of ANACOM on the dispute between SONAECOM and PT Comunicações concerning the payment of compensation for the non-fulfilment of the quality of service levels (fault repair time) established in RUO and LLRO
As per request presented on 6.12.20071, Sonaecom - Serviços de Comunicações, S.A. (SONAECOM), under item 1 of article 10 of Law no. 5/2004, of 10 February (Electronic Communications Law - ECL), requests the ANACOM's intervention in the settlement of the dispute between that company and PT Comunicações, S.A. (PTC), involving the meaning and application of certain provisions included in the Reference Unbundling Offer (RUO) and in the Leased Lines Reference Offer (LLRO). These provisions concern the payment of compensation due by PTC for the non-fulfilment of the quality of service levels (SLA's) established in those offers.
I. SONAECOM claims that:
1. The facts which are the basis for this dispute started on 7 March 2007, when SONAECOM (named NOVIS at the time) sent two letters to PTC claiming the payment of compensation for the non-fulfilment by PTC, during the first and second semesters of 2006, of the maximum fault repair time for unbundled loops (RUO) and leased lines (LLRO).
2. In the case of RUO, SONAECOM claimed the payment of compensation due to malfunctions (non-fulfilment of deadlines during the 2nd, 3rd and 4th quarters of 2006) in the total amount of [IIC2] [FIC3].
3. In the case of the LLRO, SONAECOM claimed, on the same date, the payment of compensation for the non-fulfilment of the maximum time for service recovery, in the total amount (comprising the 1st and 2nd semesters of 2006) of [IIC] [FIC].
4. SONAECOM claims that PTC refuses to pay compensation due for the non-fulfilment of the deadlines applying to service recovery (fault repair time). In 2006, these compensations amounted to [IIC] [FIC] for both offers identified above, a value which PTC did not dispute, albeit having requested clarifications about the reckoning of the compensations.
5. In this context, on 15 March 2007, SONAECOM sent PTC, by e-mail, a detailed list of all the individual requests made within the RUO and the LLRO during 2006 regarding which PTC had not fulfil the maximum response or supply times. Amongst the several tables sent, a specific one was included which concerned after-sales faults in unbundled loops, as well as another table concerning line malfunctions. SONAECOM adds documental proof of all the facts described in the above items.
6. Furthermore, it states that until this request for dispute settlement, PTC has not questioned or disputed the number of occurrences counted on the lists that were sent, the length of the delays reported therein, or the corresponding compensation values.
7. SONAECOM also states that PTC replied to their contacts via letters dating from 19 March 2007 saying, in both cases, it did not consider itself to be bound to the payments claimed concerning the faults.
8. As the grounds for this refusal, PTC invoked the non-compliance by SONAECOM (i) with the procedures described in RUO regarding forecast plans (item 3 of Annex 2 and item 2.4 of Annex 13), as well as (ii) with the procedures described in Annex 4 of the LLRO, also related to the sending of forecasts.
9. On 5 April 2007 SONAECOM sent an e-mail to PTC requesting once again the payment of compensation due for the non-fulfilment of the maximum fault repair times, having referred that ''Both offers, LLRO and RUO, do not contemplate the existence of Forecast Plans for malfunctions (…)''.
10. On 11 April 2007 PTC sent an e-mail to SONAECOM confirming its position, based on the following argument:
''1. PT Comunicações’ resources to be allocated to the activities associated to service recovery are planned according to stock forecasts. Therefore, NOVIS having failed to produce the forecasts concerning the requests for supply of loops and leased lines, according to the deadlines and conditions defined on the respective offers, we maintain our position as stated (…)''.
11. On 30 May 2007 SONAECOM reiterated its request emphasizing the fact that the forecast plans have no impact on the fulfilment of the service recovery indicators.
12. PTC replied (letter from 29.06.2007 which SONAECOM claims to have received on 03.07.2007) insisting on its interpretation of the facts under the following terms:
As for RUO ''also concerning service recovery, there is a strong correlation between the size of the stock and the amount of complaints made in a given period, therefore the forecast of loop orders, by enabling a forecast for the corresponding stock, provides the critical variable for sizing the resources needed to provide the service''.
Regarding line malfunctions, within the scope of the LLRO, PTC reiterated its former position and also stated that ''Namely, and according to Annex 6 of the LLRO, the forecast plan of the needs for leased lines of the operators contemplated by this offer is essential for PTC to correctly plan and size its leased lines provision, maintenance and operation teams, in order to ensure the quality of service of this offer and optimize the resources used''.
13. In this scope, although SONAECOM recognizes that the forecast plans regarding 2006 (RUO) were subject to confirmation and additions after being sent on 30.12.2005, it does not waive on claiming payment of the remaining compensations due by PTC for 2006 within the scope of the RUO and the LLRO and which are still outstanding, except for the compensations for incorrect unbundling in the case of the first offer (settled in the meantime).
14. Furthermore, SONAECOM considers that in addition the service of eligibility verification within the scope of RUO, there is another specific service regarding which any discussion about the forecast plans sent to PTC will be worthless: the fault repair service. According to the Applicant, the demand forecast plans have no influence on PTC's ability to observe the deadlines connected to service recovery in the case of loop or line malfunctions.
15. SONAECOM claims that there is no correlation between the informative content, the antecedence, the precision, or any other element of the loop demand or line installation forecasts, and the sizing of PTC resources needed to restore the service after a fault, according to the deadlines established by the offers under analysis. Thus, the non-fulfilment of the quality of service levels of the fault repair service implies the payment of compensations by the Respondent, regardless of the sending of the demand forecast plans concerning its different services.
