I.
Whereas USNC calculation estimates for the 2007-2009, presented by PTC on 19.02.2013, as results from the conclusions of the audit carried out by SVP between August 2012 and February 2013, are generally in compliance with the methodology for calculation of USNC as defined by ICP-ANACOM, that their distinctive features are duly justified and deemed to be reasonable, and that discrepancies identified, namely at the level of reconciliation of USNC values with information in the CAS, correspond to situations which were duly justified and which result in the underestimation of USNC, thus they are without prejudice to other companies, such as those that may contribute to the US financing, along with PTC itself;
Whereas the general consultation procedure and prior hearing of interested parties ran for a 20-working-day time limit, subsequently extended for a further 5 working days, according to article 8 of the ECL and articles 100 and 101 of the Administrative Procedure Code, in the course of which contributions were received from 6 operators, which were summarized and analysed in the public consultation and prior hearing report, which is an integral part hereof;
The Management Board of ICP-ANACOM, in the scope of powers conferred by points b) and d) of paragraph 1 of article 6 of its Statutes, in annex to Decree-Law No 309/2001, of 7 December, in the exercise of competencies provided for in articles 95 and 96 of Law No 5/2004, of 10 February, as amended by Law No 51/2011, of 13 September, hereby approves views laid down in chapter 3.
II.
Considering that, as a result of the analysis carried out, on the basis of the audit report, and in compliance with views expressed above:
a) This decision reflects ICP-ANACOM's opinion in relation to each of the aspects referred in previous chapters, in the scope of which comments of interested parties presented in the public consultation and prior hearing procedures were duly taken into consideration;
b) ICP-ANACOM confirms that it accepts PTC's approach to identify relevant services provided outside the US as those that remain as profitable services for the 2007-2009 years (according to chapter 3.1);
c) The Authority also confirms that the alternative approach used by PTC to calculate access costs (explained respectively in chapters 3.2.1.1 and 3.2.3.1) has been justified and is deemed to be acceptable, not having been found any elements than call its reliability and its correspondence to reality into question. In this scope, the way in which avoidable costs and avoidability ratios are calculated are confirmed to be appropriate (as referred in chapter 3.2.1.2);
d) ICP-ANACOM also confirms that principles underlying the plausibility criteria referred to in the calculation methodology approved by ICP-ANACOM have been fulfilled (according to chapter 3.2.2.1), and the introduction of a new criterion proposed by PTC in order to strengthen the USNC calculation model must be highlighted, none of the operators who provided their opinion in the scope of the consultation and prior hearing procedures having opposed the introduction of this criterion;
e) The justification presented by PTC as regards the "enclave" criterion is deemed to be appropriate, as regards considering as unprofitable enclaves identified, given that such areas are consistently unprofitable over the period under consideration (2007-2009), which is a proxy for their unprofitability over time (according to chapter 3.2.2.1), and it should be noted that none of the operators who provided their opinion in the scope of the consultation and prior hearing procedures opposed the justification presented;
f) ICP-ANACOM agrees that the application of the effective competition criterion must take as reference the highest number of co-installed operators per MDF however, the application of this criterion has in any event no impact, as none of the candidate areas to be considered unprofitable areas showed more than one co-installed operator (according to chapter 3.2.2.1);
g) It is considered appropriate that one-off installation costs/revenues are annualized taking into account the average useful life of PTC's customers (in conformity with chapter 3.2.3.3), and it is stressed that the majority of operators who provided their opinion in the scope of the consultation and prior hearing procedures did not oppose and even supported the annualisation of these values;
h) It is agreed, as regards the "corporate reputation and brand enhancement" indirect benefit, that reference values to be used for a given year should be those published in the following year (in conformity with chapter 3.4.1);
i) Two situations were identified which were not appropriately corrected by PTC (referred to in chapter 3.6), but which have only a negligible impact in USNC results;
