Portugal
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Portugal |
 Historical
and juridical viewpoint
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I - Historical
and juridical viewpoint 1. Telecommunications liberalisation 1.1 Portuguese General Legal Framework Portugal has, since August 1st, 1997, a new Basic Law of Telecommunications, Law nr 91/97 which fixes the new legal general basis for the establishment, management and exploitation of telecommunications networks and the provision of telecommunications services. Legislation on Competition (Decree-Laws nr. 370/93 and 371/93, both of 29th of October, and Decree-Law nr. 140/98 of 16th May), and regarding Consumer Protection (Law nr. 24/96), both have impact on the regulation of provision of liberalised services. The new Television Law (Law nr. 31 –A/98 of July 18th) intends to the operation of television activities in Portuguese national territory. It sets out that television channels might be thematic and of conditional access, and that the concession for the public television service is granted. In September 1998, it has been approved by a Decree-Law (nr 241/97 of 18 September). It allows now the cable operators to rent their infrastructures, to produce their own programs and to step into interactive services, "pay TV", "Internet". In this framework, several legal diplomas have been approved, namely :
In the conformity of Decree-Law 241/97 (Cable TV activity regulation), two new companies of Pay Per View have been created:
1.2 Voice and Data Communications The above mentioned Decree-Law nr. 381 – A/97 makes the transposition of some rules of Directive 96/2/EC of the Commission, of 26th January, concerning mobile and personal communications, some legal provisions of Directive 96/19/EC of the Commission, regarding the introduction of full competition in the telecommunications markets and some legal provisions of Directive 97/13/EC of the European Parliament and the Council, concerning a common framework for general authorisations individual licences within the telecommunications services domain. This legal measure reflects the negotiation process carried out by the Portuguese Government with the European Commission. This negotiation concerned the deadline foreseen in Directive 96/19/CE, namely the 1st July 1997, instead of the 1st July 1996 to liberalise alternative telecommunications infrastructures and the deadline of 1st January 2000 to liberalise all telecommunications services. More precisely, under the terms of Decree-Law nr. 381 -A/97: "Until the 1st of January 2000, no licenses shall be granted under this diploma for the provision of the fixed telephone service, as well as for the installation, establishment and exploitation of the supporting telecommunications networks". The same principle applicable to public network operators establishes the same deadline: "Until the 1st of January 2000 (...)." It also requires that licenses shall be granted in order to become operator of public telecommunications networks, such as, operators of mobile public use telecommunications services and satellite network services operators, cable distribution networks operators or radio and television operators. Although Decree-Law nr. 381 -A/97 revoked several legal diplomas, Decree-Law nr. 120/96 of 7th August, remains into force until a new legal framework concerning the issue of an exploitation, regulation of satellite networks operators and of via satellite service providers is fully completed. Subsequently, under the terms of Decree-Law nr. 381 -A/97, the rights and duties of the entities that hold licenses and authorisations issued under Decree-Laws nr. 346/90 of 3rd November, 329/90 of 23rd October and 120/96, of 7th August, remain applicable, and the exploitation regulations of the various services remain effective until the issue of new exploitation regulations. This Decree-Law also sets out the Bases for Concession of Public Telecommunications Service and modifies the exclusivity regime granted to the Franchiser (Portugal Telecom, S.A.). The concept of significant market power (SMP) should be clarified. 1.3 Broadcasting (television/radio), Satellite and cable Services As a development of the new Basic Law of Telecommunications and the new Television Law, the Decree-Law of 18 September, which rules the activity of cable operator distribution network for public use, has been approved. It intends to regulate the operation of television activities in Portuguese national territory and has been considered as a national measure of transposition of Commission Directive 95/51/EC of 18th amending Directive 90/388/EEC with regard to the abolition of the restrictions on the use of cable television networks for the provision of already liberalised telecommunications services. A second version of a Proposal of Decree-Law was discussed and approved in Ministers Council, dated of 25th of June 1998, under the terms of Article 18 of the above mentioned television Law to regulate procedures of granting licences and authorisations concerning the access and exercise of television activities in Portuguese national territory. The Institute of Communications of Portugal, the national regulatory for the communications, has set the target date for the introduction of mobile services number portability, as of 1 January 2002. From the analysis of the general telecommunications framework for mobile licences and of the comparison between the fixed and the mobile sector, the following aspects are evident regarding licensing of mobile communications:
EU
Green book on Convergence Internet Access
regimes National
numbering plan Decree-Law nr. 415/98, of December 31st, set up the interconnection regime between public telecommunications networks and establish the main principles underlying the National Plan of Numbering. The main numbering issues in debate, are the following:
Some concepts and principles have been established for public telecommunications operator, Portugal Telecom, A.S., which shall remain obliged to the provision of an universal service, under the terms of Decree-Law 40/95, and the new Basic Law for Telecommunications, namely:
