Decree-Law no. 290-A/99, of 30 of July



Ministério do Equipamento, do Planeamento e da Administração do Território (Ministry for the Equipment, Planning and Administration of the Territory)

Decree-Law


Decree Law no. 381-A/97, of 30 December, which defines the system for access to the activity of public telecommunications network operator and provider of public use telecommunications services, foresees the issue of exploitation regulations of the said networks and services.

Such exploitation regulations are intended to establish a set of standards defining the rights and obligations to which the said bodies shall be subject and guarantee their dissemination to potential users.

The framing of the activity of public telecommunications operator is of particular importance. The present provisions therefore, constitute a decisive step towards the introduction of competition in the area of communications within the scope of the commitments in the Governments programme.

Hence, a set of mechanisms have been created to bring dynamism into the sector, which is cornerstone of economic and social development, guaranteeing its effective liberalisation and satisfying the commitments taken on within the scope of the European Union and promoting the transposition of Directive nr. 97/51/CE of the European Parliament and the Council of 6 October, which alter Directives nos. 90/387/CEE and 92/44/CEE for the purpose of adaptation to a competitive environment in the telecommunications sector.

The aim is to guarantee the conditions for provision of an open telecommunications network and leased circuits, within a legal framework of liberalisation.

In a single set of provisions, a set of standards shall be pooled, which in a unified manner frame the supply of public networks and shall also include the supply of leased circuits, especially since the exclusive rights enjoyed, in this context, by the grantee of the public telecommunications service have ceased.

Indeed, this question was regulated by Decree Law nr. 198/94 of 21 July and Official Order nr. 1318/95 of 7 November, which contemplated the principles for provision of an open network in the area of leased circuits, within the scope of exclusive rights, now inexistent.
It therefore became necessary to do away with the dual system, tying in the grantee of the public telecommunications service by subjecting its activity in this area to the same regulatory instruments, which establish the conditions of provision of an open network, for all operators.
In line with this, the scope of the agreement of the basis for granting of the public telecommunications service foreseen in article 21 is narrowed down, approved by Decree Law nr. 40/95 of 15 February, excluding from it the definition of the minimum supply and levels of quality of the provision of leased circuits.

The element to be enshrined in relation to the exploitation of the public networks involves submission to the same system of authorised operators exploiting cable distribution networks, under the terms of Decree Law nr. 241/97 of 18 September.

Regulating the provision of an open network provides the opportunity to subject such operators to the system applicable to other public network operators, whenever cable distribution networks are used or supplied for the provision of addressed public use telecommunications services.

The technological means used in the installation of networks do not constitute, on their own, a distinctive factor, which involves their diffused handling by various legal provisions.
With a view to this, in the regulation of exploitation of public telecommunications networks, the particularities inherent to the establishment and supply of networks of consecrated land satellite stations were foreseen in Decree Law nr. 120/96 of 7 August.

Keeping these provisions in force would imply duplication and dispersion of standards, clearly undermining legal safety.

Therefore:
In developing the legal system established by Law nr. 91/97 of 1 August and under the terms of c) of nr. 1 of Article 198 of the Constitution, the Government decrees, to stand as general law of the Republic, the following:

Article 1
Approval

The Regulation for Exploitation of Public Telecommunications Networks is approved, annexed to these provisions, of which they are an inherent part.

Article 2
Operators of cable distribution networks

1. The operators of cable distribution networks who use or provide their network for the provision of addressed public use telecommunications services are subject to the stipulations in the present provisions.

2. In the situation mentioned in the item above, these operators are obliged to request from the Instituto de Comunicações de Portugal - ICP, the respective licensing as public network operators, under the terms of Decree Law no. 381-A/97 of 30 December.

Article 3
Repeal

1. Decree Law no. 198/94 of 21 July is repealed, as well as the respective regulation of execution.

2. Articles 4 to 10, 15, nos. 2 and 5 and 17 of Decree Law no. 120/96 of 7 August are repealed.

Article 4
Derogation

1. The service of leased circuits is excluded from the scope of the agreement foreseen in article 21 of the basis for granting of the public telecommunications service, approved in the annexe to Decree Law no. 40/95 of 15 February.

2. The provisions referred to in the item above shall remain in force until the publication of the notices foreseen in no. 3 of article 22 and article 32 of the Regulation of Exploitation, annexed to the present provisions.

