Telecommunications Regulation. PORTUGAL Morais Leitão Galvão Teles Soares Silva

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1 Telecommunications Regulation PORTUGAL Morais Leitão Galvão Teles Soares Silva CONTACT INFORMATION António Lobo Xavier Morais Leitão Galvão Teles Soares Silva Rua Castilho, Lisboa Portugal (+351) What is the name and nature of the regulatory body(ies) in your jurisdiction? To which bodies (if any) are decisions appealed? The Portuguese regulatory authority that specifically regulates and supervised the electronic communication sector is ICP-ANACOM, an independent public body, in accordance with its statutes. Its decisions concerning regulatory matters may be appealed from before the Administrative Courts. Appeals from decisions imposing fines (misdemeanours) may be appealed to the judicial courts. 2. Has your jurisdiction adopted the WTO Basic Telecommunications Agreement? If yes, with what exceptions, if any? The WTO Basic Telecommunications Agreement was adopted by the European Community (the European Commission representing the Member States, including Portugal). No exceptions were submitted on behalf of the Portuguese State. 3. Are operators in your jurisdiction privately or publicly/state owned?

2 Operators in Portugal are privately owned. However, the Portuguese State holds a golden share in Portugal Telecom, the previously State-owned incumbent. 4. What are the primary differences between the regulation of wire line, wireless, satellite, cable and VoIP providers? In general, wireline, wireless, satellite, cable and VoIP providers are not subject to specific regulatory requirements regarding their activity or entry into the market (although registration with ICP-ANACOM is required to initiate any such business activity). All service providers requiring the use of spectrum (radio frequencies) must observe the national frequency plan. Wireless service providers (including mobile communications operators) must apply for and obtain individual rights to use spectrum. Providers of (fixed or mobile) voice services must obtain the necessary numbering resources. In addition, compliance with general statutory obligations by all operators and service providers is monitored by ICP-ANACOM. 5. Are broadcasters regulated separately from telecoms? In what concerns the granting of licences and authorisations, as well as other aspects related to their activity, broadcasters are subject to a specific regulatory authority for the media sector: ERC - Entidade Reguladora para a Comunicação Social. In what concerns the use of spectrum, broadcasters and telecoms operators are regulated by ICP-ANACOM. 6. How are satellite earth stations and submarine cable landings regulated? Rules specifically governing satellite earth stations are related to the radioelectric licences to operate the stations and the municipal authorisations to install them (in accordance with the general legal regimes on radioelectric stations established in Decree-Law No. 151-A/2000, of 20 July, and Decree-Law No. 11/2003, of 18 January). Access to submarine cable landings controlled by the incumbent is regulated in the context of the obligations imposed on Portugal Telecom in respect of its wholesale leased lines reference offer. These obligations, resulting from a resolution issued by ICP-ANACOM on the retail and wholesale leased lines markets adopted on 8 July 2005, include the following: access; publication of a reference offer; SLA's; cost-oriented prices;

3 services to be made available separately (e.g. access to submarine cable landing stations, access to leased line segments, etc.). 7. How is the radio spectrum generally regulated? In general, the radio frequency bandwidths allocated to each type of service are established in the national frequency plan (in accordance with applicable international rules, such as UIT norms, EC Directives, etc.). Operators must apply and obtain the corresponding individual rights of use. In the case of scarce radio frequencies, the individual usage rights are granted by means of public and transparent procedures, such as public tenders and auctions. 8. Are any operators granted exclusivity? In the current liberalised regulatory framework, no operators are granted exclusivity regarding the provision of services or the operation of networks. Universal service provision is granted by means of a public tender procedure under which more than one operator may be designated (for the entire national territory or on a regional basis). Currently, Portugal Telecom is the sole designated Universal Service Provider in Portugal. Because it was directly designated by the Government without a public procedure the European Commission has initiated infringement proceedings against the Portuguese State. Nevertheless, ICP-ANACOM has already concluded a public consultation in 2008 on the terms and scope of the foreseen public tender procedure. 9. Are anti-competitive practices subject to regulation or general competition (e.g., antitrust) laws? Anti-competitive practices are governed by general competition laws and monitored by the Portuguese Competition Authority. Where ex ante regulatory obligations are imposed the applicability of competition laws is not precluded. 10. What services have been liberalized or designated as competitive services? All services are liberalized. 11. Are there regulated tariffs or price lists? If so, for what types of services? Retail prices are not regulated, with the following exceptions: some services provided through non geographic numbers (interactive and similar services);

