3. General consultation procedure pursuant to article 8 of the Electronic Communications Law
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Author: AnacomTitle: "3. General consultation procedure pursuant to article 8 of the Electronic Communications Law"
Published: 25.02.2004
URL: http://www.anacom.pt/render.jsp?contentId=163861
View: 08.09.2010
a) Measures object of the procedure
ANACOM should promote the general consultation procedure whenever they wish to adopt measures with a significant impact in the relevant market.
The Electronic Communications Law identifies, in some cases, the measures which adoption compulsorily requires the use of the general consultation procedure, which are as follows:
- Change of the conditions, rights and procedures applicable to the exercise of the activity (article 20, no. 2);
- Limitation of the number of rights to use frequencies [article 31, no. 3, subsection a)];
- Allocation of rights to use numbers with an exceptional economic value through competing or comparative selection procedures (article 33, no. 4);
- Definition of quality of service parameters (article 40, no.2);
- Release of the obligation to offer additional resources (article 53, no. 2);
- Definition of the necessary rules to perform portability (article 54, no. 5);
- Definition of the relevant markets of products and services, determination of a relevant market as effectively competing or not, declaration of the companies with significant market power in the relevant markets and imposition, maintenance, change or elimination of obligations to the companies with or without significant market power (article 56 and 57, paragraph 1);
- Definition of the necessary rules to execute selection or pre-selection (article 84, no. 4);
- Definition of the obligations pertaining to the universal service providers applicable to the offer of public telephones (article 90, no. 1);
- Definition of the terms and conditions of the specific offers for people with disability (article 91, no. 3);
- Fixation of the performance objectives applicable to the several universal service obligations (article 92, no. 5).
In all other cases, the qualification will have to be made randomly by the regulator – that is, it is the responsibility of ANACOM to decide case by case if the general consultation procedure should be followed, which requires of course integration of the concept of significant impact in the relevant market regarding the specific situation.
The Law exempts from the general consultation procedure all urgent measures, that is, whenever it is required an urgent action to safeguard competition or protect the interests of users. These measures can only be adopted under exceptional circumstances and should be immediate, proportional and provisional.
b) Interested parties
In the general consultation procedure, the meaning of interested parties differs from the one contained in the CPA, used for purposes of previous hearing. It is actually a more comprehensive concept, whereby any interest regarding the measure to be adopted may be at stake, not requiring the existence of a subjective right or interest legally protected within the decisions that will be or may be taken in the administrative procedure.
Thus, the draft measure is made available in the website of ANACOM, whereby any person or entity is entitled to give an opinion or to make comments or suggestions thereto.
c) Deadline
A deadline for the reception of the replies is established in each consultation procedure, which cannot be lower than 20 working days.
It is the responsibility of the regulator to define, for each case, the duration of the consultation, taking into account several factors, namely:
- urgency of the matter in question;
- complexity of the subjects contained in the consultation;
- existence of former consultations about the same matter or related to the same;
- amount of replies expected for each consultation;
- compatibleness with other legally fixed deadlines.
d) Availability of the draft measure and submittal of replies to consultation
ANACOM makes available the draft measure in its website.
If deemed convenient, the draft decision may enclose specific questions.
The replies, comments and suggestions may be sent to ANACOM by any means - letter, fax, e-mail – provided that in writing. ANACOM may indicate its preference to receive the replies by e-mail.
Each consultation will state the contact for sending the replies.
ANACOM discloses, usually in its website, the replies received, except for any confidential piece of information, if any, which must clearly be identified by the person who sent it.
Finally, ANACOM analyses all the replies and discloses a final document with a reference to all received replies as well as a global evaluation with the understanding if this authority about the same.
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