Determination

In view of the analysis and considering that:

(a) Grupo PT is subject, in respect of the LLU, and following analysis of the market for wholesale (physical) network infrastructure access at a fixed location, inter alia, to obligations of:

- Access and use of specific network resources;

- Transparency in the publication of information, including reference offers;

- Non-discrimination in the provision of access and interconnection and in the respective disclosure of information;

(b)  In its regulatory approach, ICP-ANACOM is required to take utmost account of the common positions of the ERG, in particular the "ERG common position on best practice in wholesale unbundled Access (including shared Access) remedies imposed as a consequence of a position of significant market power in the relevant market - ERG (06) 70 Rev1", the "Report on ERG best practices on regulatory regimes in wholesale unbundled access and bitstream access" and the "Principles of implementation and best practice regarding LLU";

(c) ICP-ANACOM will conduct a periodic review of the wholesale offers in general and in particular the RUO;

(d) The principles of transparency and non-discrimination call for greater reliability and consistency of information provided pursuant to the RUO, which information shall be complete, clear and unambiguous;

(e) LLU beneficiaries require access to more information on matters which are essential to the development of their offer and which have a direct impact on investment decisions, especially in a phase of investment in NGA, whereby a balanced, transparent, efficient and predictable process can be ensured, eliminating barriers to the development of the broadband market and of competition;

(f) Access to accurate and appropriate information, especially information which enables the end-user to be clearly informed as to the services which can be provided, is essential to guarantee good experience in the contracting of services by end-users, benefiting the entire electronic communications sector;

(g) The responsibilities of ICP-ANACOM are to promote competition in the provision of electronic communications networks and services, to contribute to the development of the internal market of the European Union and to uphold the interests of citizens;

(h) Following the various interventions undertaken by ICP-ANACOM within the scope of the RUO, alternative operators have invested significantly in their own infrastructure, including at core network level and in co-location in PTC exchanges, thereby contributing to the development of innovative offers which are appealing to customers in a climate of greater competition and consequently contributing to the objectives of regulation as set out in Law;

(i) It is important to safeguard, within reasonable limits, the investments made by operators and to ensure continuity and profitability over the medium term, while respecting the principles of proportionality and intervening only as required to accomplish the intended objectives;

(j) Quality of service is an important issue which impacts the service provided to the end-user, whereby interruption to services should be particularly avoided and their rapid restoration should be ensured in the event of any such interruption, taking into account the requirements of the various services offered to end-customers; accordingly, there are grounds for regulatory intervention in this matter when differences in the negotiating power of the different parties prohibit the accomplishment of satisfactory objectives, and in particular where no change is seen in performance targets over the years;

(k) It is necessary to ensure consistency between the various available offers, i.e., among the conditions applied with respect to LLU, the "Rede ADSL PT" offer and the Universal Service, and also in order to promote sustained and efficient investment by all operators in the development of their networks and services and to promote greater competition in the markets;

(l) In compliance with the principle of non-discrimination, reasonable time limits should be established within the scope of a "Service Level Agreement" (SLA), which limits shall be sufficient, at a minimum, to enable LLU beneficiaries to compete with the offers of Grupo PT in the retail market and to satisfy the needs of different types of customers, especially through Premium and urgent services (requested on a case by case basis and payable per intervention);

(m) Any delay in the supply of services or in the restoration of services has a negative impact on the activities of the beneficiary operators, whereby mechanisms are required which deter failures to comply with the established targets;

(n) The amount of compensation due as a result of services which fall short of the agreed level shall be appropriate given the quality demand level required and shall be defined so that it acts as an incentive for the provider to meet the target levels of service, and it shall be determined according to the deviation from the established target and be associated with the affected loops.

