Framework

Since the liberalisation of the electronic communications sector, ICP-ANACOM has been working towards the establishment of effective and sustainable competition, making use, in particular, of wholesale access to the infrastructure of the operator with significant market power (SMP). The obligation to provide access to the network has been complemented by other associated obligations, including the obligation of non-discrimination and of cost orientation of prices. It is this context that formed the framework for measures put forward by ICP-ANACOM with regard to access by alternative operators to the local loop.

Portugal was a pioneer, particularly at a European level, in making the ducts of the incumbent operator available for the deployment of competing infrastructure, with a view to establishing sustained competition in the electronic communications market for the benefit of consumers. It is a journey that had its first political expression in the wording of the public telecommunications service concession contract (article 7 of its bases), reinforced by Law no. 5/2004 of 10 February (article 26.) and was subsequently reflected at a regulatory level in ICP-ANACOM decision of 17.07.2004. This decision led to the provision of a reference ducts access offer (RDAO), which took on particular importance in terms of the availability of information on the routes and occupation of ducts.

The pioneering nature of the RDAO proved equally prominent in terms of its importance, insofar as it assumes, by its size and capillarity, a key role in achieving the political objective enshrined in Council of Ministers Resolution no. 120/2008 of 30 July: to determine the promotion of investment in next generation networks (NGN) as a national strategic priority. Furthermore, by enabling electronic communications companies to gain access to ducts and associated infrastructure with a view to housing the electronic communications networks of these companies, the RDAO acquired a key role in the development and installation of these networks. This importance also stems from the dynamics of the regulatory process itself, which has moved towards a position in which significant parts of the market are viewed as competitive, increasing the need to ensure expeditious, equivalent and efficient means for deploying new infrastructure.

In this context, the conditions governing access to and use of ducts and associated infrastructure of PT Comunicações, S.A. (PTC) in the context of the RDAO ¹ are determinant if the process of deploying optical fibre access networks and the development of services supported on such networks is to proceed in a competitive manner; meanwhile note should be made of the imposition of measures which ensure enhanced equivalence and equality of access between the regulated operator and the beneficiary operators.

It is also in this respect, in the context of building the internal market, that the European Commission (EC) saw fit to address the issue of the regulatory approach to Next Generation Access Networks (NGA).

Accordingly, at the current juncture in the evolution of electronic communications networks, with a view to the provision of speeds above those available on the access networks supported over traditional copper pairs, the EC launched a consultation ² on a first version of the Recommendation on the regulatory approach to NGA in September 2008 and published on 12/06/2009 ³ published a second version (with a second public consultation) of the recommendation. On 28.04.2010 the EC requested an opinion from the Body of European Regulators for Electronic Communications (BEREC) ⁴ on a new draft recommendation. The Recommendation was published on 20.09.2010 ⁵.

This Recommendation, as anticipated, sets out the need to guarantee non-discriminatory access, particularly, to the ducts of the SMP operator. It also states that the goal of ensuring sustainable competition – a level playing field - can be pursued through provision of equivalent access by the SMP operator to the passive elements of its network ⁶ (principle of equivalence).

Broadly speaking, this principle of equivalence means that the SMP operator is required to apply the same processes and procedures when responding to requests from their own internal services and subsidiary companies as when responding to requests from third parties. Otherwise, the SMP operator would find itself in a position of competitive advantage over other operators. Without prejudice to the measures included in this decision, a more comprehensive analysis of the principle of equivalence of access will be performed subsequently, in the light of this Recommendation.

Furthermore, ICP-ANACOM, in the public consultation report on the regulatory approach to NGA, approved by determination of 18.02.2009 ⁷, recognized the importance of access to PTC's ducts as a means favoured by alternative operators for promoting investment in their own networks, reducing the main cost component in NGA deployment - the civil engineering works ⁸ required for the installation of optical fibre networks. In the same report, ICP-ANACOM reported that it planned to conduct a thorough examination of matters related to the RDAO, including the issues raised and the proposals presented in the responses to the public consultation.  The present determination is the appropriate vehicle for such an examination.

Considering the increased importance of the RDAO, an offer which stems from the obligation imposed pursuant to article 26 of Law no. 5/2004 of 10 February and which was identified as an obligation subsequent to the analysis of markets 4 and 5, and also considering the fact that this offer has been established for some years and that in this period ICP-ANACOM has received various contributions and suggestions for change ⁹, it was deemed appropriate to make changes in its formulation.

As such, by determination of 17.11.2009 ¹⁰, approval was given to the draft decision on the amendments to the RDAO and its submission to the prior hearing of interested parties, pursuant to articles 100 and 101 of the Administrative Proceeding Code and to the general consultation procedure, under article 8 of Law no. 5/2004 of 10 February, with a period of 30 days established in both cases.
The comments received were reviewed in the report on the prior hearing and the public consultation on the draft decision regarding amendments to the RDAO, which report is an integral part of the present determination.

Approval was likewise given to notification to the EC and the national regulatory authorities of other Member States, pursuant to paragraph 1 of article 57 of the same Law no. 5/2004, whereas the EC has not communicated any comments regarding the draft presented to it.

See  Sentido Provável de Decisão do ICP-ANACOM: Alterações à Oferta de Referência de Acesso a Condutas (ORAC).