2. Response provided by Cabovisão

2.1. By letter dated 16 March 2011 ¹, ICP-ANACOM notified Cabovisão of the request for dispute settlement submitted by EDA, and asked the company to assess the matter, having informed ² the claimant of this letter on the same date.

2.2. Cabovisão submitted its response on 1 April 2011 ³.

2.3. This operator deems that ICP-ANACOM is not competent to consider the request submitted by EDA, as such request does not concern a dispute on obligations arising from the electronic communications regulatory framework.

2.4. Cabovisão believes that, as results explicitly from ECL, the "obligation" in paragraph 4 of article 50, invoked by the claimant, is subject to rules that apply to the protection of personal data and privacy; consequently, in case of conflict between the latter and a supposed obligation to meet reasonable requests, the former take precedence.

2.5. Along the same lines, Cabovisão makes further reference to paragraph 5 of article 25 of the Universal Service Directive and to article 12 of Directive 2002/58/EC, concluding that the subject of the dispute should be clarified and resolved by data protection authorities, which are responsible for taking a decision on the legitimacy of data transmission, and later perhaps negotiated between the parties.

2.6. The respondent adds that EDA wishes to obtain from ICP-ANACOM specific actions which the Authority cannot perform, that is, the Authority is not entitled to force Cabovisão to conclude a contract for transmission of personal data, to define the scope and extent of data to be transmitted nor to determine the price due for the transmission.

2.7. As to the conclusion reached by EDA from the legal basis invoked to support its request (paragraph 4 of article 50 of ECL), Cabovisão declares that such provision does not impose on it an obligation to provide the claimant with access to its databases, and questions whether the purpose of the legislator was not to frame such obligation within the issue of the universal service.

2.8. In this context, Cabovisão refers that ECL is very clear by providing in paragraphs 1 and 2 of article 50 that the right of subscribers to be included in telephone directories and to access directory enquiry services concerns services comprised in the scope of the universal service, provided for in paragraph 4 of article 89.

2.9. The respondent states that it could be argued that the duty provided for in paragraph 4 of article 50 only arises insofar as the request concerns the provision of the referred services in the scope of the universal service, and that it is not clear that, outside that scope, an operator is bound to provide another operator, a potential competitor, with full access to its subscriber database.

2.10. For Cabovisão, such an obligation would be an unjustified interference in the private economic sphere of each operator, which competition law does not allow, as the issue does not concern an operator with dominant position.

2.11. The company also refers, out of curiosity, that there is nothing to prevent Belgian users from using Portuguese directory enquiry services, thus not jeopardising paragraph 3 of article 50 of ECL.

2.12. The company then concludes that the issue concerns not an obligation, but an option which operators must take in compliance with rules on protection of personal data and privacy.

2.13. Without prejudice, Cabovisão stresses that EDA's request is not reasonable and does not ensure any security as regards the processing of data, and as such, even if there was an obligation on its part, it should not have to meet it.

2.14. This is due to the fact that the request has not been remotely specified, is not transparent and fails to consider the issue of data security and potential universal access thereto.

2.15. Moreover, for access to the database, EDA demands to be charged only the costs resulting from the effective provision of such data to third parties, which in Cabovisão's perspective contributes to the unreasonableness of the request, as the operator would incur in significant costs with the necessary provision of information to all its clients and with the request for authorization to include their data on EDA's directories.

2.16. In this regard, Cabovisão refers that the invoked Judgement C-109/03 of the Court of Justice does not apply to this situation, as it was given in a dispute opposing an universal service provider and directory editor and two companies who wanted access to its subscriber database for the provision of competing directory edition services, falling on the provider a clear obligation to supply such information.

2.17. Lastly, the respondent alleges that it is not even authorized to transmit its subscribers' data, as it lacks their necessary clear and explicit consent for the purpose, as imposed by contracts for provision of electronic communications services concluded in compliance with article 48 of ECL.

2.18. Cabovisão clarifies that the authorization given by some of its subscribers concerns only the inclusion of their data in national directories.

2.19. In the light of the above, Cabovisão requests ICP-ANACOM to reject EDA's request for dispute resolution.

On the basis of facts described above, and given the requests made by EDA, the Management Board of ICP-ANACOM approved on 28 July 2011 a draft decision ruling as follows, in the scope of the administrative dispute resolution procedure provided for in article 10 of ECL:

1. To order Cabovisão, in response to the request made to it by EDA in January 2010 and in compliance with paragraph 4 of article 50 of ECL, to submit to EDA the conditions under which the company will provide relevant information on its subscribers for the purpose of provision of publicly available directory enquiry services and directories;

2. For the purpose of the preceding paragraph, the proposal to be presented must be reasonable, aim for the transmission of relevant information on Cabovisão' subscribers and observe the format and conditions under which data must be supplied, which must be fair, objective, cost-oriented and non-discriminatory;

3. To submit points 1 and 2 of this determination to the prior hearing of interested parties, under articles 100 and 101 of the Code of Administrative Procedure, setting for the purpose a 10 working-day-time-limit so that EDA and Cabovisão may assess the issue in writing if they so wish;

4. To submit this decision to BIPT, for the purposes of paragraph 2 of article 12 of ECL, setting for the purpose a 10 working-day-time-limit so that the Authority may assess the issue in writing if it so wishes;

5. To submit, in the scope of the cooperation duty provided for in article 7 of ECL and in article 8 of ICP-ANACOM's Statutes, this decision to the Comissão Nacional de Proteção de Dados (CNPD) - the National Commission for Data Protection - setting for the purpose a 10 working-day-time-limit so that it may assess the issue in writing if it so wishes.

Responses received in the scope of consultation carried out on the draft decision, as well as ICP-ANACOM's views thereon and grounds for options taken by the regulatory authority are covered in the Report on the Prior Hearing and other consultations, in annex hereto and which is deemed to be an integral part hereof.

 
¹ ANACOM-S026210/2011.
² ANACOM-S026213/2011.
³ Document 2011047040.