The increasing importance of NGA is evident, although it is undeniable that its development raises several questions in terms of the development of the electronic communications market, with emphasis on the promotion of sustained competition alongside the promotion of investment, ensuring conditions of non-discrimination and safeguarding conditions supporting info-inclusion.
In this context, ICP-ANACOM launched (in 2008) a public consultation on the regulatory approach to NGA, through which questions were put to the market and its various agents (including, operators, users and manufacturers) on a range of issues. In 2009, by determination of 18 February, ICP-ANACOM approved the public consultation report which combines the analysis of the various responses with a summary of the position of principle taken by this Authority, with the following key conclusions:
- the importance of vertical and horizontal barriers and the need to minimize or eliminate them;
- the importance of access to ducts according to conditions which are non-discriminatory and transparent, and the need to overcome problems that may arise in the context of such access (e.g. lack of available space and lack of economic viability in access to ducts);
- the continuity of business models based on LLU and their transition to NGA;
- the need to establish clear guidelines regarding regulation, subject in any case to the publication of the EC Recommendation on the regulatory approach to NGA.
As such, taking into account the principle of proportionality in the imposition of obligations, ICP-ANACOM deemed it appropriate to adopt a “phased” approach, possibly based on an analysis of broadband markets, in which, in addition to obligations of non-discrimination and transparency and obligations related to the transition of models based on LLU to NGA, the following conditions would apply:
- in competitive areas, only access to ducts is obligated, with improvements and equivalence of access, whereas other obligations are imposed (access to the own fibre or dark fibre) only where there is a lack of space in ducts. As a last resort, where there is agreement between the parties, and as an alternative to access to own fibre or dark fibre, the option of virtual access to the network may be taken;
- in non-competitive areas, in addition to access to ducts, access to own fibre or dark fibre is also imposed, as well as virtual access to the network (advanced bitstream).
In the context of promoting NGA investment - a strategic priority stemming from the publication of Council of Ministers Resolution no. 120/2008 of 30 July - ICP-ANACOM continued with the work already begun in 2008 as part of its mission of advising the Government, preparing legislation and other acts necessary to ensure access by all operators, according to conditions which are non-discriminatory, to the duct network and other relevant facilities for the installation of electronic communications networks and the elimination of barriers to the installation, in buildings, of optical solutions associated with next generation networks. These works also included the introduction of appropriate amendments to current technical regulations, namely the ITED manual and the creation of new ITUR technical specifications.
This process culminated in the publication of Decree-Law no. 123/2009 of 21 May which approved the legal regime governing construction, access and installation of electronic communications networks and infrastructure and construction of telecommunications infrastructure in housing developments, urban settlements and concentrations of buildings, as well as in the approval of Law no. 32/2009 of 9 July and Decree-Law no. 258/2009 of 25 September.
This regime, governed by the general principles of competition, open access, non-discrimination, efficiency and transparency, is aimed at promoting the construction, installation and access to infrastructure suitable for the accommodation of electronic communications networks - with an approach based on technological neutrality - with respect to the property of public entities. This covers not only entities of the State, Autonomous Regions and local authorities, but also entities that are subject to the supervision or oversight thereof and which exercise administrative functions, regardless of their corporate nature, as well as public companies, concessionaires or other entities owning infrastructure installed in the public domain of the State, Autonomous Regions and local authorities.
As such, a rule is established of open and non-discriminatory access to ducts, poles and other installations belonging to entities which, while operating in other sectors, are in possession of duct networks of significant importance. With the amendments introduced by Decree-Law no. 258/2009, this regime is extended to cover electronic communications undertakings as well as to the entities in possession of infrastructure which is suitable for housing electronic communications networks for use by said undertakings, without prejudice to the regime laid down in ECL, in particular with regard to the concessionaire of the public telecommunications service.
This regime sets outs to remove or mitigate the barriers to the construction of infrastructure for the accommodation of electronic communications networks, with provision for rules which, likewise, facilitate the coordination of underground works, including with respect to the obligation to give prior notice of the execution of works which allow for the construction or infrastructure suitable for the accommodation of electronic communications networks and the obligation to allow other companies of this sector to associate themselves with this intervention.
