Ministério do Equipamento, do Planeamento e da Administração do Território (Ministry for the Equipment, Planning and Administration of the Territory)
Decree-Law
Law no. 91/97, of August 1 - the Telecommunications Act -, decreed the existence of a universal service in the telecommunications sector, but postponed the specific treatment of this matter for a later date.
Given the timetable for global liberalisation of the telecommunications sector in Portugal, it is therefore necessary, as a consequence of the Telecommunications Act, to define the scope of universal service and establish the pricing and financing regimes applicable to this service, in conformity with the established EU framework.
The present diploma thus transcribes to Portuguese legislation the terms of EU Directive nr. 97/33/CE, of the European Parliament and Council, of June 30, on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) and EU Directive nr. 98/10/CE of the European Parliament and Council of February 26, on the application of the Open Network Provision (ONP), vocal telephony and universal service in a an open and competitive environment.
Universal service, governed by principles of universality, equality, continuity and affordability, constitutes a guarantee, in an open and competitive environment and the context of the Information Society, that all citizens may secure access to a defined minimum set of telecommunications services, and that technical conditions will be improved in under-privileged zones.
In terms of the scope of this service, and without prejudice to the natural evolution of this concept, the services which it comprises are as follows: connection to the fixed telephone network and access to the fixed telephone service, supply of public pay phones and provision of telephone directories and a directory enquiries service, which includes the phone numbers of subscribers to the fixed and mobile telephone service.
Universal service may be provided by one or more organisations, by either distinguishing the set of services involved, or dividing the provision of the universal service by geographical zones.
The price system to be adopted should guarantee the affordability of the universal service, and should be established via a price convention to be signed between central government, represented by the Department of Commerce and Competition and the Instituto das Comunicações de Portugal, and the provider(s) of the universal service.
A compensation fund for the universal service will be created, as a mechanism to share any net costs of the provision of this service.
It is also important to harmonise the legal regime established by the present diploma with the regime resulting from the basic principles of the concession of the public telecommunications service, approved by Decree-Law nr. 40/95, of February 15.
For this purpose, Portugal Telecom S.A. is initially designated as provider of the universal service in the telecommunications sector.
The other services provided by the concession company continue to be obligatory services, but may not, however, be financed under the terms specified in the present diploma.
The same principle applies to the other services that the State considers should be included within universal service.
Under the terms of point 3 of article 17 of Law nr. 91/97, of August 1, and point 1 of article 2 of Law nr. 23/96, of July 26, consultation was carried out with consumer associations.
Thus:
In pursuit of the legal regime established by Law nr. 91/97, of August 1, and under the terms of paragraph c) of point 1 of article 198 of the Constitution, the Government decrees the following, as General Law of the Republic:
CHAPTER I
General Terms
Article 1.º
Scope and Aim
1. The present diploma defines the scope of the universal service in the telecommunications sector and establishes the associated pricing and financing systems.
2. The universal principle in the telecommunications sector respects the principles of universality, equality, continuity and affordability.
Article 2.º
Definitions
For the purposes of the present diploma:
a. «Universal Service»: means a service as defined by point 1 of article 8.º of Law n.º 91/97, of August 1;
b. «Fixed telephone service»: means the supply to the general public of direct voice transport, in real time, in fixed locations, permitting any user to communicate from a network termination point to any other network termination point;
c. «Fixed telephone network»: means the public telecommunications network as defined by paragraph f) of article 2.º of Decree-Law no. 415/98, of December 30;
d. «Basic telecommunications network»: means the public telecommunications network as defined by points 2 and 3 of article 12.º of Law no. 91/97, of August 1.
CHAPTER II
Scope of universal service
Article 3.º
Provision of universal service
1. The universal service includes the following services:
a. Connection to the fixed telephone network, in a fixed location, and access to the fixed telephone service to all users who request such access;
b. Provision of public pay phones, in a sufficient number, in public rights-of-way and public places;
c. Provision of telephone directories and a directory enquiries service, which includes the telephone numbers of subscribers to the fixed and mobile telephone service.
2. The concept of universal service must evolve to keep pace with advances in technology, market development and changes in user demand. The scope of universal service will be modified whenever this is justified by such evolution.
