Communication to COLT TELECOM of the conditions for access and use of ducts

I. Facts

On 18 December 2003, COLT TELECOM – Serviços de Telecomunicações, Unipessoal, Lda. (COLT) requested of ANACOM an audit to the state of occupation of ducts owned by PT Comunicações, S.A (PTC) in the following routes in Lisbon:

Av. António Augusto de Aguiar, from Av. Fontes Pereira de Melo to Av. de Berna;
Av. Marechal Gomes da Costa, from the Cabo Ruivo roundabout to the Airport roundabout;
Avenida Almirante Reis;
Rua do Alecrim, from Príncipe Real to Cais do Sodré;
From the Torres de Lisboa to the Green Park;
From Pontinha to the Colegio Militar.

COLT claimed that up to that date “…the accommodation of cables in any duct owned by PT in Lisbon had been refused…” and that “…not a single positive reply” had been received to the requests for access to the ducts in the above-mentioned routes.

On 15 January 2004, ANACOM requested of PTC relevant information on the requests submitted by COLT concerning the use of ducts in the above-mentioned routes, namely as regards dates of submission of requests, assessment of the situation or decisions taken and respective reasoning.

In February 2004, PTC replied informing ANACOM that as far as the first three identified routes were concerned, COLT had not presented documents supporting that it was not authorized to install new telecommunications infrastructures in such locations, in order to apply to this case the rule provided for in paragraph 2 of article 17 of Decree-Law no. 381-A/97 of 30 December.

PTC made the access to ducts in such routes subject to the requirements provided for in paragraph 2 of article 17 of Decree-Law no. 381-A/97, of 30 December, which concerns the sharing of infrastructures – lack of authorization, in a given situation, for the instalment of new infrastructures, on grounds of the protection of the environment, cultural heritage, land management and preservation of the urban landscape and countryside.

As regards the request for the disposal of space in the route of Av. Almirante Reis, PTC further refers that it conveyed to COLT that “… having regard to the constructed network and its occupation”, it would not be possible to fulfil the submitted request.

In reference to the remaining routes, PTC did not acknowledge any other request for duct occupation on the part of COLT.

In March 2004, COLT questioned ANACOM as regards the action taken concerning the intervention request presented as well as the results thereof.

On 31 May 2004, ANACOM determined upon PTC, under penalty of non-compliance with the provisions in point a) of article 6, paragraphs 1 and 2 of article 7 of the Bases of Concession approved under Decree-Law no. 31/2003 of 17 February and paragraph 1 of article 26 of Law no. 5/2004, of 10 February, that it informed COLT and ANACOM, with a 10-day time limit, on the remuneration conditions for the use of ducts in the above-mentioned routes. In the same letter, ANACOM pointed out to PTC the legal regime for access to ducts established by Law no. 5/2004.

On the same date, ANACOM submitted to COLT a copy of the letter sent to PTC with the information on the requests for access to ducts, as well as the copy of the official letter ordering the provision of information on the remuneration conditions for the use of ducts.

By letter addressed to ANACOM dated 09 June 2004, PTC informed that it considered that the necessary conditions to submit to COLT any proposal on the use of ducts had still to be met, as in its view the provision of access to the infrastructures under consideration depended of the previous disclosure to the public of an offer for access, pursuant to paragraph 4 of article 26 of Law no. 5/2004, of 10 February, which would only be possible following the definition, on the part of ANACOM, of the conditions for access and use to be included in such offer, a requirement that up to that date had not yet been fulfilled.

The terms of the referred conditions for access and use of ducts and associated infrastructures were defined by ANACOM on 17 July 2004.

According to the provisions thereof, PTC was compelled to submit to ANACOM, within a 90-day time limit, a reference offer for access and use of ducts and associated infrastructure under its property or the management of which falls under its responsibility.

On 23 November 2004, within the specified time-limit, PTC submitted to ANACOM a reference offer for access and use of ducts and associated infrastructure. The process aiming for the provision of an offer for access under paragraph 4 of article 26 of Law no. 5/2004 is still to be concluded.

In the course of subsequent contacts with ANACOM, namely through letter sent on August 2004, COLT reiterated its interest in the access to ducts in the above-mentioned routes.

In the light of the facts described above, on 24 June 2005 ANACOM approved a draft decision determining upon PTC, under penalty of non-compliance with the provisions in point a) of article 6, paragraphs 1 and 2 of article 7 of the Bases of Concession approved under Decree-Law no. 31/2003 of 17 February and paragraph 1 of article 26 of Law no. 5/2004, of 10 February, that it informed COLT and ANACOM, with a 5-day time limit, on the remuneration conditions for the use of ducts in the above-mentioned routes.

The involved parties, having been notified to assess the subject, pursuant to and for the purposes of articles 100 and 101 of the Code of Administrative Procedure, did not present reasons of fact or of law that justified an amendment of the notified draft decision, as evidenced by the analysis integrating the present process.

II. Framework

The access to ducts, poles and other equipment owned by PTC complies with the provision of article 7 of the Bases of the Public Telecommunications Service Concession, approved by Decree-Law no. 31/2003, of 17 February and to article 26 of Law no. 5/2004, of 10 February.

