Ministério do Equipamento, do Planeamento e da Administração do Território (Ministry for the Equipment, Planning and Administration of the Territory)
Decree-Law
The Regulations for the Operation of the Fixed Telephone Service (FTS), approved by Decree-Law no. 240/97 of 18 September, applicable to the operator of the public telecommunications operator, established fundamental principles of protection of the rights of service users, in particular regarding information, equality and fairness in contracting, the existence of mandatory contractual clauses, the specific enumeration of restrictions to the offering of service and the right to appeal to an independent entity the Instituto das Comunicações de Portugal for the resolution of conflicts between the user or subscriber and the operator holding the public telecommunications service concession.
They also transposed, to a great extent, to national law the community law regulations governing the application of the open network provision (ONP) to voice telephony.
With the approval of Decree-Law no. 381-A/97 of 30 December, which regulates access to the activity of public telecommunications network operator and public use telecommunications service provider, developing the principles of liberalisation established in Act 91/97 of 1 August the telecommunications basic law , it has become necessary to approve the regulations for the operation of the networks and services provided for in that act. In relation to the FTS and to their respective fixed telephone networks, it is necessary to adapt the existing Operation Regulations to full competitiveness, to be in effect from 1 January 2000, in accordance with the provisions of the telecommunications basic law.
The alterations now introduced aim to make these adaptations, as well as the transposition of the standards provided for in European Parliament and Council Directive 98/10/EC of 26 February, on the application of the ONP to voice telephony and to the universal telecommunications service in a competitive environment, as yet not set forth in national law.
The new system is applicable to the providers of the FTS and to the operators of the fixed telephone networks, licensed for this purpose under the terms of Decree-Law no. 381-A/97, as well as to the public telecommunications service concession holder.
In this context, it is to be noted that identification has been made of the obligations specifically applied to fixed telephone networks operators and to the universal service provider, as well as how the introduction of the notion of "entity with significant market power" in the market of fixed telephone networks and the FTS, with specific obligations inherent to this qualification.
Under the new competitive systems, the rights of users and consumers are maintained, and these are even reinforced with the attribution of capacity for intervention to consumer associations during the appreciation of terms and conditions of the provision of the FTS.
The previous Regulations having withdrawn the qualification of public pay-telephones as merely a form of access to the FTS, operated by the respective provider, it is important to note that this decree-law includes standards for the installation and operation of public pay-telephones on a competitive basis, that is to say, whether they are operated by an FTS provider or by any other entity duly registered under the terms of Decree-Law no. 381-A/97 of 30 December.
The right of appeal to and intervention by the ICP is further strengthened, at its own initiative or on request form either one of the parties, in the resolution of conflicts arising from the application of this law.
The governments of the Autonomous Regions of Azores and Madeira were heard.
Under the terms of Article 17(3) of Act 91/97 of 1 August, and of Article 2(1) of Act 23/96 of 26 July, organisations representing consumers were heard.
Thus:
In the development of the law established by Act 91/97 of 1 August, and under the terms of Article 198(1)c of the Constitution, the Government hereby decrees, to be valid as general law of the Republic, the following:
Article 1
Approval
1. The Regulations for the Operation of the Fixed Telephone Service (FTS) and for the Installation and Operation of Public Pay-Telephones for Access to the FTS, attached to this decree-law and which form an integral part of it, are hereby approved.
2. Without prejudice to the application of the Regulations for the Operation of the Public Telecommunications Networks, this decree-law contains specific provisions applicable to the public telecommunications network operators which set up or provide fixed telephone networks.
3. The providers of FTS accessed exclusively through call-by-call selection or pre-selection may be released from the duties under the Regulations which, by the nature of the provision in question or the form of operation, may only be required from FTS providers with direct access.
4. It is for the ICP to determine, on a case by case basis, the application of the previous paragraph.
Article 2
Transitional clause
Until entry into force of number portability, under the terms of Article 32 of Decree-Law no. 415/98 of 31 December, in the event of the subscriber changing FTS provider, this provider should guarantee for a minimum period of six months and as alternatives:
a. The forwarding of calls to the new number at a reasonable cost;
b. The automatic and free announcement of the new number.
Article 3
Repealing clause
1. Decree-Law no. 240/97 of 18 September is hereby repealed.
2. Article 4(1) of the bases for the public telecommunications service concession approved in annex to Decree-Law no. 40/95 of 15 February, regarding the rules governing the exclusive rights attributed to the concession holder under the fixed telephone service provisions and, in conformance, the corresponding provisions of Clause 4(1) of the public telecommunications service concession contract, are hereby repealed.
3. The fixed telephone service is excluded from the scope of the agreement provided for in Article 21 of the bases for the public telecommunications service concession approved in annex to Decree-Law no. 40/95 of 15 February.
4. The provisions referred to in the previous paragraph remain in force until the publication of the announcement provided for in Article 5(3) of the Operation Regulations annexed to this decree-law.
Article 4
Entry into force
This decree-law enters into force on 1 January 2000.
Seen and approved by the Cabinet on 9 September 1999 - Antonio Manuel de Oliveira Guterres - Antonio Carlos dos Santos - Joao Cardona Gomes Cravinho - Jose Socrates Carvalho Pinto de Sousa.
Enacted on 19 October 1999.
Let this be published.
The President of the Republic, JORGE SAMPAIO.
Countersigned on 21 October 1999.
The Prime Minister, Antonio Manuel de Oliveira Guterres.
Annex
Regulations for the Operation of the Fixed Telephone Service
CHAPTER I
General Provisions
Article 1
Purpose
1. These Regulations set forth the general conditions for the provision of the fixed telephone service (FTS) within the national territory, involving on an international level interconnection with networks or services in other countries, as well as the general terms and conditions for the installation and operation of public pay-telephones for access to the FTS.
