I
General Findings
1. Model of presentation
The Annual Report of ICP-ANACOM with reference to the year 2011, as now submitted to the Advisory Council, comprises the Regulation Report and the Activities Report, whose production is determined by its Statutes. The Report’s formal, temporal and logical articulation prevents overlap and duplication, while ensuring immediate and accurate references that provide a view of the global regulatory activity as it meets reality and provides an examination thereof, as emphasized in the opinion given in respect of the 2010 report. The usefulness of a simple 'activity report' may be questioned at a fundamental level, since the Regulation Report and Annual Report and Accounts are, conceptually, sufficiently comprehensive in their reporting of the regulator’s activity. The integrated model does not detract from an analysis of the formal and operational individuality of the activities undertaken by the Regulator. Furthermore, the solution adopted corresponds to one of the recommendations of ICP-ANACOM’s Advisory Council.
2. Reprint - Executive Summary
Part A - Background and Structure - which opens the report, with Part E - Final Considerations - which concludes it, possibly supplemented by a summary referring to the state of communications in Portugal during the year being reported, may, in the opinion of the Advisory Council, constitute a fitting executive summary that might be made available to the general public, as a separate volume, providing the wider population with a more succinct view of the activity developed by the Regulator.
3. Technicality of the Report
The Advisory Council considers that the report could be produced using language which is more accessible to the general public and less targeted at market agents; this would expand the universe of its readership, obviously without detracting from its rigour and technical precision, which must be safeguarded.
4. Assessment of regulatory measures
For the Annual Report, it matters less that it contains a detailed analysis or description of the decisions taken, but rather that it contains a comprehensive framework and timetable of the various actions and measures supporting resolution of each issue on the regulatory agenda.
Bearing in mind the difficult context of the previous year, on which the Regulation Report focuses, one cannot fail to recognize the significant efforts made by ICP-ANACOM with a view to accomplishing scrupulous fulfilment of the various commitments assumed by the Portuguese State. This likewise determined a remarkable effort by all market stakeholders to contribute to the adoption of better decisions and resulted in the fulfilment of almost all the targets set for the sector in the Memorandum of Understanding.
The extent to which the actions scheduled in ICP-ANACOM's Plan for 2011 have been accomplished is presented as a percentage for the entire set of actions, without giving due consideration to the relative importance of the different actions undertaken or scheduled; likewise, consideration is not given to the level of compliance with the schedule set out by the Regulator. It would be more fitting, reiterating the recommendation of previous years, for the Regulation Report to include a quantified assessment of the impact, extent and justification for the implementation of regulatory measures, in areas that these were taken, specifically the following:
- Development of infrastructure
- Diversity of supply
- Quality of products and services
- Pricing
- Innovation
As such, it is important to ascertain the sector's evolution in these areas with accuracy and rigor, and relate this evolution to the measures taken, thereby increasing transparency and enhancing the consistency of Regulation.
5. Consultation of regulated entities
It is considered that ICP-ANACOM's Management Board, further to the mandatory system of public consultations, should periodically consult regulated entities and consumer bodies on relevant regulatory matters and on its national participation in international organizations. The institutionalization and regularity of a consultation system would not only enhance cooperation between regulator and regulated entities but will also increase transparency, confidence and predictability of regulatory activity.
Operators take the view that the Regulation Report should devote some space to the consideration of the concerns which they have raised and obstacles which they have encountered during the year and the response obtained from the Regulator, to provide for a better understanding of the direction and scope of regulatory activity, as well as the priorities defined. The rapid change in the assumptions or circumstances that give basis to the preparation of regulatory plans or resource planning calls for regular consultation of the market; this ensures the predictability of regulation, which is key to a strong and robust sector.
There is a noted absence in the Report of reference to any efficiency gains achieved by ICP-ANACOM with a view to controlling and reducing response times to questions put to it by regulated entities (in terms of processing times), as well as measures of austerity and restraint advocated and introduced in order to answer the significant austerity effort that is currently required of the whole country
II
Specific Findings
6. Digital Terrestrial Television
The transition from analogue to digital terrestrial television (DTT) provides greater efficiency in use of the spectrum, freeing up significant resources - the digital dividend - which have been employed in the development of mobile broadband. In a large majority of countries, notably within the European Union, this transition has also contributed to the development of the audiovisual sector and content industry, as well as the expansion of the television offer and the launch of new programme services, especially HDTV.
In the context of DTT (Digital Terrestrial Television), for better promotion of open and competitive markets, as well as protecting the rights of users and citizens, notwithstanding all efforts of regulation undertaken, the sector awaits:
- Public disclosure of the main conclusions of the meetings of the DTT monitoring group (GAM-TD)
- Public identification of the radio spectrum available after the switch-off
- Public consultation on the future use of the radio spectrum that will be available following the switch-off.
The Advisory Council calls on ICP-ANACOM's Management Board to undertake careful evaluation of the DTT implementation process.
7. Universal service
ICP-ANACOM has taken a series of decisions aimed at reducing barriers faced by new entrants in the fixed communications market, with the ultimate goal of increasing the number of providers, improving quality of service and reducing prices. However, the launch of the public tender for the Universal Service is pending government approval, and there has already been a string of significant delays.
The Advisory Council calls on the Management Board of ICP-ANACOM to develop appropriate steps so that the necessary launch of this public tender does not suffer further delay.
8. Implementation of Centralized Information System (CIS)
The Report presently under consideration reports only that this public tender was terminated in 2011 on procedural grounds, and that it is pending award in 2012. Considering that the relevant legislation dates from 2009, the schedules have largely overrun.
The view is taken that this issue, given its importance, and because it requires the fulfilment of obligations by regulated entities required to define the technical and commercial conditions governing access to infrastructure which they own or manage, warrants proper oversight by the regulator, a regulatory action which is not mentioned in the Report.
9. Relevant markets
Issues as relate to the analysis, review and definition of relevant markets must be made a regulatory priority, for so long as the current model prevails.
It should be noted that:
- there are relevant markets that have not been subject to review since 2004;
- with respect to markets 4 and 5, the regulator could have acted faster or given full justification for the adopted regulatory timeframe, given that the market analysis was not submitted to public consultation until February 2012.
10. Numbering
The report makes no mention of issues raised by the operators on the use of geographic numbering in services of a nomadic nature. As an issue that is submitted to analysis by the Regulator, the Regulation Report should have addressed this issue in the context of the regulatory framework.
11. Dispute resolution and sanctioning activity
- The inclusion of a summary of the main disputes between operators where ICP-ANACOM was called on to intervene is important information, as already noted in previous opinions.
There is no justification given for the existence of disputes carried over from one year to another.
- In the Regulation Report, reference is made, in vague terms, to the instigation of a number of breach proceedings, but no reference is made to the number of cases concluded, in progress or archived; nor is reference made to the number of cases submitted to judicial review (appeal) or to the number of concluded cases and corresponding sanctions.
The report also omits reference to the average time taken for the resolution of breach proceedings.
The inclusion of such summarising references and statistics would help to ensure greater predictability of regulation, better understanding of its objectives in terms of the protection of consumer interests, and would also strengthen confidence among agents in institutional dispute resolution mechanisms and confidence among regulated entities in the regulator, an ultimate goal of regulation.
12. Conclusion
In summary, the final recommendation is that it be ensured that the Regulation Report or its Executive Summary can always be read, whoever the reader may be, with a suitable level of accuracy as regards the specific results of regulatory activity in each year, in terms of public resources used, efficiency obtained in relation to established targets and efficiency induced into the economy and society.
Advisory Council, 25 July 2012
