Litigation and offences

ICP-ANACOM is able to apply different types of sanctions: contractual penalties (in accordance with the Contrato de Concessão (Concession Contract) of the public telecommunications service and the Contrato de Concessão (Concession Contract) of the universal postal service); apply sanctions in the context of breach proceedings; apply other administrative penalties (as exemplified by the suspension and cancellation of registrations); and impose mandatory monetary penalties.

Under the supervisory powers that are conferred upon ICP-ANACOM with respect to offences, provision is made under different pieces of sectorial legislation whereby ICP-ANACOM may instigate, instruct and rule on breach proceedings, whenever it is deemed that an administrative offense has been committed under such legislation.

Except as provided for in paragraph 4 of article 1 of Law no. 99/2009 of 4 September, breach proceeding are subject to the regulatory regime established in this Law and, in addition, to the provisions of the Regime Geral das Contra-Ordenações (General Regime Covering Punishable Offences) approved by Decree-Law no. 433/82 of 27 October and subsequently amended by Decree Law nos. 356/89 of 17 October and 244/95 of 14 September and Law no. 109/2001 of 24 December (and therefore also, additionally, the provisions of the Código de Processo Penal Code (Code of Criminal Procedure), under the provisions of article 41 of this regime).

In the case of infringements excepted under the rules referred to in the paragraph above, the Regime Geral das Contra-Ordenações (General Regime Covering Punishable Offences) is directly applicable.

Law no. 99/2009 of 4 September establishes the framework scheme of administrative offences within the communications sector, with a view to the particularities and requirements of the sector and allows a more homogeneous and more rapid response from the sector’s regulator.

In addition to providing a classification of offences and establishing that the type of offence varies depending both on this classification of offenses and on whether committed by a natural or legal person (and in the latter case, the size of the company), the law updates the amounts of the fines and creates new procedures (such as warnings and the summary proceedings).

It also provides for the possibility of making violators subject to injunctions (where the offence committed consists of the omission of a duty and where compliance remains possible), followed by the possibility of imposing a financial penalty.

The full implementation of the system described, which allows procedures to be simplified and streamlined, without infringing the guarantees of the accused - thereby enabling ICP-ANACOM to process and sanction offences more efficiently - depends, however, on the adaptation of different communications legislation, including the need to classify the severity of offenses set out therein. During the first half of 2010, a preliminary draft was sent to the Government with a view to this adaptation, so far without follow-up.

Breach proceedings

The breach proceedings instigated in respect of communications may be based on allegations made by operators or users of services, the results of oversight by ICP-ANACOM or other entities, and may originate in notices addressed by other bodies or authorities.

In 2010, over 200 cases were referred to litigation following various investigations and as a result of the presentation of complaints. 145 proceedings were instigated in respect of breaches of the Lei das Comunicações Electrónicas (Electronic Communications Law) and other Laws. In each case there may be, and usually is, more than one offence, and there are sometimes thousands of offences (this is typical of processes, for example, relating to breaches of rules on portability).

Of the total number of cases under review in 2010, 92 were ruled upon, with 29 new cases initiated over the course of the year. Fines were applied in 27 cases, totalling about 1.3 million euros.

Cases concerning the infringement of portability rules were particularly relevant in 2010, relating to an area that received special attention, as was the case in 2009. Further to ICP-ANACOM’s oversight in this area, either through monitoring, or through investigations, it was concluded that in some cases breaches had in fact been committed.  This led to the instigation of breach proceedings and, in total, 26 new cases were instigated against various operators, two of which, despite their complexity, have already been concluded.

With respect to breaches of Law no. 5/2004 of 10 February, 14 proceedings have been instigated for failures to provide information to this Authority and for failures to comply with the legitimate instructions or rulings of ICP-ANACOM.

In 2010, proceedings brought for breaches of obligations stemming from operator licenses also had particular relevance. One of the cases in question, brought against Vodafone Portugal, concerns breach of coverage obligations contained in the license allocated to the company for third generation mobile operations - UMTS. The process culminated in the application of a fine of 750,000 euros.

Proceedings for the same type of offence were brought against Radiomóvel ¹, after the company failed to comply with the terms of its license for mobile trunking services, using frequencies to provide a separate service. The process culminated with the application of a fine of 200,000 euros, with an appeal pending.

With respect to proceedings brought for violations of other laws and since they are framed in ICP-ANACOM's strategic objective to assure and protect the rights of users of communication services, note should be made from the outset of 10 actions brought for breach of the rules governing message-based valued added services, for breach of the obligations to provide barring to which supporting service providers are subject and for failure of providers of these services to give users proper information. Two of these processes were completed in 2010, culminating in the imposition of fines.

Due to their number, note is also made of the 56 actions related to radiocommunications - including 32 related to citizen band and 22 related to the private use land mobile service, brought either due to lack of licensing or owing to use of networks or stations outside the applicable technical parameters - and proceedings brought due to failures to provide the regulator with regular information, involving both providers of postal services (19) and providers of electronic communications services (12 ).

Graph 47 - Proceedings instigated in 2010

^{Source: ICP-ANACOM.}