2. These Regulations are applicable to the provision of the fixed telephone service, regardless of the technological support system.
3. Without prejudice to the application of the Regulations for the Operation of Public Telecommunications Networks, these Regulations establishes specific rules applicable to fixed telephone network operators.
Article 2
Definitions
For the purpose of these Regulations:
a. Fixed telephone service (FTS) means the provision, to the public in general, of the direct transport of real time speech, from and to fixed locations, such that any user can use equipment connected to a network termination point to communicate with another termination point;
b. Subscriber means natural or legal person who or which is party to a contract with a FTS provider for access and use of the FTS;
c. User means any natural or legal person who may use or request the services provided under these Regulations;
d. Public Pay-Telephone means terminal equipment for access to the FTS, installed in public locations, including those with restricted access, available to the general public, on a commercial basis;
e. FTS Provider means commercial company duly qualified to provide the FTS;
f. Fixed telephone network means the public telecommunications network as defined in Article 2f of Decree-Law no. 415/98 of 31 December;
g. Fixed telephone network operator means the operator of the public telecommunications network, as defined in the Regulations for the Operation of the Public Telecommunications Networks, which sets up or provides a fixed telephone network.
Article 3
Organisations with significant market power
1. It is the responsibility of the ICP, after obtaining the opinion of the Direcção-Geral do Comércio e da Concorrência (DGCC), to determine and declare annually which organisations have significant market power in the market of fixed telephone networks and/or FTS.
2. Without prejudice to the provisions of the previous paragraph, an organisation shall be presumed to have significant market power when it has a share of 25 % or more of the relevant fixed telephone networks and/or FTS market in the geographical area within which it is authorised to operate.
3. For the purpose of the provisions of Paragraph 1, the ICP may determine:
a. That an organisation with a market share of less than 25% has significant market power;
b. That an organisation with a market share of more than 25% does not have significant market power.
4. For the purpose of the provisions in Paragraphs 1 and 3, it is the responsibility of the ICP to assess the market power of a specific organisation, taking the following criteria into account:
a. Its ability to influence market conditions;
b. Its turnover relative to the size of the market;
c. Its control of the means of access to end-users;
d. Its access to financial resources;
e. Its experience in providing products and services in the market.
5. Two or more companies which act in conjunction in the telecommunications market or a groups of companies which, although legally separate, maintain links of interdependence or subordination may be declared to have significant market power.
6. In the event of significant alterations in the actual conditions of fact and law which were the grounds for the definitions of the organisations with significant market power, the ICP may reassess, before a year has passed since the last declaration, the designations of organisation with significant market power.
7. The opinion of the DGCC referred to in Paragraph 1 should be issued within 20 days, after which, in the absence of an answer, it shall be the responsibility of the ICP to decide.
Article 4
Rights of subscribers and users
1. The following constitute subscriber rights:
a. Access to the FTS, regardless of geographic location, on an equal, transparent and non-discriminatory basis, in accordance with the provision of these Regulations, regarding quality of service in particular, and by payment of the applicable prices;
b. Connection and use at their termination points of approved terminal equipment;
c. Availability of itemised billing, under the terms and limits established under Articles 37 and 38 of these Regulations;
d. Access to audiotext services on FTS support.
2. The following constitute user rights:
a. Free access, through the national emergency number defined in the national numbering plan and, in particular, from public pay-telephones, to the different emergency systems, under the terms established by the applicable law;
b. Access to the service facilities provided by the FTS providers;
c. Access to the different forms of information service available;
d. Access to the FTS from public pay-telephones, where available.
Article 5
Quality of the service
1. The FTS providers are required to abide by the service quality indicators established by the ICP.
2. Specific performance objectives may be fixed by the ICP for the universal telecommunications service providers and for the organisations referred to in Article 3.
3. The ICP shall publish, by announcement in the Diário da República, the quality indicators and performance objectives referred to in the previous paragraphs.
4. The FTS providers referred to in Paragraph 2 of this Article, as well as other providers which pursue activities for more than 18 months, should provide, on request of the ICP, updated information about their performance levels and the ICP may carry out independent audits to verify and compare this data.
Article 6
Confidentiality
1. The FTS providers are required to take the necessary provisions to ensure the confidentiality of communications made through access to the FTS, under the terms of the legislation in force; however, they shall not be liable for any actions or omissions which cannot be attributed to them.
2. The employees of the FTS providers shall be under an obligation to not reveal the content of the conversations of which they may accidentally have knowledge, or any other information about the users, during the course of their duties.
Article 7
Information about the supply conditions for the fixed telephone service
1. The FTS providers shall publish and make available, at their headquarters and at all their establishments, the following information on the supply conditions for access to and use of the FTS:
a. Types and conditions of access to the FTS;
b. Time needed for initial connections;
c. Specimen contract;
d. Conditions and forms of compensation or refund;
e. Types of maintenance service offered;
f. Conditions for connection of terminal equipment;
g. Restrictions on access to and use of FTS;
h. Service quality indicators, containing their definition and the measuring methods, as well as defined performance objectives and quality levels reached, where applicable;
i. Service facilities and objectives regarding the introduction of additional facilities, functions and prices;
j. Tariff;
k. Essential elements of its numbering plan established in accordance with the national numbering plan;
l. Procedures in the event of non-payment of bills;
m. Dispute resolution procedure.
2. The FTS providers should provide the ICP with the information referred to in the previous paragraph.
3. For the purpose of Paragraph 1, the FTS providers shall publish by announcement in the 3rd series of the Diário da República the form and manner of publicising this information.