(o) The time of access to exchanges in emergency situations is an issue which is particularly relevant to end-users and which must be revised to reduce and differentiate the deadlines associated with such access;

(p) The promotion of broadband penetration, through continued development of the LLU in areas of lower population density and/or more remote areas, reducing asymmetries between the services available in urban areas and in other areas, could be accomplished through a simplification and consequently, reduction in the costs incurred in the signal transport service;

(q) The RUO is already relatively stable, both in terms of processes and in terms of level of demand, whereby making the OSPs subject to the payment of compensation in the event of non-compliance with the targets established in forecast plans is disproportionate and may hamper the development of wholesale offers;

(r) There is a need to ensure the compatibility of the procedures followed in loop unbundling with portability with the procedures laid down in the Regulation amending Regulation No 58/2005;

(s) Enhanced efficiency of wholesale services, the elimination of unjustified barriers and the respective reduction in costs is important to ensure fair competition, with clear benefits for end-users;

(t) Agreement is required on procedures ensuring environmental conditions which are suitable for the maintenance of equipment co-located in the exchanges of PTC and of services supported on such equipment;

(u) Due to developments in technology, it is advisable to update the standards and technologies that can be supported over unbundled loops;

(v) Mechanisms should be established which minimize disruption to the end-user, especially with regard to the need for the end-user to be at home during the unbundling of non-active loops;

(w) In accordance with paragraph 1 of article 57 of Law No 5/2004 of 10 February, whenever decisions are to be taken which affect trade between Member States, the NRA shall make, by suitable means, the substantiated draft decision measure accessible to the European Commission and to the national regulatory authorities of other Member States, indicating any confidential information therein;

(x) Under the terms of Commission Recommendation 2008/850/EC of 15 October on notifications, time limits and consultations provided for in article 7 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002, with reference to a common regulatory framework for electronic communications networks and services ¹, the draft measures which amend the technical details of the obligations previously imposed and which have no appreciable impact on the market (for example, annual updates of costs and estimates in accounting models, deadlines for the presentation of reports, delivery deadlines) should be reported to the European Commission using the short notification form provided in Annex II to the above-mentioned recommendation;

(y) By determination of 05.08.2009, the Management Board of ICP-ANACOM decided to hold a prior hearing of interested parties on the draft determination that it proposed to adopt, whereas by decision of the Management Board of ICP-ANACOM, of 25.08.2009, ratified by determination of 02.09.2009, it was determined to launch a public consultation, in respect of which, the comments received, their analysis and reasoning of the decision is included in the "Report on the prior hearing and on the public consultation on the draft decision regarding amendments to the Reference Unbundling Offer";

the Management Board of ICP-ANACOM, pursuant to the powers set out in point b), e), f), h) and n) of paragraph 1 of article 6 of its Statutes, as approved by Decree-Law no 309/2001 of 7 December, in the exercise of its remit, as set out in points b) and g) of article 9 of the same Statutes, taking into account the regulatory objectives set out in paragraphs a) and c) of paragraph 1 of article 5 of Law No 5/2004 of 10 February and in execution of measures determined subsequent to the analysis of the market for wholesale (physical) network infrastructure access at a fixed location, determines the following:

1. PTC shall amend the RUO within 20 working days following notification of this determination, in consideration of the following:

D 1. PTC shall reproduce the normal and premium levels of quality of service provided for in the "Rede ADSL PT" offer in the RUO, which levels shall be operational and available to beneficiaries of the offer within 2 months from the date of notification of this determination. This 2 month period is extendable by up to a further 2 months with detailed justification and where accepted by ICP-ANACOM. Any differences between the additional charges applicable to the premium level in the RUO and those applicable under the "Rede ADSL PT" offer shall be duly justified in detail, including through a comparison between the costs of both offers and any additional activities or resources required of PTC in order to provide a similar level of quality.

D 2. PTC shall submit to ICP-ANACOM, within 30 working days, the conditions applicable to an urgent service, with targets at least equal to those of the premium service, but where the maximum time is applicable to 100% of the cases, payable per intervention, whereas detailed justification shall be provided to ICP-ANACOM with respect to the prices to be applied and to any limitations which PTC deems should be established with respect to the implementation of this service and possible ways of reducing the cost of implementing this solution.