Article 4.º
Connection to the fixed network and access to the fixed telephone service
1. Connection to the fixed telephone network and access to the fixed telephone service offered by the organisation with universal service obligations should enable users:
a. To make and receive national and international calls, supporting voice communication, fax and data transfer;
b. To have access to an information service which includes the telephone numbers of the fixed and mobile telephone service.
2. The organisation with universal service obligations may only refuse requests to connect to the fixed telephone network and access to the fixed telephone service, on the grounds specified in the respective regulations of commercial exploitation.
Article 5.º
Public pay phones
1. The organisation with universal service obligations should install and commercially exploit public pay phones with access to the fixed telephone service in a sufficient number to satisfy the needs of local populations, including persons with special needs. The location of public pay phones should respect criteria of geographical dispersion, population density and public utility.
2. Instituto das Comunicações de Portugal (ICP) will annually set and publicise the criteria governing the supply of public pay phones in each geographical area in terms of universal service, whenever it is considered that there is insufficient provision of public pay phones.
3. The public pay phones offered by the organisation with universal service obligations should permit:
a. Free access to various emergency services, without the need to use coins or cards, through national emergency and help numbers defined under the national numbering plan;
b. Access to a directory enquiries service under the terms defined in paragraph c) of point 1 of article 6.º of the present diploma.
4. The organisation with universal service obligations should, whenever technically possible, develop its set of public pay phones, in order to ensure acceptance of different payment forms for the Fixed Telephone Service, specifically coins, credit and debit cards, and pre-purchased telephone cards.
5. Pre-purchased telephone cards for access to the Fixed Telephone Service via the public pay phones that are commercially exploited by the organisation with universal service obligations should have a single format, in order to make it possible to use them in any such public pay phone.
6. The organisation with universal service obligations should comply with the technical norms concerning access to urban buildings, specified in a specific diploma, in order to guarantee access to the service for users with special needs.
Article 6.º
Telephone directories and directory enquiries service
1. The organisation with universal service obligations has the following obligations:
a. To prepare, publish and provide users with telephone directories, in printed or electronic format, containing the numbers of subscribers to the fixed and mobile telephone service, that have authorised dissemination of their personal data;
b. To update and distribute, on a periodical basis, the directories specified in the previous paragraph;
c. To provide a directory enquiries service to users, through a short number, that provides data contained in the telephone directories specified in paragraph a);
d. To observe the norms concerning protection of personal data and privacy in the provision to users of the services specified by the present article;
e. To respect the principle of non-discrimination in the treatment and presentation of information supplied to the organisation with universal service obligations;
f. To permit subscribers to verify personal data contained in the telephone directories and respective directory enquiries service, ensuring the correction of any errors or omissions detected.
2. Fixed and mobile telephone service providers are obliged to supply pertinent information on their respective subscribers when so requested by the organisation with universal service obligations, on the basis of a pre-agreed format and under non-discriminatory, fair and reasonable conditions, orientated on the basis of costs.
3. ICP is responsible for approving and publishing the form and conditions under which the directories specified by the present article will be made available.
Article 7.º
Quality Indicators and Performance Objectives
1. The organisation(s) with universal service obligations should comply with the quality indicators and performance objectives applicable to the respective provision of services.
2. The indicators and objectives specified in the previous point are set and published annually by ICP.
CHAPTER III
Provision of the universal service
Article 8.º
Organisations with universal service obligations
1. The State is responsible for ensuring the existence and availability of the universal service in the telecommunications sector, which may be exploited commercially by:
a. The State;
b. A corporate body subject to public law;
c. A corporate body subject to private law, via a contract.
2. The contract specified in paragraph c) of the previous point takes the form of a concession contract if it also includes the establishment, management and commercial exploitation of the basic telecommunications network infrastructure.
3. The universal service may be provided by more than one organisation, by distinguishing either the services of which it is composed, or by geographical zone, without prejudice to the fact that the universal service should be provided throughout the national territory.
Article 9.º
Designation of the organisation with universal service obligations
1. The member of Government responsible for the communications sector is responsible for designating the organisation or organisations charged with provision of the universal service, following a public tender.