Article 8
Information about the supply conditions for fixed telephone networks
1. The fixed telephone networks operators should inform the ICP of the following elements of the technical specifications regarding the interface and normally provided network termination points:
a. For analogue or digital networks: single line interface, multiline, direct dialling (DDI) and other interfaces commonly provided;
b. For integrated services digital network (ISDN), where provided: specification of basic and primary rate interfaces at the S/T reference points (including the signalling protocol), details of bearer services able to carry voice telephony services and other interfaces commonly provided; c. Any other interfaces commonly provided.
2. Any alterations to the specifications referred to in the previous paragraph or new specifications on this matter should be communicated to the ICP by the fixed telephone network operators at least 60 days in advance.
3. It is the responsibility of the ICP to ensure the publication of the elements referred to in the previous paragraphs so as to make them easily accessible to interested parties.
4. The ICP shall publish, by announcement in the 3rd series of the Diário da República, the form and manner for the publication referred to in the previous paragraph.
Article 9
Alteration of the supply conditions for the fixed telephone service
1. The FTS providers shall maintain updated the information available at its headquarters and at all its establishments.
2. The provisions of Article 7 of this decree-law are applicable to alterations in the supply conditions.
Article 10
Restrictions on the supply of the fixed telephone service
1. The FTS providers shall ensure the supply of the service in a regular and continuous fashion.
2. Without prejudice to the provision laid out in the previous paragraph, the FTS providers may refuse, suspend or limit the supply of the FTS in the following cases:
a. To ensure observance of the essential requirements;
b. On the grounds of the violation, by users, of the terms and conditions for access to and use of the FTS.
3. When the restrictions referred to in subparagraph a) of the previous paragraph imply an interruption in the provision of the service for a period greater than forty-eight hours, no payment shall be made for the provision of the FTS, and a discount corresponding to the duration of the interruption should be given on the subscription charge, where it exists.
4. The refusal, suspension or limitation of the supply other than in the cases provided for in Paragraph 2 shall give rise to the payment of compensation, by the FTS provider, for the damages which it is proved to have caused to users, without prejudice to its obligation to discount the amount which, on the basis of the monthly payment, corresponds to the duration of the restriction.
5. On the request of a subscriber, the ICP may analyse the grounds invoked by the FTS provider for the restriction and, after hearing the parties, consider, for the purposes of the provisions of the previous paragraph, unjustified the refusal, suspension or limitation of the supply.
Article 11
Essential requirements
1. The following constitute essential requirements:
a. Security of network operation, particularly in situations of emergency or force majeure;
b. Maintenance of network integrity, particularly regarding network equipment, software or stored data;
c. Need to ensure the interoperability of the services;
d. Compliance with land planning regulations and respect for the restrictions inherent to environmental and heritage protection;
e. Effective and efficient use of the frequency spectrum allocated, as well as the need to avoid harmful interference between radio-based systems and other technical land or space systems;
f. Need to ensure compliance with standards for the protection of personal data and privacy.
2. In the situations referred to in subparagraph a) of paragraph 1, the FTS providers should ensure, to the greatest possible extent, the maintenance of the service offering to all users, informing users immediately and notifying the ICP of the expected date of reestablishment of the service, as well as the nature and extent of any restrictions.
3. The restrictions to the offering of the FTS on the grounds of the situations provided for in subparagraph c) of paragraph 1 may not be applied when the access conditions for terminal equipment are satisfied .
4. The restrictions to the offering on the grounds of subparagraph f) of paragraph 1 are only applicable when necessary to guarantee compliance with standards for data protection, for the confidentiality of information transmitted or stored and for individual privacy.
5. Without prejudice to the provisions of Paragraph 2, the affected user should be given reasoned notification of the restrictions to the offering of the FTS referred to in this Article, and with at least twenty-four hours notice; the provider shall also cease the restrictions as soon as the determining motive is brought to an end.
6. The absence of notifications as referred to in this article shall be considered an unjustified restriction for the purpose of the provisions of Paragraph 5 of Article 10
Article 12
Non-fulfilment of the terms and conditions for access to and use of the fixed telephone service
1. The restrictions placed on the basis of Subparagraph b) of Paragraph 2 of Article 10 should be supported by reasons and served on the subscriber, by registered letter with recorded delivery, at least eight days before the date on which they are due to be imposed.
2. Restrictions for reasons of non-fulfilment of the access conditions regarding terminal equipment, which should be served on the user at least twenty-four hours in advance, are exceptions from the provisions of the previous paragraph.
3. The FTS provision may not be suspended as a consequence of lack of payment of associated provisions or service facilities, even if they are included on the same bill, unless they are functionally inseparable.
4. For the purpose of the provision of the previous paragraph, the associated provisions of the FTS or service facilities provided with identification codes different from the FTS are considered functionally inseparable.
5. When the provision of the service is interrupted due to delay in payments which do not include the subscription charge, the FTS providers are under the obligation to provide the subscriber with access, through the national emergency number defined in the national numbering plan, to the different emergency systems, as well as to enable the reception of calls, subject to the provisions of Article 25.
6. The absence of the notification referred to in this Article represents an unjustified restriction for the purpose of the provisions of Paragraph 5 of Article 10.
Article 13
Service facilities
1. The universal telecommunications service providers are under the obligation to provide, whenever technically and economically viable, the following minimum set of service facilities:
a. DTMF signalling (dual tone multifrequency operation), guaranteeing the use of telephones with DTMF through tones defined in UIT-T Q.23 recommendation;
b. 12 kHz signalling to send meter pulse count;
c. Direct selection of PBX extensions, enabling the extensions of a PBX to be accessed directly from the fixed telephone service;
d. Call forwarding;
e. Calling-line identification;
f. Selective call barring, without additional costs, for outgoing calls to other public telecommunications services and audiotext services.