16. SONAECOM states that, within the scope of RUO, item 3.2 of Annex 12 of this offer clearly limits the services included in the forecast plans to be sent by the recipient operators (OPS from now on) and does not include fault repairs, neither does this inclusion result from the motives which lead to the demand for forecast plans, nor from any other RUO provision. According to the Applicant, fault repair is an autonomous obligation independent from the OPS's responsibility to send forecast plans concerning other services.
17. In particular, in what concerns the quality and extension (length) of the loops - which, in the understanding of the Applicant, is the intrinsic factor of PTC's network that can most influence the fault ratio recorded - PTC is best positioned to assess the type, location (exchange areas) and the frequency of faults and service interruptions that are expected to occur. The Applicant also claims that the Respondent is fully aware (even if only through the unbundling requests) of the network technology and specific systems that each operator expects to actually use.
18. SONAECOM considers that what should matter to PTC is to determine the total number of loops / lines installed on its network during the period under analysis and, based on that combined information, to estimate the expected fault ratio according to the progressions reckoned taking into account the quality of its network.
19. It further adds that the management and operation of the stock of loops from PTC and the OPS must be done in equal terms, and that the Respondent does not need to create and organize any specific autonomous teams to repair faults in the OPS’s loops besides those that ensure the maintenance of their own loops, since both are included in the same stock.
20. SONAECOM supports its statement by quoting the ANACOM determinations of 14 February 2002 (RUO) and 18 November 2005 (LLU), arguing that these determinations do not imply, concerning the configuration of RUO, that the Regulator had considered the possibility that the compensations for the non-fulfilment of the maximum times for the service recovery might be conditioned by the previous presentation of the demand forecast plans.
21. The same applies to the LLRO, in the understanding of SONAECOM.
22. In this scope, it quotes the 1st paragraph of page 10 of that offer's Annex 4, which states that in the case of non-fulfilment of the performance objectives defined for quality of service parameter PQS2 [fault repair time], the compensations will be applied, by occurrence, to the lines that were responsible for the non-compliance.
23. It is SONAECOM's conviction that, although the Respondent argues that this paragraph refers to the method of reckoning the penalties and not to PTC's obligation to pay them, the only interpretation of these provisions that is consentaneous with the deterrent efficiency that ANACOM intends to enforce, is that the installation of lines is only service that can possibly be compromised by any omission or deficiency in the demand forecast plans.
24. In this context it also quotes another LLRO's provision (Annex 4, item 1.2, page 3), which states that ''the faults whose causes are not under PT Comunicações' responsibility'' are excluded from the service parameter associated to fault repairs. It concludes that the quality of service level itself is only applicable to faults that are exclusively under PTC's responsibility which, according to SONAECOM, underlines the nonsense of the claimed correlation between the payment of compensation and the sending or the content of the demand forecast plans.
25. Furthermore, SONAECOM claims that the accumulation of delays in service recovery is particularly serious for the OPS, since it strongly affects the image of its commercial offers in the market. It adds that PTC's position concerning the compensation for delays in service recovery (faults in leased lines or loops), has no consistency and does not correspond to the orientation of RUO's or LLRO's provisions, going against the objective pursued by consecutive ANACOM determinations regarding these offers.
26. Consequently, SONAECOM requests ANACOM to declare that PTC must pay the compensations, identified above, due for 2006, in the amount of [IIC] [FIC], with additional late payment interest up to its effective and total payment, at the rate applying according to article 102, item 3, of the Commercial Code.
As per the official notice ANACOM - S60538/2007, of 20.12.2007, received on 27 December, PTC was notified of the dispute settlement request presented by SONAECOM under article 10 of Law no. 5/2004 of 10 February, in order to, should it deem appropriate, reply in written form and within 10 working days on the content of the request.
On the same date SONAECOM4 was informed of the substance of the notification sent to PTC.
PTC's reply was presented by a telecopy of 11.01.20085, which printed original was received at ANACOM on 15.01.20086.
II. PTC replies that
II.I. In general
PTC disputes the argumentation presented by SONAECOM and submits a different understanding from that supported by the Applicant.
27. PTC refers that it is relevant to consider the provisions of the two RUO versions existing in 2006: the one of 17.05.2005 (version 14.01) and the one of 24.11.2005 (version 15), since both versions establish different obligations concerning the presentation of forecasts for the orders to be made during the year when these facts occurred.
28. According to the provisions of version 14.01 of RUO (17.05.2005), the forecast plans must be presented in the last week of June of year N, and must refer to years N+1 and N+2. The methodology of the 24.11.2005 version was altered and determines that the presentation of the plans must be done every six months. As a result of this change, until the last day of semester N, the other licensed operator must present the forecasts referring to semesters N+2 and N+3, while the forecasts regarding N+3 are purely indicative.
29. Under this framework, PTC states that it was SONAECOM's responsibility to provide the plan concerning 2006 and 2007 until 30 June 2005, which did not occur.
30. In this context, it quotes the position stated by SONAECOM in the request7 sent to PTC on 30.12.2005:
''I also send the planning information for 2006 concerning RUO. The information about loops will be confirmed during next week. I would also like to refer that we expect to make module and signal transportation requests for about 10-20 exchanges during 2006. This planning is not concluded and information on these exchanges will be provided as soon as possible. Regarding the values for the first year of 2007, they will also be sent during next week (…)''.