2. The regulations of the public tender specified in the previous point is to be approved by a ministerial order by the member of government responsible for the communications sector, which will define the following:
a. The elements of universal service covered within the scope of the public tender;
b. The time period of universal service provision;
c. The geographical area where the service will be provided.
CHAPTER IV
Pricing
Article 10.º
Pricing system
1. The pricing system of the universal service should take into account the progressive adjustment of prices to costs, observing the principles of transparency and non-discrimination and guaranteeing the affordability of the service to users.
2. In order to guarantee the affordability of the universal service, special price systems or differentiated prices may be considered on the basis of geographical criteria and categories of services or users.
3. For the purposes of the terms of the previous point, special or differentiated prices may be established, covering the following:
a. Rural zones;
b. High-cost zones;
c. Users with special needs;
d. Users who are economically vulnerable or have special social needs.
Article 11.º
Price Convention
1. The pricing system of the provision of the universal service, is established via a convention to be signed between central government, represented by the Department of Commerce and Competition (DGCC), ICP and the organisation with universal service obligations.
2. The price convention may establish a system of maximum prices or with geographical or similar categories, specifying the criteria for application of point 3 of article 10.
3. The price convention enters into force on the day following its ratification by the relevant ministers and will remain in force for the period for which it is agreed.
4. ICP will publish the price convention.
CHAPTER V
Financing of the universal service
Article 12.º
Compensation for losses
1. The organisation(s) with universal service obligations must be compensated for any losses resulting from the provision of this service.
2. For the purposes of the terms of the previous point, the organisation(s) with universal service obligations are responsible for demonstrating losses and submitting them to approval by ICP. Such approval should be preceded by an audit carried out by ICP or by an independent body appointed by ICP.
3. ICP is responsible for publicising the results of the cost calculations and the audits specified by the present article, whenever so requested by interested parties.
Article 13.º
Calculation of net cost
1. Calculation of the net cost of the universal service should be based upon objective and transparent criteria and procedures.
2. The cost of universal service obligations shall be calculated as the difference between the net cost for an organisation of operating with such universal service obligations and without such obligations.
3. Calculation shall be based upon the costs attributable to:
a. elements of the identified services which will can only be provided at a loss or provided under cost conditions falling outside normal commercial standards;
b. specific end-users or groups of end-users who, taking into account the cost of providing the specified network and service, the revenue generated and any geographic averaging of prices imposed by the State, can only be served at a loss or under cost conditions falling outside normal commercial standards.
4. For the purposes of the terms of paragraph b), this category includes the end users or groups of end-users that would not be served by a commercial operator which did not have an obligation to provide universal service.
5. In peripheral regions with expanding networks, the cost calculation should be based on the additional cost of serving those end-users or groups of end-users that an operator applying the normal commercial principles of a competitive environment would choose not to serve.
6. The calculation of net costs should take into account revenues and other tangible and intangible benefits resulting from the provision of the universal service.
7. Costs and revenues should be forward-looking.
Article 14.º
Compensation Fund
1. For the purposes of the terms of point 1 of article 12 and when justified, a compensation fund for the universal service may be created, which will receive contributions from the organisations that commercially exploit the public telecommunications networks and the fixed and mobile telephone service providers.
2. The compensation fund for the universal service is to be administered by a body independent of the organisations that either contribute to, or benefit from the fund, to be designated by the member of government responsible for the communication sector.
3. The independent body specified in the previous point is responsible for receiving contributions to the fund and supervising payments to be made to the organisation(s) with universal service obligations with the right to be compensated.
4. The member of government responsible for the communications sector is responsible for approving, via a ministerial order, the operational rules of the compensation fund.
Article 15.º
Contributions to the compensation fund
1. ICP is responsible for annually setting the division and amount of contributions to be made to the compensation fund for the universal service, observing principles of objectivity, transparency, non-discrimination and proportionality.
2. The network operators and service providers specified in point 1 of article 14 are obliged to pay the contributions set under the terms of the previous point.
3. ICP will define and publish the criteria under which the net cost of the universal service will be shared between the operators and service providers obliged to make contribution.
CHAPTER VI
Monitoring and sanctions
Article 16.º
Monitoring
1. ICP is responsible for monitoring compliance with the terms of the present diploma through its own employees who have been mandated for this task or other mandated agents that have been duly accredited by the ICP's Board of Directors.