2. The facilities referred to in subparagraphs c), d) and e) of the previous paragraph should be made available by FTS providers with significant market power.
3. The availability of the facility referred to in subparagraph c) of paragraph 1 of this article should comply with the provisions of Act 69/98 of 28 October.
4. The FTS providers should provide their subscribers, free of charge, with a minimum level of detail on the bills, under the terms of the provisions of Paragraph 2 of Article 37.
5. Subject to the provisions of the legislation which regulates personal data protection and privacy, the FTS providers may add other facilities additional to those referred to in the previous paragraphs, namely:
a. Access to national and European green/freephone services;
b. Reverse charge calls;
c. Access to European operator services;
d. Access to national and European directory enquiry services;
e. Calling-line identification within Europe;
f. Shared cost services;
g. Shared revenue services.
6. The provisions of Paragraph 1 of Article 9 are applicable to the provision of additional facilities.
CHAPTER II
Contracts
Article 14
Request for access and use of the fixed telephone service
1. When a request is made for access to and use of the FTS the providers may not request payment of any quantities related to the provision of the service and should inform the applicants of the expected date on which their requests will be fulfilled.
2. The procedures for attribution of individual numbers and/or series of numbers should be transparent, fair and efficient and the attribution made in accordance with criteria of objectivity, transparency and non-discrimination.
Article 15
Annulment of requests
1. Subject to the provision of the next paragraph, the applicants have a right to annul their requests for access to and use of the FTS without payment of any charge.
2. The request for total or partial annulment of the applications in course of execution of outside work implies the payment of any incidental costs, duly justified, arising from work carried out to fulfil the request up to the limit of the amount due for the installation or for special work, where carried out.
Article 16
Installation of the service
1. The FTS providers are under the obligation to install the service on the date an period of time with interval previously agreed on with the applicant.
2. In the event of non-fulfilment by the FTS providers, the applicant may demand a reduction in the sum corresponding to the installation charge of 50%.
3. Whenever the FTS providers are unable to access the installation location for reasons attributable to the applicant and are unable to fulfil the obligation set out in Paragraph 1, they may demand a surcharge corresponding to 50% of the value of the installation charge.
Article 17
Contracts
1. The FTS provision is subject to written contract to be entered into by the provider and the subscriber on the date of fulfilment of the request for use of the service.
2. The contracts should include, among other clauses, clauses which ensure the rights of users regarding the following:
a. Continuous access to the FTS and with appropriate levels of quality;
b. Explicit indication of the service and facilities to be provided by the FTS providers, subject to the possibility of later access to other facilities;
c. Prices to be applied;
d. Compensation due for damages;
e. Knowledge of situations of termination, interruption or limitation of the availability of the service, except when determined by compelling grounds or force majeure and as such are not attributable to the providers;
f. Amount of the refund due in the event of breach of the especially contracted levels of service quality, where applicable;
g. Dispute resolution procedures.
3. The contracts should also contain the following elements:
a. Rules governing and form of provision of guarantees in accordance with the provision of Article 27 of these Regulations;
b. Express indication of the subscriber s wishes regarding the inclusion or not of their personal details in telephone directories and the disclosure of these details by way of information services, involving or not their transmission to third parties for a similar or different purpose;
c. Express statement of the subscriber s wishes regarding the use, or not, of terminal equipment provided by the providers for access to the FTS;
d. Express statement of the subscriber s wishes regarding the selective access, or not, to audiotext services;
e. A mention that the contract, as a standard-form contract, was approved by the ICP.
4. As these are standard-form contracts, the FTS providers should send their projects to the ICP, for approval, which should be preceded by hearing of the Instituto do Consumidor.
5. In the event of disagreement between the FTS provider and the applicant, during the process of negotiation of special clauses, either one of the parties may request that the ICP reach a decision, which is appealable in administrative courts in accordance with the law.
6. The notifications of subscribers by the FTS providers, for the purpose of application of these Regulations, are sent to the address indicated for this purpose on the contract.
Article 18
Nullity
The FTS provision contracts which do not contain any of the clauses or elements provided for in Article 17 are null and void and the clauses of FTS provision contracts which contain any provisions which contradict the provisions of these Regulations.
Article 19
Alteration of contractual clauses
The ICP may, on its own initiative or at the request of a consumers association of national scope and general interest or of specific interest in the field of telecommunications services, require the alteration of contractual clauses dealing with matters set forth in these Regulations, to defend the rights of users and/or subscribers.
Article 20
Non-transferability of the contractual position
The contract is personal and no rights or obligations may be transferred to third parties, except in the cases provided for in Article 22
Article 21
Commencement of the provision
The FTS provision commences on a date to be determined by the FTS providers, taking into account the time limits established under the terms of these Regulations.
Article 22
Transfer of title to the contract
The new subscriber cannot be held responsible for any debits or other costs resulting from the contractual relations previously established between the subscriber and the FTS provider
Article 23
Change in name
1. Any change in the name, business name or company name of the holder of the contract or to its designation, for the purpose of inclusion in the telephone directory of information service, is free of charge.
2. Any change of holder of the FTS provision contract occurring between spouses, whatever their marriage settlement, shall be considered a change in name, without prejudice to the liability of the new holder for any debits.
Article 24
Suspension of the contract at the request of subscriber
1. The contract may be suspended at the request of the subscriber, for a period of up to four months during each calendar year, unless the subscriber is absent as a consequence of civil or military service or a work contract, in which case the period of suspension shall correspond to the duration of the absence.
2. In the cases referred to in the previous paragraph, the obligation to pay the subscription charge is suspended, where it exists.