31. According to PTC8, this information was provided only one month later and was not complete, since SONAECOM did not refer the application of the forecast plan neither for semester N+2, i.e. from 1 July 2006 to 31 December 2006, nor for semester N+3, i.e. from 1 January 2007 to 30 June 2007. The plan to apply to semester N+1 (1st semester of 2006) should have been previously presented, according to version V14.01 of the RUO, which never occurred, as the Respondent claims.
32. PTC considers that, under these circumstances, it was not its responsibility to stand for SONAECOM in releasing this information and that there is no reversed onus of proof, particularly regarding a clear and evident methodology.
33. PTC refers that it is relevant to consider the three versions of the LLRO existing in 2006: versions of 14.06.2006 (V.1), of 26.07.2006 (V.2) and of 25.09.2006 (V.3).
34. In this context, it quotes item ''2. Planning and Provisions'' of annex 6 (V1 of 14.06.2006), which states that the OPS must provide PTC, until 30 June of each year, a forecast plan concerning the need for lines for the following year.
35. The Respondent argues that the LLRO was not yet available in 2005, when it was necessary to provide the forecasts, and consequentiality, to obtain the right to compensation in 2006, in the case of failure to fulfil this obligation.
36. Therefore, the Respondent considers that, within the terms of the LLRO, SONAECOM cannot claim the right to compensation concerning any possible failure occurred during 2006.
II.II. In particular
PTC makes a specified refutation of SONAECOM's request.
Here the following arguments should be highlighted:
37. The Respondent argues that it did not dispute the values presented by SONAECOM in the lists sent (number of occurrences, length of reported delays, value of corresponding compensations), because it did not consider the compensation request to be valid since, according to its understanding, it is not based or suited to the conditions established in RUO;
38. Furthermore, PTC supports that there is a direct correlation between the stock of a service and the number of malfunctions associated to the service, thus disputing the Applicant’s statement according to which there is no relation between the release of information concerning forecast plans and the observance of the indicators concerning service recovery. The Respondent also states that the amount of faults that are imputable to it conditions the sizing of resources (both human and systems) needed for handling and solving them;
39. PTC also disputes SONAECOM's statement according to which, when RUO clearly limits the services included in the forecast plans to be sent by the OPS, it does not include fault repairs, which is an autonomous and independent duty that PTC is responsible for. The Respondent supports that, considering the provisions of RUO and LLRO, the payment of compensation is subject to the previous sending of forecast plans with the information and detail defined by the offers, with the single exception of the compensations related to the incorrect unbundling of active local loops;
40. PTC argues that the fact that not all the services are covered by the forecast plans to be sent by Operators (such as the number of eligibility requests and the number of faults), does not exclude from these conditions the payment of compensation regarding the non-fulfilment of the corresponding service levels;
41. The Respondent also argues that, as there is a direct correlation between the above and the number of provision orders (e.g. eligibility) and / or the stock (e.g. number of faults, where the stock is also according to the number of orders), their amount can be estimated by PTC from the forecasts of the orders for resources to be provided by PTC. In other words, PTC states that, in opposition to what was claimed by SONAECOM, the fact that the Offers do not require the inclusion of repairs and faults in the forecast plans is due to the correlation between the faults and the stock of a service. After knowing the stock in a certain period, the stock in the following period is obtained from the sum of the first with the order forecasts for that period, which implies that SONAECOM's argumentation regarding this subject is not valid.
42. PTC also clarifies that the physical and technical characteristics of the loops to be unbundled tend to an average behaviour, particularly as the stock grows. The fault ratio forecast is done by service and not for the set of services provided by PTC, since each of them has different characteristics and requires different levels and types of intervention. The resources and equipment that it supplies also vary according to the services to be provided.
43. In this scope it also reminds that, as determined by ANACOM, PTC has shorter time limits for the repair of unbundled loops than those established for its retail service, so that Operators can compete under equal terms in retail.
44. Referring to the quote of ANACOM’s determination of 14 February 2002 made by SONAECOM, PTC reiterates its understanding that that Authority clearly sates that the payment of compensations requires the production of forecasts, in compliance with the methodology stated in RUO, and that these should be appropriate, except for the compensations derived from incorrect unbundling.
45. Finally, and regarding the request for payment of interest, PTC says that article 102, item 3 of the Commercial Code does not apply because there is no credit in favour of SONAECOM, and if there was any compensation to be attributed (should SONAECOM have complied with the RUO and the LLRO), it would not automatically become a credit, particularly under the terms defined by the Commercial Code, together with the Civil Code.
46. And even if SONAECOM was entitled to compensation, within the scope of LLRO, which did not apply in 2005, this compensation would reach the maximum amount of [IIC] [FIC].
47. In conclusion, PTC supports that SONAECOM did not comply with annex 12 of RUO (neither in version V14.01 of 2005-05-17, nor in version V15.00 of 2005-11-24). It also did not observe what was established in the LLRO, and in the case of its application it would surely be necessary that it would have been in force in 2005, which would reflect 2006’s compensations. For this reason, PTC considers that it does not owe any compensation to SONAECOM, and that the present request should be filed and dismissed without any unfavourable decision regarding the Respondent.
