Taking into account the analysis above and whereas:
(a) Grupo PT is subject, as regards the provision of leased lines, and as a consequence of the analysis of the retail market and wholesale markets of terminating and trunk segments on "Routes NC" of leased lines, among others, to the following obligations:
- Access to and use of specific network resources.
- Transparency in the publication of information, including the publication of reference offers.
- Non-discrimination in the provision of access and interconnection.
- Cost orientation of prices.
(b) In the scope of the above-mentioned market analysis, ICP-ANACOM acknowledged that there were some aspects of LLRO which warranted a revision or update, in order to better align them with the interests of the market, with particular attention to access to CAM lines (and to other matters, such as operator interconnection, levels of quality of service - line supply times or Premium levels - or compensation for failures to comply with levels of quality of service, which would be detailed under a specific determination to be submitted to public consultation).
(c) The leased line market analysis approved by ICP-ANACOM, with the involvement of the European Commission provided for in the law, requires now a development, specifically to make regulatory obligations laid down therein operational.
(d) The quality of service is a relevant subject with repercussions in the service provided to the end user, and as such its interruption must be avoided and whenever this situation occurs it must be quickly restored, taking into account the requirements of the various services provided to end clients, a regulatory intervention being justified where the imbalanced negotiating power of parties does not allow satisfactory objectives to be met.
(e) In order to comply with the principle of non-discrimination, in the scope of a SLA, time-limits that are at least reasonable and sufficient must be established, so that operators are able to compete with retail offers of Grupo PT, and to meet needs of various types of clients, namely through Premium services.
(f) The leased line wholesale supply deadline currently provided for in LLRO does not allow OSP to ensure levels of service which companies of Grupo PT guarantee in the scope of public tenders, and there is room to decrease those wholesale time-limits.
(g) Fault repair times have repeatedly failed to be complied with, and compensation defined in LLRO does not discourage this non-compliant behaviour.
(h) LLRO is already relatively stabilized, both at the level of processes and of the total set of lines, so making the payment of compensation for non-compliance with defined objectives subject to the sending of forecasts by OSP is deemed to be disproportional, namely in the case of indicators that depend on the total set of lines, and it could harm the efficient development of wholesale offers.
(i) The forecast plan of line needs requires a level of detail that is sufficient and strictly necessary to allow PTC to adjust resources to the demand and to be prepared to meet this demand.
(j) There is no competition based on an alternative infrastructure to the backhaul service for access to submarine cables. Such competition would only be achieved in case PTC provided collocation in SCS, bearing in mind that, on the one hand, PTC must provide a service as broken down as possible, so that competitors do not incur in costs for services they do not require and that, on the other hand, a relevant accumulated experience already exists at the level of RUO, LLRO and RIO collocation services.
(k) The supply of CAM and inter-island lines, the sole means of communication with and between the Autonomous Regions of the Azores and Madeira, showed some limitations in the past, which prevented the supply of lines to competing operators in those connections, so similar future situations should be addressed.
(l) The first version of RELLO was published in December 2010, and was subject to various comments on the part of operators, objectives of quality of service being one of the aspects which requires a review so that operator needs and demands of business clients are met.
(m) Costing data show that there is a margin between costs and revenues that fails to comply with the principle of cost-orientation of prices.
(n) This determination involves measures with a significant impact on the relevant market.
(o) According to paragraph 1 of article 57 of Law No 5/2004, of 10 February, as amended by Law No 51/2011, of 13 September, where the decisions to be adopted are likely to affect trade between Member States, the NRA must make the substantiated draft measure accessible to the European Commission, to the Body of European Regulators for Electronic Communications (BEREC), and the national regulatory authorities in other Member States, in an appropriate form, indicating the information deemed to be confidential.
(p) Pursuant to Commission Recommendation 2008/850/CE, of 15 October 2008, on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council, of 7 March 2002, on a common regulatory framework for electronic communications networks and services, draft measures that change the technical details of previously imposed regulatory remedies and do not have an appreciable impact on the market (e.g. annual updates of costs and estimates of accounting models, reporting times, delivery times) must be made available to the Commission by means of the short notification form contained in Annex II to the above-mentioned Recommendation.
(q) By determination of 17 November 2011, the Management Board of ICP-ANACOM decided to conduct the prior hearing of interested parties and to launch the general consultation procedure on a draft decision it intended to take on amendments to LLRO and RELLO, comments received, the respective analysis and grounds for the decision being included in the "Report of the prior hearing and general consultation procedure on the draft decision on amendments to the leased lines reference offer (LLRO) and the reference Ethernet leased lines offer (RELLO)".
(r) By determination of 30 April 2012, the Management Board of ICP-ANACOM approved the draft decision to be submitted to the specific procedure of consultation of the European Commission, BEREC, and NRA of other Member States on amendments to LLRO and RELLO, having also been approved the report of the prior hearing and public consultation procedures to which the corresponding draft decision was submitted, further to the referred determination of 17 November 2011.