In case of approval the concessionaire should adapt its accounting to a perfect follow-up and demonstration of revenues and costs associated to universal service provision. In case of non-approval, ICP shall promote a consultation of telecommunications operators, in view to choose an operator which, satisfying the same universal service level and degree of obligations, offers more favourable economic conditions. Some questions remain to be solved, namely, net cost approach, universal service fund or supplementary charges and the recover "unfair burden". The identification of the entities which are going to contribute to the financing of the provision of universal service in what concerns the provision of voice telephony component of USO will be shared between operators that provide voice telephony services and public networks. As long as voice communications services on the Internet cannot be considered as "voice telephony", there will be no ground to require contribution from Internet access/services providers. A Pricing Convention was signed on the 10th September. No new schemes in the near future related to the new price Convention of 31st December, regarding the requirements of the Concession Contract, in which, Portugal Telecom, Portuguese Institute of Communications and General Direction of Competition and Prices, are parties to a three-year Pricing Convention until the year 2000It sets out the principles and procedures for determining the prices of fixed telephone service and certain other exclusive services. The Pricing Convention also establishes a framework for determining the prices applicable to leased lines and to the interconnection between the fixed telephone service and other telecommunications services. Monopoly and concentration are ruled by the following laws:
Concentration of telecommunications operators is ruled by Decree-Law nr. 381 –A/97 of 30th which transposed to the internal legal framework Directive 96/19/EC of the Commission, in what concerns alternative networks of telecommunications. The decision regarding concentration operations of licensed and registered companies, under the terms of this legal diploma, is dependant of previous advise of Institute of Communications of Portugal. The main legal instrument concerning consumer protection are the Law nr. 24/96, of 31st July, which defines the legal regime of consumer protection and the Decree-Law nr. 23/96 of 26th of July, which creates in the juridical order some mechanisms to protect the consumer of essential public services. Law nr. 28/94, of 29th August, provides the basic regulation for the protection of computerised personal data. It also establishes the National Commission for the Protection of the Computerised Personal Data. In the new Regulation for the Exploitation of Public Fixed Telephony Service, approved by Decree-Law nr. 240/97 of 18th September, adhesion contracts (defined as those which clauses are subject to negotiation between the operator and the consumer) are approved by the National Regulatory Authority (ICP), after previous consultation with the Consumers’ Institute. The Regulation of the Public Telephone Service, approved by Decree-law nr. 199/87 of 30th April, sets up objectives of updating and reformulating the public telephone service legislation. By now, the need arises to adequate the legal regime of the fixed telephone service to the legal regime underlying Directive 95/62/CE of European Parliament and Council of 13th December, considering the application of the Public Network Provision (ORA) to voice telephony. Simultaneously, the new Regulation establishes the right of the users accessing the fixed telephone service within the legally and contractually fixed conditions with the corresponding obligation of the operator ensuring the access to the network and the use of the service, under full equality conditions and in accordance to the consumer's rights. According to the Decree-Law 24/96 which establishes the legal regime applicable to consumers defence, it is determined that consumers associations have the right to be consulted about prices in several sectors, one of which is telecommunications. On the other hand, ICP has an Advisory Council which is composed by representatives of several ministries and a representative nominated by Consumer Institute and other by private consumers associations. This body in the exercise of its duties has responsibilities in issuing opinions about the global development strategy of telecommunications, and quality of service, within others. Regarding the leased lines service (which still is an exclusive of the public operator), Decree-Law nr. 198/94, establishes that without prejudice of appealing to the competent court, ICP may, whenever requested by the user (service provider) appreciate and decide over complaints. The full development of the national Telecommunications Act will further require the publication of other matters, treated in autonomous legal diplomas, such as the interconnection of networks and services, licensing procedures, numbering and universal service. If we are referring to the transfer of licenses, it may be stated that under the terms of Decree-Law nr. 381 –A/97, it is established that: "Licenses granted under the terms of this diploma are transferable after prior authorisation by ICP". 3.1 Standards and interoperability Following the Directive 97/33/EC on interconnection in telecommunications, through the application of the principles of open network provision (ONP), a project of Decree-Law defines the general principles for interconnection :