4 retail leased line services provided by the incumbent. However, due to certain price control obligations imposed by ICP-ANACOM at the wholesale level, there are some indirect constraints on retail tariffs. In what concerns wholesale services provided by the incumbent, the following have regulated prices: Access to ducts and other network infra-structure Leased lines LLU (local loop unbundling) Bitstream broadband access Line rental Broadcasting (delivery of television content) In addition, interconnection wholesale rates (fixed and mobile calls on all networks) are also regulated. 12. Are there restrictions on foreign investment in any types of communications companies? If so, what are the restrictions? There are no restrictions on foreign investment. However, in accordance with the form approved by ICP-ANACOM for the notification of new commercial offers, operators or service providers must be companies duly incorporated under Portuguese law. 13. What are the approval processes for mergers and acquisitions? Do these vary by type of operator? Mergers and acquisitions are subject to the general merger control rules enforced by the Portuguese Competition Authority. In the context of a merger control procedure involving companies in a regulated sector, the Competition Authority must obtain a prior, non binding, opinion from the sector regulator (ICP-ANACOM in this case). 14. Is interconnection between carriers mandatory? 15. Are interconnection fees/rates regulated? Fixed call interconnection rates are regulated through an ICP-ANACOM resolution dated 26 October 2005.

5 Mobile call interconnection rates are regulated through two other ICP-ANACOM resolutions dated 25 February 2005 and 2 July Must carriers make available network components to competitors? If so, what are fees/prices based on cost, or market rates? Yes, under the terms mentioned above in question 11. Fees/prices are cost-based. 17. Is there an obligation to serve all customers? If yes, is there a fund to subsidize eligible carriers? Which carriers contribute to the fund? Which carriers are eligible to receive these funds? Are broadband services subsidized or otherwise promoted through tax or other incentives? Yes, under Universal Service obligations. The Portuguese Electronic Communications Law (Law No. 5/2004, of 10 February, as amended) provides for compensation of the liquid costs associated to the provision of Universal Service. This compensation may be financed directly by the State or by a fund to which all operators contribute. To date, this system has not been implemented. Broadband services are not subsidised or included within the scope of Universal Service obligations. Although no tax or other incentives are made available directly to broadband service providers, the purchase of PCs by consumers is eligible for a tax benefit. Other programs for subsidized PCs to students at all levels (in some cases with broadband service necessarily associated) have also been implemented. 18. Are there mandatory requirements to customer agreements (subscriptions, etc.)? There is a general law in Portugal applicable to standard contract terms made available to consumers (Decree-Law No. 446/85, of 25 October, as amended). Furthermore Portuguese law contains a number of protection provisions applicable to certain essential services, amongst which are the electronic communication services. The Portuguese Electronic Communications Law (Law No. 5/2004, of 10 February, as amended) also provides for minimum content to be found in standard customer agreements. These are applicable to all agreements in the case of telephone services and to individual customers (consumers) in the case of all electronic communication services. In addition, the standard contract terms regarding provision of electronic communications services are subject to prior approval by ICP-ANACOM (Within approval process, ICP-ANACOM consults the consumer protection authority -

6 Instituto do Consumidor) ICP-ANACOM has also issued guidelines on the advised content of these agreements. 19. Are there any general or telecommunication specific requirements as to data retention? Yes, as established by Law No. 32/2008, of 17 July. 20. Is number portability mandatory? If so, for which types of carriers (e.g., wireline, wireless, voice over internet protocol)? Number portability is mandatory for all types of operators. 21. Is equal access dialing selection mandatory? If yes, for which types of carriers? Yes, number pre-selection is mandatory for fixed voice call operators. 22. Is access or other contributions ( ADCs ) required of new entrants? Yes, all operators are required by law to give access and interconnection to their networks. 23. Is VoIP regulated? If yes, to what extent? VoIP regulation is limited to the specification of a range of numbers in the National Numbering Plan. 24. Are any major changes to telecommunications laws expected in the near future? The new EC regulatory framework for the communications sector, which will replace the current framework (resulting mainly from Directives 2002/19/CE, 2002/20/CE, 2002/21/CE and 2002/22/CE, adopted by the European Parliament and Council, of 7 March 2002, and Directive 2002/77/EC, adopted by the Commission, of 16 September 2002) is expected to be approved by Subsequently, the Portuguese State must adapt the national legislation accordingly. A recent development that should also be emphasized is that of the approval of a legal regime concerning the building and access to physical infra-structures for the installation of electronic communications networks (Decree-Law No. 123/2009, of 21 May).

7 25. Is resale of telecom services permitted? If yes, is this activity regulated? What is the process to become a reseller? Are foreign companies permitted to be resellers? Resale of telecom services is not regulated and there is no specific process for becoming a reseller since nothing distinguishes them from other operators. No prior administrative approval is required for any electronic communications operators/service providers to initiate activity. Operators/service providers must simply notify ICP-ANACOM in advance that they are going to provide services or networks and, in addition, comply with any general legal requirements (this is designated as the 'general authorisation regime'). Foreign companies are permitted to be resellers. In accordance with the form approved by ICP-ANACOM for the notification of new commercial offers, foreign resellers must have a duly incorporated company under Portuguese law.