Cabovisão reports that, according to explanations that have been provided by PTC, the penalties applied refer to delays or failures on Cabovisão's part in the submission of records occurring since January 2011.
As grounds for its refusal to make payment of such invoices, Cabovisão cites the unlawfulness of section 6.2 of the RPAO, given its lack of compliance with:
(a) ICP-ANACOM determination of 28.10.2010;
(b) The regime governing general contract terms, established by Decree-Law no. 446/85 of 25 October, subject to subsequent amendments.
With reference to point (a), Cabovisão takes the view that the above determination resulted from PTC's obligation to publish a reference offer providing access to poles, including all procedural, technical and economic conditions, specifically as relates to cable installation, and considering the general principles adopted in the RDAO, notwithstanding ICP-ANACOM's reserved right to intervene if the conditions offered were not deemed appropriate. Cabovisão also states that the RDAO does not provide for any application of penalties in the event of delay or failure to submit records, despite specifying an equal time - 30 calendar days - for such submission by the Beneficiary (see section 4.9 of the RDAO). Therefore, Cabovisão considers that there should be no imposition of penalties under the RPAO for delay or failure to submit records.
Cabovisão also holds that delay or failure to submit records does not cause harm to PTC, since whenever a Beneficiary of RPAO sends a request for access and installation or a removal request, it provides details from the outset about the cables it intends to install or remove, as well as the corresponding graphical plan. Indeed, in Cabovisão's view, this information is sufficient for PTC to charge Cabovisão for successive requests for access/installation and removal presented pursuant to the offer.
With regard to the argument set out in point (b) above, Cabovisão considers that section 6.2 of RPAO is contrary to the provisions of paragraph c) of article 19 of the regime governing general contract terms, under which general contract terms as, depending on the negotiating framework, lay down penalty clauses disproportionate to the damages to be compensated are prohibited and therefore held null and void. Cabovisão argues that this provision applies to section 6.2 of RPAO, insofar as it results in excessive compensation, without regard to potential damages or costs. This compensation - as already mentioned - can reach a maximum of 3,000 euros per record, multiplied by the numerous and recurring occasions where Cabovisão has obtained access to infrastructure pursuant to the RPAO.
To reinforce its conclusion on the unlawfulness of section 6.2, Cabovisão adds that, under the RPAO, PTC may demand payment of penalties without time-limit - a provision which PTC has exploited in order to collect amounts allegedly owed since January 2011, thereby violating the principle of legal certainty.
Therefore, Cabovisão requested the intervention of ICP-ANACOM, under the terms already indicated.