REGULATION FOR THE EXPLORATION
OF PUBLIC TELECOMMUNICATIONS NETWORKS
 
CHAPTER I
General provisions
 

Article 1
Object and Scope

1. The present Regulation establishes the general conditions to be respected for the exploitation of public telecommunications networks on the national territory, aiming at the provision of an open network, including the provision of leased circuits.

2. For the purpose of the provision in the item above, exploitation of the public telecommunications network is understood as their effective use for the provision of a public use telecommunications service by the network operator or any third parties, including subsidiary companies or companies associated to the network operator.

Article 2
Definitions

For the purpose the provisions of the present Regulation, the following definitions apply:

a. Public telecommunications network: set of means defined in a) of no. 8 of article 2 of Law no. 91/97 of 1 August;

b. Leased circuits: the telecommunications means of a public network which provide transparent transmission capacity between terminal points without involving switching functions controlled by the user;

c. Operator of public telecommunications network: business company licensed under the terms of Decree-Law no. 381-A/97 of 30 December, for the establishment or supply of a public telecommunications network, including the provision of leased circuits.

d. Personal communications system via satellite: a system of satellites of the fixed or mobile service, of the narrow or wide band, global or regional, geo-stationary or not, which provides telecommunications services directly to the users or through public telecommunications networks from a constellation of satellites;

e. Constellation of satellites: one or more satellites, geo-stationary or not, constituting a network of satellites;

f. Operator of personal mobile communication system via satellite: body responsible for the operation of a personal mobile communication system via satellite;

g. Operator of personal mobile communications networks via satellite: bodies which support one another in an operator of personal mobile communications systems via satellite and which are allocated frequencies for the supply of transmission capacity for the provision of personal mobile communications services via satellite, involving or not the operation on the national territory of fixed land stations for interconnection to the public telecommunications networks (gateway);

h. User: any natural or legal person who uses the public telecommunications networks provided under the terms of the present Regulation .

Article 3
Rights and obligations of the operators.

1. The rights of the public telecommunications network operators, without undermining any others granted to them by the Law, are:

a. To install the respective networks;

b. Request, under the terms of general Law, the expropriation and constitution of administrative services, indispensable to the installation, protection and conservation of the respective infrastructure, in accordance with the scope defined in the licence;

c. To have access to the public domain, in conditions of equality, for the installation and conservation of the respective infrastructure, in accordance with the scope defined in the licence;

d. To interconnect to the public telecommunications networks or to public use telecommunications services, under the terms of the Law.

2. The obligations of the operators of public telecommunications networks are as follows:

a. To respect the standards and technical specifications applicable to the installation of public telecommunications networks;

b. To guarantee maintenance of the network;

c. To install, at their own expense and to provide to the legally competent authorities, systems appropriate for legal interception of the communications and supply means of de-encryption or decoding, whenever these facilities are provided;

d. Ensure and respect, under the terms of the legislation in force, the protection of data and confidentiality of the communications supported by the network they exploit, not being held accountable for any actions or omissions not imputed to them;

e. To respect the quality indicators in relation to the supply of the networks, which shall be established by the Instituto das Comunicações de Portugal - ICP, in particular with regards to availability and quality of transmission, normal period of delivery and normal deadline for repair;

f. Provide ICP with verification of the equipment, supply the necessary information for verification and monitoring of the obligations to which they are subject under the terms of the Law and in the respective licence and also provide information to be used for statistical purposes, facilitating access to the respective installations and documentation;

g. Provide ICP with the information and further elements foreseen in no. 8 of article 21;

h. Communicate to ICP any alterations in its business name, location of headquarters or main offices, share capital.

3. In relation to e) of no. 2, ICP shall publish, through the appropriate means, the quality indicators to be used by the operators.

Article 4

1. The operators of public telecommunications networks shall provide technical interfaces in conformity with the standards and/or specifications, which have become obligatory at the level of the European Union, when such exists.