Article 25
Termination of the contract
1. The contract of the provision of the telephone service expires:
a. At the end of the term agreed on in fixed-term non-renewable contracts;
b. On the death of the subscriber or extinction of the legal entity, provided these facts are communicated to the FTS provider and with the exception of the cases of contractual changes.
2. The subscriber may give notice of the termination of the contract, at the end of its term or a renovation thereof, with at least 15 days written notice to the FTS provider.
3. In the event of serious or repeated failure to comply with the conditions of access and use by the subscriber, the FTS provider may annul the contract by notice served on the subscriber at least eight days in advance, by registered letter with recorded delivery and without prejudice to any liability of the part of the subscriber.
4. At the request of the subscriber, the ICP may analyse the grounds invoked by FTS provider for the annulment of the contract and, after hearing the parties, consider this annulment unjustified within the meaning of Paragraph 4 of Article 10
Article 26
Disassembly of the installation
1. After the termination of the contract, the subscriber shall grant access for the disassembly of the equipment and the material which are the property of the FTS provider within a period of 30 days.
2. For the purpose of the previous paragraph, the FTS provider should reach an agreement with the subscriber on the date and period of time to carry out this work at least forty-eight hours in advance.
3. If it is impossible to disassemble the installation within the period referred to in the previous paragraph for reasons attributable to the subscriber, the FTS provider shall consider the disassembly to have taken place and the subscriber shall be liable for the payment of the substitution of the equipment and material installed.
4. If its is impossible to disassemble within the period referred to in Paragraph 2, for a reason attributable to the FTS provider, the provider is liable, under general terms, for the damages caused.
5. As long as the installation has not been disassembled, the FTS provider may authorise the entering into of a new contract, provided that there are no operation drawbacks and the subscriber ensures payment of any existing debits or costs.
Article 27
Payment of guarantees
The rules governing the payment of guarantees applicable to fixed telephone service contracts is that established in Decree-Law 195/99 of 8 June.
CHAPTER III
Use of the fixed telephone service
Article 28
Use of the fixed telephone service
1. The subscriber shall use the FTS under the regulated and agreed operation conditions.
2. The subscriber shall also use duly approved terminal equipment.
3. The use of the FTS by third parties, with or without the authorisation of the subscriber, shall be considered to be made by the subscriber for all contractual and legal purposes.
Article 29
Special work
1. Special work is considered to be that carried out on telephone infra-structures which, on the specific request of the subscribers, in their own interests and because they presuppose an installation outside normal patterns, are supported by the subscribers.
2. In particular, the following are considered special work:
a. Carrying out adaptations or repositioning in recreational or leisure areas, or for aesthetic or landscaping reasons;
b. Adopting unusual technical implantation solutions, inherent to the building in which the installation is being carried out or its layout.
Article 30
Terminal equipment congestion
1. Whenever there is congestion in access to the FTS due to the dimensioning of the terminal equipment, the FTS providers may require the subscriber to increase its capacity.
2. In the event of a dispute between the FTS provider and the subscriber, either of the parties may resort to the procedure provided for in Article 47 of these Regulations.
Article 31
Conservation and repair
1. The FTS providers are responsible for the conservation and repair of the infrastructures whose operation has been attributed to them under the terms of the law, as well as for the materials and equipment of their own used in the provision of the FTS.
2. Whenever, for the purpose of the previous paragraph, it is essential to gain access to the installation location, the FTS providers shall agree with the subscribers on a date and period of time in which to pursue the acts of conservation or repair.
3. For the purposes of the previous paragraph, subscribers are under the obligation to grant duly identified personnel in the service of the FTS providers access to the locations of the collective or individual network of subscriber cables and of the terminal equipment for access to the FTS, provided that they have been notified by the provider of the of expected and agreed visit.
4. The subscriber is responsible for the material and equipment belonging to the FTS provider and shall compensate it for any damages in the case of loss, damages not arising form normal use, modification of the installation and spoilage, except when arising from force majeure, in which case the risk is on the provider.
Article 32
Interruptions attributable to the fixed telephone service providers
1. The FTS providers are under the obligation to rapidly reestablish the service whenever failures of their own responsibility occur originating in interruptions in the FTS provision.
2. In the case referred to in the previous paragraph, when the interruption occurs for a period greater than forty-eight hours counting from the detection of the failure by the FTS provider or from its notification by the subscriber, and with prejudice to any compensation for damage, the provider should discount from the subscription charge, where it exists, the value which, based on the monthly subscription, corresponds to the duration of the interruption in the provision.
3. Subject to the provisions of the previous paragraph, the subscriber is due an amount, by way of a refund, to be established in the contract, for the cases in which the subscriber does not intend to avail of the right to compensation for damages.
Article 33
Special access to the network
1. The fixed telephone network operator with significant market power are under the obligation to satisfy all reasonable requests by public telecommunications service providers for access to the fixed telephone networks at different termination points from those normally offered and which are referred to in Article 8, in non-discriminatory, fair and reasonable conditions to be agreed upon by the parties.
2. For the purposes of the previous paragraph, the operators should offer similar conditions to all the entities which provide similar services and which are in a similar situation, in particular: providing information and offering special facilities for access to the network with the same quality as those provided for their own services, subsidiary companies or associates.
3. The agreements provided for in Paragraph 1 of this Article should:
a. Include provisions of a technical and commercial nature;
b. Establish a timely and efficient completion deadline;
c. Be in compliance with the applicable standards and comply with the essential requirements, as well as ensure the maintenance of end to end quality.
4. The ICP may, on its own initiative and at any moment, and should, on the request of any of the parties, intervene in the making of the agreements for special access to the networks when justified to guarantee effective competitions and/or interoperability of the services:
a. Determining non-discriminatory, fair and reasonable conditions which are the most advantageous for all users; Fixing a deadline for the conclusion of the negotiations.
