Approval of corrective measures concerning contractual changes
By decisions adopted on 13 July 2017, and after a prior hearing of the interested parties, ANACOM has ordered MEO, NOS, NOWO and Vodafone to adopt corrective measures which entail sending written communications to subscribers affected by contractual changes made upon the initiative of these operators. This requirement applies in situations where such contractual changes (made subsequent to the entry into force of Law no. 15/2016 of June 17) were not communicated to the customer in tandem with the information that, in cases where customers do not accept the changes in question, the customer has the right to terminate the contract without any charge (even if the customer was subject to contract lock-in periods or other commitments to stay).
Although there were differences between the situations identified in the case of the four operators - differences in terms of adopted procedures, in terms of number of subscribers covered by the changes in the contractual conditions, and in terms of the type of services contracted - the measures were imposed on the four companies which had been notified of the corresponding draft decisions, adopted on 17 March 2017.
The corrective measures were ordered in exercise of the powers set forth, specifically, under paragraph 3 of article 48-A of LCE - Lei das Comunicações Eletrónicas (Electronic Communications Law), after ANACOM investigated the procedures adopted by the companies. These procedures had given rise to a significant number of complaints about changes made by the companies to the terms of electronic communications service contracts after the last amendment to the LCE came into effect.
Complaints related to the admissibility, form and terms under which such changes (in many cases related to pricing) were communicated to subscribers.
The obligation to notify subscribers, which is at issue in these procedures, is stipulated by paragraph 16 of article 48 of the LCE; compliance with this obligation must be ensured in all situations where companies offering publicly available electronic communication services seek to make contractual amendments. This is irrespective of the type or nature of the subscriber who is party to the contract, the type of tariff agreed upon or whether a contract lock-in period remains in force (and irrespective of whether the amendments stem from the contracting of an additional or extra service).
In the present decisions, considering the content of the feedback received and after an assessment performed with regard to the principle of proportionality, ANACOM decided to adjust the scope of the measures versus the scope given in the draft decisions, especially limiting the groups of recipients to whom the companies must send communications with legally required information and to whom the companies must grant the right of withdrawal based on said contractual changes.
As such, although the measures in question are appropriate or suitable for achieving the intended purpose and are also necessary, following an assessment of the cost of the measures and the resulting benefit, ANACOM considered that, for certain categories of subscribers, the costs would outweigh the benefits.
Accordingly, ANACOM determined the following for each of the companies concerned:
1. The company is required to undertake, within a maximum period of 30 working days, written notification of subscribers affected by contractual changes made upon the initiative of the company subsequent to the entry into force of Law no. 15/2016 of 17 June, where, on the date on which these amendments were communicated, the customers were bound by a contract lock-in period or by any other commitment to remain and where the customer remained bound by the contract with the same lock-in period or commitment to remain (continuing in force), as on the date of this Decision’s implementation. This notification is to indicate:
a. in the message itself or by reference to the exact location on its website where the information is already available, what changes have been made; and
b. in the message itself (and not solely by reference) that, as a consequence of the contractual changes which have been made, the customer is granted the right to terminate the contract, within a determined time-limit (which must be indicated), in the event that they do not accept the new conditions, without any charge.
2. The provisions of the preceding paragraph shall not apply to situations where the contracts contain a clause providing for the possibility that prices may be updated on the basis of a consumer price index (objective index) approved by an official national authority of Portugal - provided that this clause established the Indexed price with sufficient predictability, transparency and legal certainty - and where the price change did not exceed that index.
3. In order to comply with the provisions of the preceding paragraphs, the company may use the model draft provided by ANACOM or submit, within 10 working days, its own draft communications to ANACOM, which will evaluate their compliance.
4. The communications referred to in paragraph 1 may be included on the customer's bill in a prominent manner, provided that it is easily legible and understandable, sent together with the bill or be sent separately (including by SMS).
5. As an alternative to the previous paragraphs, the company may choose to restore - within a maximum period of 30 working days - the contractual conditions as existed prior to implementation of the changes made subsequent to the entry into force of Law no. 15/2016 of 17 June, informing its subscribers within the ensuing 20 working days.
6. The companies are required to present, within a period of 20 working days, as from the expiry of the period established in paragraph 1 or the final part of paragraph 5, evidence demonstrating their compliance with this determination.
7. For the purposes of the preceding paragraph and without prejudice to other items which may be considered relevant, in the context of verifying compliance with the adopted decision and in exercise of the powers provided for in points g) and h) of paragraph 1 of article 9 of ANACOM's Statutes (approved by Decree-Law no. 39/2015 of 16 March), and pursuant to article 108 of Lei das Comunicações Eletrónicas (Electronic Communications Law), the information to be sent is required to follow the model approved by ANACOM (as made available to the companies) and be sent in digital format to the indicated e-mail address.