2. The operators of public telecommunications networks shall facilitate the use of technical interfaces for the supply of the network, in conformity with the following standards or specifications:

a. Standards referred to being appropriate to the network provision in the Official Journal of the European Communities, where they exist;

b. Standards adopted by the European Institute for the Standardisation of Telecommunications (EIST) or the European Standardisation Committee/European Electrotechnical Standardisation Committee (ESC/Eesc), when the standards foreseen in the item above do not exist;

c. Standards or international recommendations, adopted by the International Telecommunications Union (ITU), the International Telecommunications Organisation (ITO) or by the International Electrotechnical Commission (IEC), when the standards foreseen in the items above do not exist;

d. National technical specifications, when the standards foreseen in the items above do not exist.

3. ICP shall publish, by notice in the 3 rd series of the Diário da República (Official Gazette), the references published in the Official Journal of the European Communities, of the standards referred to in no. 1 and a) of no. 2, as well as the references of the standards to which b) and c) of the item above refer.

4. ICP shall establish the national specifications, to which d) of no. 2 refers and publish them in the notice in the 3rd series of the Diário da República (Official Gazette).

Article 5
Equipment

Only equipment, whose conformity has been verified under the terms of the applicable legislation, including land satellite stations may be linked to the public telecommunications network.

Article 6
Radio Licensing

1. With the exception of cases foreseen in the Law, the radiocommunications stations, are subject to radio licensing, under the terms of the applicable legislation, including the land communication stations via satellite, which make up the public telecommunications networks.

2. Exempt from the stipulation in the item above are the land communication stations via satellite for mere reception, which are not used for a land connection with a public telecommunications network and are not protected from interference.

Article 7
Conservation and repair

1. The operator is responsible for the conservation and repair of the network, which he exploits and of the material and equipment, he provides to the user.

2. For the purpose of the provision in the item above, the users shall allow the operator's technicians, when duly identified, access to the places where infrastructure, material and equipment of the network are installed.

3. Should there be restrictions on the functioning of the network imputed to the operator, he is obliged to ensure rapid re-establishment of its functioning.

4. Without undermining the provisions in no. 2 of article 16, when repair and conservation is carried out, which may disturb the functioning of the network or the levels of quality adopted, the operator shall inform the user, giving minimum 24 hour notice and whenever technically possible, shall provide alternative means, which ensure an equal level of quality, the continuity of the network's functioning.

5. Restrictions on the provision of the network, caused by repair, which are not provoked by emergencies, are subject to no. 3 of article 15.

Article 8
Sharing of functionalities

1. Whenever technically possible, the operators, shall amongst themselves, promote the conclusion of agreements with a view to sharing the existing functionalities or those to be installed.

2. When in a particular situation and as a result of one of the essential requirements the installation of new functionalities is not allowed, ICP, after an appropriate period of consultation of the interested operators, may decide to distribute the existing functionalities in a specific geographical area.

3. For the purpose of the stipulation in the item above, interested parties are taken as the operators authorised to exploit the networks in the geographical area where the functionalities to be shared are located.

CHAPTER II
Satellite network operators
 

Article 9
Rights

The specific rights of the operators of satellite networks are as follows:

1. To choose freely the spatial segment to be used, without undermining respect for the obligations which the Portuguese State has undertaken in relation to intergovernmental organisations for satellites, with regards to the systems managed by other bodies;

2. To directly access intergovernmental organisations for satellites, under the terms and conditions established by these organisations.

Article 10
Allocation of licences

1. For the purpose of allocation of licenses for the establishment and/or provision of satellite networks, the interested parties shall present applications modelled on the terms of no. 3 of article 13 of Decree Law no. 381-A/97 of 30 December.

2. The technical project, to be presented by the operators of personal mobile communications networks via satellite and the operators of personal mobile communications systems via satellite, under the terms of article 13 of Decree Law no. 381-A/97 of 30 December, shall include the following:

a. Proof that the applicant has been duly authorised by the operator of the personal communications system via satellite, which serves as his support;

b. A declaration issued by the operator of the supporting personal communications system via satellite, to the effect that the requirements for operation of the system have been met, as defined in the applicable decisions of the European Conference of Post and Telecommunications (ECPT);

c. Indication of the frequency bands intended for the use and the maximum bandwidth necessary;

d. Necessary characteristics for co-ordination with existing or planned services, in particular the characteristics of the antennas, with the manufacturer's reference, model, diameter and equivalent isotropically radiated power (e.i.r.p) when applicable;

e. Indication of the site of installation of the fixed land station for interconnection to the public telecommunications networks (gateway), when applicable;

Article 11
Review of allocated frequencies

The frequencies included in the licence granted to the operators of personal mobile communications networks via satellite, may be reviewed by ICP, with no right to damages, within the scope of applicable international standards, in the following cases:

a. Once it is determined that the system operator which serves as support has complied with the requirements established in the applicable ECPT decisions;

b. The need to accommodate new personal mobile communications systems via satellite, which meet the requirements in the applicable ECPT decisions;

c. Following the lapsing of Community standards.

