As a preliminary matter, it must be stressed that PTC declares that, in compliance with article 26 of the Bases of Concession of the telecommunications public service1, it obtained from the Grantor, the Portuguese State, a prior authorization to promote the merger operation now under consideration.
It is also clarified that, as referred above, PT PRIME does not hold any right of use for frequencies. If it did, the respective transfer would be subject to the procedure laid down in article 34 of ECL, namely the requirement for holders of rights of use for frequencies to previously communicate their intention to this Authority. This means, in this specific case, that PT PRIME would be subject to comply with the obligation to communicate its intention to ICP - ANACOM before the merger operation took place, given that such operation would involve the transfer of its rights of use.
Analysing this specific request, it is concluded that the merger by acquisition that involved the overall transfer of PT PRIME's assets to PTC, and in the scope of which obligations that fell on PT PRIME were fully transferred to the acquiring company - PTC -, entails, as such, the transfer of rights of use for numbers, which must be assessed by this Authority under article 38 of ECL.
Being incumbent on ICP - ANACOM to safeguard, under the applicable and above-mentioned legal provisions, the effective and efficient use of numbers, it must be verified whether, in the scope of this transfer of rights of use for numbers, the acquiring company - PTC - acquires resources it would not be able to obtain through a primary assignment, in the light of current allocation criteria and, consequently, measures to be applied in case of an accumulation of resources as would be contrary to these criteria should be decided on. This particularly concerns criteria based on (i) the minimum 60% rate of the usage capacity of previous assignments of numbers which may be assigned to subscribers, and (ii) unit allocations, for numbers identifying the operator or the network.
It is well known that mergers by acquisition between two operators and the correspondent transfer of rights of use for numbers may generate situations of accumulation of resources in cases where companies involved have been allocated the same type of numbers, due to the provision of the same type of numbers.
Given that PTC and PT PRIME are providers of services of a similar nature, although with different target markets, this transfer led PTC to accumulate numbering resources where it already held resources2.
Different cases resulting from the accumulation of numbering resources according to their type are identified and analysed below:
A. In case numbers are used to identify network termination points where terminals are connected and which identify the respective subscribers - geographic and nomadic numbers (“2” and “30” ranges) and numbers of non-geographic services (“707”, “800” and “808” ranges) - it is deemed that the accumulation of resources may be authorized without constrains that imply the return of telephone numbers being used, as this would affect user interests, which mainly concern the maintenance of its numbers.
However, given that the protection of user interests must be reconciled with the general principle of effective and efficient use of numbering resources, in particular with the objective of ensuring that the provider that accumulates resources holds no competitive advantage to relatively to others who are in the same market with lower conditions of access to numbering resources, it is relevant to provide for conditions that prevent a possible benefit of this nature.
Non-geographical numbers usually have a special commercial value of association to companies or brands, and the ease of memorization is an added value conferred in the way how digits are grouped.
From an initial set of available numbers it is of course possible to establish a larger set of easily memorized numbers - the so-called “golden numbers”.
For this reason, while it is important to maintain non-geographic client numbers (e.g. call centres), it must be also ensured that the referred benefit does not exist relatively to non allocated numbers (vacant or becoming vacant) of surplus blocks, preventing them from being allocated/reallocated, and “freezing” the blocks to which they belong.
B. In case of numbers that are used to identify the network or specific points of the network to which final users are not connected, or other numbers or codes that identify the operator/provider, it is deemed relevant that the alternative of migrating them to a single number or range is adopted, and that released resources are returned to ICP - ANACOM.
Depending on whether there are commercial effects related to these numbers, likely to entail an undue competitive advantage, different return deadlines may be justified. A similar approach was adopted by ICP - ANACOM in its Determination of 29 December 2008.
i. Call centre numbers - 1624 and 1620 - and numbers used as prefix for operator selection or pre-selection purposes - 1020 and 1024
These numbers have a commercial value. Given that the provision of different services by PTC and PT PRIME is not at stake, it is deemed that one number of each service should be discontinued and returned to this Authority, within a reasonable period of time for companies to implement network changes and to publicize to the market or to allow it to get used to the change of numbers, thus minimizing impacts on the operator itself or on its subscribers. Moreover, as regards the call centre service, the use of a single number, of the 16xyz format, is compatible with a possible market segmentation, residential market versus business market. Like the 2008 Decision, a one-year period of time is deemed to be reasonable.
