Given the reference included in the introduction to the draft decision submitted to consultation, according to which the information obligation concerns "standard offers", PT and APRITEL declare this concept to be ambiguous.
Specifically on this concept, PT questions whether its inclusion refers to the definition of "standard offers" included in the Quality of Service Regulation (QSR) 1 and if it includes advertising campaigns and sales promotions of the mentioned offers.
PT adds that even if the "standard offer" concept used here and the one used in the QSR are identical, its meaning must be clarified given that the QSR is closely related to the provision of fixed telephone services.
DECO also addresses this change, and while not opposing the limitation of the scope of the determination, it believes that due account must be taken of the fact that the decision may be applied to situations of unfair commercial practices intended to prevent the application of rules established in the text of the decision.
ANACOM's position
Where the document submitted to consultation refers that the determination applies only to "standard offers", this Authority sought to limit information requirements only to standard provisions defined a priori which, as a rule, are covered in a standard contract that follows a uniform criterion for all subscribing customers. This view is consistent, in fact, with paragraph 1 of article 47 of ECL that lays down the obligation to publish the "standard terms and conditions".
In order to avoid any doubts, text will be added clarifying that «"standard offers" shall mean those offers which include common terms and conditions of service provision, corresponding to a pattern determined a priori in a contract or standard contract, as well as those in which the service user may only enter into a contract in predefined terms», the last part of the text aiming to address any unfair commercial practises intended to prevent the application of rules now established.
Information on promotional conditions, insofar as they comply with a standard, must also be provided in an appropriate manner. The identification of other standard conditions, even if by reference, must be ensured, being clarified how these conditions are different from standard offers.
PT refers further that it is not clear from the draft decision if the final decision applies to the provision of public pay-phones, which in PT's opinion is impossible as some of the information requirements concerning telephone services do not apply to that offer.
ANACOM's position
Not all information covered in the draft decision submitted to consultation will apply to the provision of public pay-phones. In this case, as in similar situations for which it is not possible to ensure the provision of all information as determined, the provider must ensure the disclosure of all possible information and point out as "n.a." (not applicable) any items for which information is not to be provided.
Non-disclosure of information for a given item of the determination submitted to consultation depends not only of the technical characteristics of the service in question, but also of the characteristics of the offer itself (namely as regards the legitimate commercial options of the respective provider). As such, it is possible that offers of the same service (e.g. FTS or IAS) are provided by the same or by different providers, and that different information items apply thereto.
APRITEL and PT want ANACOM to define clearly the beneficiaries of the draft decision. According to the draft decision submitted to consultation, the main beneficiaries of measures to be adopted are consumers, the draft decision referring that ANACOM is acting in the scope of powers relating to consumer protection, bearing in mind regulatory objectives related to citizen/consumer protection.
PT believes that according to the Constitution of the Portuguese Republic (CPR) only natural persons/individuals may be considered citizens, not legal persons. Moreover, declares PT, the ECL defines consumer as a "natural person".
Admitting that the adopted decision may apply to subscribers/users, APRITEL and PT consider that it should not apply to relations with clients that are legal persons. In addition, on account of their negotiating power, business clients have available a variety of offers which hardly may integrate the concept of "standard offers".
ANACOM's position
The wording of the draft decision submitted to consultation makes it clear that it applies to "standard offers" made available to all end-users. Such users are defined in the ECL as legal or natural persons using or requesting a publicly available electronic communications service, and which do not provide public communications networks or public communications services - vd. points mm) and nn) of article 3 of ECL). This scope is also defined in point b) of paragraph 1 of article 39 and in article 47 of ECL, which acknowledge the right of users to be provided with information on the conditions of the offer prior to the conclusion of any contract. In this regard, it is important to refer that although this point of paragraph 1 of article 39 only refers to "users", it should be understood that only "end-users" are under consideration here, as they are the main addressees of publicly available standard offers, as expressed in the obligation established in paragraph 1 of article 47, which clearly lays down the obligation to provide information on access to and use of all electronic communications services to end-users and consumers.
Moreover, notwithstanding the fact that this determination pursues the regulatory objective provided for in point c) of paragraph 1 and points b) and d) of paragraph 4 of article 5 of ECL - protection of consumer interests - the disclosure of offer conditions determined by this decision will make available to service users the information required so that they are able to make the most appropriate choice to meet their needs, and thus, it will also contribute to pursue the regulatory objective provided for in point a) of paragraph 1 of article 5 of ECL - to promote competition in the provision of electronic communications networks and services.
Those information and offers must be publicly available and accessible to all users. Lastly, contrary to what PT and APRITEL refer, not all legal persons possess a negotiating power that allows them to benefit from specific conditions, which, on account of being specific, are not submitted to standard offers nor are covered by obligations provided for in the draft decision submitted to consultation.
Still in this context, it must be stressed that there are standard offers of electronic communications services aimed for SMEs, as well as standard electronic communications services that are both intended for natural and legal persons.
In the light of the above, views presented fail to present arguments or reasons that justify changing this provision of the draft decision.
1 The QSR defines standard offers as «...those in which the condition of service provision, namely those related to service start-up time, the type of maintenance service offered and the respective applicable tariff are not contracted on a customer-by-customer basis; on the contrary, they are defined a priori in a standard contract and comply with a uniform criterion for all customers that conclude that contract.»