2. The employees and agents specified in the previous point are obliged to maintain the confidentiality of information and data that are made available to them during the exercise of their duties, and which represent commercial or industrial secrets.
3. Any employee or agent who violates the obligation of commercial or industrial secrecy, specified in the previous point will be subject to disciplinary, civil or criminal liability, in accordance with the case in question, under the terms of applicable legislation.
Article 17.º
Non-compliance
Failure by network operators and/or service providers with universal service obligations to comply with any of the obligations specified in the present diploma constitutes breach of the condition specified in paragraph g) of point 1 of article 11 of Decree-Law no. 381-A/97, of December 30. In this event the network operator or service provider will be subject to the regime established in article 32 of the said Decree-Law.
Article 18.º
Countermanding measures and fines
1. Without prejudice to other sanctions that may be applicable, the following represent the basis for countermanding measures:
a. Breach of the obligations specified in points 1 and 2 of article 4;
b. Breach of the obligations specified in points 1, 3, 4, 5 and 6 of article 5;
c. Breach of the obligations specified in points 1 and 2 of article 6;
d. Failure to observe the quality indicators and performance objectives, in breach of point 1 of article 7;
e. Application of prices that counter the pricing system specified in article 10.º;
f. Breach of the obligation specified in point 2 of article 15;
g. Breach of the obligation specified in point 2 of article 20.
2. The countermanding measures specified in the previous point are subject to the terms of points 2 and 3 of article 33 and article 34.º of Decree-Law no. 381-A/97, of December 30.
CHAPTER VII
Final and transitional terms
Article 19.º
Regulations of commercial exploitation
Without prejudice to the obligations specified in the present diploma, the organisation(s) with universal service obligations must comply with the regulations of commercial exploitation for the services provided.
Article 20.º
Reports
1 - ICP will produce annual reports on the following:
a) Evolution of the price for provision of the various services of the universal service;
b) The calculated cost of the various services of the universal service;
c) The contributions made to the compensation fund by all organisations involved.
2 - The organisation(s) with universal service obligations should provide ICP, when so requested, with all information required to prepare the reports specified in the previous point.
Article 21.º
Publication of information
ICP will ensure that the information specified in point 2 of article 5, point 3 of article 6, point 2 of article 7 and point 4 of article 11.º is published in the Diário da República.
Article 22.º
Consultation
ICP is responsible for organising public consultations on the scope, affordability and quality of the universal service.
Article 23.º
Concession company of the public telecommunications service
1. Portugal Telecom, S. A., is designated as the organisation with universal service obligations, for the validity period of the public telecommunications service concession contract.
2. When the validity period specified in point 1 terminates, the organisation(s) with universal service obligations will be designated under the terms of article 9 of the present diploma.
3. The telecommunications services which are not covered by the present diploma, but are provided by Portugal Telecom, S. A., in accordance with the public telecommunications service concession contract, continue to be obligatory services for the concession company.
4. The services specified in the previous point may not be financed under the terms specified in the present diploma.
5. The rules determining the setting of prices in the convention to be signed between DGCC, ICP and Portugal Telecom, S. A., remain in force until signing of the convention under the terms of article 11 of the present diploma.
Article 24.º
Revocatory norm
1. Article 4, point 4, Article 24, point 4, and Articles 25 and 32 of the foundations of the public telecommunications service concession contract, approved by Decree-Law no. 40/95, of February 15, and article 33 of Decree-Law no. 415/98, of December 30 are revoked.
2. The scope of application of point 5 of article 30 of the foundations of the public telecommunications service concession contract, approved by Decree-Law n.º 40/95, of February 15, does not include the services defined in point 1 of article 3 of the present diploma or the leased line service.
Seen and approved by the Council of Ministers on September 9, 1999 - António Manuel de Oliveira Guterres - António Luciano Pacheco de Sousa Franco - João Cardona Gomes Cravinho - Joaquim Augusto Nunes de Pina Moura - José Mariano Rebelo Pires Gago - José Sócrates de Carvalho Pinto de Sousa.
Enacted on October 19, 1999.
Let this be published.
President of the Republic, Jorge Sampaio.
Countersigned on October 21, 1999.
Prime Minister, António Manuel de Oliveira Guterres.