CHAPTER III
Provision of public telecommunications networks
 

Article 12
Provision

This Chapter applies to operators who provide network capacity, which they supply to third parties.

Article 13
Obligations

1. The obligations of the operators mentioned in the item above are:

a. To guarantee, in conditions of equality, transparency and impartiality, access to the network in exchange for appropriate remuneration;

b. Guarantee, under the terms of the respective licence, the provision of telecommunications means, which provide network capacity regularly and continuously;

c. Disseminate the conditions of provision and use of the respective network;

d. Notify the users, giving minimum advance notice of 24 hours, in the event of suspension or interruption of supply, except when these occur due to unforeseen circumstances or acts of God and as such are not imputed to the operator;

e. Notify the users, giving minimum advance notice of 30 days, in case of alteration in the conditions of supply;

f. Notify the users, giving minimum advance notice of 60 days, in the event of total or partial cessation of network supply.

2. For the purpose of the provisions in a) of the previous item, the operators shall offer to the users who provide similar services and who are in the same situation, the conditions which they provide for their own services and the services provided to subsidiary or associated companies.

Article 14
Information on the conditions of provision

The operators of public telecommunications networks shall disseminate in an appropriate manner, at their headquarters and all their offices, specifically and as a matter of course, the following information related to the provision, access and utilisation of the respective network:

a. Conditions of access to the network;

b. Conditions of shared use of the network;

c. Conditions of protection of personal data and confidentiality of communications, whenever necessary;

d. Normal delivery period;

e. Normal deadline for repair of network breakdown;

f. Levels of quality practised, namely the availability and quality of transmission, normal delivery period and normal repair deadline;

g. Conditions of network maintenance and management Pricing systems;

h. Procedures to follow in case of failure to respect the conditions of access and utilisation;

i. Minimum contractual periods;

j. Area of coverage of the respective networks.

Article 15
Restrictions of provision

1. The operators of public telecommunications networks may refuse, suspend or limit provision only in the following cases:

a. To ensure respect for the fundamental requirements;

b. For reason of violation, by the users, of the conditions of access and utilisation of the network.

2. Under the restrictions referred to in a) of the item above, the operators, shall deduct from the cost owed for provision of the network, the amount corresponding to the duration of the interruption;

3. Refusal, suspension or restriction of provision outside the cases foreseen in no. 1, shall imply payment by the operator, of damages proven to have been caused to the user, without undermining the obligation to deduct the amount, which, based on the monthly provision, corresponds to the duration of the restriction which occurred.

4. Upon request from any interested party, ICP may analyse the reasons given by the operator for the restriction and after hearing the parties, shall decide, in line with the provisions in the item above, on the justification of the refusal, suspension or restriction of provision.

Article 16
Fundamental requirements

1. The Fundamental requirements are:

a. Safety of network operation, in particular in emergency situations or force majeur;

b. Maintenance of network integrity;

c. Need to guarantee the interoperability of the services;

d. Conformity with the territorial planning projects and respect for the conditions inherent to protection of the environment and heritage;

e. Effective and efficient utilisation of the frequencies allocated and the need to avoid harmful interference between the radiocommunications systems and other spatial or land technical systems;

f. Need to ensure respect for the standards related to the protection of data and confidentiality of communications.

2. In emergency situations or force majeur, the operators shall guarantee, as far as possible, maintenance of the supply of network capacity and immediately notify ICP and provide information to the user, of the foreseen date of resumption of network capacity and the nature and scope of eventual restrictions.

3. Restriction of network provision caused by the situations in b) and c) of no. 1, are not applicable when the conditions of access have been respected in relation to the terminal equipment.

4. Restrictions of provision based on f) of no. 1, shall only be applicable when necessary to guarantee conformity with the standards concerning protection of data, confidentiality of the information transmitted or stored and respect for private life.