j) Except for points g) and i), values presented by PTC concerning USNC for 2007-2009 (submitted on 19.02.2013) result from a proper application of the methodology defined by this Authority for calculating USNC for the period at stake, reflecting ICP-ANACOM's views expressed above;
The Management Board of ICP-ANACOM, in the scope of powers and in the exercise of competencies referred earlier, hereby also determines:
1. To establish the following as regards the methodology for calculating USNC with impact in values for 2007-2009, and already reflected in calculations presented (except for situations identified in points e) and g)):
a. to identify as relevant services provided outside the US those that remain as profitable services for the 2007-2009 years (in compliance with chapter 3.1);
b. to accept the alternative approach used by PTC to calculate access costs, avoidable costs and avoidability ratios (in compliance with chapters 3.2.1.1 and 3.2.3.1);
c. to introduce a new plausibility criterion, considering that it meets concerns underlying the "enclave" criterion, and to determine the replacement of the latter for the new plausibility criterion (in compliance with chapter 3.2.2.1);
d. to apply the effective competition criterion by reference to the year in which there has been the highest number of co-installed operators per MDF (in compliance with chapter 3.2.2.1);
e. to consider one-off installation costs/revenues in an annualized fashion (in compliance with chapter 3.2.3.3);
f. To use, in the determination of the "corporate reputation and brand enhancement" indirect benefit for a given year, values that are published in the following year (in compliance with chapter 3.4.1);
g. To correct the inaccuracy identified and classified as being materially less relevant, associated to the area model - number of access lines (in compliance with chapter 3.6);
h. To accept the approach used by PTC for calculating the unit access cost per line for residential customers in the customer model (in compliance with chapter 3.6).
2. To determine the following changes as regards the methodology for calculating USNC with impact on estimates for years subsequent to 2009:
a. PTC must include as relevant services provided outside the US those that remain as profitable services as from 2007 up to the year to which the USNC estimate refers, and additionally the company must present an annual analysis, and where appropriate, grounds, which will be appropriately weighted, for not considering services that may not be profitable on a multi-annual approach on a cumulative basis, but which present on an annual approach a positive margin for any of the years at stake (in compliance with chapter 3.1);
b. PTC must file sufficient evidence to enable the company to verify the operational information used to de-average costs at geographic level and to de-average avoidable costs to determine unprofitable customers (in compliance with chapters 3.2.1.1 and 3.2.3.1);
c. PTC must demonstrate, in relation to un estimates for the 2010-2012 period, and based on the loop length information for 2013, that differences between the de-averaging of avoidable costs considering only the loop length of retail lines and considering the loop length of retail and wholesale lines are negligible, justifications presented in this context being duly weighted by ICP-ANACOM (in compliance with chapter 3.2.3.1);
d. PTC must apply the new plausibility criterion to future years, in a consecutive fashion, as from 2007, so that only areas that remain as unprofitable in all years taken into account are deemed to be unprofitable (in compliance with chapter 3.2.2.1);
e. In the scope of the application of the effective competition criterion, PTC must use as reference the year in which there has been the highest number of co-installed operators per MDF between 2007 and the year to which the USNC refer (in compliance with chapter 3.2.2.1);
f. PTC must calculate the "corporate reputation and brand enhancement" indirect benefit, as from 2010, using the brand enhancement studies prepared by Brand Finance (in compliance with chapter 3.4.1).
3. To order PTC to resubmit new USNC for 2007-2009 so as to reflect the final CAS results for 2007-2009, which were the subject of ICP-ANACOM's determinations of 04.04.2013 and 06.06.2013, as well as determinations in point 1 e) and 1g) hereof;
4. To determine that the resubmission referred to in the preceding paragraph takes place, for the three years under consideration, within fifteen days from approval hereof;
5. To submit USNC estimates presented by PTC further to the preceding determination to a new audit procedure so as to assess the compliance of resubmitted values with amendments to the CAS and to determinations in points 1 e) and i g);
6. To order PTC to present, by the end of August, recast USNC estimates for the 2010-2011 period, according to determinations defined herein, so that they may be submitted to an audit procedure.
