«i) Description of services offered (ability to make and receive national and international calls and to access emergency services; other related services, namely, facilities concerning the identification of caller and called lines, pursuant to article 9 of Law number 41/2004, of 18 August, operator services, directories, directory enquiry services, selective call barring, roaming, among others; where the roaming service is not automatically available, providers must provide information on how this feature may be activated, as well as where additional information thereon may be obtained, namely including applicable tariffs);»
«iii) In the case of nomadic and home-zone services, users shall be provided information on how these services may be used, as well as on any associated restrictions, namely with regard to making calls to emergency services and to caller location;
iv) Information on coverage of services, even if only by reference to where the user may obtain up-to-date information on service coverage and provision, making it clear, in this scope, that connectivity tests may be required to verify whether the service is available at the customer’s area, where appropriate; in the case of nomadic and home-zone services, information shall be provided on restrictions related to location and area of use of the service; and
v) Levels of quality provided - information on the levels of quality which the service provider undertakes to uphold with its customers, that is, minimum levels of quality of service to be engaged with the customer and those set out by law or regulation, which must be provided to each customer (namely, the deadline for implementing portability provided for in the respective Regulation), non-compliance with which determines the payment of compensation or refund; the annex hereto suggests some parameters which companies may use.»
PT refers that the amendment to item i) merely refers to basic voice and roaming services, and that it is not clear whether telephones services provided through public pay-phones are covered. In the view of companies of Grupo PT, it should be made clear that this requirement does not apply to the provision of public pay-phones.
ANACOM's position
As regards PT's comments on the applicability of this part of the determination to the provision of public pay-phones, see the abovementioned response to an identical observation.
Section A comprises, as indicated in the determination submitted to consultation, publicly available telephone networks and services, which includes telephone services made available through public pay-phones.
As such, by reading the determination in a sequential, logical and reasonable manner, it is deemed that in the case of public pay-phone services, the information to be published for the purpose of item i) of point b) of section A should clarify the scope of the publicly available telephone service, including the description of services provided, covering, where appropriate, the following aspects, among others: ability to make and receive national and international calls and to access emergency services; other related services, namely, facilities concerning the identification of caller and called lines, pursuant to article 9 of Law number 41/2004, of 18 August, operator services, directories, directory enquiry services.
In the light of the above, this point of the determination will be completed to read as follows:
«... Description of services offered, covering, where appropriate, the following aspects, among others: ability to make and receive national and international calls and to access emergency services; other related services, namely, facilities concerning the identification of caller and called lines, pursuant to article 9 of Law number 41/2004, of 18 August, operator services, directories, directory enquiry services...».
PT and APRITEL want ANACOM to clarify what «information on how these services may be used» (nomadic and home-zone services), as referred in item iii) above, should be deemed to mean.
Zon proposes that item iii) of point b) of section A is amended to read «In the case of nomadic and home-zone services, users shall be provided information on how these services may be used, as well as on any associated restrictions, if they exist, namely with regard to making calls to emergency services and to caller location» (emphasis added), as in its view, operators providing homezoning-based FTS, on equal conditions, should not be discriminated.
ANACOM's position
Nomadic and home-zone services, on account of their characteristics, will be subject to specific conditions of use that justify the disclosure requirements on the terms provided for in the draft decision submitted to consultation - v.g. home-zone services are necessarily associated to a physical address and communications made from nomadic services will make it impossible to establish where authors of communications are located.
Information on the specific conditions to which the use of this type of services is subject must be provided.
As regards specifically the alteration suggested by Zon, it is clarified that there is no discrimination relatively to operators that provide a homezoning-based fixed telephone service. It is considered also that this alteration is redundant, as the wording of item iii) of point b) of section A already refers to "any associated restrictions".
PT and APRITEL want ANACOM to clarify what "connectivity tests" (point iv) should be deemed to mean, adding that they consider it impracticable for operators to make a case-by-case connectivity analysis in the client's area.
ANACOM's position
The determination does not require connectivity tests to be carried out for all connections nor a case-by-case connectivity analysis in the client's area. This requirement concerns the need to warn the service user, in justified cases - «where appropriate» - that connectivity tests may be required so that it may be verified if the service is available in the client's area. In case there are no doubts as far as connectivity is concerned, it will not be necessary to ensure a case-by-case connectivity analysis in the client's area.
As regards information provided for in item v), APRITEL and PT stress that in several services, levels of quality of service are likely to vary depending on various factors - geographic location of access to the network over which the service is supported, type of equipment used, exceptional ad uncontrollable overloading situations.
In the case of roaming services, in which the quality is established on a "best effort" basis, TMN cannot commit itself to specific values, so it takes the view that the obligation to disclose levels as regards these services should be removed.
Specifically as regards quality levels in the scope of portability, PT refers that the companies of the group already disclose this information in the respective websites, and that ANACOM should harmonise the contents of this obligation, namely as regards the possible levels of quality of service of porting mobile telephone numbers.
Vodafone points out that the information on this item is not required by article 47 of ECL, thus this is a field in which ANACOM's action exceeds the bounds of reason and proportionality. As such, this information, even that whose disclosure is merely suggested, should be removed from the final determination.
Vodafone adds that it will only make sense to publish levels of quality for which the operator is solely responsible, and insofar as such levels are measured equally by all operators, thus ensuring that information available to consumers is directly comparable.
