Offer for Access to the PT Comunicações concessionaire conduits

Draft Decision on the offer for access to PT Comunicações, SA concessionaire conduits

Preamble

Pursuant to the Electronic Communications Law – Law no. 5/2004, of 10 February – the public telecommunication service concessionaire should provide, through an agreement, the companies that offer electronic communications networks and services accessible to the public the access to conduits, poles and other premises and locations they own or which management falls under their responsibility, for installation and maintenance of their systems, equipment and further resources (art. 26, no. 1).

Pursuant to the same Law, it is the responsibility of the concessionaire to provide an offer for access to these resources containing the access and use conditions, under such terms defined by ICP - Autoridade Nacional de Comunicações (ICP-ANACOM) (art. 26, no. 4).

Within this scope, the concession agreement guaranteed already the access to the functionalities of the basic telecommunication network, including conduits (article 7 of the Concession Bases approved by Decree-Law no. 31/2003, of 17 February).

In many cases, the entities that offer electronic communications networks and services accessible to the public are facing difficulties in doing further investments in conduits in certain geographic areas, in an economically efficient manner, existing also physical limitations to the feasibility in investing in conduits, the latter being conditioned, on certain conditions, by restrictions of occupation of the underground due to saturation of the same or, further more, by municipal restrictions.

In this context, investment in conduits should be compatible with economical efficiency criteria, avoiding not only inefficient infrastructure duplication but also the inconveniences to citizens and economic activities due to the frequent realization of ground and underground works, with consequent disturbances in traffic and territory planning, in addition to the environmental repercussions arising out from it.

Pursuant to subsection c) of paragraph 2 of article 5 of Law no. 5/2004, it is the responsibility of ICP-ANACOM to encourage efficient investments in telecommunication infrastructures.

So access to the already installed conduits and sharing of the necessary investments to installation of new ones will contribute to avoid unwanted duplication of infrastructures and to reduce the global amount of investment paid by each company, reducing therefore the costs. Consequently, it is important that access to conduits is compatible with the appropriate planning of investment made by those companies, safeguarding that the interest of the beneficiary entities in the future conduits of the concessionaire is given in advance.

In addition, ICP-ANACOM has received claims from fixed telephone network operators and from cable distribution network operators, related to the use of the concessionaire’s infrastructures. The received claims refer, namely: (a) the impossibility for the operators to go on with the respective expansion plans through imposition of restrictions, by the concessionaire, in the infrastructure assignment conditions, namely sub-conduits, pipe space and visit chamber space and (b) pricing of too high fees and conditions that may be considered discriminatory.

Furthermore, promotion of transparency in the access conditions to conduits and associated infrastructures will contribute to an improved market operation, notwithstanding ICP-ANACOM supervising compliance with this determination.

This determination does not apply to the access conditions to the poles and masts of the concessionaire, which did not have the problems set out above, and to the sharing conditions related to other premises and locations of the concessionaire, which are foreseen in the Reference Interconnection Offer and in the Reference Offer for Local Loop Unbundling which application is subsidiary as regards this determination.

Taking into account these concerns, it is necessary to create some mechanisms to promote the offer of an opened network, contributing to guarantee the conditions for a sound and effective competition and transparency on how the market operates.

This determination, in this context, establishes the general principles and conditions that should be followed in case of use and access to conduits and infrastructures of the concessionaire.

Therefore, the Board of Directors of ICP-ANACOM, pursuant to article 26 of Law no. 5/2004, of 10 February, determines:

1. For the purposes of the provisions contained in this determination and notwithstanding the definitions contained in article 3 of Law no. 5/2004, of 10 February, the following expressions will have the meaning set out opposite to it:

a) «Access», provision of access to conduits and manhole and respective use;

b) «Manhole», boxes for access to the cables installed along the conduits, which are integral part of the electronic communications network;

c) «Conduits», underground electronic communications networks infrastructures, which may include other conduits or tubes intended to contain electronic communications cables;

d) «Concessionaire», PT Comunicações, S.A;

e) «Beneficiary entities», companies that offer electronic communications networks or services accessible to the public;

f) «Electronic communications networks offer», setting, operation, control or provision of said network;

g) «Electronic communications network», such as contained in subsection x) of article 3 of Law no. 5/2004;

h) «Public communications network», the electronic communications network used, in full or in part, to the supply of electronic communications services accessible to the public;

i) «National Regulatory Authority (NRA)», the ICP - Autoridade Nacional de Comunicações (ICP-ANACOM), which statutes were approved by Decree-Law no. 302/2001, of 7 December;

j) «Electronic communications service», such as contained in subsection cc) of article 3 of Law no. 5/2004.

2. The concessionaire should provide, upon request of the beneficiary entities, use and access to the conduits and manhole that are its property or which management is its responsibility, complying with the principles of transparency, non-discrimination and cost orientation.

3. As to the access conditions:

1.1 Whenever it is technically and physically possible, the concessionaire must negotiate, when requested by the beneficiary entities, the use and access to the conduits and associated infrastructures which are their property, or which management is their responsibility, for installation, maintenance and removal of systems, equipment and further necessary resources to the offer of electronic communications networks and services accessible to the public. Exceptions are accepted provided that duly reasoned and which may be a threat to the health and safety of the personnel who work in infrastructures.

