Determination of ANACOM on the imposition of a withdrawal period following the pre-selection activation
I. Background
The Board of Directors of ANACOM approved, by determination of 29/5/2003, the draft decision on the introduction, as regards the Pre-Selection Specification, of the compulsory 4-month withdrawal period, following the pre-selection activation, during which the direct access providers are prevented from undertaking any action, namely through direct contact, designed to win back clients.
The draft decision was notified to interested parties, who, pursuant to articles 100 and 101 of the Code of Administrative Procedure, were entitled to assess the issue within 10 working days at the most.
An opinion on the draft decision was requested from DECO, FENACOOP and UGC, having regard to the effects on the interests of consumers.
Of the interested parties notified pursuant to articles 100 and 101 of the Code of Administrative Procedure, Onitelecom, Refer Telecom and Vodafone have replied within the established time limit.
Deco and UGC have also provided their opinion on the purport of the decision to be adopted.
The analysis of the comments received is comprised in a report annexed to this determination.
II. Grounds and decision
For some time now, particularly in the course of the last two years, pre-selected operators have repeatedly presented complaints against the conduct on the part of PT Comunicações (PTC), classified as “commercial harassment” towards their clients, and that consisted of win-back attempts regarding those clients, establishing contacts and proposing alternative service provision conditions.
These practises jeopardize a free and informed choice on the part of the client, in many cases in a moment prior to it having fully enjoyed the services of the pre-selected provider.
The possibility of customer loyalty through the establishment of minimum time limits for the duration of the contract, presented in the Pre-Selection Specification, has not been apparently an effective mechanism to prevent customers from cancelling contracts with the pre-selected providers.
Within this context, the establishment of a withdrawal period, following the pre-selection activation, during which the direct access providers are prevented from undertaking any win-back action, is deemed to be an appropriate means to allow the client a free and informed choice of the service intended.
The establishment of a 6-month time limit is deemed to be adequate to achieve the purpose pretended, that is, to grant the client the necessary amount of time to enjoy fully the service of the pre-selected provider, trying it out and remaining free to continue being a client or to release itself from the contract, without being under any external pressure.
This does not prevent the client, at any time, on its own initiative, to look for other conditions of service provision and other providers.
The adoption of this measure does not harm consumers in any way, since from the outset they are not prevented from accessing any other benefits, being free to try out the services of the pre-selected provider and, on their own initiative, to require information on the equivalent services of further providers.
The approaches of commercial services, selectively carried out to clients of pre-selected providers, is possible or rendered easy if these services gain access to data relating to the pre-selection contracts submitted by the pre-selected providers to the direct access provider for the activation thereof.
Pursuant to the applicable law, since this data transmission has the single purpose of activating the pre-selection, its usage by the direct access provider for other purposes, namely client approach, shall be illegitimate. Thus, such data may not be accessible by any means, namely through a database, to the commercial services of the provider, subsidiaries or associated companies.
In fact, pursuant to point c) of paragraph 1 and to paragraph 4 of article 8 of Decree-Law no. 415/98 of 31 December, the operator with significant market power (SMP) is bound to comply with the confidentiality of information made available by the operator requesting interconnection, using it exclusively for the intended purpose. Namely, the referred operator shall not convey the information to its own services, subsidiaries or associated companies, regarding which the knowledge thereof may constitute a competitive advantage.
As mentioned above, at ANACOM were only received complaints from pre-selected providers against the conduct, classified as “commercial harassment” towards their clients, on the part of PTC, the incumbent operator and an entity with significant market power in the market of fixed telephone networks and/or fixed telephone service.
Therefore, there is no information indicating the need for an extension of the present regulatory measure to all service providers operating by means of direct access.
With this fact in mind, and having regard to the present stage of competition development, it is doubtful whether the imposition of the measure on all direct access providers is proportionate.
In fact, according to the statistics of the fixed telephone service, regarding the first quarter of the year 2003, the PT Group had a share of 93,77% of total access, including its own park, and a share of 89,77% regarding the traffic with origination in the fixed network (total number of minutes), as well as a share of 96,43% in the direct access traffic.
It is incumbent upon ANACOM, pursuant to its Bylaws, to ensure the regulation and supervision of the communications sector, monitoring the activity of entities subject to its supervision and the functioning of markets, to promote competitiveness and the development of the communications market and also to protect consumer interests.
Moreover, ANACOM is assigned the general task of monitoring the proper application and compliance supervision of laws and regulations applicable to communications operators.
Therefore, the Board of Directors of ANACOM, pursuant to points b), f) and n) of paragraph 1 of article 6 of the Bylaws thereof, approved by Decree-Law no. 309/2001 of 7 December, hereby determines the following:
1. To bind the enterprises belonging to the PT Group, that provide FTS in direct access, within the Pre-Selection Specification, to the compliance with a 6-month withdrawal period, following the pre-selection activation, during which they are prevented from undertaking any action, namely through individual contact, designed to win back clients.
2. PTC, being an entity with significant market power in the market of fixed telephone networks and/or fixed telephone service, shall comply with the confidentiality of information made available in the scope of the pre-selection and shall not convey this information to subsidiaries or associated companies nor to its own services, namely the commercial services. Thus, such data shall not be accessible by any means, namely through a database.
3. For the purposes of the previous paragraph, any data which enables PTC’s commercial services, subsidiaries or associated companies to establish a connection between its clients with the pre-selection data shall be eliminated from its information systems.
4. ANACOM shall monitor and supervise the implementation of the withdrawal period hereby imposed, with a view to reassess, within 1 year at the most, the need for its maintenance.
Consult:
- Prior Hearing Report https://www.anacom.pt/render.jsp?categoryId=78970