5. The operators referred to in Paragraph 1, whenever justifiable, may demand from the applicant the payment of expenses inherent to the satisfaction of their request for special access to the network, respecting the principles of cost orientation.
6. The operators referred to in Paragraph 1 of this Article may only refuse a request for special access to the network, in specific cases, on grounds of the existence of technically and economically viable alternatives to the special access requested and if it is incompatible with their resources available to satisfy the request.
7. Whenever the operator, after analysis of the request for special access to the network, foresees that it may be refused, the operator should immediately inform the applicant, so that the applicant can submit the question to prior assessment by the ICP before the operator in question takes a decision which restricts or refuses the intended access.
8. The entities which enter into agreements for special access to the network shall provide the ICP with all the information which the ICP may request about these agreements.
9. The ICP may disclose the information referred to in the previous paragraph, when justifiable, respecting their business confidentiality, by substantiated indication from the parties.
10. The conditions determined by the ICP under the provision of Subparagraph a) of Paragraph 4 should be published under the terms of Paragraph 3 and 4 of Article 8 of these Regulations.
CHAPTER IV
Prices, supervision and collection
Article 34
Prices
1. The prices to be applied to the fixed telephone networks and to the FTS should follow principles of equality, transparency and non-discrimination.
2. The prices for access to and use of fixed telephone networks and the FTS should contain an appropriate breakdown of the functions to be offered, so as to allow users to choose between different elements of the supply.
3. The tariff structure should provide for differentiated prices taking into account, in particular, variations in the quantity of traffic at different period, provided that this is commercially justifiable and does not conflict with the tariff principles defined in this article.
4. The prices for access to and use of the fixed telephone networks and the FTS, to be collected by the operators and/or providers which have significant market power should respect the principles of cost orientation.
5. The entities referred to in the previous paragraph should also fulfil the following, regarding the prices they offer:
a. The prices for additional facilities not included in the offering for connection to the fixed telephone network and to the FTS should be separated for the service requested;
b. Subject to Paragraph 3 and 4 of Article 10 of Decree-Law 415/98 of 31 December, the prices for access to and use of the fixed telephone network should be independent from the type of use for which they have been requested, except in cases in which different services or facilities have been requested.
6. It is for the ICP to grant exemption from compliance with the provision of Paragraphs 4 and 5 of this Article whenever it considers that there is effective competition on the FTS market, after hearing the DGCC, under the terms of Paragraph 7 of Article 3.
7. The rules established in this Article shall not prejudice the price system applicable to the provision of the universal telecommunications service provided for in the specific legislation.
Article 35
Analytical cost-accounting system
1. The operators of fixed telephone networks and the FTS providers which have significant market power should implement an analytical cost-accounting system serving the application of the tariff principles listed in the previous article.
2. It is up to the independent entity, designated by the ICP, to supervise the compliance of the analytical cost-accounting systems adopted with the tariff principles referred to in Article 34 and the ICP should issue an annual declaration vouching for this compliance.
3. The entities referred to in Paragraph 1 of this Article should send the ICP an annual description of their analytical cost-accounting systems identifying, in particular, the main categories of expenses and the rules for its imputation.
4. The operators of the fixed telephone networks and the FTS providers should provide the ICP, on request, with detailed accounting information, the provisions of Paragraph 9 of Article 33 of these Regulations being applicable to this information.
Article 36
Discounts
1. The systems of discounts offered by the entities referred to in Paragraph 4 of Article 34 to their subscribers and users must be applied following principles of transparency and non-discrimination, and should be published and made available under the terms of Article 7
2. The ICP may determine, by reasoned decision, the alteration or elimination of the systems of discounts referred to in the previous number.
Article 37
Billing
1. The billing of telephone traffic is carried out on the basis of processing systems installed at FTS provider telephone exchanges or of detailed records of calls made.
2. Subject to Act 69/98 of 28 October, FTS billing should be transparent, objective and must necessarily contain at no additional charge the following minimum level of detail, where applicable:
a. Initial price of connection to the FTS;
b. Subscription charge;
c. Price of use, identifying the different categories of FTS traffic, as well as outgoing traffic to other public telecommunications service providers, identifying in both cases each call and its cost;
d. Periodical equipment rental fees;
e. Price of the installation of accessory material and equipment requested after the commencement of the provision of the service;
f. Subscriber debits;
g. Refund compensation.
Article 38
Itemised billing
Subject to Act 69/98 of 28 October, the FTS providers should provide, free of charge or after payment of a price and on the request of the subscriber, itemised billing with levels of breakdown greater than those established in Paragraph 2 of the previous Article.
Article 39
Complaints about the bill
1. The terms under which the data on user and subscriber traffic can be processed, in particular to enable clarification of bills, are governed by the provisions of Act 69/98 of 28 October.
2. In the event of a complaint about itemised billing, the FTS providers should provide an alternative method of control.
Article 40
Collection
1. The subscriber may pay and obtain a receipt for only a part of the sums set forth on the bill, by reference to the billing details, except when these quantities correspond to provision or facilities which are functionally inseparable from the FTS.
2. In the situations referred to in the previous paragraph, the FTS provider may resort to the procedures provided for in Article 12
CHAPTER V
Information services
Article 41
Information services
1. The FTS providers are under the obligation to provide users with information services, by the way of abbreviated codes, involving the disclosure of data on subscribers to the FTS, provided that they have authorised this disclosures.
2. The FTS providers are under the obligation to comply with standards for the protection of data and privacy in the provision of information services to users, in compliance with the provisions of Act 69/98 of 28 October.