48. After analyzing the documents of the present case, SONAECOM sent a letter on 15 April 20089 where, under item 2 of article 88 of the Administrative Procedure Code, it presents and requests the following:
49. SONAECOM considers it incorrect to assume the existence of a correlation between the forecasts for loop / line orders and the amount or occurrence of faults whose repair (service recovery) is under PTC's responsibility. Since PTC supports that correlation and that, SONAECOM argues, ANACOM seems to have accepted its existence, the Applicant considers that it is necessary to determine if the facts match the presented thesis and therefore requires the investigation of the following facts:
1. Within the context of RUO, if the ratio (incidence) of faults registered in the stock of unbundled loops – i.e. in the universe of unbundled loops of all OPS - is different from the ratio of faults recorded: (i) in the stock of loops belonging to PTC; (ii) in the total stock of active loops of the basic telecommunications network, reckoning the ratios or rates of incidence registered in each case specifically;
2. Also within the context of RUO and for the period from 31.12.2005 to 31.12.2006, what is the evolution of the installed stock of loops (i) globally (i.e. comprising all the OPS); (ii) belonging to the stock of unbundled loops per each OPS individually; (iii) belonging to SONAECOM in particular; and (iv) total amount of non-active loops installed by PTC during that period;
3. In the case of the LLRO, which was the variation recorded between 31.12.2005 and 31.12.2006 in the stock of leased lines (i) globally (i.e. of all the OPS); (ii) of each OPS individually and (iii) of SONAECOM in particular.
50. SONAECOM requests ANACOM to carry out all the evidentiary actions needed in order to confirm the referred facts, requesting from PTC the elements / documents needed to investigate these facts.
III. From the hearing of interested parties
51. On 30.04.2008, ANACOM’s Board of Directors approved a draft decision (D-00096/2008) where, in the scope of the process of administrative settlement of disputes provided for in article 10 of the ECL, it determined:
''1. Considering the arguments and grounds presented together with the referred request for administrative settlement of disputes to be unfounded, to reject the request for stating PTC's obligation to pay SONAECOM [IIC] [FIC] as a compensation for the non-fulfilment, in 2006, of the deadlines applying to service recovery (fault repair time) in the scope of the RUO and the LLRO, as well as the request for the payment of additional late interest over that amount, as provided for in article 102, item 3 of the Commercial Code.
2. To reject, as provided for in article 57 of the Administrative Procedure Code, the evidentiary actions requested by SONAECOM on 15.04.2008, as it considers, in opposition to what is provided for in item 2 of article 88 of the Code, that these actions are neither useful nor necessary for the clarification of the facts that are relevant for the decision.
3. To submit item 1 of the present determination to the previous hearing of the interested parties, in accordance with the provisions of articles 100 and 101 of the Administrative Procedure Code, establishing a period of ten days for SONAECOM and PTC to present their written considerations, should they want to do so.''
52. This draft decision was submitted to a hearing of the interested parties, as provided for in articles 100 and 101 of the Administrative Procedure Code, and a 10 working days period was established for PTC and SONAECOM to present their comments (official notices ANACOM-S20416/2008 and ANACOM-S20414/2008, both from 07.05.2008).
53. Although PTC was regularly notified, it did not provide any comments, ANACOM having received a reply only from SONAECOM10.
54. Even though ANACOM, on the notification of the draft decision, had requested SONAECOM’s opinion within the scope of the previous hearing of the interested parties, as provided for in articles 100 and 101 of the Administrative Procedure Code, only regarding item 1 of the draft determination, SONAECOM, certainly understanding the lapse, made observations also about item 2, where the request for further inquiries presented on 15.04.2008 was rejected.
55. As the full content of the notified draft decision was released as well as, by request made by the Applicant, the rest of the documentation included in the case, the Applicant was free to rightfully participate in the present administrative procedure, which it did, as observed.
56. In this context, it is considered that the lack of a specific reference to item 2 at the moment of notification was thus made up for.
57. The comments received, ANACOM’s understanding of the issue and the grounds for the Regulator’s options are described in the Report of the Previous Hearing, attached to and part of the present determination.
58. After analyzing both companies’ arguments during the instruction of the present case, ANACOM considered that no facts or elements were presented that might lead to conclusions and decisions other than those supported in the draft decision.
59. In order to understand the dispute between SONAECOM and PTC it is important to take into account the provisions of RUO and LLRO, in each of the versions applicable to the situations analysed (in relation to RUO, V14.01 from 17.05.2005 and V15.00 from 24.011.2005, and in relation to LLRO, V1 from 14.06.2006), regarding (i) the presentation of local loop and leased line demand forecast plans, as well as regarding (ii) the payment of compensations for the non-fulfilment of the deadlines applying to service recovery (fault repair time) and its relation with them.
60. In what concerns (i), planning and provision, RUO (V 14.01 of 17.05.2005) determines (item 3.1 of annex 12) that
''In order to ensure a correct planning and an optimization of PT Comunicações' resources considered necessary for the evolution of the Local Loop Unbundling, other licensed operators will be responsible for the presentation of a local loop demand forecast plan, in both modalities described in this offer, as well as forecasts for co-installation and signal transportation requisites''. This item also adds that ''The plan should cover a two year period and follow the methodology presented in the following item''.
61. On this methodology, item 3.2 of the same version of RUO establishes that:
''On the last week of June of year N, other licensed operators will release the plan referring to years N+1 and N+2, indicating the following:
- PT Comunicações exchange areas where it expects to request the provision of unbundled access to the local loop, physical co-installation and signal transportation;
- Amount of local Loops in the modality of Full Access, per exchange area of PT Comunicações;
- Amount of local Loops in the modality of Shared Access, per exchange area of PT Comunicações;
- PT Comunicações exchange areas where it expects to request the provision of physical co-installation and signal transportation, as well as their respective modalities.
