- ''OPTIMUS HOME'' Service -
1. On 12/11/04, this Authority received a notification from NOVIS TELECOM S.A. (NOVIS) regarding the launching of a service, called «Optimus Home», intended for residential clients, in partnership with OPTIMUS Telecomunicações, S.A. (OPTIMUS). On 15/11/04, SONAECOM, following a request from NOVIS and OPTIMUS, submitted a explanatory document on the referred service, information on which is also available at the website http://www.optimus.pt/homehttp://www.optimus.pt/.
2. Based on the communication on the beginning of the service offer presented by ICP – ANACOM, NOVIS identifies the service provided as fixed-mobile convergent. In addition, it declares that it uses geographical numbers of the telephone service with fixed access of the national numbering plan, within the ITU – T Recommendation E.164.
3. Based on the information disclosed to the general public, the features of this service are basically as follows:
a) The access component is supported in the GSM OPTIMUS network (adherent clients dispose of a mobile terminal that uses this network – on the market at €69,90 (VAT included), sum which may comprise up to €25 in calls) and the interconnection access is supported in the NOVIS fixed commuted network, calls made and received being forwarded through the latter, being interconnected with the remaining operators;
b) The adherent client is charged a retail price (VAT included) of 0,05€ per minute, for calls to the fixed network, of €0,30 per minute, to mobile networks, and a price which varies from €0,17 to €1,20 per minute, for international calls;
c) Any user who makes a call to a number of this service pays the same price paid to a call to the fixed network, and a client of another fixed network may “migrate” to the «Optimus Home» service, maintaining, by means of portability, the current telephone number;
d) The terminal mobility is limited to the National Numbering Plan geographical circumscription to which the respective access number corresponds (e.g. the mobility of the prefix 21 is restricted to the geographical area of Lisbon).
e) NOVIS, the declarant of this service, is the entity with which clients conclude service contracts.
4. From the assessment made, it follows that the «Optimus Home» service:
i) Is supported in the GSM OPTIMUS mobile network, both in the call origination and termination component.
The GSM OPTIMUS mobile network uses the frequencies allocated for the provision of the mobile terrestrial service (as prescribed in the respective license).
According to the definition of Mobile Terrestrial Service (MTS) of the Radiocommunications Regulation, in annex to the International Convention on Telecommunications, it is a “Radiocommunications service between base stations and mobile terrestrial stations, or between mobile terrestrial stations”.
Pursuant to Notice no. 168, of 23 July 2003, published under Decree-Law no. 151-A/2000, of 20 July, the MTS/GSM is defined as “2nd generation system networks constituted by base stations of a determined location and by mobile stations, operating in frequency bands allocated for that purpose”.
In addition, Council Directive 87/372/EEC, of 25 June 1987, in conjunction with ECPT Decisions ERC/94(01) of 24 October and ERC/95/(03) of 1 December, all of which have been introduced in Portugal, designate the frequency bands in consideration for GSM systems.
ii) Presents all the essential features and functionalities of a mobile service, with the peculiarity that the mobility is restricted, by means of associated limitations, namely, the SIM card of the client, to a specific geographical area.
iii) In addition to the SIM card provided with the terminal for access to the «Optimus Home» service, the equipment also allows the access to the mobile telephone service provided by OPTIMUS, through the insertion of any SIM card of this operator.
As a consequence, it must be concluded that the “Optimus Home” service, for the features presented, may not be provided in the “range 2” numbering of the National Numbering Plan.
5. In effect, pursuant to the provisions currently defined in the National Numbering Plan, the association of geographic numbers to other services besides the publicly available telephone service at a fixed location is not compatible.
It must be taken into consideration that the number portability in force within article 54 of Law no. 5/2004 of 10 February – operator portability – does not apply as regards different services, and for this reason NOVIS may not port client numbers of other operators, having regard to the fact that to these operators have been allocated geographical numbers associated to the provision of a telephone service at a fixed location.
6. Considering that the provision of this service, under the terms presented, is based in a usage which does not comply with the numbers of the National Numbering Plan and that it is important from the start to ensure the appropriate protection of potential users and subscribers of this service, it is urgent to cease immediately the commercial operation of the «Optimus Home» service.
For the reasons herein provided, no hearing of interested parties shall be held, pursuant to the provision in point a) of paragraph 1 of article 103 of the Code of Administrative Procedure.
Therefore, the Board of Directors of ICP – ANACOM, in pursue of the assignments conferred thereupon by points b) and n) of paragraph 1 of article 6, and pursuant to point g) of article 26 of its Statutes, approved by Decree-Law no. 309/2001, of 7 December, and in compliance with the regulation objectives provided for in point d) of paragraph 2 and in point d) of paragraph 4 of article 5 of Law no. 5/20004, of 10 February, deliberates as follows:
1º - To determine upon NOVIS the immediate prohibition of the commercial operation of the so-called «Optimus Home» service and the adoption of measures that prevent by any means the continuity of its publicity to the general public;
2º - To determine upon NOVIS that, within 5 days at the most, it notifies subscribers of the termination of the referred service, in compliance with the time limit provided for in paragraph 1 of article 39 of Law no. 5/20004, of 10 February.
Lisbon, 26 November, 2004.