(s) By letter dated 4 June 2012, the European Commission provided its response on the notified draft decision, making no comments thereon.
The Management Board of ICP-ANACOM, in the scope of powers provided for in points b), e), f), h) and n) of paragraph 1 of article 6 of Statutes approved by Decree-Law No 309/2001, of 7 December, in the exercise of competences provided for in points b) and g) of article 9 of the same Statutes, taking into account regulatory objectives provided for in points a) and c) of paragraph 1 and b) of paragraph 2, both of article 5 of Law No 5/2004, of 10 February, as amended by Law No 51/2011, of 13 September, and to implement measures determined further to the analysis of the retail market and wholesale markets of terminating and trunk segments of leased lines:
1. Hereby determines that PTC must amend LLRO and RELLO within 20 working days following notification of ICP-ANACOM's final decision, bearing in mind the following:
D 1. The deadline for supply of leased lines defined in the LLRO, for 95% of cases, and regardless of the type concerned, shall be:
- 20 calendar days, for lines involving only exchanges of Type A, defined as such in RELLO;
- 40 calendar days, in all other cases, being assessed on a monthly basis for the set of lines supplied to a specific OSP.
D 2. The deadline for supply of leased lines defined in the LLRO, for 100% of cases, and regardless of the type concerned, shall be:
- 40 calendar days, for lines involving only exchanges of Type A, defined as such in RELLO;
- 80 calendar days, in all other cases, being assessed on a monthly basis for the set of lines supplied to a specific OSP.
D 3. Compensation currently defined in LLRO for failures to comply with supply times for 95% of cases also apply to failures to comply for 100% of cases.
D 4. Compensation for non-compliance with fault repair deadlines defined in LLRO is as follows:
- 25% × LMF, for a delay equal to or lower than 25% of the deadline objective;
- 50% × LMF, for a delay exceeding 25% and equal to or lower than 50%;
- 75% × LMF, for a delay exceeding 50% and equal to or lower than 75%;
- [100% + 2 × (D - 75%)] × LMF, for a delay exceeding 75%;
where LMF corresponds to the monthly fee of the non-compliant line and D corresponds to the delay in relation to the repair time (% of the objective)
D 5. PTC must include in LLRO fault repair deadlines for 100% of cases, submitting at the same time the respective grounds to ICP-ANACOM, compensation for non-compliance defined in D 4 being applied.
D 6. PTC must introduce in LLRO the obligation to pay, on its own initiative, any compensation for failure to comply with established quality of service objectives, by the end of the second month following the end of the half-year period concerned, without prejudice to a subsequent reassessment and adjustment in case different amounts have been established by the OSP. The LLRO shall also include a mechanism for the reconciliation of OSP data and PTC data. Moreover, PTC must submit to beneficiaries the range of situations taken into account in the analyses of indicators for calculating compensation.
D 7. In the scope of the forecast plan of line needs defined in the LLRO, PTC may demand at the most the following information:
- Number, type (analogue or digital), speed (equal to or lower than 2 Mbps or higher than 2 Mbps) and PTC network groups where termination points of leased lines are located (for end-to-end lines and partial lines, the breakdown between end-to-end lines or partial lines by operators not being required).
In the case of inter-island lines, islands where termination points of leased lines are located must be identified. - Number of lines for traffic interconnection (interconnection lines and traffic interconnection internal extensions) broken down by pair of geographic points of interconnection (PTC/OSP).
- Number of SC per PTC exchange.
- Number of lines for access to submarine cables and of CAM lines.
D 8. The forecast plan of line needs defined in LLRO shall be made available during the month of September of year N for year N + 1, with a six-month breakdown. Information for the second half of the year is provisional and may be reviewed up to March of year N + 1. If this review does not take place until March of year N + 1, the information on forecasts submitted in September of year N for the second half of year N + 1 becomes final.
D 9. PTC shall remove any restrictions in the LLRO that make the payment of compensation for non-compliance with fault repair times and degree of availability dependant on the presentation of the forecast plan of line needs.
D 10. PTC must provide the collocation service and associated services in SCE as currently determined for other exchanges of its network, namely in the scope of LLRO and RELLO, unless there is a technical constrain or otherwise, duly substantiated by PTC and accepted by this Authority, that prevents the provision in these terms of any of the services concerned in any of the SCE. OSP that use the collocation service have access to submarine cables of any operator making landfall in SCE and have room for installing the necessary optical interfaces for installing the capacity lines they require, provided that the technical and safety conditions are duly safeguarded.
D 11. PTC must break down prices of the underwater and not underwater (backhaul) segments of CAM lines, and OSP may opt or not for using PTC's backhaul, for access to this type of lines.
D 12. In the absence of constrains referred in the preceding point, PTC shall make available services associated to collocation, such as transport of the signal and connection between OSP equipment in the collocation space and PTC and/or consortium's equipment, and the possibility of extending fibre-optic of OSP from the manhole to the collocation space shall also be provided for.
