ICP-ANACOM draft decision on the process of rescission of contracts within the scope of local loop unbundling reference offer
The process of rescission of fixed locale public access telephone service contracts maintained by the user with PT Comunicações, executed within the scope of local loop unbundling offer (LLU) has been the object of various complaints by interested operators and has been a hindrance that has caused delays in the LLU process. The operators mention PT Comunicações’ refusals to validate requests for unbundling, with such justifications as illegibility of an identity card.
In fact, this aspect is mentioned as one of the factors that has most contributed to delaying the success of LLU.
Its revision is thus essential to guaranteeing effective market competition.
The simplification of processes involving rescission or alteration of a contract has already been the subject of determinations by ICP-ANACOM within the scope of other offers, namely portability, pre-selection and subscriber line resale offer (SLRO), thus justifying alignment of the contract rescission process (full access) and subscriber authorisation (shared access) within the context of LLU, as determined by this Authority.
Accordingly, the ICP-ANACOM Board of Directors – in the scope of its jurisdiction provided for in sections b), e) and f) of article 6 of its articles of association, approved by Decree-Law nº. 309/2001 of 7 December, taking into account the objectives of the regulations stipulated in article 5 of Law nº. 5/2004 of 10 February, namely to promote competition in electronic communication networks and service offers, to ensure that users obtain maximum benefit with respect to choice, price and quality, to encourage efficient investment in infrastructure, and to promote innovation, and under section a) of no. 3 of article 68 of Law nº. 5/2004 – has decided to allow for a prior hearing of interested parties in accordance with articles 100 and 101 of the Code of Administrative Procedure, establishing a maximum period of 10 working days, so that the interested parties can express opinions, in writing, on the following:
I. Whether or not PTC should modify its RUO within a period of 10 days in order to accommodate the following conditions:
1. Unbundling the local loop, with the full access option, implies terminating the existing contract between the subscriber that requires the unbundling and PT Comunicações, and signing a new contract with another company where the loop will be unbundled.
2. Contractual rescission, or client authorisation in the case of shared access, duly justified for purposes of local loop unbundling, is given by the subscriber to the operator where line is to be unbundled (loop recipient operator). This operator must send to PT Comunicações, on a monthly basis, via any means that permits correct identification of the subscriber, all rescission or authorisation documents related to requests for unbundling made in the previous 30 days.
3. Notwithstanding the right to compensation under the general terms, the loop recipient operator is responsible to the subscribers and PT Comunicações for any unbundling that is performed and does not correspond to the will of the subscribers, in accordance with the following terms:
(a) the loop recipient operator cannot demand that the subscriber pay for any service it provides after undue unbundling is performed, and the operator shall bear any costs related to a return to PT Comunicações, if the subscriber so wishes;
(b) the operator that receives the loop shall compensate PT Comunicações and any other companies for all costs they may have incurred as a result of undue unbundling.
4. Rescission for the purpose of local loop unbundling complies with the requirements contractually defined by PT Comunicações for a rescission that is not associated with unbundling of the local loop.
5. PT Comunicações shall initiate the process of supplying the local loop when it receives the request order made by the loop recipient operator. At the time of the order, PT Comunicações shall not undertake any verification of the validity of the rescission or the authorisations.
6. Rescission of the contract shall go into effect at the time when unbundling of the local loop actually occurs.
II. In the event of a transfer of loops between operators, ICP-ANACOM recommends that the operators follow the aforementioned procedure amongst themselves, without the loop recipient operator having to send PT Comunicações any document pertaining to the subscriber’s rescission. PT Comunicações shall initiate the transfer process when it receives the request by the loop recipient operator.