3. For the purpose of provision of the information service within the scope of the universal service, the FTS providers shall provide the universal service provider with relevant information about their subscribers, in an agreed format.
Article 42
Telephone directories
1. Without prejudice to the obligations of the universal telecommunications service provider regarding the preparation of telephone directories, the data on FTS subscribers may be made available by each FTS provider, through the publication and distribution to users of duly updated telephone service directories, in printed or electronic format.
2. For the purpose of the preparation of telephone directories within the scope of the universal service, the FTS providers shall provide the universal telecommunications service provider with the relevant information about their subscribers, in an agreed format.
3. Listing of subscribers in these directories shall depend on criteria established by the FTS providers, which may, at the request of the interested parties and on payment of a price, list them in a different way.
4. In the event of errors or omissions in the listing or information about subscribers in the directories, the FTS providers shall undertake their correction in the following edition.
Article 43
Use of the information set forth in telephone directories
The FTS providers should establish minimum rules to ensure clear and transparent equality in access to the use of the information set forth in telephone directories by third parties, without prejudice to the provisions of Act 69/98 of 28 October.
Article 44
Alterations to telephone numbers
1. The FTS providers may only alter telephone numbers in cases of compelling technical necessity and for this purpose should notify subscribers at least 90 days in advance.
2. In the event of alteration of telephones numbers, the FTS providers should guarantee for a minimum period of six months the automatic and free disclosure of the new telephone number to users who dial it and, at the end of that period, there should be an automatic indication of the information service number which the subscriber should dial to obtain the new number.
3. In the event of dialling of a number which has been altered and when no express warning is issued, the FTS providers should ensure that the corresponding tone is clearly distinct from the calling tone or the engaged tone.
4. The services provided by technological information systems referred to in Paragraph 2 of this Article should be accessible by way of a single national number in compliance with the national numbering plan and should ensure, for a period of at least two years, the correspondence of altered telephone numbers.
CHAPTER VI
Public Pay-Telephones
Article 45
Public pay-telephones
1. The installation and commercial operation of public pay-telephones for access to the FTS, on the public highway and in public locations, may only be carried out by a FTS provider or natural or legal person registered at the ICP under the terms of Decree-Law 381-A/97 of 30 December.
2. Subject to Decree-Law 381-A/97 of 30 December, the obligations of the entities referred to in Paragraph 1 of this Article comprise, in particular:
a. To post, at public pay-telephones, the information referred to in Paragraph 1 of Article 46 of these Regulations;
b. To notify the ICP of its plan for installing public pay-telephones, for the purpose of commencement of activity;
c. To provide the ICP with all the information which it requests, particularly under the terms of Paragraph 2 of Article 46 of these Regulations;
d. To guarantee free access, through the national emergency number defined in the national numbering plan, to the different emergency systems, under the terms set out in the applicable legislation;
e. To reach agreement, for the installation of the public pay-telephones, on aesthetic or landscaping restrictions;
f. To obtain prior authorisation for the services with responsibilities in the field of heritage for the installation of public pay-telephones on classified properties, properties nearing classification and in their respective protection zones;
g. To provide the service to population with special needs, under the terms of the applicable legislation;
h. To identify the public pay-telephones as their own property and to maintain them in a good state of preservation and use.
Article 46
Mandatory information
1. The following information must be displayed at each public pay-telephone, in a visible location and form:
a. Price of the calls;
b. Accepted forms of payment;
c. Emergency number, with express indication of it being free of charge;
d. Free number of the service provider for notification of faults at the public pay-telephone;
e. Indication of the numbers for the information service and complaints service for the FTS provider to which the public pay-telephone is connected;
f. Location of the public pay-telephone for its better identification;
g. Number of the public pay-telephone, with express indication of the possibility, or not of receiving calls, as well as other existing facilities;
h. Location of the nearest public pay-telephone of the same provider.
2. The providers of public pay-telephones should send the ICP the following elements, without prejudice to others which may be requested:
a. Identification of each public pay-telephone, including the number of the public pay-telephone, the number of the fixed telephone service, location, make, model and serial number of the terminal equipment, as well as form of payment of the services provided and existing facilities;
b. Prices;
c. Service quality indicators, in particular the number of faults occurred and the average time for their repair, interruptions and suspensions of the service;
d. Report and accounts, by the end of June of each calendar year;
e. Any alteration to the shareholder composition and to the share capital, if the service provider is a commercial company;
f. Subsequent alterations to the public pay-telephone installation plan, sent to the ICP, under the terms of Article 45(2)b, including removals and the installation of new public pay-telephones.
CHAPTER VII
Dispute resolution
Article 47
Dispute resolution
1. Without prejudice to their right of appeal to the courts, both judicial and arbitral, under general law, users may lodge complaints with the FTS providers regarding acts or omissions which breach the standards of these Regulations, as well as the provisions of other applicable legislation.
2. The deadline for lodging of complaints provided for in the previous paragraph is 30 days from knowledge of the facts by the user.
3. The FTS providers should decide whether the complaint is founded or unfounded and notify the interested party by at least 30 days from the date of reception of the complaint.
4. When the decision does not totally or partially accept the complaint, the interested party may request, within 30 days from the notification referred to in the previous paragraph, that the ICP assess and decide on the subject matter of the dispute.
5. Within the dispute resolution procedure, the FTS providers should provide the ICP, within 10 days, with all the information requested for the decision, which should be rendered within 60 days from the date of the request, unless otherwise justified.
6. The procedure provided for in this article is applicable to disputes between public telecommunications service providers and fixed telephone network operators, under the provisions of these Regulations.