CTT is also of the opinion that only information on levels of quality that are negotiable should be required. The obligation to publish levels of quality that result from the law or regulation is excessive and compromises effective consumer enlightenment. As far as this information is concerned, only the reference to where the consumer may obtain information should be required.
ANACOM's position
As APRITEL and PT stress, levels of quality of service may vary, in several services, depending on various factors that are outside the provider's control; however, this fact cannot and should not be an obstacle to the disclosure of information on quality of service required by point a) of paragraph 2 of article 39, by article 40 and by point b ii) of paragraph 2 of article 47 of ECL.
In fact, where levels of quality of service vary according to external factors outside the provider's control, the latter must provide express information on the existence of these factors, referring that, in these cases and for these reasons, minimum levels cannot be guaranteed.
In any case and regardless of the fact that minimum levels are likely not be guaranteed in certain situations, as described above, it is agreed that in a pre-contract stage, companies should disclose information on an average quality "measured on the basis of equipment that correspond to those that are generally used under normal conditions, being expressly referred the terms under which this measurement is carried out". Factors that are able to determine these variations should be identified, even if non-exhaustively.
It is acknowledged that providers of mobile telephone services are not able to ensure beforehand the quality of service provided while roaming, given that this provision depends on other operators, subject to other legal and regulatory obligations, and consequently, as PT/TMN mention, quality is established on a "best effort" basis. Consequently, if companies disclose this information, and it is deemed that there are advantages in the provision of this information, it should be referred that the disclosure of the quality of service is not an obligation, as it is not up to the national operator to guarantee it.
Vodafone's comments that ANACOM's requirements on this issue exceed the bounds of reason, proportionality, and the extent permitted by article 47, cannot be accepted.
Broadly speaking, the requirement in this issue was already provided for in the decision currently in force on the object and form of public disclosure of conditions of provision and use of electronic communication services. Obligations that in this field ANACOM intends to adopt are absolutely consistent with rules of ECL - articles 39, paragraph 2 a), 40 and 47 - enabling interested parties to obtain information on the average or usual quality of each provider, as well as other relevant information on minimum levels of quality of service which must be provided to customers, according to point b) of article 48 of ECL on the minimum content to be included in contracts. In conformity with the foregoing, this item will be clarified.
Amendments provided for in the draft decision submitted to consultation provide that where, by law or regulation, minimum levels of quality of service are laid down to be provided to each customer, such levels must be disclosed to end-users. As such, ANACOM fails to understand how its determination exceeds the extent permitted by article 47, or the bounds of reason and proportionality.
In fact, according to paragraph 4 of article 40, where appropriate in order to prevent the degradation of services and the hindering or slowing down of traffic over networks, ANACOM is entitled to set minimum quality of service requirements on undertakings providing electronic communications networks and services. Consequently, it follows from the above and from this provision, which transposes a requirement of Directive 2002/22/EC, as amended by Directive 2009/136/EC, that ANACOM is not exceeding with this measure of the determination submitted to consultation the extent permitted by law.
ANACOM cannot also accept Vodafone's opinion according to which only the obligation to publish levels of quality for which the operator is solely responsible should be established. If this view were accepted, ultimately this would lead to an extraordinary reduction of information on quality of service. There are few services in which the quality of provision is not conditioned by factors or bodies other that the operator or service provider, thus services for which the operator is not solely responsible. Even in cases where the way how the quality of service is measured is defined in a regulation, companies that must carry out this measurement are also subject to external factors that exceed the sole responsibility of the operator or provider. Generally, it is only safeguarded that any factors for which users themselves are responsible must be removed from levels of quality of service achieved.
Without prejudice to the above, ANACOM acknowledges that it would be beneficial to adopt more detailed rules (via regulation or self-regulation) that ensure that the quality of service is measured equally by all operators.
CTT's comment that only information on negotiable levels of quality should be required is not compatible with requirements set out in articles 40 and 47 of ECL. These provisions compel companies to publish and disclose comprehensive and up-to-date information on the quality of service provided.
The obligation established in ECL (article 40) is that undertakings providing public communications networks or publicly available electronic communications services must provide information on the quality of all services provided. Pursuant to article 47, paragraph 2 b) ii), the information on publicly available electronic communications services being provided must refer to (all) levels of quality of service provided and not only those that are binding or that may be negotiated, and also in this case, if the negotiation leads to standard offers, the information on the quality of service must also be ensured.
This is the only way of ensuring the achievement of the objective aimed for by this determination, that all users are provided with information so that their choices are better supported. The fact that there could be minimum levels of quality of service that are common to all companies, such as, for example, the obligation of portability of a number within a 1-day deadline, does not mean that all users are aware of them, thus their disclosure is also justified.
In the light of the above, and in order to clarify requirements provided for in this scope, this obligation is recast to read as follows:
«Levels of quality of service provided - information on the levels of quality of service which the customer may expect to be provided by the service provider, on average, and on the minimum levels of quality of service, set out by law or regulation, which must be provided to each customer (for example, for telephone services, the deadline for implementing portability provided for in the respective Regulation), non-compliance with which determines the payment of compensation or refund. The annex hereto suggests some parameters which companies may use.
The provider must also indicate how information on minimum levels of quality of the service to be provided may be obtained».
