Whereas:
a) Law No. 35/2012, of 23 August establishes the compensation fund for the electronic communications universal service provided for in the Electronic Communications Law, intended to finance net costs arising from the provision of the universal service;
b) The referred Law, as it currently stands, provides that companies providing public communications networks and/or publicly available electronic communications services on national territory are required to make i) contributions to the compensation fund to finance CLSU determined in the scope of the USP designation tenders, ii) as well as an extraordinary contribution to the compensation fund, relatively to each of the years 2013, 2014 and 2015 and 2016, exclusively intended to finance CLSU that are approved by ANACOM in those years;
c) As regards contributions to the compensation fund concerning CLSU determined in the scope of USP tender designation, ANACOM established that values that resulted from tenders on the fixed telephone service and the provision of public pay-phones would be deemed to be an unfair burden, having been deemed, on grounds set out herein, that the provision of a comprehensive telephone directory and of a comprehensive telephone directory enquiry service was also considered likely to represent an unfair burden;
d) It was established in the respective contracts concluded in 2014 and 2015 with the Portuguese State that values specified in winning tenders constitute CLSU to be compensated, as provided for in paragraph 1 b) of article 95 of the Electronic Communications Law;
e) In compliance with article 97, paragraph 1 of ECL, net costs resulting from all tenders were and are deemed by ANACOM to be unfair and, as such, they are required to be financed, under the terms and conditions set out in the respective tender statutory instruments, as well as in the law that lays down the compensation fund;
f) Tender-designated USPs started the provision of the FTS and public pay-phone US under the respective contracts in 2014. As such, according to paragraph 1 of article 14 of Law No. 35/2012, such providers must be compensated for CLSU incurred in 2015 by the end of March 2017;
g) In 2015, overall CLSU incurred by USPs under contracts amount to 4,575,732.42 Euros (4 million, five hundred and seventy five thousand, seven hundred and thirty two Euros and forty two cents), respectively 1,920,000.00 Euros for the (FTS) US provided by NOS Comunicações, S.A.; 2,466,600.00 Euros for the (public pay-phone) US provided by MEO - Serviços de Comunicações e Multimédia, S.A. and 189,132.42 for the (“directories and directory enquiry service”) US provided by MEO - Serviços de Comunicações e Multimédia, S.A.;
h) The final overall value to be considered for the purpose of the determination of contributions amounts to 4,575,731.78 Euros (four million, five hundred and seventy five thousand, seven hundred and thirty one Euros and seventy eight cents), which corresponds to the overall value of CLSU incurred by USP, in 2015, under contracts, deducted of the remuneration paid to the State as consideration for the provision of the US of provision of a comprehensive telephone directory and of a comprehensive directory enquiry service, under the contract concluded in February 2014. For the purpose of that deduction, the referred value of the annual remuneration paid to the State, which in 2015 corresponds to 0.64 Euros (sixty four Euro cents), was shared according to the proportion of CLSU incurred by each of the referred operators in the total value of CLSU incurred under the respective contracts, that is 0.27 Euros, 0.34 Euros and 0.03 Euros, respectively for the fixed telephone service, the public pay-phone service and the directory and directory enquiry services. As such, the values to be considered for the determination of contributions are 1,919,999.73 Euros (one million, nine hundred and nineteen thousand, nine hundred and ninety nine Euros and seventy three cents), 2,466,599.66 Euros (two million, four hundred and sixty six thousand, five hundred and ninety nine Euros and sixty six cents) and 189,132.39 Euros (one hundred and eighty nine thousand, one hundred and thirty two Euros and thirty nine cents), corresponding respectively to the FTS US (by NOS Comunicações, S.A.), and the US provision of public pay-phones and of a comprehensive telephone directory and a comprehensive telephone directory enquiry service (by MEO - Serviços de Comunicações e Multimédia, S.A., under the contract concluded on 10 July 2015);
i) As regards the extraordinary contribution to be made to the compensation fund, ANACOM approved in 2015 CLSU for the 2012 and 2013 financial years, which correspond to an overall amount of 46,766,998.10 Euros (forty six million, seven hundred sixty six thousand, nine hundred ninety eight Euros and ten cents);
j) The requirements defined in article 17 of Law No. 35/2012, to call the compensation of CLSU incurred by MEO with the provision of the universal service in 2012 and 2013, prior to the USP tender designation, through the compensation fund, in line with ECL (paragraph 1 of article 97), have been met: (i) existence of CLSU, further to an audit, approved by ANACOM and deemed by this Regulatory Authority to be unfair, and (ii) request by MEO to the Government for compensation for CLSU approved by ANACOM within the legally required period;