7. The decisions of the ICP may be appealed against in courts of law, under general law.
8. Act 31/86 of 29 August shall be applicable to all that is not expressly provided for in this article.
Article 48
Conciliation procedure
1. In the event of a dispute, under the provisions of these Regulations, involving an entity from another Member State, the user or FTS provider may, by written notification of the ICP and the European Commission, request conciliated resolution by a working group constituted under Directive 98/10/EC of 26 February.
2. After receipt of the notification referred to in the previous paragraph, the ICP shall forward the notification to the European Commission.
3. It is up to the party which invoked the procedure referred to in this article to support all costs arising from its participation.
Article 49
Consumer associations
1. National consumer associations of general interest or associations with specific interest in telecommunications services may submit to the assessment of the ICP the cases in which they consider the terms or conditions of the FTS provision to be unsatisfactory for users.
2. The procedure set forth in Paragraphs 4 and following of the Article 47 of these Regulations shall be applicable, with the adaptations necessary, in the cases referred to in the previous paragraph.
Article 50
Counting of deadlines
The rules set forth in Article 72 of the Code of Administrative Procedure shall be applied to the counting of deadlines provided for in these Regulations.
CHAPTER VIII
Supervision and penalties
Article 51
Supervision
The ICP is responsible for ensuring compliance with the provisions of these Regulations through its employees authorised for this purpose or other agents properly accredited by the Administrative Board of the ICP.
Article 52
Administrative offences and fines
1. Without prejudice to other applicable penalties, the following constitute administrative offences:
a. Failure to fulfil the obligations regarding quality indicators and performance objectives, in breach of the provisions of Article 5(1) and (2);
b. Breach of the duty to provide information, provided for in Article 5(4);
c. Breach of the confidentiality of communications for a reason attributable to the FTS providers, under Article 6(1), and the breach, by its employees, of the obligation provided for in Article 6(2);
d. Failure of the FTS providers and fixed telephone network operators to fulfil the obligation of publication and disclosure of information on the terms and conditions of the supply for access to and use of the FTS and of the fixed telephone networks, as well as any alterations, in breach of the provisions of Article 7(1) and (2), Article 8(1) and (2), and Article 9(1);
e. Failure to fulfil the obligation to ensure the regular and continuous supply of the service, except in admissible cases, in breach of Article 10(1);
f. The absence of notifications and communications to the ICP, provided for in Article 11(2) and in Article 13(6);
g. Restrictions to the supply of the service, in breach of Article 12(1), (3) and (5);
h. Failure to fulfil the obligation of provision minimum facilities, in breach of Article 13(1) and (2);
i. The demand for payment of any sums, in breach of Article 14(1);
j. Breach of the obligation provided for in Article 14(2);
k. Failure to fulfil the obligation provided for in Article 17(4);
l. Failure to fulfil the obligation to provide access, in breach of Article 26(1) and of Article 31(3);
m. Failure to fulfil the obligations provided for in Article 33(1), (2), (6), (7) and (8);
n. Failure to fulfil the obligations provided for in Article 34(1), (2), (4) and (5);
o. Failure to fulfil the obligations provided for in Article 35(1);
p. Breach of the obligation to communicate to and provide the ICP with elements and information, in disrespect for Article 35(3) and (4);
q. Breach of the obligation provided for in Article 36(1);
r. Breach of the obligation provided for in Article 37(2), and in Article 13(4);
s. Failure to fulfil the obligation provided for in Article 38;
t. Failure to fulfil the obligation provided for in Article 41(1);
u. Failure to fulfil the obligation to provide information to the universal telecommunications service provider, in breach of Article 42(2);
v. Failure to fulfil the obligations provided for in Article 44(2) and (3);
w. The installation of public pay-telephones by non-authorised entities, in breach of Article 45(1);
x. Breach, by entities which install and operate public pay-telephones, of the obligations provided for in Article 45(2);
y. Failure to fulfil the obligation provided for in Article 46(2);
z. Failure to provide the ICP, by the FTS provider, within the deadline established, with the information requested by the ICP, in breach of Article 47(5).
2. The administrative offences provided for in subparagraphs l) and z) are punishable with fines of PTE 10,000 to 50,000 and of PTE 50,000 to 100,000, according to whether they have been committed by natural or legal persons, respectively.
3. The administrative offence provided for in subparagraphs b), d), f), i), j), p), v), x) and y) are punishable with fines of PTE 250,000 to PTE 500,000 and of PTE 1,000,000 to 2,500,000, according to whether they have been committed by natural or legal persons, respectively.
4. The administrative offence provided for in subparagraphs a), c), e), g), h), k), m), n), o), q), r), s), t), u) and w) are punishable with fines of PTE 500,000 to 750,000 and of PTE 2,500,000 to 9,000,000, according to whether they have been committed by natural or legal persons, respectively.
5. For the administrative offences provided for in this article, both the attempt and negligence are liable to punishment.
6. The ICP may give appropriate disclosure of the punishment of the administrative offence.
Article 53
Processing and application of the fines
1. The application of the fines provided for in these Regulations, as well as additional sanction, is the responsibility of the Administrative Board of the ICP.
The institution of administrative offence proceedings and the taking of evidence are the responsibility of the ICP.
2. The amount of the fines shall be allocated 60% to the State and 40% to the ICP.
Seen and approved in Council of Ministers on 9 September 1999. António Manuel de Oliveira Guterres - António Luciano Pacheco de Sousa Franco - João Cardona Gomes Cravinho - Joaquim Augusto Nunes de Pina Moura - José Sócrates Carvalho Pinto de Sousa.
Enacted on 19 October 1999.
To be published.
The President of the Republic, JORGE SAMPAIO.
Countersigned on 21 October 1999.
The Prime Minister, António Manuel de Oliveira Guterres.