ii. Resources allocated to data networks (X.121) in UIT - the International Telecommunications Union - (DNIC – Data Network Identification Code) and the issue of cards in the scope of UIT Recommendation E.118 - (IIN - Issuer Identification Number)
With this transfer, PTC accumulates resources of its own with others of the same type held by PT PRIME. There are no reasons, in the perspective of the safeguard of user rights, that justify such an accumulation for an unlimited period of time. There seems to be also no commercial interest in these numbers that entails an advantage. As such, and in order to prevent any upstream operational or logistic return constrains, it is deemed reasonable to set a period of two years for the return of these resources by PTC.
iii. Network Routing Numbers (NRN) - “D” and 024 (PT PRIME) and 020 (PTC) service code
The Portability Regulation as well as the contract for provision of services established between the Reference Entity (RE) and providers with portability obligations, lay down mechanisms that enable the change of NRN of all numbers ported from one operator involved in the merger to the other, ensuring the return of this type of resource to ICP - ANACOM with no significant impact for PTC or for other operators involved in portability operations.
The experience from decision of 23 December 2009 (Return of numbering resources by Sonaecom - alteration of decisionhttps://www.anacom.pt/render.jsp?contentId=1001534), in which ICP - ANACOM reviewed the conditions associated to the return of this type of resource, and bearing in mind the volume of numbers ported-in by PT PRIME, even if this involves mostly DDI (Direct Dialling In) ranges from business/corporate clients, leads this Authority to believe that the migration process should not be rushed, due to the impact on the capacity of systems of all operators with portability obligations and on systems of the ER. For this reason, it is deemed that this resource may be returned within a two-year period.
iv. Numbering resources of the data network access service, in dial up mode - “67” numbering range
The return of this type of resources implies the implementation of a migration process that requires changes in the settings of installed equipment, with operational and logistic costs for operators which are disproportionate with the current decline of the service.
In this scope, ICP - ANACOM has already taken the view, by determination of 30 August 20123, to authorize the accumulation of resources in code “67” of the National Numbering Plan by the same provider, as a result of mergers and/or acquisition of companies, involving the data network access service accommodated in this range.
Consequently, to safeguard principles set out, it is incumbent on ICP - ANACOM to determine, among numbers whose rights of use were transferred from PT PRIME to PTC, which resources should be returned and by which period of time, and which conditions should be complied with in the use of remaining resources. Without prejudice, it must be stressed that any single number allocated and not activated or block of numbers with no activated numbers or in quarantine must at any level be returned to ICP - ANACOM.
In the light of the above, it is concluded that the use of numbers transferred to PTC must be made subject to rules that safeguard its efficient management and which at the same time appropriately ensure the rights of users and the minimisation of costs borne by operators.
It is thus deemed that, except for resources accumulated in code “67”, numbers or blocks of numbers that, for the above-mentioned reasons, may not be accumulated by a single provider, must be the subject of a migration plan aimed at the return to ICP - ANACOM of resources released in the meantime. PTC is entitled to decide which numbers are returned for each type of resource.
This is a matter which ICP - ANACOM will monitor in detail so as to ensure, on the one hand, the effective and efficient use of numbers by PTC and, on the other hand, non-discrimination in the conditions of access to resources of the National Numbering Plan between the company and other operators/providers of electronic communication services.
The referred merger by acquisition of PT PRIME into PTC will be considered in the scope of the settlement of the fee due for the use of numbers, under articles 18 to 22 and annex III to Administrative Rule No. 1473-B/2008, of 17 December, as amended and republished by Administrative Rule No 296-A/2013 of 2 October.
1 Published in annex to Decree-Law No. 31/2003, of 17 February.
2 It is recalled in this scope a similar situation already analysed in 2008 by ICP - ANACOM, in the scope of which, on 29 December 2008, a Decision was issued with specific measures for each type of resources 'Transfer to SONAECOM of rights of use for numbershttps://www.anacom.pt/render.jsp?contentId=799678'.
3 Available at 'Accumulation of numbers for data network access services, as identified by PNN code ''67''https://www.anacom.pt/render.jsp?contentId=1137299'.