k) The overall amount of the extraordinary contribution for 2015 corresponds exactly to the amount of CLSU approved by ANACOM in its determinations of 16.09.2015 and 17.12.2015, and there are no other values to be deducted, namely compensatory interest or revenues assigned under the law;
l) Under Law No. 35/2012, it is incumbent on ANACOM to perform all actions required for a proper administration of the compensation fund , and pursuant to articles 11 and 19, the Regulatory Authority must identify every year the bodies required to contribute to the compensation fund, to finance net costs to be compensated to tender-designated USP as well as net costs for the period preceding the designation by tender, and to set the precise amount of the respective contributions;
m) In 2015, 99 companies registered with ANACOM as providers of public communications networks or of publicly available electronic communications services were active, 91 companies having submitted ET information to ANACOM;
n) Of the 8 companies that failed to submit any information:
a. 3 companies ceased operations in 2015, failing to comply with the obligation provided for in paragraph 4 of article 15 of the Fund Law, having been assumed that the respective ET is zero;
b. For 3 other companies, it was assumed that the amount of eligible turnover corresponds to the amount reported for the 2015 financial year, for the purpose of the procedure for entry and settlement of the annual fee referred to in article 105, paragraph 1b) of ECL, where it existed, or in its absence, the value declared for the purpose of the Fund Law in prior procedures. Values concerned are not likely to give expression to any of the companies so that they would be required to contribute to the fund nor have they any impact at the level of the identification of companies required to contribute to the compensation fund;
c. There is no available information for the remaining 2 companies.
o) The audit to turnover values reported by 24 companies providing networks and/or electronic communications services in the scope of Law No. 35/2012, was promoted, including in particular the ten companies with the largest values of eligible turnover, plus a company that had not sent information at first;
p) As a result of the audit and of the analysis carried out by ANACOM to other networks operators and/or electronic communications service providers, in conformity with the description in chapters 2.1, 2.2, 2.3 and 2.4, it was found that the sector’s eligible turnover amounts to 4,344,430,220.67 in 2015;
q) On the basis of the determined amount of eligible turnover and in the light of the concept of company laid down in the Fund Law, three companies (which integrate 9 bodies) were identified as being required to make: (i) contributions intended to finance CLSU for 2015 incurred by the USPs under contracts concluded (for NOS and MEO); and (ii) an extraordinary contribution to the compensation fund for 2015, having been excluded from these contributions all companies that in the year concerned registered an eligible turnover of the electronic communications sector below 1% of the sector’s overall eligible turnover;
r) Under articles 121 and 122 of the Administrative Procedure Code, a prior hearing of was held, stakeholders having been notified to submit comments on the draft final decision, if they so wished, for 10 working days. Contributions received were analysed as described in the prior hearing report, which substantiates and integrates this decision;
s) Arguments put forward by some of the stakeholders, as substantiated in the prior hearing report, did not determine the amendment of the amount of eligible turnover for those bodies compared to the value considered in the scope of the DD, the sector’s overall ET having also remained unchanged. As such, there is no reason why the list of bodies required to contribute to the FCSU, or the respective contribution amounts, should be amended;
t) In the scope of comments received, MEO - Serviços de Comunicações e Multimédia, S.A., requested, under article 12, paragraph 2, of Law No. 35/2012, a waiver of the requirement for a contribution given that it is entitled to a compensation which exceeds that contribution.
ANACOM’s Management Board, under paragraphs 1, 2, 3, 4 and 6 of article 97 of ECL, as well as paragraphs 1, 2, 3 and 4 of article 11 and paragraphs 1, 2 and 3 of article 19, both of Law No. 35/2012, of 23 August, as amended and republished by Law No. 149/2015, of 10 September 2015, and in the exercise of powers conferred under paragraph 1 q) of article 26 of its Statutes, approved by Decree-Law No. 39/2015, of 16 March, hereby determines:
1. To correct the sector’s ET value for:
a. 2013, from 4,688,819,519.10 Euros to 4,688,102,266.10 Euros, an amendment which has no impact whatsoever on the identification of bodies required to contribute to the compensation fund for CLSU to be compensated for 2007-2009, nor on the value of the respective contributions or on the value of the compensation to be paid to universal service providers for those periods.
b. 2014, from 4,490,912,078.06 Euros to 4,490,912,077.37 Euros, an amendment which has not impact whatsoever on the identification of bodies required to contribute to the compensation fund for CLSU to be compensated for 2010-2011 and 2014, nor on the value of the respective contributions or on the value of the compensation to be paid to the universal service provider for the same periods.
