Clarification Note
Campaigns under way based on the provision of message-based value added services and application of article 9-A of Decree-Law number no. 177/99, of 21 May
In the scope of the new legal regime governing message-based value added services, laid down in Decree-Law number 63/2009, of 10 March, which amended Decree-Law number 177/99, of 21 May, and further to ICP – ANACOM’s decision to adjust the National Numbering Plan (NNP) to that regime, some concerns were raised with this Authority as regards two aspects related to the provision of these services, each of which is clarified below:
1. Campaigns under way based on the provision of message-based value added services
There are initiatives under way which were launched before ICP – ANACOM’s final decision of 3 June, published in the Authority’s website on 8 June, on the adjustment of the National Numbering Plan (NNP) to the amendment to Decree-Law number 177/99, of 21 May, and which involve the indication of four-digit short numbers, and which, consequently, are not in conformity with this decision, for the promotion of contests or pastimes disclosed through campaigns supported on means distributed in vast amounts and in a geographically dispersed manner, making it difficult to alter or replace such campaigns (for example, fast-moving consumer goods, such as labels and caps of bottles, cans and other types of containers).
In the light of concerns conveyed to this Authority, of the difficulty to collect means supporting these campaigns and taking into consideration the interests at stake, specially of consumers who still face such advertising measures, as well as the need to ensure the proper operation of initiatives launched before the publication of the decision taken on 3 June, ICP - ANACOM considers that these campaigns should continue, using numbers which have been used so far, until 31 December 2009.
For this purpose, providers of message-based value added services which are registered with ICP - ANACOM or with pending registration must identify with ICP - ANACOM, within 3 days from the respective notification, the campaigns under way which meet requirements established in the preceding paragraphs, indicating namely the dates on which they start and end, the numbers used to access the services and the identification of the respective content suppliers.
It is thus stressed that it will only be possible to use numbers which so far have been used in campaigns launched before 8 June 2009 and which remain in force at the latest until 31 December 2009, which are communicated to ICP - ANACOM within the 3-working-day deadline set out in the preceding paragraph.
2. Application of article 9-A of Decree-Law number 177/99
There are message-based value added services the scope of which is limited to the sending of an SMS by the consumer and to the reply by the provider with the requested content.
Although these services may not be integrated in one of the categories identified in paragraph 2 of article 8 of Decree-Law number 177/99, they are covered in the scope of the definition laid down in paragraph 2 of article 2 of that statutory instrument. For this reason, in the decision of 3 June concerning the consultation procedure on the adjustment of the National Numbering Plan (NNP) to the amendment to Decree-Law number 177/99, of 21 May, ICP - ANACOM created an identification code (68) within the NNP for other message-based value added services that do not fall within the codes corresponding to categories of services specifically defined by law.
These are not, consequently, services that imply sending more than one message or sending periodic and continuous messages, nor services of an erotic or sexual nature, nor services aimed at collecting donations subject to a different tax regime. This concerns services associated to the provision of useful information to the user (such as waiting times or delay of public transports, medical services, waiting times or place in the queue line at public services).
In some of these cases, the requirement compelling the service provider to send a message with the information referred to in paragraph 1 of article 9-A of Decree-Law number 177/99, which is followed by a new message from the customer confirming the service demand, may turn out to be ineffective and unfeasible, namely when the exchange of such messages takes an amount of time which is incompatible with the use to be derived from the demanded service.
In this context, the means to provide services that imply the sending of more than one message or the sending of periodic and continuous messages (code 62) must be analysed: the customer sends a message to the publicised number and receives a message from the service provider with the information referred in the mentioned article 9. In case the customer confirms the service demand, he/she will receive the messages contracted through the procedure described earlier (the sending of which is incumbent on the service provider), and the general conditions of the service provision are not communicated a second time, nor is the customer requested a confirmation prior to the sending of each of these messages.
There are also services which involve adherence by the customer to general conditions for a minimum contractual period defined by the service provider, during which several messages with the content demanded by the customer, under the referred general conditions, may be sent, but always following a request by the customer. This involves, consequently, the establishment of long-term contractual relations, in which the sending of messages depends not on the service provider but on the customer, who, in the scope of the contract, requests the sending of each content. In situations such as this one, it is deemed acceptable not to require from the service provider the sending of information referred to in article 9-A before conveying each message with the content demanded by the customer, nor the customer’s confirmation, in view of the fact that the latter has already adhered to the service’s general conditions. In fact, as regards services integrated within the 62 identification code, if the law does not require the service provider to convey to the customer the information provided for in paragraph 1 of article 9-A, requesting the latter’s confirmation, a fortiori, the same requirement should not exist for services where the sending of messages in the scope of a same contractual relation depends on the will of the customer.
In conclusion, and in the light of the regime laid down in Decree-Law number 177/99, of 21 May, as amended by Decree-Law number 63/2009, of 10 March, it is hereby considered that:
1. Four-digit short numbers which have been publicized in contests or pastimes, in the scope of campaigns launched before 8 June 2009, may continue to be used until 31 December 2009;
2. For the purposes of the preceding paragraph, providers of message-based value added services must submit to ICP - ANACOM, within 3 days from the respective notification, a list of campaigns under way, indicating the dates on which they start and end, the numbers used to access the services and the identification of the respective contents suppliers;
3. As regards message-based value added services which involve adherence by the customer to general conditions for a minimum contractual period defined by the service provider, where the sending of each content is individually requested by the customer, and thus depends on the will of the latter, article 9-A of Decree-Law number 177/99 is deemed to be complied with through the mere sending of a message with the information referred therein and the confirmation of the service request on the moment the customer adheres to applicable general conditions, for as long as such conditions are not altered.
Lisbon, 9 September 2009.