Another important issue is the harmonization of procedures, especially in the relationship between operators and local authorities, which is an issue of unquestionable importance in removing uncertainties and barriers to the installation of infrastructure suitable for accommodating next generation networks. To this extent, it is established that the construction of infrastructure which is suited to accommodation of electronic communications networks is subject to the procedure of prior notification to the city council pursuant to the legal regime governing urban development and building construction.
With regard to access to infrastructure, this legislation contains a number of provisions designed to ensure open access to existing and planned infrastructure which, according to its characteristics, is suitable for the accommodation of electronic communications networks.
This right is limited only where the infrastructure is unsuited to the accommodation of communications networks, where the use of infrastructure impedes the primary purpose for which it was created, when there is implication of breach of public service obligations assumed by the entities concerned or when there is no available space in the ducts concerned due to their state of occupancy whereas it may be subject to compliance with the technical and safety standards established by the entities in possession of the infrastructure or of the domain in which the infrastructure is located. Access to applicable infrastructure shall be provided on terms of equality, transparency and non-discrimination, subject to remuneration conditions which are orientated to cost.
Finally, for the first time, the legal regime applicable to ITUR was defined and the regime applicable to ITED was established, which in this context constitutes a development of the framework set forth by the previous Decree-Law no. 59/2000 of 19 April, now repealed.
On 14 December 2009, through Notice no. 22358/2009, published in Diário da República (Official Journal) no. 240, 2nd series, of 14 December, the new ITED and ITUR were published, as approved by ICP-ANACOM on 25 November 2009 and as available on this Authority’s website.
Also in the context of ITED / ITUR infrastructure, through various determinations in 2009, ICP-ANACOM approved new models of declarations of planning and execution responsibility, as well as the procedures for the evaluation of this infrastructure and the registration and renewal of training providers.
It is also noted that, by determination of 18 March 2009, ICP-ANACOM approved the conclusions of the public consultation on the development of a system for registering electronic communications infrastructure (which was launched in September 2007) and the respective report.
Meanwhile, pursuant to the new regime applicable to the construction of and access to and deployment of electronic communications infrastructure, this Authority is responsible for the conception, management and maintenance of a Centralized Information System (CIS). The CIS is a key instrument to ensure open and efficient access by all electronic communications companies to infrastructure suitable for the accommodation of the respective networks, based on principles of information sharing and reciprocity. The system is accessible to entities to ensure compliance with the obligations related to the information included therein.
By determination of 16 December, 2009, ICP-ANACOM approved the public consultation document on the format to be used for the provision of elements in the CIS.
It is noted that, in order to ensure territorial cohesion and to uphold equality of opportunity, in 2009 the Government decided to launch five Public Tenders for the construction, installation, financing, operation and maintenance of NGA, with co-financing, with the aim of addressing possible market failures in 140 municipalities, divided into five regions (the Centre, Alentejo and Algarve, North, Madeira and the Azores). The municipalities covered in each of these areas are those not on the coaxial cable network and without co-located operators and when all the parishes comprising the municipality are classified as rural by the European Agricultural Fund for Rural Development (EAFRD) 1.
Municipalities in the tender | Figure 1
In accordance with the Tender Specifications, each of the tenders will have to ensure achievement of minimum coverage of 50 % of the population and a minimum rate of 40 Mbps 2 per end-user, within a maximum period of twenty--four months, in the geographic area covered by each of the municipalities covered by the tender.
Each high-speed network shall be operated as an open network, whereby it must be ensured that, for a period of twenty years, there is a wholesale offer available which provides all operators and providers of electronic communications services interested in the use of such networks with access thereto for the provision of services to end-users.
The instruction of these tenders is incumbent on ICP-ANACOM, which shall also appoint the respective tender panel, to whom the technical services of this Authority will provide assistance in the analysis and appraisal of the proposals presented.
Furthermore, pursuant to these tenders, during 2009, ICP-ANACOM provided assistance to the Government in many aspects, including in the assessment of measures designed to check compatibility with the guidelines published by the EC on the provision of State aid for the rapid deployment of broadband networks.
The decisions to award these tenders have been taken in 2010.
1 This latter condition applies only to the mainland, since there is no classification for the autonomous regions.
2 Megabit per second (million bits per second).