D 3. PTC shall set out a procedure in the RUO which enables operators to indicate/change the level of quality to be applied to each loop, which procedure should be efficient and allow the point of time from which a determined level of quality service is activated or deactivated to be clearly identifiable. This procedure shall be at least as efficient as that provided for in the corresponding levels in the "Rede ADSL PT" wholesale offer, whereby a minimum execution period of 3 working days is established, along with a minimum period of application of 3 months.

The premium level may not be enacted for a loop that is faulty (i.e., in a process of fault resolution).

D 4. PTC should introduce a minimum target for service availability in the RUO of 99.90% for the loops connected to premium levels of quality of service. The minimum target is subject to the existence of a minimum total of unbundled loops of the same OSP with a premium SLA, to be defined, whereas PTC shall be required to provide grounds for the value of the minimum total to ICP-ANACOM.

D 5. PTC shall introduce compensation in the RUO for failure to comply with the average time limits for the repair of faults, on the following terms:

Average_Delay_x × Monthly_Fee_Loop_x × Number_Faults_x

Where:

Average_Delay_x - Corresponds to the difference in hours between the actual average time taken by PTC to repair faults and the average time to repair faults defined in the RUO for a particular set of loops with quality of service of the type x.

Loop_monthly_fee_x - Corresponds to the monthly fee, in euros, payable by the OSP for a loop that is included in the set of loops with quality of service type x.

Number_faults_x - Corresponds to the number of faults stemming from factors attributable to PTC occurring during the month being considered in the loops of type x.

D 6. PTC shall introduce compensation in the RUO for failures to comply with the maximum time limit allowed for the repair of faults on the following terms:

Delay_xi × Monthly_Fee_Loop_x

Where:

Delay_xi - Corresponds to the difference in hours between the time taken to repair faults in loop i, belonging to the set of loops with quality of service type x, and the maximum repair time for faults established in the RUO for loops with this contracted level of quality of service.

Loop_Monthly_fee_x - Corresponds to the monthly fee, in euros, payable by the OSP for a loop that is included in the set of loops with quality of service type x.

D 7. PTC shall introduce compensation in the RUO for failures to comply with the level of availability on the following terms:

F × Deviation_Target_x × MonthCharge_Loopset_x

Where:

F - Multiplying factor set at 2.

Deviation_Target_x - Corresponds to the difference between the level of availability accomplished and availability target established in the RUO for a particular set of loops with quality of service type x.

MonthCharge_Loopset_x - Corresponds to the monthly charge in euros, paid by the OSP for the loops which are included in the set of loops with quality of service type x.

D 8. PTC shall introduce the obligation into the RUO whereby it shall be bound to act, upon its own initiative, to pay compensation for failures to comply with the quality of service targets established, making payment no later than the end of the second month following the end of the six month period in question, subject to further re-evaluation and adjustment taking into account the values calculated by the OSPs.

D 9. PTC shall amend, in the RUO, the conditions for the payment of compensation for non-compliance with the established targets on the following terms:

-  In the event that an OSP sends PTC demand forecasts for the loops, pursuant to and with a level of reliability stipulated in the RUO, they will receive the compensation established in the RUO in full;

-  Otherwise, they shall receive 75% of the amount of compensation established in the RUO.

D 10. PTC shall include in the RUO, on an exchange by exchange basis, the maximum time limits for access to exchanges in emergency situations (between 2 and 6 consecutive hours) applicable to all exchanges where the beneficiaries of the offer have co-located equipment, whereas such information shall be provided in an Extranet with access limited to OSPs.

Emergency situations are considered situations in which it is evident that end-users are without service or that there is a degradation in the quality of service offered to the end-user.

D 11. PTC shall submit to ICP-ANACOM, upon publication of the RUO and in detail, grounds for the new emergency access times and any additional charge to be made payable.

