By order of 15 June 2009, ratified by determination of 17 July 2009, ANACOM decided, in light of the legal regime set out by Decree-Law no. 63/2009 of 10 March, to publicly clarify a number of aspects related to the provision of value-added services based on message sending.

Analysis and clarification of issues raised by the application of the regime established in Decree-Law no. 177/99 of 21 May, as amended by Decree-Law no. 63/2009 of 10 March, for value-added services based on message sending

Decree-Law no. 63/2009 of 10 March amended Decree-Law no. 175/99 of 21 May, which regulates the advertising of audiotext services, and Decree-Law no. 177/99 of 21 May, which regulates access to and the provision of audiotext services, extending the regime governing these services to cover value-added services based on message sending.

This Decree-Law republishes Decree-Law no. 177/99 in annex.

Pursuant to this law, value-added services based on message sending are included within the scope of application of Decree-Laws nos. 175/99 and 177/99, whereby such services are governed by the general rules applicable to audiotext services and certain special rules which are aligned with the specifications of these services.

In view of the regime established with respect to value-added services based on message sending, it is important to examine and clarify a number of points raised as a result of its application.

I. Definition of value-added services based on message sending (article 1, paragraph 3 of Decree-Law no. 175/99 and article 2, paragraph 2 of Decree-Law no .177/99)

Value-added services based on message sending are:

• Information society services (distance services provided electronically, in return for payment or at least in the context of an economic activity in response to an individual request of the recipient);

• Provided through a message supported using electronic communications services;

• Which imply an immediate or delayed payment from the consumer of a value which is added to the price of the electronic communications service, in return for the provision of the transmitted contents, namely for the information service, entertainment service, or other.

The value added to the price of the electronic communications services, which is comprised by the definition of the service, should be determined by the specific tariff of each customer, given that this is the only way in which the consumer may be aware that the service is a value-added service.

II. Requirement for registration with ICP-ANACOM and the allocation of access dialling codes

The exercise of the activity of provider of value-added services based on message sending is subject to registration (article 3 of Decree-Law no. 177/99).

In accordance with the provisions of article 4 of Decree-Law No. 177/99, natural persons registered as sole traders or legal persons wishing to provide these services are required to register with ICP-ANACOM.

In light of the cited legal requirements, it is important to make it clear who can/must register with ICP-ANACOM as a provider of value-added services based on message sending.

The provision of this service presupposes the use of a platform which manages the service and sends the content using messages supported over electronic communications services.

Accordingly, any person who demonstrates possession of these technical tools, which are essential for the provision of the service, may apply for registration with ICP-ANACOM and for the allocation of rights to use numbers with the defined dialling codes. The entity to be registered may be the owner or only have the right to use the technical resources needed for the provision of the service.

As such registration and the allocation of rights to use numbers is permitted for entities, normally referred to as Aggregators or Brokers, which operate as intermediaries between the content "owners" and providers of support services, which provide their service management platforms.

In this respect, it is reiterated that it is possible to use the same number for different services/content which are encompassed within the same dialling code category, already allowed in the report of the public consultation on the adaptation of the NNP to the amendment of Decree-Law no. 177/99 of 21 May, determined by Decree-Law no. 63/2009 of 10 March ¹.

Providers of value-added services based on message sending, holding rights to use numbers, are entirely responsible for the supply of services, for the fulfilment of all obligations set out in Decree-Law no. 177/99, including compliance with the general conditions governing provision and shall ensure that the transmitted contents correspond to the detailed description of the service, as presented to ICP-ANACOM.

III. Items to be provided for the purposes of registration and allocations of rights to use numbers

For the purposes of registration, undertakings must submit the following items (Article 5, paragraph 2 of Decree-Law no. 177/99):

a) Express declaration which includes a detailed description of the service whose provision is proposed, for the purposes of allocating the respective access dialling code, in which the "owner" of the transmitted content must be identified;

b) General conditions governing provision of the services, including the total price of the service and indication as to whether the service is one of continuing provision or subscription, the minimum contract period, procedures for contract termination, the price for each message to be received and the periodic price payable;

c) Technical project with details of the equipment to be used, indicating the service management platform and the entity to which the platform belongs;

d) Indication of the provider(s) of support services.

Where service providers, subsequent to the allocation of rights to use numbers, combine new services/content under the same number, they shall send a detailed description of the service to ICP-ANACOM, along with the general conditions governing the provision of the new added service.

IV. Cost of SMS message to terminate the contract

ICP-ANACOM considers that no charge can be made for the message of added value sent for the purpose of terminating the contract for the provision of the subscription service.

As such, the legal loophole is filled with respect to the message sent for contract termination, when this procedure is used, applying by analogy the rule of paragraph 4 of article 9-A of Decree Law no 177/99, established for messages sent for contracting and confirmation of the request for the service,adopting for this message the same grounds for the regulation established in this rule.

V. Voting services, contests or other services which do not involve the sending of content

The law exempts voting services, contests or other services which do not involve the sending of content from the obligation of sending a message with information and request for confirmation of the requested service, as referenced in paragraph 1 of article 9-A.

Paragraph 1 of article 9-A applies to all other services which involve the sending of the service provider's content to the user.

Specifically, surveys, polls and services that are intended for the solicitation of donations, in which there is no transmission of content, are considered services which do not involve the sending of content.

For services covered in paragraph 5 of article. 9-A, the law also establishes that it the sending of the message whose content comprises notification of the result shall be free of charge.

In combination, in paragraphs 1 and 5 of article 9-A, it is concluded that the added value paid by the user can only be billed in advance in the case of voting services, contests or other services, which do not involve the sending of content. In all other services not covered in paragraph 5 of article. 9-A, the additional value can only be charged after the user has been sent the message referred to in paragraph 1 of Article 9-A and after the message giving confirmation of the request for the service has been received.

VI. Subscription Service over the Internet

The scope of the regime applicable to value-added services based on message sending is not defined according to the mode of subscription.
 
Accordingly, the sending of information and the request for confirmation of the request for the service under paragraph 1 of article 9-A is binding also in cases where the subscription of the service is carried out over the Internet, provided that the service involves the sending of content.

It is also noted that the message referred to in paragraph 1 of article. 9-A must be supported over the electronic communications service that is used for its provision.

VII. Barring access to value-added services based on message sending

Requests for barring access to value-added services based on message sending must be sent by the consumer to the provider which provides that consumer with the electronic communications service through which access to the message service is given, regardless of whether or not there is a contract between the provider and provider of value-added services, and irrespective of any termination.

Lisbon, 15 June 2009.

 
¹ Determination of 3 June 2009 - Adaptation of the NNP to message-based valued added services (final decision).http://www.anacom.pt/render.jsp?contentId=957278