Directive 97/13/EC (licensing terms for all services) has been transposed to the internal legal system by the entry into force of Decree-Law nr. 381 -A/97. According to this Directive, the NRAs' are responsible for supervising all this process. Therefore, the Portuguese NRA, Institute of Communications of Portugal (ICP) is the responsible entity for the application of this legal diploma. As it was referred previously, a Pricing Convention was signed on the 10th of September. It also establishes a framework for determining the prices applicable to leased lines and the interconnection between the fixed telephone service and other telecommunications services. 4. Information Content Regulation The new Regulation for the Exploitation of Fixed Telephone Service brings important modifications which will benefit mainly to customers. Law nr. 24/96, of 31st July, defines the legal regime of consumer protection and Decree-Law nr. 23/96 of 26th of July, creates some mechanisms to protect the consumer of essential public services. Consumer Protection rules have been implemented in the national regulation of the country through Law nr. 28/94, of 29th August which provides the basic regulation for the protection of computerised personal data. Law nr. 67/98 is the national measure of transposition of Directive 95/46/EEC of the European Parliament and Council, of 24th October, concerning the individual protection in regard with personal data treatment and its free circulation has been approved and published on Parliament Journal of Series I - A, of 26th October 1998. Article 35 of the Portuguese Constitution has been modified in order to guarantee the freedom of expression, as well as the new audio-visual services and the services. The Portuguese Authorities are analysing the consequences of the Green Book on the Protection of Human Dignity and Minors, as well as the contents of the Council Recommendation about the Protection of Human Dignity and Minors. The new Television Law also addresses the issue of freedom of expression. 5. Information content stimulation The Decree-Law nr. 241/97 of 18th September which regulates the activity of cable operator distribution network for public use has been considered as a national measure of transposition of Directive 95/51/EC. It constitutes, together with the new Television Law the existing framework of the audio-visual sector. On June the 17th 1998, the European Commission adopted a Communication on electronic commerce and taxation. The Informatic Institute of Portugal and the Ministry of Science and Technology are in charge of the study of the implementation of a legal framework concerning the fiscal taxation, namely the VAT of electronic transmissions (including transmission of "virtual goods"). The major part of the existing legislation on digital signatures requires that certificates are issued by licensed Certification Authority (CA) in order to achieve legal recognition. This might raise further legal implications. There is also a proposal of a Directive of the European Parliament and of the Council regarding a common framework of electronic signatures, which has been analysed by the Ministry of Social Equipment, Planning and Territory Management. It sets out different ways of approaching legal recognition. Furthermore, we hope that Portuguese government will accept and recognise the use of digital signatures where hand written signature would normally be required. II - Changes over the last three months (October-December 1998) In accordance with Decree-Law nr. 241/97 of 18th September, two new companies of Pay Per View were established and another one is expected. Up to now, the shares of TV Cabo Portugal (the major cable television operator) are detained by Portugal Telecom, SA, still the only legal fixed network operator in the Portuguese territory. The following legal diplomas have been adopted and notified to the European Commission:
The legal regime for authorisation procedures for voice telephony and public telecommunications networks is not yet applicable to Portugal, although the Government and the National Regulatory Authority must guarantee that a Reference Interconnection Offer is published covering interconnection for already liberalised services, namely, mobile and cross-border interconnection. Portugal has not notified to the European Commission a list of operators with significant market power. On the other side, Portugal Telecom has not published a Reference Interconnection Offer for those organisations operating in a liberalised sector. The consortium asking for an infrastructure licence as well as a second fixed telephony licence includes EDP (electricity company) and Transgas (gas). They might be joined by CP (railways). In the Portuguese telecommunications market, there are, still, deviation from the "best current practice" interconnection charges estimated for 1998. As a development of Decree-Law. nr. 381 –A/97, of December 30th, three projects of Decree-Laws are under consideration in the framework of Consultative Council of ICP; they should be approved by the government at the beginning of 1999. Their aim is to regulate the installation and exploitation of public and private networks and the provision of public and private telecommunications services. Directive 97/33/EC "Interconnection Directive", amended by Directive 98/61/EC "Numbering Directive", (introduction of carrier selection, carrier pre-selection and number portability), had been transposed by Interconnection Decree-Law nr. 415/98, of December 31st of 1998. With the entry in force of this legal diploma, issues like, significant market power, Reference Interconnection Offer (RIO), Cost Accounting System and the terms and conditions of interconnection agreement are set up. In what concerns numbering issues, a public consultation was launched on 31st August for a three months period, with 4 alternative scenarios, in order to choose whether a final user is free to dial whatever number he wants after the carrier selection code or whether he is restricted to numbers of the fixed network. The main numbering issues in debate, are the following:
Regarding the issues underlying unbundling of the local loop, there are any implications on the national market before 2002 at the earliest. On the other side, Portugal Telecom S.A. should prepare ahead and be ready for the implementation of number portability before the deadline date. In this conformity, the incumbent will try to influence national legislator in order to avoid implementation at an earlier date under national law or co-operate with the European Commission in exchange for other benefits. The price list of the provision of Fixed Telephone Service, in terms of local, regional and national calls, for 1999 by the incumbent are under discussion and its publication is expected for the beginning of 1999. In the short term a new Accounting Separation Cost System should be implemented and ICP must set deadlines for implementation of new CAS (Cost Accounting System), which is not mandatory yet. Meanwhile, is in course the tariff rebalancing of price list of Portugal Telecom. |
