Opinion of the Advisory Council of ICP-ANACOM on the Multi-Annual Activities Plan 2015 - 2017



Multi-Annual Activities Plan 2015 - 2017


ICP-ANACOM considers that it is essential to ensure the stability of the regulatory framework and the predictability of decision-making, so that operators and service providers are able to develop their businesses and pursue their investments without fear of unjustified regulatory disruption, in an environment conducive to innovation. ICP-ANACOM also considers that, in the exercise of its functions, it must seek to provide regulation that remains proportional and rigorous and, insofar as is possible, unobtrusive. This is an unequivocal affirmation of the principles and objectives that guide its regulatory conduct, an affirmation which the Advisory Council emphasises and recommends should be respected and fulfilled throughout the period of the Plan's execution.

Likewise, it is essential that, while giving necessary consideration and expression to interested parties, ICP-ANACOM operates within the framework of the major guiding principles of its regulatory action: to be proactive and expeditious in its decision-making and in the implementation of measures, avoiding excessive or unwarranted delay that might impede investment and that would surely contribute to a lack of clarity in the regulatory framework. Irrespective of whether a tighter timetable is defined, as recommended in specialist analysis, it is considered that markets 4 and 5, as regards infrastructure access and wholesale broadband access and market 7 as regards termination on mobile networks lack guidance and intermediate decisions which, with brevity, would allow completion, together with the whole process of management and use of numbering resources.

It is noted that the Multi-Annual Activities Plan 2015-2017 incorporates contributions submitted by a number of stakeholders in the context of the public consultation launched by ICP-ANACOM in relation to the strategic lines of action to be followed for the 2015-2017 period. The council positively notes ICP-ANACOM's announcement, in the report on this consultation, that it will also submit its Multi-Annual Activities Plan to public consultation from next year.

Although the elements that are referred to below can be found in individual documents of different origins, it would contribute to a better understanding of the Multi-annual Plan and of ICP-ANACOM's regulatory activity if there was a chapter focusing on the general framework of recent developments in the regulatory activity, market trends and reasons for the main regulatory solutions envisaged; as well as a section reporting on the fundamental variables, such as sector investment, consumption, employment, innovation, competition... The digitization of the economy already appears to be a topic of great relevance to the development of the communications sector, and should therefore be addressed, particularly in the framework of the 2020 European Strategy.

In short, an integrated perspective of the problems and recommended solutions, which contributes to the development of forms of planning that might foster competition and economic regulation.

It is expected that, in the near future, new Statutes will be approved for ICP-ANACOM together with the organizational restructuring which the new statutes will enable, whereby the Advisory Council recommends that the Management Board set up a Strategic Council which can prepare and oversee a prospective regulatory vision.

The difficult macroeconomic framework which, as ICP-ANACOM recognizes, puts strain on the sector, demands, more than ever, stability, certainty, celerity, simplification and adoption of the principle of cooperation in regulatory activity.

B. In specific terms

I. Measures contained in the plan

a. Strategic Lines of the Plan

(i) Ensure legal compliance and transparency as regards business practices (including contract terms)

It is considered that the Plan should be more specific on the public consultation and on the constitution of the working group which will examine the "standardisation" of wording in contract clauses and any simplified information sheet for the sector. To date, the market has been sounded out in a general manner as to the feasibility/necessity of a Simplified Information Sheet in the communications sector, and on how the content of pre-contractual and contractual information provided to consumers in relation to the provision of electronic communications services might be simplified and harmonised. It is the Council's view that the measures proposed for the accomplishment of the stated objectives must be submitted to a new consultation procedure, given their impact on the activity of operators.

(ii) Assess the impact of adopted regulatory measures

For 3rd quarter 2015, the Plan provides for the development of a study on AIR, focusing on comparative analysis of different approaches taken by NRAs on AIR programmes. Nevertheless, given the structural nature of this matter and the need to provide ongoing continuity, ICP-ANACOM should provide a timetable for subsequent actions in this area, taking into account the conclusions of the study to be completed in Q3 2015.

(iii) Analyse/review relevant electronic communications markets

The re-analyses of relevant markets 2 and 3 must be timed to precede the reanalysis of markets 4, 5 and 6: on the one hand, in the current course of analyses, the latter markets have not been re-analysed (pending the launch of the respective public consultations in Q4 2014), while market 2 was re-analysed in August 2014 and market 3 already made subject to a public consultation launched in July 2014; on the other hand, given the comments of the European Commission on the draft decision on market 2, ICP-ANACOM will closely monitor developments in this market in order to assess whether a reanalysis will be needed before the end of the (normal) period of 3 years.

(iv) Assure and protect the rights of users and citizens

The deployment of DTT in Portugal still needs many improvements, whereby it is considered that a redefinition and expansion of the DTT offer should be considered, that is inclusive of populations, comprising new district and regional solutions, in addition to promoting competition with other platforms.

b. Review of markets and costing models - need to bring forward

(i) Termination on mobile networks (Market 7)

The last analysis of market 7 took place in 2010. The definition of termination rates on mobile networks has been repeatedly delayed. As such operators consider that analysis of market 7 should be concluded in 2014. Similarly, the definition of new termination rates on mobile networks should be based on the revision of the previously approved costing model to take account of technological and market developments. Deferring its conclusion to 2016 over-stretches the timetable. The Plan's wording does not let it be known if in fact there is an ongoing review of the mobile termination costing model which gives basis to the setting of prices after completion of the market analysis scheduled for Q1 2015 and, as a result, whether the review included in the 2015-2017 plan aims to inform a future decision to review termination rates.

