Determination

In view of the analysis and considering that:

(a) Resolution of Council of Ministers no. 120/2008 of 30 July establishes investment in NGN as a national priority;

(b) Following this resolution, Decree-Laws no. 123/2009 and no. 264/2009 were published, involving, in particular, the expansion of the total set of ducts which can be used for the installation of electronic communications networks and establishing rules applicable with regard to access to networks by electronic communications companies, which rules, under article 97 of Decree-Law no. 123/2009, neither displace nor undermine the regime which in this area applies to the concessionaire of the public telecommunications service;

(c) A significant portion of investment in electronic communications networks has been directed at NGN, which is indicative of the important role that such networks can have in terms of market competition levels; in particular, note is made of the NGA tenders conducted in rural areas, whose networks must be operated as open networks. As such, provision must be made for a wholesale offer ensuring that all operators and providers of electronic communications services interested in the use of such networks to provide services to end users have access thereto.

(d) Competition in the deployment of NGA has important repercussions in terms of price, quality of service and the diversity of offers available to end-users;

(e) Access to ducts, including of the concessionaire of the public telecommunications service, plays a key role in the deployment of NGA, both by other operators and by the concessionaire itself which, therefore, is incentivised to have the best possible information about its own ducts in order to be able to install optical fibre cables in a more efficient manner;

(f) It is likely that the deployment of NGN by operators without their own ducts will initially take place in major urban centres, expanding progressively to other regions, particularly to major district capitals or to other areas where there is currently increased competition;

(g) Grupo PT is subject, as regards the offer of ducts, and as a result of the analysis of the market for supply of wholesale network infrastructure access (physical) at a fixed location, among others, to obligations of:

- Access to and use of specific network resources (including access to ducts);

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

- Non-discrimination in the provision of access, with the possibility of imposing conditions of equivalent access (in this case to ducts), applicable to Grupo PT and the RDAO beneficiaries.

(h) The market analyses adopted by ICP-ANACOM, with the involvement of the European Commission as provided for by law, now require development, especially with regard to putting into practice the obligations stipulated therein;

(i) Maintaining the obligation of access to ducts included in the analysis of Market 4 on a national basis, certain specifications of this obligation may be varied according to each geographical area, given the different levels of competitive intensity observed in different geographical areas of the country, as identified in the analysis of Market 5;

(j) ICP-ANACOM in setting out its regulatory approach to NGA, stated that the RDOA would be made subject to reformulation under a separate determination;

(k) ICP-ANACOM is bound to conduct a periodic review of the wholesale offers in general and of the RDAO in particular;

(l) The principles of transparency and non-discrimination require a greater level of reliability in information on ducts;

(m) The beneficiaries of the RDAO must have access to information on occupation of ducts at a national level, whereas the manner in which such information is made available may vary according to market characteristics, and in more critical areas an obligation is imposed to provide information online over an Extranet, which is already available; meanwhile in other areas, provision is made for an information mechanism based on feasibility analyses conducted on a case-by-case basis according to reasonable time limits;

(n) It is the responsibility of ICP-ANACOM to promote competition in the offer of electronic communications networks, which aspect assumes even greater importance in the current context of the early stages of NGA deployment;

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

(p) Since the entry into force of the RDAO (imposed by ICP-ANACOM in 2004), alternative operators have increased their demand for services within this wholesale offer;

(q) Any delays in responding to requests for information or to feasibility analysis requests or in the scheduling/supervision of interventions in ducts have a negative impact on the activity of the RDAO beneficiaries, whereby it is necessary to reformulate the time limits and/or establish mechanisms which provide a disincentive to non-compliance therewith through the application of compensation for non-compliance at a value which acts as a deterrent;

(r) Under the EC Recommendation on access to next generation networks, the SMP operator should provide access to its passive infrastructure in accordance with the principle of equivalence, as defined in Annex II to this recommendation;

(s) By determination of 17.11.2009, the Management Board of ICP-ANACOM decided to conduct the preliminary hearing of interested parties and the general consultation in respect of the draft determination whose adoption was proposed, consisting of comments received, the respective analysis and reasoning giving basis to the decision of the prior hearing report, which forms an integral part of the present determination;

(t) Approval was likewise given to the notification to the EC and 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.

the Management Board of ICP-ANACOM, pursuant to the powers set forth in points 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 set forth in points b) and g) of article 9 of the same Statutes, taking into account the regulatory objectives set forth in points a) and c) of paragraph 1 and point c) of paragraph 2, both 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 RDAO, within a period of not more than 20 working days subsequent to the notification of the final decision of ICP-ANACOM, in respect of the following:

D 1. A geographically segmented and phased approach is adopted with regard to the provision of information on the Extranet on occupation of ducts, with the following time limits, counted from the date of approval of the final determination:

- Greater Lisbon and Greater Porto: 3 months

- All other ''areas C'' of the analysis of market 5:6 months

- ''Areas NC'' of the analysis of market 5 ¹: There is no requirement to include occupation information on the Extranet except in the case of new ducts built during 2009 and thereafter ² and in the case of ducts which, regardless of the date of their construction, were the object of feasibility analyses ³; this information shall be included on the Extranet within a maximum period of 6 months.