D 13. PTC shall not reject any effective request for supply of CAM lines, in the scope of LLRO and RELLO, where OSP have included lines for those connections, in their forecast plan of line needs submitted in the terms provided for in points D 7 and D 8. Operators may have to compensate PTC for costs incurred by this company further to forecasts that are not fully met later (in this situation, and before any investment is made, PTC must inform the operator of additional costs in question). If these lines have not been included in OSP forecast plan, PTC may only reject a supply request in case of an objective and justifiable absence of technical or economic conditions to fulfil it, in which case the situation must be immediately justified to ICP-ANACOM.
D 14. The deadline for supply of CAM and inter-island lines, in the scope of LLRO and RELLO, is 20 calendar days for 95% of cases and 40 calendar days for 100% of cases, being assessed on a monthly basis per OSP.
D 15. Fault repair times and degree of availability shall be assessed, in LLRO and RELLO, on a broken down basis for CAM lines per each OSP, provided that CAM lines have available capacity in secured rings.
D 16. This percentage is to be assessed through the following factors:
(a) Rate of occupation of SDH systems: ratio between the number of occupied VC4 and the number of installed VC4;
(b) Rate of occupation of DWDM systems: ratio between the number of occupied lambdas and the number of installed lambdas.
D 17. The deadline for supply of leased lines in the scope of RELLO, regardless of the type concerned, shall be:
- 20 calendar days, for 95% of cases, and 40 calendar days, for 100% cases, for lines involving only exchanges of Type A, defined as such in RELLO;
- 40 calendar days, for 95% of cases, and 80 calendar days, for 100% cases, in remaining cases, being assessed on a monthly basis for the set of lines supplied to a specific OSP, and including in that time-limit any periods related to a technical feasibility analysis.
D 18. PTC shall apply in the scope of RELLO determination D 3 hereof.
D 19. The deadline for leased line fault repair in the scope of RELLO shall be 4 consecutive hours for 90% of cases.
D 20. PTC shall apply in the scope of RELLO determination D 4 hereof.
D 21. PTC shall apply in the scope of RELLO determination D 5
D 22. The degree of availability applicable in the scope of RELLO is 99.50% for 10 Mbps and 100 Mbps lines and 99.95% for 1 Gbps lines.
D 23. PTC shall apply in the scope of RELLO determinations D 6, D 8 and D 9
D 24. PTC must include in RELLO information on all relevant parameters associated to the quality of service of an offer of the OSI model layer 1, and it is recommended that the company takes into account proposals already put forward or to be submitted by OSP.
D 25. PTC must guarantee in RELLO an MTU value of 1916 bytes, where required by OSP, and assess on a case-by-case basis other requirements for higher MTU values.
D 26. Minimum loyalty periods in the case of the change of location of an internal NTP to PTC's exchange shall be removed from RELLO. In the case of speed upgrades, the minimum loyalty period should be shortened to 6 months (if the upgrade is requested before one year has elapsed from the provision of the initial speed, PTC must not invoice remaining monthly fees until 12 months from the initial connection have elapsed).
D 27. PTC must inform the RELLO beneficiary that the technical process for setting up the line has already begun, so that the company may be compensated for costs incurred in case the setup is cancelled or changed, and clearly identify to the beneficiary the elements of costs incurred.
Where the cancellation is due to a delay in the line setup attributable to PTC, exceeding 15 calendar days, the OSP shall not be liable to pay for any amounts.
D 28. The time-limit for dismantling an Ethernet line shall not be less than 15 days, from the date of the request made by the OSP, except where PTC agrees otherwise.
D 29. PTC must include in RELLO the general principles followed in the definition of the technical and commercial conditions for securitisation, including main solutions and reference to the principle of non-discrimination.
D 30. PTC must include in RELLO the characterisation of "reasonable requests for access", specifically identifying what it means by "unreasonable requests", including the description of conditions associated to the determination of costs of "unreasonable" requests.
D 31. PTC must decrease in LLRO each and every element of prices (including CAM lines) for 2 Mbps, 34 Mbps and 155 Mbps lines by at least 35%, 40% and 45%, respectively.
D 32. Without prejudice to the preceding point, PTC must review the price of CAM lines within 20 days from approval of the final decision, taking into account reviewed cost accounting results for 2010, and considering all lines supported in CAM connections, submitting to ICP-ANACOM a detailed reasoning for those prices. Any subsequent review of those prices deemed by this Authority to be required will apply retroactively to the date of application of this point.
2. Recommends that PTC includes the following in RELLO:
The line monthly fee is invoiced in the civil month concerned. In the month the line is set up, the OSP must pay an amount that corresponds to the setup price plus 1/30 of the monthly fee, per day that elapses from the Starting Invoice Date until the end of that month. These amounts are invoiced after the date of conclusion of the setup and included in the invoice of the following civil month.
