By communications sent respectively on 24.09.20121 and 08.11.20122, ZON TV Cabo, S.A. (ZON) and Cabovisão - Televisão por Cabo, S.A. (Cabovisão) requested ICP-ANACOM's intervention regarding the collection, by PT Comunicações, S.A. (PTC), of penalties for non-compliance pursuant to the Reference Poles Access Offer (RPAO), as published by PTC.
At issue are penalties charged to ZON and Cabovisão by PTC, in both cases pursuant to section 6.2 of the RPAO - Penalties for non-compliance by the Beneficiary3 -, and dissent manifested both by ZON and by Cabovisão as regards the penalties imposed, the terms on which they were charged and the values payable4.
ZON, considering the conduct of PTC to be abusive, unfair and without basis - and as such contrary to the regulatory framework governing the RPAO - requested that, under the terms of paragraph 4 of article 26 of Law no. 5/2004 of 10 February 10, as amended and republished by Law no. 51/2011 of 13 September - Lei das Comunicações Eletrónicas (Electronic Communications Law, hereinafter "LCE"), ICP-ANACOM order PTC:
(a) To delete section 6.2 and the last paragraph of section 4.8 of the RPAO, as regards the payment of penalties for non-compliance with the deadline for submission of records by the Beneficiary (ZON calls for this deletion to have retroactive effect to 22.12.2010, as the date on which the original version or the RPAO was published);
(b) To replace the credit note by which PTC has charged ZON penalties under section 6.2 of the RPAO with another credit note with all penalties charged to ZON removed;
(c) To extend the deadline applicable to the submission of records by the Beneficiary to PTC, under the terms of section 4.8 of the RPAO, to 90 days.
In a communication received on 19 October 2012, PTC has also brought details to ICP-ANACOM's attention regarding the conduct of ZON within the scope of the RPAO, which conduct it deemed to be inconsistent with the terms of the Offer's use, considering that ZON's claims, as regards the compensation values charged in respect of delays in the delivery of valid records, to be without basis.
As well as ZON, Cabovisão also requested the intervention of ICP-ANACOM, although under article 10 and paragraph 3 of article 26 of the LCE, for administrative resolution of its dispute with PTC, also requesting deletion of section 6.2 of RPAO in relation to the imposition of penalties on beneficiaries as a result of delays or failure to deliver of records, as well as extending the time-limit specified in section 4.8 of the offer (for the Beneficiary to submit records) to 90 days.
On 11.01.2013, ICP-ANACOM informed Cabovisão that, in the context of the preliminary analysis, it would not, in principle, concur with the prospect of a decision in the context of a dispute resolution process. It would view such a decision as insufficient and inappropriate for the intended purpose, which is to consider and decide on an amendment to RPAO, as will take effect on all potential Beneficiaries of the Offers and so require a specific adoption procedure, entailing consultation processes as applicable under law. In this context, notice was given that ICP-ANACOM will only decide definitively on the procedure applicable to Cabovisão's request for intervention at a later date, after concluding analysis of the underlying issue in question.
On the same date, ICP-ANACOM gave PTC notice as to the requests for intervention received from ZON and from Cabovisão and requested clarification on issues related to the RPAO and to penalties for non-compliance introduced by PTC (hereinafter "the information request"), since ICP-ANACOM was unaware as to the grounds upon which PTC had made provision to charge Beneficiaries penalties of the amount established in the RPAO, as a result of failing to meet the deadline for submission of valid records; the company responded to ICP-ANACOM by letter dated 25.01.2013.
By determination of 16 May 2013, ICP-ANACOM's Management Board decided to conduct a prior hearing of interested parties and a general consultation procedure regarding the draft decision5 whose approval is proposed, on billing and collection of penalties charged to RPAO beneficiaries; these procedures were completed between 23 May 2013 and 21 June 2013. The comments received, the respective analysis and reasoning of the decision are set out in the "Report of the prior hearing and general consultation on the draft decision on the billing and collection of penalties charged to the beneficiaries of the Reference Poles Access Offer (RPAO)", which forms part of the present decision.
Subsequently, by determination of 1 August 20136, ICP-ANACOM's Management Board approved:
(a) The report on the prior hearing and on the general consultation procedure to be notified, along with the draft decision, to the European Commission, BEREC and NRAs of other Member States, as regards the billing and collection of penalties charged to the beneficiaries of RPAO.
(b) Notification of the draft decision to the European Commission, BEREC and NRA of other Member States, in accordance with paragraph 1 of article 57 of Law no. 5/2004 of 10 February, as amended by Law no. 51/2011 of 13 September.
On 13 September 2013, the European Commission gave its view on the notified draft decision, making no comment.
1 Subsequently reiterated by communications sent on 22.10.2012, 13.11.2012 and 17.12.2012.
2 Reiterated by communications sent on 16.11.2012 and 12.12.2012.
3 Company offering publicly available electronic communication services or networks.
4 Pursuant to section 4.8 of the RPAO, upon conclusion of services of access and installation, intervention, removals and diversion of routes, the Beneficiary is required to submit valid records to PTC, within a period not exceeding 30 calendar days. Failure by the Beneficiary to submit such records within the stipulated deadline shall determine the payment of compensation as shown, in particular, in section 6.2 of the RPAO. In accordance with Section 6.2 of the RPAO, where a Beneficiary fails to meet the deadline set for the submission of valid records for reasons solely attributable to that Beneficiary, except for reasons of force majeure, it is required to pay compensation to PTC totalling 50 euros for each day of delay beyond the deadline set for this purpose (up to a maximum of 60 working days).
5 See
6 Billing and collection of penalties under the Reference Poles Access Offer of PTC - draft decisionhttps://www.anacom.pt/render.jsp?contentId=1171033.