2. To order, for the purpose of the calculation of the electronic communications sector’s overall eligible turnover for 2015:
a. The review/establishment of eligible turnover amounts for the following companies: [BCI] [ECI], further to audits carried out, as described in chapter 2.1;
b. The review of the eligible turnover amount for the following companies: ([BCI] [ECI]), as a result of corrections/amendments introduced, as described in chapter 2.2;
c. The establishment of the eligible turnover amount for the following companies: ([BCI] [ECI]), as described in chapter 2.3, for failing to provide information for the purpose of Law No. 35/2012.
3. To establish, on the basis of information provided by network operators and electronic communications service providers, and bearing in mind point 2, that the sector’s overall eligible turnover for 2015 amounts to 4,344,430,220.67 Euros.
4. To approve the list of bodies that, in accordance with the calculated eligible turnover and in compliance with article 11 et seq of Law No. 35/2012, are required to pay a contribution to the compensation fund, intended to finance CLSU incurred by NOS Comunicações, S.A, in 2015, under contracts concluded with the Portuguese State for the provision of the US of connection to a public communications networks at a fixed location and of publicly available telephone services, as well as the contribution amount each body is required to pay, according to the table below. The total value of such contributions corresponds to the amount of compensation to be paid to NOS Comunicações, S.A., from which the amount of 0.27 Euros was deducted, corresponding to the respective proportion of the annual remuneration paid to the State as consideration for the provision of the universal service related to the provision of a comprehensive telephone directory and comprehensive directory enquiry service, under the contract concluded in February 2014 (a value which shall be paid at the same time as the value of contributions, to fully cover the compensation to which NOS Comunicações, S.A. is entitled).
|
Companies and bodies |
Eligible Turnover |
Contribution % |
Contribution |
|
Grupo Cabovisão/Onitelecom/Knewon/MEO |
|
|
958,421.39 |
|
CABOVISÃO - Televisão por Cabo, S.A. (1) |
|
|
38,438.73 |
|
ONITELECOM - Infocomunicações, S.A. |
|
|
20,540.29 |
|
KNEWON, S.A. |
|
|
0.00 |
|
MEO - Serviços de Comunicações e Multimédia, S.A. |
|
|
899,442.37 |
|
Grupo NOS |
|
|
556,094.62 |
|
NOS Comunicações, S.A. |
|
|
537,786.85 |
|
NOS AÇORES COMUNICAÇÕES, S.A. |
|
|
6,784.39 |
|
NOS MADEIRA COMUNICAÇÕES, S.A. |
|
|
11,523.38 |
|
Grupo VODAFONE |
|
|
405,483.72 |
|
VODAFONE PORTUGAL - Comunicações Pessoais, S.A. |
|
|
405,483.72 |
|
VODAFONE Entreprise Spain , SL - Portugal branch |
[ECI] |
[ECI] |
0.00 |
|
Total |
4,253,172,791.57 |
100% |
1,919,999.73 |
(1) The company changed its corporate name to NOWO Communications, S.A. in October 2016.
Note: Values in Euros.
Values were calculated in compliance with the Fund Law, at cent level.
Source: Data from companies, audit results and ANACOM calculations.
5. To approve the list of bodies that, in accordance with the calculated eligible turnover and in compliance with article 11 et seq of Law No. 35/2012, are required to pay a contribution to the compensation fund, intended to finance CLSU incurred by MEO Comunicações e Multimédia, S.A., in 2015, under the contract concluded with the Portuguese State for the US provision of public pay-phones, as well as the contribution amount each body is required to pay, according to the table below. The total value of such contributions corresponds to the amount of compensation to be paid to MEO Comunicações e Multimédia, S.A., from which the amount of 0.34 Euros was deducted, corresponding to the respective proportion of annual remuneration paid to the State as consideration for supplying the US related to the provision of a comprehensive telephone directory and directory enquiry service under the contract concluded in February 2014 (a value which shall be paid at the same time as the value of contributions, to fully cover the compensation to which MEO - Serviços de Comunicações e Multimédia, S.A. is entitled).