D 2. With respect to ducts where the ''on-line'' provision of information is obligatory as set out in D 1 and while the information is not available on the Extranet:

- The time limit for responses to requests for occupation feasibility analyses is reduced from 15 calendar days to 10 calendar days (for 100% of cases).

- PTC may not make any charge, in these areas, to respond to occupation feasibility analysis requests (irrespective of whether the response is negative or, if positive, it subsequently leads to a request for access and installation submitted by the beneficiary) where the requests for feasibility analysis are triggered by the fact that information about duct occupation is not yet available on the Extranet.

D 3. In ''areas NC'' the time limit for responding to occupation feasibility analysis requests is reduced from 15 to 10 calendar days for 100% of cases, following the process currently set out in the RDAO.

D 4. In the event of non-compliance with the time limits established in D 1, compensation will be applicable for each feasibility analysis, paid in favour of the beneficiary, to the value of 50 euros multiplied by the number of days taken to reply (given that in using the Extranet, information on occupation feasibility is obtained in real time). This compensation shall be payable on a quarterly basis to each operator, without prejudice to possible application of mandatory monetary sanctions pursuant to article 116 of Law No. 5/2004 of 10 February.

D 5. The information to be made available on the Extranet consists of information that PTC proposes to introduce, including the following by obligation:

(a) profile of the duct (with the representation of the formation of tubes between adjacent IC), allowing indication of the tubes to be occupied;

(b) information on the occupation of duct sections, based on a system with at least four levels (intervals) of occupation (in %);

(c) information on the clearance diameter in cm, of the duct sections corresponding to the entirety of the duct section.

PTC must submit to ICP-ANACOM, no later than thirty days following notification of the present determination, detailed information on how the level of occupation is determined in each section.

D 6. In the areas where information is available on the occupation of ducts (see D 1), after checking whether or not there is space available, the beneficiary must immediately make a request for installation, as set out in the RDAO, and may subsequently (after scheduling with PTC pursuant to the RDAO) install its cable following a rule of upward occupation of tubes and giving priority to tubes which are already occupied, provided that there is space available.

D 7. In cases where PTC gives a positive response to a feasibility analysis request that proves to be incorrect, or in cases where the information on the Extranet results in incorrect indication of feasibility, except in situations where absence of responsibility can be demonstrated before the beneficiary and ICP-ANACOM, PTC shall introduce in the RDAO the obligation to:

(a) make payment of compensation of 200 euros to the beneficiary and, cumulatively;

(b) indicate a feasible alternative route, at no additional cost to the beneficiary and in accordance with the time limit specified in the RDAO, in the absence of ducts on the route in question, without the beneficiary being required to submit a new feasibility request;

(c) remove cables within the time limit specified in the RDAO and at its own expense, and enable the beneficiary to use (occupy) the duct whose occupation was thereby made feasible, in the event that the ducts are occupied with dead cables of PTC preventing feasible installation.

D 8. In the case of negative response to an occupation feasibility analysis request, PTC shall substantiate the non-feasibility of the occupation in the duct sections in question before the beneficiary, whereas ICP-ANACOM may carry out inspections, upon request and where deemed appropriate. In the event that the negative response is proved to be incorrect, PTC is bound to pay compensation of 200 euros to the beneficiary.

D 9. PTC shall publish, within 30 working days of notification of the present determination, a masts access reference offer, including all applicable procedural, technical and economic conditions, specifically with respect to the installation of cables, and considering the general principles adopted in the RDAO. The detailed reasoning therefor must be submitted to ICP-ANACOM within the same time limit, giving grounds for any deviation from the provisions of the RDAO.

D 10. Reference to ineligibility of the cable access tunnels of PTC exchanges should be deleted from the RDAO, and the IC of PTC providing access to exchange building and the access extension to this building should be included within the scope of the RDAO accordingly.

D 11. PTC shall establish the conditions applying to the transition from underground access to aerial access (masts) using riser tubes, and shall specifically:

(a) provide access to PTC riser tubes, whenever these have available capacity;

(b) define, in the reference masts access offer, the operating procedures and technical standards which beneficiaries are bound to observe in the construction of the rise tubes on the masts of PTC;

(c) include in the RDAO, a service of access to the access extensions of mast riser tubes, whenever a beneficiary requires transition from ducts to masts (both for PTC riser tubes and for riser tubes of beneficiaries on the masts of PTC);

(d) include in the RDAO and/or in the reference masts access offer, a common feasibility analysis service for access to ducts and masts.

D 12. PTC shall introduce into the RDAO daily compensation of 50 euros for each additional day that the generated plans remain unavailable.