D 12. PTC shall introduce compensation in the RUO for non-compliance with the time limits for access to exchanges in emergency situations as follows:

Delay_x × Monthly_Fee_Loop_x × No_Loops_Unbundled_x

Where:

Delay_x - Corresponds to the difference, in hours, between the time actually taken to grant access to exchange x and the maximum time limit for access in an emergency situation established in the RUO for this exchange x.

Monthly_Fee_Loop_x - Corresponds to the average monthly charge, in euros, payable by the OSP for unbundled loops in exchange x.

No_Loops_Unbundled_x - Corresponds to the number of unbundled loops of the OSP in question in exchange x.

D13. PTC shall include in the RUO the definition of the concept of AP and installation point (IP) in a detailed and clear manner, identifying the information available to beneficiaries of the RUO, through restricted access, within 2 months of notification of the final determination, for each AP:

- Its name and unique identification code;

- The address, post code and geographical coordinates of the first installation point (IP) associated with the AP, identifying the reference system;

- Whether the AP is primary or secondary and, if secondary, which main AP it depends on;

- The type (own or rented building, container or cabinet) and the feasibility of co-location (for cases already evaluated);

- Their validity (FTS, ADSL or both);

- The exchange area to which it belongs;

- Whether or not it has an MDF and if so, the name of the MDF.

D 14. In any information detailed by AP, PTC shall always identify the AP through a unique code.

D 15. Any AP, regardless of whether or not it is a primary AP, is eligible for local loop unbundling, whereby OSPs can be physically or remotely co-located at any AP, except if there are duly reasoned technical constraints, and may request the unbundling of loops.

D 16. PTC shall include provision in the RUO, with respect to the external cable connection of the remote co-location service, for a cable of adequate capacity to link the Secondary AP and the street cabinets.

D 17. PTC shall define in detail, in the RUO, the concepts of AP, MDF, remote unit and street cabinet, establishing the relationship between each one.

D 18. PTC shall provide information on the number of street cabinets, by AP.

D 19. All the information currently available and separated by MDF shall instead be separated by AP, and shall be updated and made available to beneficiaries of the offer within 3 months from the date of notification of the final determination. Such information shall be updated on a quarterly basis.

D 20. Taking into account the current framework of the RUO, information provided on the number of local loops in use, number of pairs in the distribution frame, number of pairs in operation and number of surplus lines must refer exclusively to metallic loops.

D 21. The "Information, MDF by MDF, on the numbers associated with the dependent RUs of a determined MDF", shall be replaced by "information, primary AP by AP, with respect to numbering associated with the secondary APs dependent on a determined primary AP".

D 22. PTC shall provide, upon request of beneficiaries, and within 3 months from the date of notification of the final decision, geo-referenced information on the coverage areas of the APs (via appropriate mapping, indicating the coordinates of the limit points or seven digit postcodes), opting for a solution that minimizes costs and presenting to ICP-ANACOM detailed justification for any costs incurred in the provision of this information.

D 23. PTC shall include provision in the RUO for the allocation of compensation for each occasion that incorrect information is provided on the numbering associated with a particular AP, where properly demonstrated, to a value of 76 euros. The information must be updated, at a minimum, on a quarterly basis, whereas any incorrect information that can be shown to result from changes occurring during this minimum quarterly period shall not be considered for the purposes of such compensation.

D 24. PTC shall make available to the beneficiaries of the RUO, through access to the wholesale portal, within 3 months from the date of notification of the final determination, the information currently available under the "Rede ADSL PT" offer with respect to the results, for a given loop, of theoretical ADSL/ADSL2+/M (speeds from 256 Kbps up to 24 Mbps) coverage tests, giving an indication of "viable”,” not viable" or "inconclusive".

D 25. PTC shall make available to the beneficiaries of the RUO through access to the wholesale portal, within 3 months from the date of notification of the final determination, information, for a given active loop, on its length and attenuation levels.