5. Without undermining the provisions in no. 2, notification of the restrictions of network provision mentioned in this article shall be given to the affected user, with explanations and minimum advance notice of 24 hours. The operator is also obliged to lift restrictions as soon as the reasons for it cease to exist.

6. Failure to provide the notification referred to in this article shall result in unjustified restriction, for the purpose of the provisions in no. 3 of article 15.

Article 17
Nonfeasance of conditions of access and utilisation

1. The restrictions applied based on b) of no. 1 of article 15, shall be explained and the user notified by registered mail with proof of receipt, at least 8 days before its date of foreseen application.

2. Exempt from the provisions in the item above are restrictions based on failure to respect the conditions of access in relation to terminal equipment. In this case, the user shall be notified within 24 hours minimum.

3. Failure to give the notifications mentioned in this article shall imply an unjustified restriction for the purpose of the provisions in no. 3 of article 15.

Article 18
Contracts

1. Contracts of utilisation of public telecommunications networks shall be in writing and may not contain any stipulations, which are contrary to the provisions in the present Regulation, under penalty of being nullified.

2. The contracts shall contain, amongst others, clauses which guarantee the rights of the users, in relation to:

a. Continuos and regular access to the public telecommunications network;

b. Levels of quality;

c. Clear indication of the facilities to be provided by the operator, without undermining previous access to other facilities;

d. Applicable prices;

e. Compensation due for damages;

f. Amount of reimbursement in case of failure to respect agreed levels of quality;

g. Information on the rights granted to the user, under the terms of articles 15, 16 and 17 of the present Regulation;

h. Period of duration and conditions of renewal.

3. As these are subscription contracts, they shall mention their approval by ICP, under the terms of no. 2 of article 90 of Decree Law no. 381-A/97 of 30 December.

4. The contract may be repudiated by the user, at the end of the period or at the time of renewal, by a simple written correspondence to the operator, giving notice of at least 15 days.
5. The operators may dissolve the contract under the terms of article 17, based on violation of any of the contractual conditions, through a registered letter with proof of receipt.

6. Modification of the contractual conditions gives the user the right to rescind the contract, through a written correspondence sent to the operator within the 15 days following notification of the alteration.

Article 19
Pricing systems

1. The prices applicable to the supply of public telecommunications networks should obey the principles of equality, transparency and impartiality.

2. The network operators shall guarantee the publication, in a detailed form, of the various applicable price components, itemising in particular the supplementary characteristics introduced to offer certain complements to specific services.

3. The operator shall specify in each bill the figures presented, in relation to the itemisation required in the item above.

CHAPTER IV
Operators with market power
 

Article 20
Applicability

The obligations foreseen in the present Chapter apply to operators of public telecommunications networks with significant market power in the leased circuit market and also a specific position in the market.

Article 21
Operators with significant market power

1. ICP shall, after prior opinion of the Directorate General for Trade and Competition (DGTC), decide on, declare and publish, annually a list of operators with significant market power in the leased circuit market.

2. Without undermining the provisions in the item above, operators who hold a share equal to or more than 25% of the market in relation to circuit leasing are considered as operators with significant market power.

3. The market for leasing of circuits is assessed based on the type or types of circuits offered in a specific geographical area, which may cover the totality or part of the national territory.

4. For the purpose of the provisions in no. 1, ICP may decide:

a. That a body holding a market share in relation to leased circuits of less than 25%, has significant market power;

b. That a body with a market share in relation to leased circuits of more than 25% does not have significant market power.

5. For the purpose of the provisions in no. 1, ICP shall assess the market power of a specific operator, based on the following criteria:

a. Ability to influence the conditions of the leased circuit market;

b. Relation of size between the volume of sales and the market dimension;

c. Monitoring of the means of access to the final users;

d. Capacity of access to financial resources;

e. Experience in terms of supply of products and services in the market.

6. Two or more companies which work together in a telecommunications market or a set of companies may be declared as having significant market power, when though legally distinct, they maintain ties of interdependence or subordination.

7. Without undermining the provisions in no. 1, should there be important changes in the conditions which serve as a basis for the definition of operators with market power, ICP may, before a year passes after the last declaration, reassess the market power of a certain operator, published in the new list.