Forecasts indicated for year N+3 are merely indicative''.
62. The following version of RUO (V15.00 of 24.11.2005) changed this item and, according to the methodology then established:
''Until the last day of semester N, the other licensed operator will provide PT Comunicações a demand forecast plan concerning semesters N+2 and N+3, indicating the following:
- PT Comunicações exchange areas where it expects to request the provision of unbundled access to the local loop, physical co-installation and signal transportation;
- Amount of local Loops in the modality of Full Access, per exchange area of PT Comunicações;
- Amount of local Loops in the modality of Shared Access, per exchange area of PT Comunicações;
- PT Comunicações exchange areas where it expects to request the provision of physical co-installation and signal transportation, as well as their respective modalities and the amount of modules and cables for connection to the main distribution frame.
The forecasts referring to semester N+3 are merely indicative.''
63. Regarding the (ii) payment of compensation for the non-fulfilment of the deadlines applying to service recovery (fault repair time) and its relation to the forecast plans, RUO (V.14.01, from 17.05.2005, item 2.4 of Annex 13) determines that
''PT Comunicações only considers itself liable for payment, to another licensed operator, of the compensations referred to in this annex as long as it has provided forecast plans for the services to be purchased, in compliance with the present Offer''.
64. This provision was altered on the following version of RUO (V15.00 of 24.11.2005), were the following is stated:
65. ''Should a difference equal or above 50% be detected between the services that another licensed operator will actually be purchasing and the values it indicated in the forecast plans, or if these forecasts are not delivered by the other licensed operator within the deadlines and in the conditions established in the present Offer, PT Comunicações is not liable, regarding the exchanges and services where inadequate forecasts have been made and for the services for which the OLO has not produced forecast plans, to grant the OLO the compensations referred in this annex, in spite of all efforts made to avoid delays on the supply of services where the difference occurred, during the period referred to by the forecast plans. A possible unsuitability of the forecast plans presented will not have any effect on the compensations resulting from incorrect unbundling''.
66. Regarding (i) planning and forecasts, the LLRO (V.1.01 of 14.06.2006, Annex 6, item 2.) determines that:
''In order to ensure a correct planning and an optimization of the resources of PT Comunicações, considered necessary for the evolution of the LLRO, the OPS must provide PT Comunicações, until 30 June of each year, a forecast plan of the needs for lines for the following year. In other words, until 30 June of year N, the OPS should provide the plan referring to year N+1, where the following information will be stated, per quarter:
a) The forecast of the number, type, bit rate and terminal points of the leased lines (end-to-end lines and partial lines);
b) The forecast of the number of lines for traffic interconnection (interconnection lines and internal extensions for traffic interconnection) discriminated per pair of interconnection geographic points (PT Comunicações / OPS);
c) The forecast of the number of CS per PT Comunicações exchange;
d) The forecast of the number of lines for access to submarine cables.
The plan will be reviewed quarterly during year N+1, and it must be sent to PT Comunicaçoes on the last week of each quarter of N+1.
The OPS should equally send to PT Comunicações, until 30 June of each year, a purely indicative forecast for year N+2.
When the OPS joins the LLRO, it will send the plan regarding the first four following quarters to PT Comunicações''.
67. Regarding the (ii) payment of compensations for the non-fulfilment of the deadlines applying to service recovery (fault repair time) and its relation to LLRO's forecast plans (V-1.00, Annex 4, item 3), by reference to parameter ''PQS2 - Fault repair time'', it determines that:
''In the case of non-fulfilment of the performance objectives established, PT Comunicações only considers itself liable for payment of compensations if all the following conditions are verified:
Whenever, in the case of a malfunction, PT Comunicações does not ensure the continuity and quality of the service by using alternative means;
When the interruption of the service provision is due to facts imputable to PT Comunicações;
The OPS has provided the forecast plans of the services to be purchased, in compliance with the present Offer''. (our underlining).
V. Analysis and Conclusion
A. Established facts
68. Considering the statements of each part, including those made during the hearing of the interested parties, as well as the elements and documents attached to the original request, it should be concluded that the following facts are established:
a. SONAECOM did not send PTC, until 30 July 2005, any forecast plan within the scope of RUO, neither for 2006 nor for 2007;
b. On 30 December 2005 SONAECOM presented, within the scope of RUO, an incomplete forecast plan for the 2006, without details per semester, under the commitment of later confirming the information on loops and also referring that, during 2006, requests and modules and signal transportation for 10-20 exchanges were to be expected. As these elements were not included in the planning that was sent, they would be provided afterwards. The information regarding 2007 was also to be sent at a later date;
c. SONAECOM did not present, until 30 June 2005, any forecast plan for 2006 within the scope of LLRO, since its first version is dated from 14 June 2006;
d. The final figures of SONAECOM’s forecast plan concerning the RUO were sent to PTC on 6 February 2006;
e. This forecast plan, presented by SONAECOM, referred to 2006 overall;
f. SONAECOM did not explain what would be the application of the forecast plan for semester N+2 (1 July 2006 to 31 December 2006) and for semester N+3 (1 January 2007 to 30 June 2007);
g. On 19 March 2007 PTC replied to SONAECOM’s questions saying that, in both cases, it would not pay any compensation due from 2006 and, in July 2007, it reported to the Applicant its definitive refusal to pay compensations for the non-fulfilment of the deadlines applying to service recovery (fault repair time).