(ii) NGN Costing model

This action should be begun as soon as the analysis of markets 4 and 5 concludes, which, according to the plan, is scheduled for 2014.

c. Revision of reference offers

The review of the SLRO, LLRO and RELLO should also follow a tighter schedule, given the conclusion of the review of markets 1 and 2 and the imposition of obligations that underlie the SLRO in August 2014. As such, the SLRO should be completed in Q1 2015. The LLRO and RELLO should be completed in H1 2015.

The conclusion of the analysis and a decision on a virtual access offer should be brought forward to 1st half 2015 - it is likely that the analysis of markets 4 and 5 and the respective imposition of obligations will be concluded in 2014. As regards these markets and the need for greater speed, small communications providers operating exclusively on the fixed enterprise network are reporting occurrences of market failure and difficulties in accessing the fibre networks of large operators, given the convergence between fixed and mobile. In their view, this creates competitive distortions which impact their business.

d. Numbering Resources

A review of the conditions governing management and use of geographic numbers is urgent, given that this review is essential to guarantee conditions of healthy competition and innovation. It is considered, therefore, that the final decision on this matter should be adopted during the first part of 2015. The public consultation on the issue has been open since 2010. And two topics related to the PNN's management are pending ICP-ANACOM decisions (sharing of 16xy numbering and conditions of user access to certain PNN numbers) but have not received specific mention in the document which covers the next three years.

The adoption of a numbering regulation is important and the target date for completion is acceptable, provided that relevant measures in the field of numbering are appreciated and considered, such as mobility conditions for geographic numbers; use of numbering for machine-to-machine applications; resale of numbering resources, such as is the practice already followed in other countries .

e. QoS Evaluation

Implementation of the Netmede.Pro technology platform is planned for 2015 and the production of broadband QoS information/indicators in 2016. In adopting a robust methodology in terms of reliability, operators underline the need for representative and comparable results.

Whereas ICP-ANACOM intends to evaluate and potentially implement QoS indicators and minimum requirements in the context of network neutrality, it is recommended that prior to implementation of the platform and its entry into operation, ICP-ANACOM promote a thorough discussion among all stakeholders, including operators, on the methodology for measuring Internet access QoS based on the information generated by the Netmede.Pro platform. This will ensure appropriate competitive conditions and that users have comprehensive information.

f. Universal Service

ICP-ANACOM reports that, in 2015, it will amend the methodology to be used for calculating the CLSU - custos líquidos do Serviço Universal (net costs of universal service provision) inherent to electronic communications, but does not specify the period that the announced amendment refers to nor the motivation for requiring an amendment. The relevance of certain measures, given their complexity or impact on the market, require justification of motives, even if briefly, as a procedure necessary to fulfil the principle of regulatory predictability.

g.  Hearing of Operators

Operators consider it important for the exercise of their activity that they be heard regarding:

(i) the new features to be included in the tariff comparison tool and respective availability;

(ii) the announced internal reflection on the need to review and/or (re)define statistical indicators and expand the scope of the extranet;

(iii) the implementation of automation in automatic data loading by operators.

h. Leased lines

There are grounds, as ICP-ANACOM set outs, for proceeding with an impact analysis of the offer structure of CAM and inter-island circuits on the development of the electronic communications market in the autonomous regions. As regards the offer of circuits connecting the mainland to the Azores and Madeira archipelagos and interconnecting the islands, the study should seek to identify solutions which will overcome any obstacles that might hinder the provision of electronic communication services on the Islands.

i. Access to suitable infrastructure

ICP-ANACOM must strive, within the framework of its powers and functions, to bring forward implementation of the SIC programme to before the periods indicated in the Multi-annual plan ("2016 and 2017"), especially considering that the obligation to retain and submit records has been in force since 2009; as such this period is deemed sufficient to enable compliance with these obligations.

II. Consideration of measures not provided for in the plan

a. Security and integrity of networks

The time elapsed since the adoption of the determination on the circumstances, format and procedures applicable to the requirements of reporting security breaches or losses of integrity with significant impact on the functioning of public networks and services (adopted in December 2013) and following the planned security audits, means that the determination should be reviewed and possibly revised.

b. Review of offers

The operators consider that the Rede ADSL.PT, RPAO and RDAO should be included in the review of offers related to markets 4 and 5.

c. Machine-to-machine applications

The multi-annual plan makes no reference to machine-to-machine applications/Internet of Things - IOT applications. However, the growing importance of IOT applications calls for the definition of rules on numbering resources associated with these applications, as well the definition of procedures for the mobility of users of these applications.

d. Spectrum

The plan makes no mention as to the accomplishment of regulatory conditions necessary for the operation of a secondary spectrum market. Given that the plan covers a period of three years, it is considered that this matter should be addressed.

e. Digital Television (Terrestrial)

(i) In addition to monitoring and oversight of the obligations of the operator of the DTT platform, it is important to regularly report on the evaluation of the results of the new national network of 400 probes in the single multiplexer available;

(ii) It would be fitting to publish the results of the thorough analysis of the market for television distribution and broadcasting services in Portugal, which ICP-ANACOM stated should be ready by the end of 2014;

(iii) It is considered useful for the development of the sector, recently subject to significant changes, particularly with a view to its consolidation and internationalisation, to conduct an independent study, as conducted by other European regulators, if possible in cooperation with the ERC and sector stakeholders, enabling a coherent analysis of the television market and studying scenarios for DTT evolution, to better protect the interests of consumers and citizens;

It is naturally desirable to reconcile the development of the DTT platform, with envisaged technological evolution, the evolution needs of the national content industry, as well as the development of the information and knowledge society;

(iv) Study of the evolution to DTT-2 and the Digital Dividend 2.

Advisory Council, 6 October 2014