8. In line with the provision in the item above, the operators shall annually, until the end of June, submit to ICP a report on management and accounts of the previous financial year or in the absence of this, an annual declaration of income, presented for fiscal purposes and quarterly, the data on the number of leased circuits, profits and the number of clients per type of circuit, under terms to be established by ICP, volume of traffic, unused network capacity and any other elements which may be requested for this purpose by ICP.

9. The prior opinion of DGTC mentioned in no. 1, shall be conveyed to ICP within 20 days from the date when requested, after which, should there be no response, ICP shall decide.

Article 22
Obligations

1. The operators subject to the provisions in the present Chapter are obliged to:

a. Guarantee to all users, unrestricted access to the leased circuits, in conditions of equality, transparency and impartiality;

b. Provide information on the provision and utilisation of the leased circuits , whenever requested by ICP;

c. Observe the provisions in articles 24 and 28 on the pricing system;

d. Possess separate accounting for the activities of establishment or provision of public telecommunications networks, on the one hand and the other activities on the other. The latter shall include the services provided to the body itself and those provided to other bodies;

e. Implement a system of cost accounting in accordance with the provisions in the present Regulation;

f. Observe the quality levels established for them by ICP.

2. For the purpose of the provisions in d) of no. 1, the accounting of this service shall identify all the costs and profits related to the this activity, including itemisation of the costs of structure and those associated to fixed assets and shall also identify in detail the basis of calculation used and the methods for allocation used in obtaining the information.

3. ICP shall, through a notice in the 3rd series of the Diário da República (Official Gazette), set the quality levels mentioned in f) of no. 1.

Article 23
Provision of a minimum ensemble

1. The grantee company of the basic telecommunications network is obliged to guarantee the provision of a minimum ensemble of circuits, included in the notice to be published by ICP in the Diário da República (Official Gazette).

2. The other operators covered by the provisions in the present Chapter shall guarantee the supply of the circuits mentioned in the item above, under the terms to be established by ICP, whenever they are notified to this end.

Article 24
Information on the conditions of provision

1. Without undermining the provisions in article 14, the operators covered by the provisions in the present Chapter shall publish, in an appropriate manner, at their headquarters and in all their offices, information on the provision of leased circuits, in conformity with the following list:

a. Technical characteristics of the circuits;

b. Prices;

c. Conditions of supply;

d. Licensing requirements;

e. Conditions for the connection of terminal equipment.

2. For the purpose of the provisions in a) of no. 1, the physical and electric characteristics, technical specifications and valid performance shall be indicated at the network terminal point.

3. For the purpose of the provisions in b) of no. 1, indication shall be given in particular and obligatorily of the prices for initial connection, the price of lease and the various applicable prices, in relation to the various levels of service quality and the applicable discount modalities.

4. For the purpose of the provisions in c) of no. 1, indication shall be given in particular and obligatorily of the order process, the typical delivery deadline, the contractual deadline, typical repair deadlines, the level of availability and the modalities for reimbursement.

5. For the purpose of the provisions in d) of no. 1, indication shall be provided of the conditions related to the fundamental requirements. The need for legal competence, under the terms of Decree Law no. 381/97 of 30 December, for the provision of telecommunications services shall be mentioned.

6. For the purpose of the provisions in e), reference shall be made to the legislation, which regulates the connection of terminal equipment.

7. For the purpose of the provisions in no. 4:

a. The typical delivery deadline: the period of time which passes from the date when installation of a circuit was requested to its effective availability for 95% of the best observations;

b. The contractual deadline: the time foreseen for the contract and the minimum contractual deadline which the user is obliged to accept;

c. The typical repair deadline; period of time which goes by from the moment when notice of breakdown is given to the responsible service of the operator until the time when 80% of all the leased lines of the same type are re-established and whenever appropriate, the users receive notification of the repair. When for the same type of circuit, different repair deadlines are proposed, the different typical repair deadline shall be indicated and for new types of circuits the objective repair deadline;

d. Level of availability: percentage of hours of functioning of the average number of existing circuits, measured based on the potential hours for 100% of the observations.

8. In emergencies, unforeseen circumstances or force majeur, the repair deadlines mentioned in c) of no. 7 shall only begin to be counted after the cause has ceased to exist.

9. ICP shall publish, by the appropriate means, the information mentioned in no. 1.

10. For the purpose of the provisions in the item above, the operators shall submit to ICP information on the supply conditions itemised in no. 1, no more than 15 days after its initial application.