D 13. With a view to more detailed analysis, PTC is required to notify ICP-ANACOM within 30 working days following notification of the present determination as to the developments that it is implementing in order to improve the level of automation of the Extranet and the date indicated for their implementation, identifying the impact that such developments will have in terms of the possibility of printing plans automatically and immediately upon their consultation, and detailing possible ''off-line'' interventions which might affect this procedure.

D 14. With a view to more detailed analysis, PTC is required to notify ICP-ANACOM within 30 working days following notification of the present determination as to the reasons why mapping data is not made available in vector format.

D 15. ICP-ANACOM recommends that PTC consider any suggestions which are addressed to it by APRITEL or individually by the RDAO beneficiaries regarding the RDAO IS, and, where it does not accept such suggestions, respond to such effect, with its reasoning, to the entity concerned and with notification to ICP-ANACOM. Such suggestions must be sent within a period of two months following notification of the determination.

D 16. PTC shall introduce into the RDAO a target of 10 working days, following receipt of information of beneficiaries, with respect to updating duct occupation record information on the Extranet, which target shall be applicable to 100% of cases.

D 17. PTC shall not charge for the intervention/installation supervision service in cases where PTC chooses not to carry out such service or, where choosing to do so, does not appear as scheduled.

D 18. In the event that supervision by PTC has been scheduled with regard to intervention/installation operations to be carried out by the beneficiary, but the technician(s) of PTC do not appear at the time and at the location as scheduled, the beneficiary may proceed with the work in question (where there is no impediment arising from the non-appearance of PTC's technician), whereas it is recommended that the beneficiary’s technician contact PTC in advance.

D 19. PTC shall add a new field to the form used to request removal of cables, enabling the beneficiary to indicate to PTC as to whether they intend to use the space occupied by the cables to be removed for subsequent installation within a maximum of 60 days, whereby PTC shall ensure that the area will not be used by itself or by other beneficiaries during that period.

D 20. In the RDAO, any service involving a response by PTC to a request by a beneficiary on a process which is fully controlled by PTC should be associated with a target deadline for said response time and compensation established for failure to comply therewith.

D 21. PTC shall amend the RDAO to establish the time taken to respond to requests for information at 1 working day, for 100% of cases.

D 22. PTC shall amend the RDAO, reducing the deadline for scheduling supervision of urgent intervention (QSP4) from 8 to 4 (consecutive) hours.

D 23. PTC shall amend the RDAO, establishing the time-limit for responses to requests to install cables in ducts at 5 working days for 100% of cases.

D 24. PTC shall include in the RDAO a quality of service parameter (QSP7) corresponding to the time limit applicable to the sending (by PTC to the beneficiary) of quotations for the clearance of ducts, with a target time limit of 5 working days applicable to 100% of cases.

D 25. In the event of non-compliance with the time limit for scheduling supervision of interventions to be performed by beneficiaries, compensation will applied at a rate of 25 euros (scheduling of non-urgent interventions) and 50 euros (scheduling of urgent interventions) for each hour of delay.

D 26. When failure by PTC staff to attend at the scheduled time and place prevents, in some way, the beneficiary from carrying out the intervention, 25 euros (scheduling of non-urgent operations) and 50 euros (urgent scheduling) of compensation shall be applied for each hour of delay; whereas it is recommended that, within a maximum of two hours following the time of scheduling, the beneficiary shall contact PTC with respect to said non-attendance.

D 27. In the event of failure to comply with QSP6 or QSP7, compensation will be applied, amounting to 50 euros per day, limited to a maximum of 60 working days.

D 28. PTC shall amend the RDAO in respect of the conditions governing payment of compensation for non-compliance with the established targets, as follows:

- Where the beneficiaries submit duct demand forecasts to PTC, in accordance with and with the reliability stipulated in the offer, such beneficiaries shall receive compensation in full;

- Otherwise, the beneficiary shall receive 75% of the amount of compensation established under the RDAO.

In any case, the forecast plans to be submitted by RDAO beneficiaries shall not include quantities of requests for information on ducts, quantities of requests for urgent and non-urgent intervention nor quantities for requests for duct clearances.

D 29. PTC shall introduce into the RDAO the obligation to undertake, on its own initiative, the payment of compensation for failure to comply with established quality of service targets, making said payment no later than the end of the second month following the end of the half-year period in question, notwithstanding subsequent review and adjustment, taking into account the figures established by the OSP.

D 30. PTC shall amend the RDAO and the standard contract in order to lay down the right of the beneficiary (or PTC) to obtain compensation for losses incurred in their networks, provided such losses result from access or from works or from resources installed in ducts during installation, operation or removal, by PTC (or by beneficiaries).

2. To notify the European Commission as to the present decision, under the terms of paragraph 3 of article 57 of Law no. 5/2004 of 10 February.

 
¹ Although these are separate markets, it is deemed an expedient approach in this case to adopt ''areas NC'' as the boundary of zones in the case under present review.
² In which case it should be ensured that online information is available within a period of 30 days following the respective conclusion.
³ In this case the information on occupation refers to the date on which the feasibility analysis was performed.