ANACOM prohibits pay-TV operators from engaging in unfair commercial practises

ANACOM - Autoridade Nacional das Comunicações has decided to prohibit commercial practises engaged in by pay-TV companies, as well as by agents advertising or marketing such services, which lead the consumer to believe that a paid service should be subscribed in order to continue receiving free-to-air channels (RTP1, RTP2, SIC and TVI, as well as RTP Açores and RTP Madeira in the respective Autonomous Regions).

This is a precautionary measure which prohibits ex-ante any unfair commercial practises by companies or agents, in order to prevent such conducts from taking place, thus avoiding situations where people are deceived into subscribing services they really do not need.

Failure to comply with the precautionary measure now adopted by ANACOM, besides being punishable pursuant to article 21 of Decree-Law number 57/2008, which governs unfair commercial practises, is also an infringement of a legitimate order imposed by ICP - ANACOM, punishable by a penalty between €500 and €3740 and between €5000 and €5000000, according to whether the infringer is a natural or a legal person, respectively, under Regicom.

This decision is in response to reports of certain practises which were brought to public attention in the last few weeks, concerning the analogue switch-off in the first pilot zone defined in the Switch-Off Plan adopted by ANACOM - Alenquer. According to these reports, doorstep-selling situations and telephone calls have taken place, in which, given the inevitable analogue switch-off in the scope of the transition process to Digital Terrestrial Television, the subscription of a paid service has been presented as the only solution to continue watching TV - which is not true -, clearly an unfair commercial practise pursuant to article 5, paragraph 1, of Decree-Law number 57/2008.  This practise constitutes a breach punishable by a penalty between €250 and € 3740,98, where the infringer is a natural person, and between €3000 and 44891,81, where the infringer is a legal person. Additionally, depending on the seriousness of the infraction and on the fault of the infringer, accompanying sanctions may also be applied, such as forfeit of objects belonging to the infringer; prohibition to pursue a profession or activity whose exercise depends on a public certificate or on an authorization or approval by a public authority; closure of an establishment subject to an authorization or license by an administrative authority; or disclosure of penalties and accompanying sanctions applied, at the infringer’s expense.

The switch-off process is a very sensitive and important matter for populations, and is intended to be carried out without disturbances. Aware that the migration process attached to the switch-off implies the adjustment of television receivers owned by viewers of free-to-air channels (RTP1, RTP2, SIC and TVI), ICP - ANACOM acknowledges that this period may constitute an opportunity for companies providing pay-TV services to secure new customers. However, it is not acceptable, in fact it is clearly illegal, for companies or their agents to exploit this business opportunity by adopting commercial practises that distort consumer choice, harming directly their own economic interests and indirectly those of their competitors.