B. Possibility of requesting ANACOM's intervention
69. Considering the above mentioned facts as established, it is important to conclude about the admissibility of appealing to ANACOM for the settlement of the existing dispute.
70. Considering the provisions of articles 10 and 11 of ECL and that:
a. The issues subject under dispute are related to the fulfilment of obligations derived from the ECL;
b. The dispute involves two companies operating in the national territory that are subject to ECL's obligations;
c. ANACOM's intervention was requested on 06.12.2007, thus before the deadline defined on item 2 of article 10 of the ECL, either if 19.03.2007 is defined as the date of the beginning of the dispute, or if it is considered that the dispute started in July 2007, the date, according to SONAECOM, of the definite refused to pay compensations for the non-fulfilment of the deadlines for service recovery (fault repair time) in 2006.
It is important to conclude that the dispute presented by SONAECOM is eligible for submission to appreciation by ANACOM so that a binding decision about it can be produced.
C. About the request that originated the present case
71. Considering the facts and elements presented by SONAECOM and what PTC refers about them, neither contesting nor refuting the documents presented by the Applicant, it is concluded that SONAECOM did not observe the provisions on the presentation of forecast plans for the services to be purchased, defined in RUO's version 14.01, nor those established in version 15.00 of that reference offer.
72. Consequently, one of the conditions set by the RUO for the payment of compensations, by PTC, for the non-fulfilment of the repair times established in that offer, was not verified.
73. In fact, as established in annex 13 of RUO in its version of 24.11.2005, as well as in the version currently in force, if the forecast plans are not produced or are not produced accordingly to the deadlines and conditions established in RUO, PTC is not obliged to pay any compensation for the non-fulfilment of repair times.
74. In fact, SONAECOM did not present, until 30 June 2005 or later, any forecast plans under the terms established in RUO's version 14.01, thus making it impossible for PTC to know its forecast plans for the first semester of 2006.
75. It should be stress out that the OPS do not have the obligation to send PTC any forecast plans concerning faults incidence. In fact, the OPS have to send PTC the forecast plans for the services to be purchased, with loop maintenance and repair being included within the scope of the unbundling service.
76. It should also be added that if SONAECOM had fulfilled the provisions of this version of RUO and had sent the forecast plan concerning 2006 (N+1) until 30 June 2005, PTC could have known SONAECOM's forecast for the first semester of 2006, once the forecast plan was release under the terms provided for in RUO V.15.00 (six month plans N+2 and N+3).
77. In the present situation, however, the former reasoning is impossible.
78. The information that PTC held (in December 2005, the overall number forecasted for the following year and still subject to rectification) did not make it possible to fill in the gaps concerning the information provided and to understand the forecast plan that was presented.
79. With the alterations introduced in RUO's version 15.00, the forecast plans which were made for a one-year period became semi-annual.
80. As a result, even if SONAECOM had thoroughly respected its obligation to present the forecast plans under the terms established in version 15.00 of RUO, until 31 December 2005, the non-compliance with the obligations set in that offer's version 14.01 would necessarily implicate that the forecasts for the first semester of 2006 could not be known.
81. SONAECOM recognizes that the forecast plans were not presented in compliance with version 15.00 of RUO, and that the forecasts presented on 30 December 2005 and later rectified referred to the 2006 overall, without specifying the values of the first semester and of the second semester.
82. In light of the above, it follows that, although SONAECOM could have detailed the forecasts for each of the semesters of 2006, it actually did not, which means that it did not provide the missing information resulting from not having presented the forecast plans established in version 14.01 of RUO.
83. Neither before nor at the present would it be feasible to demand that PTC integrates the information provided in order to know the forecasts for each semester of that year, and it is even less probable or expectable that the values of the presented plan should be attributed to each semester on a 50% basis, as SONAECOM suddenly explains on 5 April 2007 – documents 8 and 10, attached to the initial request.
84. The simplicity of the subsequent modification of the rectified values to 50/50 (50% for the first semester, 50% for the second), cannot legitimize SONAECOM’s request.
85. By its own definition, a ''forecast'' has to be made before the event that it refers to.
86. Information provided in 2007 is not useful for supplying information missing from the forecast plan for the previous year, and does not solve the lack of forecast plans that should have been presented until 31 December 2005.
87. This was not the only omission in the forecast plan that SONAECOM presented on 30 December 2005.
88. In fact, the data that was then sent to PTC only represented part of a forecast plan that the Applicant committed itself to confirm and complete afterwards, as shown in annex 3 of document 12, attached to the original request. Also in this case, SONAECOM acted clearly against the provisions of items 3.1 and 3.2 of annex 12 of RUO's version 15.00, which determined that these elements should be sent to PTC until 31.12.2005.
89. Only on 6 February 2006 did SONAECOM send PTC new data (document 12), though these elements were not enough to complete the information of the forecast plans that should be presented until 31 December 2005.
90. It is evident that SONAECOM did not fulfil the obligations established in RUO regarding the presentation of forecast plans and, as a result, one of the conditions, according to RUO, for the payment of compensations for the non-fulfilment of the fault repair times (service recovery) is not verified.
91. As PTC emphasizes on its reply, its capacity to repair faults within the established deadlines is correlated to a timely and adequate presentation of the forecast plans of the services to be purchased.