11. Alteration of the conditions of supply shall be disseminated under the terms of nos. 1, 9 and 10.

Article 25

1. Before ceasing supply, the operator shall consult the users affected, no less than 30 days before the proposed date of cessation.

2. Within the scope of the consultation procedure mentioned in the item above and at the request of the user affected, in the 10 days subsequent to the notification, ICP shall within 10 days decide on the date for cessation of the supply.

Article 26
Exemption from supply conditions

1. ICP shall authorise, exceptionally, alteration to the supply conditions published, under the terms of article 24, whenever, the operator faced with a specific situation, for valid reasons, invokes clear lack of viability of its application.

2. The authorisation mentioned in the item above depends on prior hearing of the user. Hence, ICP shall facilitate the respective notification, by registered mail with proof of receipt, so that the user may comment within 10 days on the proposed alteration.

3. 10 days after the deadline mentioned in the item above, ICP shall take a decision, indicating, with explanations, the measure for whose adoption authorisation has been given.

4. Both parties shall be notified of the decision, five days after its adoption, by registered mail, with proof of receipt or should the urgency of the case require it, by phone, telex or facsimile. In these cases, ICP shall require written confirmation in a letter.

Article 27
Restrictions on supply

1. The operators may only refuse, suspend or limit provision of circuits in the following cases:

a. To ensure respect for the fundamental requirements;

b. Due to violation, by the users of the conditions of utilisation, through prior authorisation from ICP.

2. For the purpose of the provisions in b) of the item above, ICP shall approve, within 30 days, a detailed proposal of the operator, in which specification is given of each situation of non-compliance and specific mention is made of the measures to be adopted.

3. Without undermining the provisions in the item above, the restrictions on supply based on b) of no. 1 and which are not included in the proposal approved by ICP shall be authorised case by case, under the terms of nos. 2 and 4 of article 26.

4. ICP, at the request of the user affected, shall decide on the application to a specific case of the restrictions foreseen in no. 2

Article 28
Prices and discounts

1. The prices to be applied for the supply of circuits and discounts to be given, shall obey the fundamental principles for orientation of costs, transparency and impartiality. This shall be independent of the type of utilisation for which they have been requested.

2. The prices shall include at least, the level of itemisation foreseen in no. 3 of article 24.

3. Whenever supply of leased circuits takes place jointly with other operators, the respective price lists may contemplate the price for mid-circuit. This being understood as the price to be paid for the supply of the circuit from a network terminal point to a hypothetical point located at mid-circuit.

4. ICP shall, having obtained the opinion of the DGTC forego compliance with the provision in the present article, whenever there is felt to be effective competition in the market in relation to the leased circuits.

5. The prior opinion of the DGTC mentioned in the item above shall be conveyed to ICP within 20 days from the date when requested, after which, in the absence of a reply, ICP shall decide.

Article 29
Cost Accounting System

1. The operators subject to the provisions in the present chapter shall implement a cost accounting system appropriate to the application of the pricing system foreseen in the item above.

2. ICP shall approve the cost accounting system mentioned in the item above.

3. The cost accounting system shall include the following elements:

a. Costs of leased circuits, with identification of direct costs, borne by the telecommunications operators in the establishment, exploitation and maintenance of leased circuits and their marketing and invoicing;

b. Regular costs, understood as costs which cannot be directly imputed to the leased circuits or to other activities;

c. Profits of the leased circuits.

4. The regular costs referred to in b) of the item above shall be allocated in the following manner:

a. Whenever possible, the categories of regular costs shall be allocated based on direct analysis of their origin;

b. Should it not be possible to carry out direct analysis, the cost categories shall be distributed based on an indirect connection to another cost category or group of categories, for which it is possible to establish allocation or direct connection. The indirect link shall be based on comparable costs structures;

c. When it is not possible to directly or indirectly establish a coefficient of allocation, the category of costs shall be imputed based on a general coefficient of calculated imputation, through a ratio between all the expenses directly imputed or allocated, on the one hand, to the leased circuits and on the other, to other services.

