Final considerations

At the end of the 2007 Regulatory Report, three challenges were highlighted: the so called ''2006 review'' and the ensuing regulatory ''back and forth'' between National Regulatory Authorities and the European Commission - the ''spreading of broadband'' - with particular emphasis on mobile broadband in Portugal- and the "search for efficiency in the regulatory activity and its connection with the clear increase of dispute cases."

The most visible note from 2008 is the confirmation that these challenges continue to be faced and, perhaps, have even grown, while revealing twists and even new frameworks resulting from developments that have occurred in the meantime.

Indeed, the ''2006 Review'' is dragging on, and in 2008, despite all the work done both within the framework of the European Commission, European Parliament and even the Council of Ministers, and in the NRAs of various countries, and particularly in the European Regulators Group (ERG), many of the most controversial issues of the new Regulatory Framework that the Review is shaping - not the least of which is the suggestion of an (almost?) - European regulator - remain without conclusion, despite clear progress having been made.

This stagnation of discussions has meant the increased allocation of resources and especially of time, by ICP-ANACOM, which has always sought to maintain an active presence in all scenarios that have an impact on the implementation of decisions relevant to the final definition of the new regulatory framework.

This continued presence is subsequent to the diagnosis already made in the 2007 Report of Regulation, which noted that ''it is undeniable that the decisions at the European level will growingly condition national regulatory decisions. ICP ANACOM's presence and role intensified during 2007, as could not happen otherwise, and will not slow down in 2008.''

If something needs to be added to what was said at that time it is that this view has expanded over time, confirming that in 2009 the trend will not reverse before first strengthening.

Awareness of this fact (and to heighten this awareness, it is enough to remember that the refarming of the 900 MHZ band has been delayed due to the absence of European decision) suggests, if it does not require, that the organization of this Regulation Report will see changes in the near future, since an integrated vision of national regulatory challenges and responses is not possible outside the European Regulatory Framework, which is incompatible with the reference to the activities of ICP-ANACOM in respect of the European groups (IRG / ERG) - in addition to the expected evolution of the role of these groups - and increasingly in the RSPG, as merely international participation.

That is, these activities are becoming less a separate item on ICP-ANACOM's agenda and, increasingly, a determinant of that agenda.

On the second of the challenges mentioned above - the spread of broadband - in 2008 the problem not only deepened but expanded, acquiring new contours, which resulted in particular from the recognition of the separation of ZON from PT, with significant impact on the analysis of the relevant markets for broadband, and the advent of the deployment of next generation access networks. These developments, while extending the scope of broadband, exacerbates the problem of convergence - and the regulatory challenges it poses - given the constant development of mobile broadband offers, with some threat of a slowdown in Portugal, not due to any lack of demand, but rather the improvement of conditions for 3G coverage, which would clearly be helped by the completion of refarming.

Finally, the third point raised - increasing regulatory effectiveness and the increase in litigation - saw no major slowdown in 2008, starting to take on new contours that are in some ways a ''response'' to an observation made in the 2007 Regulation report that ''the search for competition in the electronic communications markets depends not only on appropriate regulation, but more on the guarantee that the established rules are followed in good faith by all market participants, which has not always happened.'' In fact certain operators have started to go beyond contesting mainly regulatory decisions, arguing that the strengthening of competition, as well as the other objectives of regulation, may be compromised, not by existing decisions, but by failures to guarantee compliance with existing rules.

In some way, and using a language in line with the issues of regulation that the financial crisis (economic and social) has raised, some market players argue for a need for greater supervision of compliance with existing rules rather than for changes to these rules.

If we add another voice to this clamour - that of the end-users of communications, whether electronic or postal, who, from a more restricted regulatory point of view, should be better accommodated from a perspective of regulation of behaviour (ex-post), but who, increasingly, is addressing ICP-ANACOM (and, more generally, the NRAs, with the European Commission assuming a catalytic role in respect of these requirements) we better understand how regulatory activity cannot be confined to the area limited by a rigid boundary within which there is only typical ex-ante regulatory action.

This is the fundamental reason that justifies the presence in this report of multiple actions of ICP-ANACOM in areas such as network security, the technical aspects of installation and maintenance of networks, consumer protection, supervision, litigation and the sanctioning of non-compliance.

This undoing of the rigid boundaries of ''classic'' ex ante regulation was very evident in 2008 and, without much doubt, points to a new path which demands particular care in the years ahead.

Two pressing situations in 2008 contributed significantly to this undoing: the role of the spectrum in the regulation and the effect of autonomous policy decisions on regulatory action over the short and long term.

As far as the spectrum is concerned, it appears increasingly clear that growing convergence will not ''accept'' a consistent regulatory approach that is disconnected from its management and, particularly, the spectrum implications of most relevant decisions of regulation: the digital dividend, mobile TV and mobile broadband, in all its aspects, are claiming their regulatory share.

Meanwhile, political agendas and schedules (whose legitimacy can never be questioned) sometimes interfere with the agenda of regulators and the planning of previously outlined work. In 2008, this was particularly visible in the launch of so-called e-initiatives (which, essentially, ended up promoting mobile broadband) and in the decisions of the Council of Ministers in the context of promoting investment in next generation access networks - NGA, which in practice ended up focusing on the development of fibre optic networks, which vision is certainly restrictive when measured against the truly broad and technologically neutral concept embodied by next generation access.

The natural requirement for participation in actions arising from the implementation of these policies creates new operational responsibilities for ICP-ANACOM, requiring a doubling of efforts: compatibility with the regulatory requirements that the NRA cannot and should not allow to be violated under any circumstances and the allocation of human resources with expertise in areas that blend with the regulatory expertise, putting pressure on the specific regulatory agenda, which requires, and naturally obliged, the adjustment of the programmed schedule.

In 2009 it will be these developments, primarily focused on NGA, on the furtherance of convergence and the growing ''merger'' of the various regulatory approaches, that will shape the regulatory challenges of the future.

To deal with this, ICP-ANACOM must have sufficient flexibility to recognize, first of all, that is not enough just to do what has been done so far and do it better. It will probably need to do something different which may require different standpoints. But it is still certainly necessary to seek to anticipate changes and, especially, respond to challenges, which must also be done with opportunity and determination.