92. On one hand, it would make no sense if RUO considered ''fault repairs'' as an isolated ''service'' in the forecast plans that the other licensed operator must present. That provision is only justifiable, and can occur, if there has been a previous provision of the service.
93. On the other hand, in light of the above, it becomes evident that SONAECOM’s argument that the forecast plans are irrelevant for the sizing of PTC’s resources and services is unfounded.
94. In fact, the correct and timely sending by SONAECOM of the forecasts concerning the number of loops to be unbundled, per area and modality, is relevant for PTC's capacity to respond to service recovery requests, which depends on the adaptation of procedures and resources to the existing demand.
95. I.e., in this case, during a phase when service demand within the scope of RUO is unstable, the sizing by PTC of the resources needed to satisfy possible requests for service recovery within the scope of RUO (e.g. regarding unbundling and signal transportation services), among others, depends on the number of loops initially proposed by the recipient (stock forecasts), and therefore a correlation between the forecast plans and the fault repair times is justifiable.
96. Anyway, one can imagine what would happen if all other licensed providers released their demand forecast plans after the deadline established for that purpose and / or if they consistently presented them in an incorrect or wrong way.
97. Within this context it is unavoidable to conclude that the delayed presentation of the forecast plans determines, in this case, the cessation of PTC’s obligation to pay compensation for the non-fulfilment of the fault repair times.
98. On this matter, it is worth recalling the stand assumed by ANACOM in the genesis of the understanding included in RUO and which was stated in the ''Report of the previous hearing on ICP-ANACOM's draft determination regarding the conditions for the operation of the local loop unbundled offer11''. Regarding compensations and on this matter, this document clearly assumed the position that all participants, including the OPS, are responsible for the introduction of greater predictability and efficiency in the RUO, always considering the protection of the end user as the main target.
99. In fact, in this report, which is part of the determination of 8.11.2005, which led to the alteration of RUO on 24.11.2005 (V.15.00), it can be read:
''ICP-ANACOM is in accordance with PTC’s proposal that this company should only be obliged to pay the compensations defined in the present determination when the OPS has presented the forecast plans of the services to be purchased (in fact, this condition is currently included in RUO).
Should the forecast plans of the OPS not be suited to the services that they will effectively purchase, PTC cannot be obliged to fully comply with the deadlines defined in the RUO for the exchanges and services where the forecast plan proved to be unsuitable. As it was referred, the expected improvements in RUO will only be possible if all participants involved make every effort for the offer to function with efficiency and celerity. Thus, the OPS should also be obliged and encouraged to introduce improvements and efficiency gains in their internal procedures concerning the provision of forecast plans associated to RUO''. (our underlining)
''In light of the above, ICP-ANACOM considers that there should be an adjustment in the methodology for presenting the OPS’s forecast plans, and that these should be presented to PTC on a six month basis, until the last day of semester N and with forecasts referring to semesters N+2 and N+3. The forecasts referring to semester N+3 are merely indicative''.
100. Sending the communication in a sudden, incomplete or inappropriate way regarding RUO's provisions makes it impossible, in this case, to rectify SONAECOM's claim.
101. This is, in fact, the regime that results from RUO, as explained above.
102. In light of the above, and also taking into account that repairing faults involves physical tasks, on the field, and that the entire system has to be dimensioned, it is inevitable to conclude that the failure to present forecast plans is not irrelevant for the sizing of PTC's resources and services needed to respond to malfunction situations and to the consequent service recovery.
103. The absence, delays and lapses in the presentation of the forecast plans under the terms analyzed above are determinant to decide the non-existence of a right to compensation regarding to the non-fulfilment of the fault repair deadlines during the year 2006.
104. For the record, all versions of RUO (including the one now in force) establish an objective rule which compliance conditions the possibility of obtaining the right to compensation: the sending of the forecast plans of the services to be purchased by the OPS.
105. Finally, and as a logical consequence of what is concluded above, ANACOM also considers the request for PTC to pay late interest until the full and effective payment of the amount which payment is claimed for under article 102, item 3 of the Commercial Code to be unfounded.
106. We cannot forget that the first version of this Reference Offer is dated from 14.06.2006, the year when the events which are the basis for SONAECOM’s claim occurred (1st and 2nd semesters).
107. Once again, considering the facts and elements presented by SONAECOM and what PTC refers about them, not disputing or refuting the documents presented by the Applicant, it is concluded that, regarding the period under analysis. SONAECOM did not observe and could not observe the provisions concerning the presentation of forecast plans established in version 1 of that reference offer.
108. The forecasts for the 1st semester of 2006 could never have been presented within the scope of the LLRO.
109. The same must be said concerning the forecasts for the 2nd semester of 2006, although that reference offer was already in force, since its provisions imposed the sending of the forecast plans to PTC until 30 June of each year, regarding the need for lines for the following year.
110. Furthermore, in this scope, SONAECOM itself recognizes in the original request12 not having sent PTC the forecast plans for the demand of lines regarding the 3rd and 4th quarters of 2006, right after the entry into force of the LLRO, in June of that year.
111. On this matter, we recall that:
a. LLRO became effective after its publication, on 14.06.2006:
b. On 26.05.2006 ANACOM decided to determine the retroactive application, as of 01.01.2006, of the tariff scheme regarding that Reference Offer.
c. This offer only had retroactive application from this moment onwards.
d. In this context, with the exception of the ones occurring after the retroactive application of the price list, all other rights and obligations that LLRO creates are solely applicable to the situations that, being within its object and scope, occurred after they became effective.