|
Companies and bodies |
Eligible Turnover |
Contribution % [BCI] |
Contribution |
|
Grupo Cabovisão/Onitelecom/Knewon/MEO |
|
|
1,231,271.99 |
|
CABOVISÃO - Televisão por Cabo, S.A. (1) |
|
|
49,381.76 |
|
ONITELECOM - Infocomunicações, S.A. |
|
|
26,387.86 |
|
KNEWON, S.A. |
|
|
0.00 |
|
MEO - Serviços de Comunicações e Multimédia, S.A. |
|
|
1,155,502.37 |
|
Grupo NOS |
|
|
714,407.80 |
|
NOS Comunicações, S.A. |
|
|
690,888.04 |
|
NOS AÇORES COMUNICAÇÕES, S.A. |
|
|
8,715.82 |
|
NOS MADEIRA COMUNICAÇÕES, S.A. |
|
|
14,803.94 |
|
Grupo VODAFONE |
|
|
520,919.87 |
|
VODAFONE PORTUGAL - Comunicações Pessoais, S.A. |
|
|
520,919.87 |
|
VODAFONE Entreprise Spain , SL - Portugal branch |
[ECI] |
[ECI] |
0.00 |
|
Total |
4,253,172,791.57 |
100% |
2,466,599.66 |
(1) The company changed its corporate name to NOWO Communications, S.A. in October 2016.
Note: Values in Euros.
Values were calculated in compliance with the Fund Law, at cent level.
Source: Data from companies, audit results and ANACOM calculations.
6. To approve the list of bodies that, in accordance with the calculated eligible turnover and in compliance with article 11 et seq of Law No. 35/2012, are required to pay a contribution to the compensation fund, intended to finance CLSU incurred by MEO Comunicações e Multimédia, S.A., in 2015, under the contract concluded with the Portuguese State in July 2015 for the US provision of a comprehensive telephone directory and of a comprehensive directory enquiry service, as well as the contribution amount each body is required to pay, according to the table below. The total value of such contributions corresponds to the amount of compensation to be paid to MEO Comunicações e Multimédia, S.A., from which the amount of 0.03 Euros was deducted, corresponding to the respective proportion of annual remuneration paid to the State as consideration for supplying the US related to the provision of a comprehensive telephone directory and of a comprehensive directory enquiry service under the contract concluded in February 2014 (a value which shall be paid at the same time as the value of contributions, to fully cover the compensation to which MEO - Serviços de Comunicações e Multimédia, S.A. is entitled).
|
Companies and bodies |
Eligible Turnover |
Contribution % [BCI] |
Contribution |
|
Grupo Cabovisão/Onitelecom/Knewon/MEO |
|
|
94,410.70 |
|
CABOVISÃO - Televisão por Cabo, S.A.(1) |
|
|
3,786.46 |
|
ONITELECOM - Infocomunicações, S.A. |
|
|
2,023.35 |
|
KNEWON, S.A. |
|
|
0.00 |
|
MEO - Serviços de Comunicações e Multimédia, S.A. |
|
|
88,600.89 |
|
Grupo NOS |
|
|
54,778.92 |
|
NOS Comunicações, S.A. |
|
|
52,975.48 |
|
NOS AÇORES COMUNICAÇÕES, S.A. |
|
|
668.31 |
|
NOS MADEIRA COMUNICAÇÕES, S.A. |
|
|
1,135.13 |
|
Grupo VODAFONE |
|
|
39,942.77 |
|
VODAFONE PORTUGAL - Comunicações Pessoais, S.A. |
|
|
39,942.77 |
|
VODAFONE Entreprise Spain , SL - Portugal branch |
[ECI] |
[ECI] |
0.00 |
|
Total |
4,253,172,791.57 |
100% |
189,132.39 |
(1) The company changed its corporate name to NOWO Communications, S.A. in October 2016.
Note: Values in Euros.
Values were calculated in compliance with the Fund Law, at cent level.
Source: Data from companies, audit results and ANACOM calculations.
