEL, it is necessary to amend, in the draft approved in 2025, the articles that provide for the distributor’s discretion to assign the commercial exploitation, so as to reflect the mandatory nature of the assignment. Within the scope of ANATEL, the Agency raised specific concerns that must be incorporated into the draft approved in 2023. From the perspective of the telecommunications regulator, the main matters to be addressed are:
- concern regarding the technical qualification and requirements for the exercise of the infrastructure exploitation activity by third parties, so as to ensure the quality and safety of the telecommunications networks;
- what the regulatory oversight of the Agencies would be over this new agent, in principle unregulated, and how supervision would be exercised to ensure compliance with the obligations relating to the regulated sectors;
- the need to define the areas of operation of the infrastructure operator, covering regions with different economic attractiveness (as mentioned in Decree No. 12,068/2024);
- whether the distributor could be required to resume a third party’s service in the event of a compulsory assignment, upon the contractual termination of the activity by the third party due to inadequate provision of the service.
Next steps
In light of this scenario, the agencies agreed to move forward with the regulation of pole sharing between electricity distribution companies and telecommunications service providers, considering that:
- ANEEL would analyze the draft already approved by ANATEL in 2023, considering the AGU Opinion;
- negotiations would be initiated for joint regulation on the public call for the pole operator;
- the competitive procedure should consider attractive and less attractive areas jointly; and
- the pole operators would be subject to oversight by ANEEL.
On this basis, ANEEL’s technical areas identified two possible paths, with ANEEL’s Board of Directors deciding which is best to follow:
- ANEEL should amend the articles relating to the discretionary nature of the assignment, and ANATEL should incorporate the other points already agreed upon in the draft approved in 2023; or
- ANEEL should approve ANATEL’s text and the two agencies should jointly prepare a second Joint Resolution to address the other pending points.
Among the points of concern identified, the following stand out: the technical qualification of the pole operator, regulatory oversight, the definition of areas of operation, and the resumption of the service in the event of default.
In addition, the second phase of Public Consultation No. 73/2021, to gather additional input and contributions regarding the proposed methodology for defining the regulated price for the sharing of the attachment points of electricity poles, is to be initiated after the approval of the joint act that will address the public call, with an estimated duration of 60 days. At present, the administrative proceeding for the regulation of the matter within ANEEL has been assigned to Director Gentil Nogueira de Sá Júnior and awaits the Director’s analysis and evaluation and will subsequently be decided by the ANEEL Board of Directors.
Bill No. 3,220/2019 in the National Congress
In parallel with the administrative regulation, Bill No. 3,220/2019 is pending in the National Congress, having already been approved by the Senate and currently under the report of Federal Deputy Juscelino Filho. Unlike Decree No. 12,068/2024 and the AGU Opinion, the Bill does not provide for the mandatory nature of the assignment, requiring it only in the event that the distributor does not reorganize the poles on its own. However, the agencies agreed not to wait for the conclusion of the legislative process to move forward with the regulation of the matter.
Current situation and outlook
The regulatory scenario points to a convergence of the positions of ANEEL and ANATEL, driven by the binding AGU Opinion. It is expected that the new rapporteur at ANEEL will approve a text aligned with that already approved by ANATEL, giving effect to the joint resolution. Subsequently, the procedures for the public call for the pole operator should be defined and, thereafter, the pricing methodology by means of the second phase of Public Consultation No. 73/2021.