Pursuant to point c) of paragraph 2 of article 7 of the Bases of Concession, PTC is subject to ensure to all operators and providers of telecommunications services who so request, the access to ducts, poles and other equipment and facilities.

This obligation was maintained and reiterated under Law no. 5/2004. In fact, in line with the provisions in the Bases of Concession, paragraph 1 of article 26 of Law no. 5/2004 imposes upon PTC a concrete and clear action duty – to provide access to ducts, poles, other equipment and facilities it owns or the management of which falls under its responsibility, and for this purpose to conclude with companies who so request the necessary agreements concerning the use of the referred infrastructures.

As is expressly stated in paragraph 3 of article 121 of the Bases of Concession, all obligations comprised therein shall remain in force, except where a more demanding regime results from the application of the Law of Electronic Communications, in which case such regime shall be in force.

The provision of paragraph 1 of article 26 has a perceptive nature, its fulfilment does not depend on action or measure intended to render it effective and, as such, is vested with direct effect. This is all the more so since Law no. 5/2004 does not establish any time limit for the provision of a reference offer or for the definition on the part of ANACOM of conditions for access and use to be included in the offer for access to ducts, as would be the case if the application of paragraph 1 of article 26 depended on such measures.

The burden of ensuring the disclosure to the public of the offer for access under the terms provided for in paragraph 4 of article 26 of Law no. 5/2004 aims to guarantee that all interested parties acknowledge in a clear and transparent manner the conditions and procedures for the access to ducts owned by PTC and thus to promote in a simplified and transparent way the full satisfaction of the access obligation established under paragraph 1 thereof.

The implementation and disclosure to the public of the offer for access does not exhaust nor does it condition the compliance with the obligation to provide access to ducts, and likewise, for example, the obligation to publish the reference offer for access or interconnection does not exhaust nor exempt providers from the obligation to provide interconnection among them, regardless of whether that publication has actually taken place.

The arguments brought forward by PTC, that the provision of access to ducts depends on the disclosure to the public of an offer for access on the part of the concessionaire, are thus unfounded and illogical.

The need to ensure the publication of the reference offer pursuant to paragraph 4 of article 26 of Law no. 5/2004, does not exempt PTC from complying with the obligation to provide access to ducts, as provide for in paragraph 1 of the same article.

By refusing to provide information on the conditions on which depend the access to ducts the management of which is incumbent thereupon, PTC prevents COLT from resorting to the mechanisms legally provided in order to ensure the use of the referred infrastructures for the installation of its systems, equipment and other resources necessary to the exercise of its activity.

Such an opposition, which implies non-compliance with a legal obligation on the part of PTC, affects the interests not only of COLT, which is prevented from installing the necessary means to exercise regularly its activity, but also, as a result, the interests of the telecommunications market, the promotion and guarantee of the development and competitiveness of which is incumbent upon ANACOM, as well as the interests of users of telecommunications networks and services, who are thus deprived from a more diversified choice of offers.

One must also bear in mind the economic benefit PTC receives from the failure to comply with the obligation established in paragraph 1 of article 26 of Law no. 5/2004.

In fact, by refusing to provide information on the use and remuneration conditions concerning ducts in different routes, the use of which is intended by COLT, PTC prevents another provider from installing the necessary resources for the provision of services in areas with a high degree of business clients.

Having regard to PTC’s market position as well as to its economic power, this access refusal presents a particularly serious case of misconduct, which is likely to fall under the breach situation provided for in point g) of paragraph 1 of article 113 of Law no. 5/2004.

III. Decision

In the light of the above, the conclusions of the report of the analysis made to the positions of interested parties, which is an integral part hereof, and pursuant to paragraph 4 of article 25 of the Bases of Concession, approved by Decree-Law no. 31/2003 of 17 February, to point g) of article 9 of the Statutes in annex to Decree-Law no. 309/2001, of 7 December and in the scope of the assignment provided for in point e) and n) of paragraph 1 of article 6 of the above mentioned Statutes, the Board of Directors of ANACOM, aiming to ensure compliance with obligations established under paragraphs 1 and 2 of article 7 of the Bases of the Public Telecommunications Service Concession, point a) of paragraph 1 and point b) of paragraph 2 of article 5 of Law no. 5/2004, of 10 February and paragraph 1 of article 26 of the same Law, hereby determines:

1. Within a 5-day time limit, under penalty of non-compliance with point a) of article 6, paragraphs 1 and 2 of article 7 of the Bases of Concession approved by Decree-Law no. 31/2003 and paragraph 1 of article 26 of Law no. 5/2004, of 10 February, PT Comunicações, S.A. shall inform COLT TELECOM – Serviços de Telecomunicações Unipessoal, Lda. on:

a. The use and remuneration conditions concerning ducts in routes identified above,

b. A grounded reasoning for the impossibility to accede the ducts in the route of Av.Almirante Reis, alternative routes which are closest to the initial request as well as the respective access and use conditions.

2. Within the same time limit, PT Comunicações, S.A.shall submit to ANACOM a copy of the use and remuneration conditions concerning ducts in routes identified above.

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Communication to COLT TELECOM of the conditions for access and use of ducts

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