112. However, as referred on items 66 and 67 of the current determination, the LLRO imposes that until 30 June of each year the OPS must send PTC a forecast plan of the needs for lines for the following year, and conditions the right for the payment of compensations to that obligation of providing the forecasts plan.
113. In light of the above, it follows that only the OPS that complied with that deadline, sending PTC the forecast plans for 2007 until 30 June 2006, were entitled to the compensations established by LLRO.
114. In fact, this is not the period of reference for this case, since SONAECOM's request refers to 2006.
115. Therefore, it's clear that the date when the LLRO became effective and the deadlines established therein for the sending of the forecast plans make it impossible to apply it in 2006, in what concerns compensations.
116. Consequently, to present a request based within a framework that did not exist - and would not apply, if it existed - on the date when the facts occurred, would result in an inadmissible retroactive application.
117. As the reference offer is a contractual proposal framed by a ANACOM determination, which only determined the retroactive application of the LLRO concerning prices, any retroactive application of the remaining provisions would only occur, according to general Law, if an agreement had been reached, which did not happen in this case.
118. Accepting SONAECOM's claim would not only go against the most elementary Legal provisions that oversee juridical safety, as it would mean that it was considered, technically, that there is no relation between sending the forecast plans and the right to possible compensations for the non-fulfilment of the obligation to restore the service in the case of malfunction.
D. Actions requested by SONAECOM on 15.04.2008
119. Regarding SONAECOM's request under item 2 of article 88 of the Administrative Procedure Code, we underline that this provision gives the interested parties the possibility to ''(…) collect documents and opinions or request evidentiary action useful for the clarification of the facts that are relevant to the decision''.
120. The inquisitorial principle included in item 1 of article 87 of that Code, which conditions the administration's actions within the scope of administrative procedures, determines that the instructor body must pursue all the enquiries it deems necessary to reach the grounds for its decision.
121. Both provisions make it evident that it is only possible to demand the instructor body to carry evidentiary actions that are useful and necessary to reach the grounds for the decision.
122. In this case and regarding RUO, considering the framework and assumptions that condition the payment of compensations for the non-fulfilment of the quality of service levels regarding the fault repair time, as well as what is already proved in the scope of the presentation of the forecast plans by SONAECOM, the evidentiary actions requested are neither useful, nor necessary to reach the grounds for the decision.
123. What is relevant for this case is to verify if the forecast plans should be considered as having been produced in full and in due time, which are requisites that condition the right to compensation from PTC.
124. In the case of the LLRO, the fact that this offer is not applicable to the period when the reported events occurred, concerning the compensation scheme, shows by itself the irrelevance of the required actions.
125. The questions that SONAECOM wishes PTC to answer do not involve any additional clarification regarding the terms under which the obligation to present the forecast plans was fulfilled.
126. Therefore, according to the provisions of article 57 of the APC that oblige the administration bodies to provide a swift and efficient procedure, refusing and avoiding anything that may be irrelevant and dilatory in its pursuing and to reach a fair and timely decision, and also having verified that, in opposition to the provisions of item 2 of article 88 of that document, the actions required by SONAECOM on 15.04.2008 are neither useful nor necessary for the clarification of the facts at issue, it is imperative to reject the request, presented by SONAECOM, for PTC to produce further clarifications about this case.
According to the terms and reasons presented, the Board Directors of ANACOM, acting in compliance with the duties defined by paragraph q) of item 1 of article 9 of the Statutes attached to Decree-Law no. 309/2001, of 7 December, acting under the regulation objective foreseen in paragraph a) of item 1 of article 5 of Law no. 5/2004, of 10 February and under the responsibilities attributed to it by item 1 of article 10 of that Law, deliberates:
1. As it considers the arguments and reasons presented with the request for an administrative settlement of the dispute to be unfounded, to reject the petition to determine PTC’s obligation to pay SONAECOM [IIC] [FIC], as compensation for the non-fulfilment, in 2006, of the deadlines applicable to service recovery (fault repair time) within the scope of the RUO and the LLRO, as well as to reject the request for the payment of late interest on that amount, as provided for in article 102, item 3 of the Commercial Code.
2. To dismiss, under the provisions of article 57 of the APC, the evidentiary actions requested by SONAECOM on 15.04.2008, as it deems that these actions, in opposition to the provisions of item 2 of article 88 of the Commercial Code, are neither useful nor necessary to clarify the facts that are relevant for the decision.
1 Registered with reference ANACOM-E73927/2007.
2 Beginning of Confidential Information.
3 End of Confidential Information.
4 Official notice ANACOM - S60539/2007.
5 Entry record ANACOM - E02757/2008.
6 Entry record ANACOM - 03916/2008.
7 Document 12 (annex 2), and not 9, as referred by PTC, attached to the Applicant's request.
8 In this scope PTC links to document 10, attached to Applicant's request, when it is assumed that it meant to refer to document 12, where SONAECOM's mail frCOM's mail from 6 February 2006 is mentioned.
9 Received on 17.04.2008 and recorded under reference ANACOM E-26281/2008.
10 Entry record via fax ANACOM-E35105/2008 and entry record via Notification ANACOM-E36477/2008.
11 Available at: Relatório da audiência prévia sobre o sentido provável da deliberação do ICP-ANACOM relativo às condições de operacionalização da oferta desagregada do lacete local.
12 Item 31 of the initial request.
Relatório da audiência prévia
(PDF 102 KB)