5. The operators shall submit to ICP a documented report, detailing the cost accounting system adopted, specifying, in particular, the following elements:

a. Costing model used, including base of calculation;

b. Identification of all the individual components of the costs which, together, make up the prices of the leased circuits, including remuneration the capital invested;

c. Calculation method of the rate of remuneration of capital invested;

d. Objects of costing;

e. The principles for cost allocation, capital invested and earnings in relation to the objects of costing, especially with regards to the regular costs and joint costs;

f. Conventions and accounting principles used.

6. The application of other costs accounting systems, shall require prior approval by ICP and should not in any case, be incompatible with the provision in no. 1.

CHAPTER V
Monitoring and sanctions
 

Article 30
Information

Without undermining the provisions in f) of no. 2 of article 3, every quarter, the operators shall submit to ICP the following elements:

a. Checked figures for the delivery and repair deadlines for 100% of cases;

b. Level of availability noted;

c. Methods of measurement at the level of network performance;

d. Ensemble of circuits installed.

Article 31
Monitoring

The following shall constitute obligations of the network operators and or service providers:

1. ICP shall monitor compliance with the present provisions through its employees appointed for that purpose or other appointees duly accredited by the Board of ICP.

2. The employees and appointees mentioned in the item above are obliged to maintain as confidential the information and data brought to their knowledge in the course of exercising their duties and which constitute business or industrial secrets.

Article 32
Nonfeasance

In case of nonfeasance of the obligations foreseen in the present provisions, the system contemplated in article 32 of Decree Law 381-A/97 of 30 December shall apply.

Article 33
Administrative offences and fines

1. Without undermining other applicable sanctions, the following are administrative offences:

a. Exploitation of the public telecommunications network without appropriate licensing permit;
b. The violation of the obligations foreseen in no. 2 of article 3 and article 13;

c. Violation of the provision in no. 1 of article 4;

d. Violation of the provision in no. 4 of article 7;

e. Restrictions on supply, in violation of article 15 and 27;

f. The conclusion of contracts in violation of the provision in no. 2 of article 18;

g. Violation of the obligation in no. 2 of article 19;

h. Failure to respect the obligations of submission foreseen in no. 8 of article 21 and article 30;

i. Violation of the obligations in article 22;

j. Violation of the obligation of supply arising from article 23;

k. Absence of adequate publication in violation of no. 1 of article 24;

l. Cessation of supply in violation of article 25.

2. The administrative offences foreseen in the present provisions are punishable with administrative fines of 1 000 000$ to 9 000 000$.

3. Under the administrative fines foreseen in the present provisions, attempt and negligence are punishable.

4. Article 34 of Decree Law 381-A/97 of 30 December applies to the processing and application of the administrative fines.
ICP may decide to publicise the punishment by administrative offence.

Article 34
Conciliation Procedure

1. ICP shall, whenever a user so requests, deal with the network operator, for the conciliated settlement of disputes emerging from possible violations of the present Regulation.

2. For the purpose of the provisions in the item above, the user shall submit to ICP, an explanatory report of the facts, which constitute the alleged violation and shall submit all the pieces of evidence in his possession.

3. Based on the elements presented by the user, ICP shall deal with the operator to reach conciliated settlement of the dispute, without undermining the applicable Community proceedings.

CHAPTER VI
Final Provisions
 

Article 35
Settlement of disputes

1. ICP shall at the request of the parties, settle any disputes emerging within the scope of the application of the present provisions, between the operators of public telecommunications networks and service providers.

2. The intervention of ICP shall be requested no more than 60 days from the date when the facts became known which led to the dispute.

3. The decision of ICP shall be issued no more than 60 days from the date when the request is made.

4. ICP's decision shall be duly explained and a deadline fixed for its implementation.

5. Recourse can be sought to the legal courts, under the terms of the general Law, against ICP decisions taken within the scope of the dispute resolution process.

6. For anything not explicitly foreseen in the present article, Law No. 31/86 of 29 August applies.

Seen and approved in the Council of Ministers of 29 April 1999 - António Manuel de Oliveira Guterres - António Luciano Pacheco de Sousa Franco - João Cardona Gomes Cravinho - José Eduardo Vera Cruz Jardim - Joaquim Augusto Nunes de Pina Moura - José Sócrates Carvalho Pinto de Sousa.

Signed in Ponta Delgada, Açores, on 20 July 1999.

Published The President of the Republic, Jorge Sampaio.

Countersigned on 22 July 1999.

The Prime Minister, António Manuel de Oliveira Guterres.