ICP-ANACOM has authority to apply different types of sanctions: contractual penalties (in accordance with the contratos de concessão (concession contracts) governing the public telecommunications service and the universal postal service; sanctions in the context of breach proceedings; other administrative penalties (such as the suspension and cancellation of registrations); and may also impose mandatory monetary penalties.
Provision is made under different pieces of sector 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.
Law no. 99/2009 of 4 September establishes the framework of administrative offences within the communications sector, in light of the specifications and requirements of the sector and allows a more homogeneous and more rapid response from the sector's regulator.
The creation of ICP-ANACOM's Litigation and Offences Department, with the addition of new human resources, has given new impetus to the processing of offences. In 2011, 642 breach proceedings were instigated, compared to 145 in 2010, with rulings issued with respect to 371 cases, compared to 92 in 2010. Breach proceedings may be instigated following investigations which uncover evidence of non-compliant situations, or based on allegations made by operators or users of services, or may originate in notices addressed by other bodies or authorities.
Graph 58. Proceedings instigated in 2011
Unit: % (universe of 642 processes)
Source: ICP-ANACOM
About 10 percent of instigated proceedings resulted from evidence of breaches of the LCE, with note made of proceedings arising from situations of non-compliance with portability rules, and given their greater number, proceedings instigated in respect of failures to provide ICP-ANACOM with required information and proceedings instigated following commencement of the activity of provision of electronic communications services while failing to notify ICP-ANACOM.
About 70 percent of instigated proceedings relate to radiocommunications, including the personal radio service – citizen's band, the private use land mobile service and the radio broadcast service; the offenses in question relate, in most cases, to the use of radiocommunication stations or networks without registration or license or in a manner non-compliant with the mandatory technical parameters.
In terms of postal services, note is made of the proceedings instigated in respect of breaches of the obligation of service providers to send regular information to ICP-ANACOM and proceedings related to the operation of postal services without authorising title.
Among the remaining cases, note is made of new proceedings in respect of breaches of the rules applicable to message-based value-added services; others in respect of breaches of the mandatory availability of complaints books in all establishments where goods or services are offered; and others for breaches of the legal regime governing the provision of services of promotion, information and assistance to consumers and users through telephone call centres.
Graph 59 Breach proceedings with rulings issued in 2011
Unit: % (universe of 371 processes)
Source: ICP-ANACOM
Of all the breach proceedings that were ongoing in 2011, 371 were decided, of which 267 were instigated in the same year.
In 143 cases, fines were applied, totalling approximately 1,856,854 euros (reduced to 530,000 euros as a result of judicial decisions already made upon appeal).
5.4 percent of the decisions handed down in 2011 were appealed (20 decisions), with three of these appeals heard: in one case the fine was upheld, cancelled in another and reduced in the third. There were another 12 judicial rulings concerning appeals filed previously: in four cases the administrative decisions were upheld in full, the fines imposed reduced in seven and in one case, the procedure was dismissed due to limitation.
With the entry into force of the new LCE, breaches were classified according to their severity, with distinction made between the minor, serious and very serious breaches. Together with the size of the company, this classification determines the limits of the fine (in accordance with the framework scheme of administrative offences within the sector, approved by Law no. 99/2009 of 4 September, whose application to offenses under the LCE has become possible).
Also in accordance with Law no. 99/2009, costs were applied in decisions imposing fines and/or additional penalties, totalling 22,231.72 euros, with costs actually paid totalling only 2,907.80 euros.
