COVID-19 - ANACOM delivered to the Assembly of the Republic a proposal to strengthen the protection of users of electronic communications

ANACOM welcomes the recent approval of Law 7/2020, of 10 April, which, in response to the difficulties caused by the COVID-19 pandemic, includes exceptional and temporary measures to guarantee access to essential public services and, among these, to electronic communications services, but believes that the approved arrangements may be subject to a series of clarifications and improvements.

For this reason, and in order to seek to respond to problems that have come to the attention of this Authority through the follow-up of complaints from the sector, in particular with regard to the management of contracts, the opportunity to temporarily suspend them or cancel services without penalty, which feature among the main concerns of users (in the last week, 1,844 complaints were filed in the electronic complaints book, an increase of 19% over the previous week, and ANACOM received 588 requests, an increase of 30% over the previous week¹), ANACOM submitted to the Assembly of the Republic a proposal seeking possible amendments to Law 7/2020, of 10 April, in order to bolster the protection of users of electronic communications.

This law enshrines a guarantee of access to essential services (water, electricity, natural gas and electronic communications) by establishing that the suspension of the provision of these services during the state of emergency and in the month following shall not be permitted, a position to which ANACOM subscribes, but which, in the case of electronic communications services, could be bolstered. In fact, in order that a strict reading of the law does not result in provision being suspended where subscribers have been made redundant or their household income has dropped by 20% or more, or even where they have contracted COVID-19, ANACOM recommends a reformulation of the current wording.

With a view to protecting the interests of users of communications services, it seems to us that the question of to what extent it is justified to define more restrictive arrangements for these users, compared to users of other essential services, should be re-evaluated. While users of electronic communications are required to be unemployed, have suffered a reduction in their household income of 20% or more, or have contracted COVID-19, this requirement does not exist in relation to the other essential public services.

In matters relating to the unilateral termination of contracts, the law provides that consumers who are unemployed, or whose household income has dropped by 20% or more compared to the previous month’s income, may request unilateral termination of telecommunications contracts, with no compensation being due to the supplier. This is a matter that addresses ANACOM’s concerns, but which raises some practical difficulties, among other reasons due to the fact that the law does not specify what evidence can be used to prove the situation of unemployment or reduction in income, leaving each service provider completely free to determine what evidence it will accept. In terms of the unilateral termination of contracts, in addition to the solutions that are enshrined in Law 7/2020, ANACOM believes that the protection of the interests of users of communications services would be enhanced if the law included the opportunity for them to seek a downgrading of the contracts, or even their suspension, so that, without giving up their contractual rights and the telephone numbers they use, they may reduce their outgoings until such time as the difficulties caused by the COVID-19 pandemic have been overcome.

Regarding the settlement of debts accumulated during the period in which the measures for the prevention, containment, mitigation and treatment of the SARS-Cov2 epidemiological infection are maintained, Law 7/2020 states that these must be the subject of a payment plan established by agreement between the provider and the subscriber, providing for a 2-month moratorium after the state of emergency (it being assumed that this period will begin on the date on which the state of emergency ends). Although it provides for the need for agreement between the parties, in practice, this solution will leave a good deal of leeway for service providers to impose payment conditions that may not meet the needs of subscribers, in particular with regard to the value of the instalments, which, in ANACOM’s view, should not be greater than half of the monthly fee for the contracted services, unless expressly agreed by the subscriber, and the duration of the payment plan, which, from ANACOM’s perspective, should have a duration of at least 6 months. In fact, in a short period of time after the period of national emergency, it is important to prevent users from being faced with the requirement to bear, in a single month, amounts that may correspond to two or more monthly fees, in the case of post-paid services.

In terms of the consequences of default, the law in force does not prohibit the collection of arrears interest and contractual penalties as a result of delays in the payment of bills or the topping up of balances, and thus does not prevent these charges from adding to the value of the debts accumulated by subscribers during this exception period, therefore exacerbating the burdens that these measures aim to mitigate. The opportunity to charge contractual penalties for late payment of bills or the topping up of balances is particularly serious in the current context, in which there are heavy restrictions on people’s mobility.

It should also be noted that Law 7/2020 does not provide for any penalty arrangements in case of default, which makes it impossible for the authorities responsible for supervising the providers of the various services covered by this regime to react in cases of violation of the rules established in the aforementioned statute.

Finally, ANACOM stresses that, in its opinion, in addition to being applicable to consumers, the arrangements provided for in Law 7/2020 for the suspension of electronic communications services, which should be supplemented with the opportunity to downgrade or temporarily suspend contracts, should also be applicable to micro and small enterprises that, during the period of exception, have ceased operations or have suffered a loss of income equal to or greater than those that justify the application of the measures to consumers, as well as to non-profit organisations that have closed down or lost income in the same proportion.