1.2 Agreements that are the result of the negotiation referred to in paragraph 1 should be reported by the concessionaire to ICP-ANACOM, by sending a copy of the agreement, within 10 days as from the date of the signature of the contract.

1.3 The concessionaire may ask ICP-ANACOM to book some space, for the maximum period of one year, for its own future use in the conduits and associated infrastructure operated by them, provided that the request is duly reasoned based on the guarantee of an appropriate future development of the concession services. Whenever necessary, the concessionaire may ask as well booking of the space intended to maintenance and repair of conduits and associated infrastructures and / or cable installation, maintenance or repair works.

1.4 In any case, the concessionaire is not allowed to install, in the conduits and in the associated infrastructure, cables or any equipment that do not meet the current or foreseeable service rendering needs, which, as a result of the undue excessive occupation of the space, prevent or limit the access to the infrastructures by the beneficiary entities.

2. The entities that offer electronic communications networks or services accessible to the public are entitled to have access to the infrastructures referred to in the previous paragraph.

3. The concessionaire must submit to ICP-ANACOM, for verification of its conformity with the minimum determined requirements, a reference offer for use and access to the conduits and associated infrastructure that are its property or which management is its responsibility, who must comply with the principles of transparency, non-discrimination and cost orientation.

4. The reference offer referred to in the previous paragraph should be delivered every year, notwithstanding another periodicity to be defined by ICP-ANACOM, in view of the evolution occurred in terms of market needs and development of infrastructures, containing the following minimum data:

a) Detailed conditions related to the access to conduits and associated infrastructures, whereby the concessionaire, except for what is foreseen in part I of the Annexe to this determination, should ensure as follows:

i) taking into account the legitimate interests of all parties involved, that those conditions are not discriminatory, the technical and operational quality of access to the conduits and manhole being equivalent to the one they offer to themselves or to the entities with whom they maintain a group relation or dominance;

ii) that the beneficiary entities receive access, or reasoning should access be impossible, within a reasonable period of time equivalent to the one they offer to themselves or to the entities with whom they maintain a group relation or dominance;

iii) whenever it is physically or technically unfeasible to meet the access requests put forward by the beneficiary entities, that proposals of alternative pathways similar to the initial request are sent, together with the reasoning referred to above, in accordance with Part I of the Annexe to this determination.

b) Draft of a contract to be entered into between the concessionaire and the beneficiary entities, which must foresee quality of service indicators and levels and clauses that foresee any breach thereto;

c) The indicators to be included in the draft of the contract should cover, namely:

i) The time required to reply to a request to use and have access to the conduits and manhole – time, in calendar days, that elapses between the time the concessionaire receives from the beneficiary entity a request to use and have access to the conduits and manhole until the time the beneficiary entity receives a reply as to the feasibility for the request to be met;

ii) Time required to install the infrastructures – time, in calendar days, that elapses between the confirmation date of the feasibility for the desired installation and the date for which is requested the beginning of the necessary physical tasks;

iii) Time to remove infrastructures – time, in calendar days, between the confirmation date of the feasibility for the desired removal and the date for which is requested the beginning of the necessary physical tasks;

iv) Time for maintenance and repair operations – time, in calendar days, between the confirmation date of the feasibility for the desired maintenance operation and the date for which is requested the beginning of the necessary physical tasks.

d) Prices that include the different items of the use and access to the conduits and manhole and the different items of the services to be provided, notwithstanding the provisions contained in Part II of the Annexe to this document;

e) Sizes of conduits and volume occupied for purposes of the assignment of the space and respective pricing;

f) Description of the space available in the conduits and associated infrastructure, considered necessary for the development of the own infrastructures and that will probably be used during the validity of the reference offer;

g) Sequence of procedures and interactions to be established with the beneficiary entities in the provision of information and opening of files, related, namely, to:

i) availability of space in the desired conduits and manhole, pursuant to the terms referred to in the annexe;

ii) installation or removal of infrastructures in conduits and manhole;

iii) booking of maintenance procedures;

5. Whenever conduits, manhole and associated infrastructures are designed, the concessionaire must:

5.1 Inform ICP-ANACOM and all the other beneficiary entities, before the enforcement of the obligation to previously notify the municipal authority and never less than 2 months before, whenever they will design conduits, manhole and other associated infrastructures, so that they can mention their interest.

5.2 The concessionaire should size, whenever technically and physically feasible, the new conduits, manhole and other associated infrastructures, taking into account the accommodation of everything reported by the beneficiary entities.

6. In case of litigation related to the obligations resulting from this determination, the litigation administrative resolution applies, under the terms of article 10 of Law no. 5/2004, of 10 February.

7. The interested parties may give their opinion within 20 days, if they so wish, fixed taking into account the complexity of the themes subject to this consultation and also taking into account the existence of previous consultations on the same matter, in accordance with the provisions contained in article 8 of Law no. 5/2004 and with the terms of the consultation procedures of ICP-ANACOM approved by determination of 12/02/04.

8. PTC is also entitled to give their opinion, if they so wish, in writing and within 20 days, about the draft decision, in accordance with the provisions contained in article 100 and following ones of the Rules of the Administrative Procedure.

Draft Decision on the offer for access to PT Comunicações, SA concessionaire conduits

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