7. To order the issue of the respective Invoices/Settlement Notices of contributions identified in points 4, 5 and 6, which shall refer to this decision and respective grounds, and indicate the Compensation Fund as active party and respective Tax Identification Number, defence measures and means of payment, and which shall be paid within 20 days, in compliance with paragraph 1 of article 12 of Law No. 35/2012.
8. To authorize MEO - Comunicações e Multimédia, S.A., further to the request made by the latter, and pursuant to paragraph 2 of article 12 of Law No. 35/2012, not to pay the contribution concerning CLSU for 2015 (period subsequent to the USP tender designation) to which it is bound, as the amount of compensation to which it is entitled as USP of public pay-phones and of a comprehensive telephone directory and of a comprehensive directory enquiry service exceeds the value of the contribution it is required to pay. As such, the amount of the overall contribution for the period subsequent to the USP tender designation is deducted from the amount of compensation to which the company is entitled for the US provision of public pay-phones, as well as of a comprehensive telephone directory and a comprehensive directory enquiry service.
9. To approve the list of bodies that, in accordance with the calculated eligible turnover and in compliance with article 18 et seq of Law No. 35/2012, are required to pay an extraordinary contribution to the compensation fund, as well as the contribution each body is required to pay, according to the table below, where the total value of such contribution corresponds to the amount of compensation to be paid to MEO - Serviços de Comunicações e Multimédia, as universal service provider, for net costs incurred in the 2012 and 2013 financial years, as approved by ANACOM in 2015.
|
Companies |
Eligible Turnover |
Contribution % |
Extraordinary |
|
Grupo Cabovisão/Onitelecom/Knewon/MEO |
|
|
23,345,050.92 |
|
CABOVISÃO - Televisão por Cabo, S.A.(1) |
|
|
936,283.53 |
|
ONITELECOM - Infocomunicações, S.A. |
|
|
500,316.66 |
|
KNEWON, S.A. |
|
|
0.00 |
|
MEO - Serviços de Comunicações e |
|
|
21,908,450.73 |
|
Grupo NOS (2) |
|
|
13,545,249.72 |
|
NOS Comunicações, S.A. |
|
|
13,099,312.47 |
|
NOS AÇORES COMUNICAÇÕES, S.A. |
|
|
165,252.86 |
|
NOS MADEIRA COMUNICAÇÕES, S.A. |
|
|
280,684.39 |
|
Grupo VODAFONE |
|
|
9,876,697.46 |
|
VODAFONE PORTUGAL - Comunicações |
|
|
9,876,697.46 |
|
VODAFONE Entreprise Spain , SL - |
[ECI] |
[ECI] |
0.00 |
|
Total |
4,253,172,791.57 |
100% |
46,766,998.10 |
Note: Values in Euros.
Values were calculated in compliance with the Fund Law, at cent level.
(1) The company changed its corporate name to NOWO Communications, S.A. in October 2016
(2) The determination of the aggregated contribution of Grupo NOS results in a value exceeding by 1 cent the sum that results from the determination of the individual contribution of each of the companies; so that the final result corresponding to the sum of all contributions is equal to the value of the contribution identified in the “total” line, a cent was allocated to the company of Grupo NOS with the highest value in the three decimal places, which is NOS Açores, which thus contributes with €165,252.86 instead of €165,252.85.
Source: Data from companies, audit results and ANACOM calculations.
10. To order the issue of the respective Invoices/Settlement Notices of contributions identified in point 9, which shall refer to this decision and respective grounds, and indicate the Compensation Fund as active party and respective Tax Identification Number, defence measures and means of payment, and which shall be paid within 20 days, in compliance with paragraph 1 of article 20 of Law No. 35/2012.
11. To authorize MEO - Comunicações e Multimédia, S.A., further to the request made by the latter and pursuant to paragraph 2 of article 12, applicable ex vi article 20 of Law No. 35/2012, not to pay the contribution concerning CLSU for 2012 and 2013 to which it is bound, as the amount of compensation to which it is entitled is higher. As such, the amount of the contribution is deducted from the amount of compensation to which the company is entitled.
12. To notify bodies covered by the determination in point 2 of the approval of this decision in the part which specifically concerns them.
13. To notify bodies covered by determinations in point 4, 5, 6 and 9, under paragraph 5 of article 11 of Law No. 35/2012, of the approval of this decision.
14. To make the approval of this decision publicly available at ANACOM’s website, in compliance with paragraph 6 of article 11 of Law No. 35/2012.