D 26. PTC shall revise the prices of the qualification tests and, upon publication of the revised RUO following this decision, shall submit to ICP-ANACOM the respective detailed reasoning describing in detail all relevant costs and shall further inform this Authority, with appropriate detail, about the procedures applicable under the "Rede ADSL PT" offer with regard to local loop tests, including qualification tests.

D 27.  In the case of relocation of loops for reasons attributable to PTC, and for the AP where there are operators co-located, PTC shall give minimum prior notice of:

- 12 months where the number of active loops to be relocated is less than 1/3 of the total active loops in the MDF;

- 36 months where the number of active loops to be relocated is more than 1/3 and less than 2/3 of the total number of active loops in this AP;

- 60 months where the number of active loops to be relocated exceeds 2/3 of the total number of active loops in this AP (including in the event that the AP itself is decommissioned, and being reduced to 36 months, if an equivalent access can be guaranteed.

D 28. Simultaneously to the provision of prior notice, as referred to in D 27, PTC shall submit an indication to the beneficiary operators of the RUO with respect to the possibility of retaining the services of local loop unbundling from the original exchange and shall further submit information which is relevant for the assessment of the economic viability of co-location for the new APs to which the loops are relocated, including:

- code and description of the originating AP,

- code and description of the new APs (with the location and coverage area properly geo-referenced) and/or of existing APs to which loops will be relocated,

- approximate information - with deviation of ± 15% - regarding the number of loops to be relocated from the original AP,

- approximate information - with deviation of ± 15% - about the number of loops for each destination AP and

- year in which relocation is due to take place.

Giving 2 months prior notice, PTC shall submit accurate information on the number of loops to be relocated to the destination AP and the respective numbering, indicating the date determined for the completion of the relocation.

D 29. Where there are firm intentions on the part of the operators to co-locate in a new AP, PT shall take the interest expressed into full account when scaling the AP, including in the design of any new ducts (guaranteeing at all times, the provision of dark fibre in the event that there is no space in the duct).

D 30. PTC shall agree with the beneficiaries of the RUO – presenting, for such purpose, a proposal within 4 months following the date of notification of the final determination - the general principles to be followed in planning and the technical conditions in case of any need to relocate equipment (already) co-located in exchanges and any migration of accesses/customers, subject to the intervention of this Authority in the event that no agreement between the parties can be reached. The specific conditions to be deployed in a given AP should follow the general principles and technical conditions agreed and established no later than 4 months prior to the date of equipment relocation.

D 31. Loops unbundled prior to relocation should not be relocated without checking for the possibility of alternative access (i.e. the express willingness of the end-user should prevail), unless there are severe impediments of a technical nature or in terms of network optimisation, which inhibit the unbundled loops from being maintained in the original AP and where grounds are provided, on a case by case basis, to the beneficiary operator and to ICP-ANACOM which may determine on such situations.

D 32. PTC shall, in respect of the process of unbundling of local loops with portability:

-  Reduce the maximum period for confirming the order and for scheduling the unbundling by the beneficiaries from 4 to 3 working days;

- Set out that the transfer of the loop shall occur during the period of the portability window agreed with the OSP and that the request for number portability shall be made at least 7 days in advance of the first option proposed for the window, whereas the remaining procedures laid down in Annex 7 of the RUO shall apply.

D 33. PTC shall remove any restrictions on the installation of the optical fibre of RUO beneficiaries by the technicians of these beneficiaries in the access cable tunnels to PTC exchanges and shall remove any restrictions on the use of technical chutes, allowing the optical fibre of the OSPs to be extended up to the co-location area, whereas PTC shall include the respective conditions and procedures in the RUO, submitting these to ICP-ANACOM and giving grounds for any additional pricing, upon the publication of the RUO.

D 34. PTC shall introduce into the RUO a service of connection to non-adjacent modules, irrespective of whether they are modules of the same or of different operators, presenting the respective reasoning for pricing to ICP-ANACOM.

