The Full Bench of the Supreme Court of Justice, with magistrate María Cristina Chen Stanziola as the opinion author, declared on July 5, 2024 that Article 4 of Executive Decree No. 143 of September 29, 2006 is not unconstitutional. That decree adopted the consolidated text of Law 26 of January 29, 1996, as amended by Decree-Law 10 of February 22, 2006, which reorganized the structure and powers of the Public Services Regulatory Authority — now the National Authority for Public Services (ASEP). The ruling was issued on two consolidated challenges filed in 2022.

The contested provision establishes that the Authority exercises the power to regulate and supervise public services including potable water, sewerage, electricity, telecommunications, radio, television, and natural gas transmission, and provides that the management of concessionaires providing those services shall not be subject to any precautionary measure, nor shall the assets inherent to the provision of telecommunications, radio, and television services. The challengers argued that this precautionary immunity constituted a special privilege in favor of radio and television concessionaires, in violation of articles 19 and 20 of the Constitution, which enshrine equality before the law and the prohibition of discrimination.

The Full Bench rejected the claim. The court reasoned that radio, television, and telecommunications concessionaires operate under a qualitatively different legal regime from print or digital media: they exploit frequencies of the radio spectrum, which are state property, are subject to ASEP's supervision and regulation, and must guarantee the continuous and uninterrupted provision of services of public interest recognized in article 259 of the Constitution. The print press, by contrast, is a private activity that requires no concession and is not subject to sectoral regulation.

The Attorney General of the Administration, in Opinions No. 1502 and No. 1570 of September 2022, supported the constitutionality of the provision under the principle of conforming interpretation, suggesting that precautionary protection could be extended to print and digital media. The Full Bench, however, grounded its decision directly on the distinct nature of the regulatory regimes, citing Inter-American Court of Human Rights case law on equality: there is no discrimination when differential treatment responds to substantially different factual circumstances and is proportionate to the objectives of the provision.

The ruling delimits the scope of the equality principle in the economic regulation of concessioned public services and confirms the validity of the regulatory framework centralized in ASEP for the electricity, telecommunications, radio, television, and water sectors. For industry operators, the decision clarifies that protection against precautionary measures — provided as a guarantee of service continuity — does not create an unconstitutional privilege but rather a justified distinction rooted in the special status of regulated public service concessionaires.