D 35. Notwithstanding any agreement between the parties, PTC shall include conditions in the RUO applicable to open space climate control, in accordance with the following principles:

- The OSP (or various OSPs having similar requirements) shall give PTC indication of the improvement in environmental conditions that are to be provided on the site occupied by this OSP or group of OSPs;

- Within 20 working days, PTC shall submit a proposal including a comprehensive and detailed budget which is cost-orientated and shall submit the execution time forecast for the performance of the works;

- The OSP requesting the improvements shall decide, within a maximum period of 15 working days of receipt of the budget sent by PTC, whether to accept the proposed budget, which acceptance shall constitute a formal order;

- The OSP requesting the improvements will be responsible for making full payment to PTC for the works, whereas this OSP may decide to make an agreement with other OSPs in the same location to share the respective cost, which arrangement shall be performed directly between the OSPs without the involvement of PTC.

D 36. PTC shall include the possibility in the RUO of using, pursuant thereto, any technologies/platforms that conform to international standards defined within the scope of the ITU-T, ETSI and IEEE, except where there is technical impediment duly reasoned on a case by case basis, which impediment shall be notified to ICP-ANACOM within 20 working days following the request.

PTC shall take steps, within 60 days, to reach an agreement on a frequency plan for those technologies where, in the light of their demand and the level of interference that may be caused, there is justification, which plan shall be made to minimize possible interference with the simultaneous use of the other technologies defined within the scope of the ITU-T and shall be followed by all operators, including the companies of Grupo PT. In the absence of any agreement, ICP-ANACOM may intervene.

D 37. PTC shall unbundle non-active loops in the exchange and on the local network prior to or simultaneously to the intervention at the customer premises.

ICP-ANACOM recommends that the technician of PTC, or subcontracted personnel, notify the OSP, preferably 1 hour before travelling to the customer premises about said callout, and for this purpose use a freephone number provided by the OSP.

D 38. PTC shall include a simple and efficient mechanism in the RUO for rescheduling the unbundling of non-active loops in situations where the installation/unbundling did not take place, whether due to reasons attributable to PTC or due to reasons attributable to the OSP or end-user. Rescheduling due to the non-occurrence of unbundling is permitted where due to reasons attributable to the OSP or end-user, whereas no rescheduling limit is permitted with respect to the non-occurrence of unbundling due to reasons attributable to PTC. The deadline for performing the rescheduling, which should be concluded as soon as possible, is 5 working days.

D 39. PTC shall amend the time limit by which the OSPs are required to submit the test results to PTC from 10 working days to 15 working days, including also the possibility that OSPs submit test results within 15 working days following alteration from a level of service to another on a given loop.

D 40. Unless otherwise agreed, PTC shall accept the results of the tests carried out by the OSPs, provided that the DELT methodology is used, whereas no unjustified restriction may be imposed with respect to measurement methods, except in the case of duly justified objections.

D 41. PTC shall ensure, at a minimum, upon restoration of the loop subsequent to repair or maintenance operations, the levels notified by the OSPs when sending the test results or notified to the OSP upon unbundling, and shall further give notice of the measurements immediately after the repair of faults.

D 42. PTC shall provide detailed justification of the pricing presented, based on costs, describing in details the activities conducted, the execution times, the category of technicians executing them and respective hourly rate, as well as any associated material or software costs and any premise or estimate included, for consideration of possible cost allocation mechanisms.

2. To recommend that the technician of PTC, or subcontracted personnel, notify the OSP, preferably 1 hour before travelling to the customer premises about said callout, and for this purpose use a freephone number provided by the OSP.

3. To notify the European Commission, under the terms of paragraph 3 of article 57 of Law No 5/2004 of 10 February.

 
¹ See Commission Recommendation C(2008)5925, of 15 October 2008https://www.anacom.pt/render.jsp?contentId=735098.