Having this specific request been analysed, it is concluded that the merger by incorporation of ZON into Optimus, which implies the transfer of all rights, obligations and assets from the former to the latter, involves, as such, the transfer to Optimus of rights of use for numbers held by ZON, which must be assessed by this Authority under article 38 of ECL, according to the "Criteria and principles for the management and assignment of numbering resources".
Being incumbent on ICP-ANACOM to safeguard, under the applicable legal provisions mentioned above, the effective and efficient use of numbers, this Authority must verify whether, in the scope of the intended transfer of rights of use for numbers, the incorporating company - Optimus - will acquire resources it would not be able to obtain through a primary assignment, in the light of current allocation criteria and, consequently, to decide on measures to be applied in case of an accumulation of criteria as would be contrary to these criteria.
It is well known that mergers by incorporation between two operators and the inherent transfer of rights of use for numbers may generate situations of accumulation of resources in case companies involved have been allocated the same type of numbers, due to the provision of the same type of numbers.
In the situation under consideration, Optimus may accumulate numbering resources allocated to ZON together with numbering resources for which it already holds blocks of numbers.
This accumulation may evolve in a different manner according to the type of resources under consideration. Different cases resulting from the accumulation of numbering resources according to their type are identified and analysed below:
A. In case numbers are used to identify network termination points where terminals are connected and which identify the respective subscribers - geographic and nomadic numbers ("2" and "30" ranges) and numbers of non-geographic services ("707", "800" and "808" ranges) - it is deemed that the accumulation of resources may be authorized without constrains that imply the return of telephone numbers being used, as this would affect user interests, which mainly concern the maintenance of its numbers.
In this scope, it is deemed that the safeguard of user interests, which specially refer to the maintenance of one's own numbers or of call centre numbers, must be reconciled with the principle of effective and efficient use of numbering resources, bearing in mind that a use of numbers that does not take these principles into consideration, not only leads to a waste of resources, but also constitutes a competitive advantage to the provider relatively to others who are in the same market with lower conditions of access to numbering resources.
Non-geographical numbers usually have a special commercial value of association to companies or brands, and the ease of memorization is an added value conferred in the way how digits are grouped.
From an initial set of available numbers it is of course possible to establish a larger set of easily memorized numbers - the so-called "golden numbers".
For this reason, while it is important to maintain non-geographic client numbers (e.g. call centres), it must be also ensured that the referred benefit does not exist relatively to non allocated numbers (vacant or becoming vacant) of surplus blocks, preventing them from being allocated/reallocated, and "freezing" the blocks to which they belong.
B. In case of numbers that are used to identify the network or specific points of the network to which final users are not connected, or other numbers or codes that identify the operator/provider, it is deemed relevant to adopt the alternative of migrating them to a single number or range, and of returning released resources to ICP-ANACOM.
Depending on whether there are commercial effects related to these numbers, likely to entail an undue competitive advantage, different return deadlines may be justified. A similar approach was adopted by ICP-ANACOM in its Determination of 29 December 20081 and draft decision of 7 December 20122.
While subscriber numbers should not be altered except where the subscriber so wishes, numbers of a different type, including widely known numbers to which users are already used to, such as call centre numbers, are likely to be changed, and the provider must ensure the disclosure of new numbers. As such:
i. Call centre numbers - 1610, 1699 and 1693 - and numbers used as prefix for operator selection or pre-selection purposes - 1010 or 1099
Given that these numbers have a commercial value and bearing in mind that they are intended for the provision of very different services (e.g. fixed telephone service - mobile telephone service) and that Optimus already uses number 1693 for the same service, it is deemed that at least one (or two3) call centre numbers should be discontinued, ensuring a reasonable period of time for the disclosure of the change of numbers to the market, in order to minimize the impact on users due to the process of recovery of this type of numbers by ICP-ANACOM. Like previous Decisions taken by this Authority on the transfer of numbering resources resulting from the accumulation of numbering resources, a one-year period of time is deemed to be reasonable.
Moreover, the use of a single number, of the 16xyz format, is compatible with a possible market segmentation, residential market versus business market, and in previous decisions ICP-ANACOM took the view that it would be excessive to maintain for the same type of offer two different sets of call centre numbers. This understanding applies also to the indirect access code, and as such one of the prefixes must be discontinued, a one-year period of time being deemed to be reasonable for the purpose.
ii. As regards numbers of the data network access service, in dial up mode - "67" numbering range - ICP-ANACOM considers that the state of availability and use thereof must be assessed, namely because this requires changes in the settings of installed equipment, with operational and logistic costs for operators. In this context, without prejudice to the possibility of returning these accumulated resources, the accumulation of resources in code "67" of the National Numbering Plan by the same provider, as a result of mergers and/or acquisition of companies, is deemed to be reasonable, involving the data network access service accommodated in this range, as determined by ICP-ANACOM on 30 August 20124.
iii. As regards Network Routing Numbers (NRN), it is stressed that the Portability Regulation as well as the contract for provision of services established between the Reference Entity (RE) and providers, provide for mechanisms that enable the change of NRN of all numbers ported from one operator to another, and thus the return of this type of resource to ICP-ANACOM is possible with no significant impact for Optimus and other operators involved in portability operations.
Consequently, in compliance with principles that apply to the use of numbering resources and safeguarded the rights of users, it is incumbent on ICP-ANACOM to determine, among numbers transferred from ZON to Optimus, which resources should be returned, by which period of time, and which conditions should be complied with in the use of remaining resources. Without prejudice, it must be stressed that any single number allocated and not activated or block of numbers with no activated numbers or in quarantine must at any level be returned to ICP-ANACOM.
As such, and safeguarding the exceptions: NRN, two NRN being admitted - one for the fixed network and another for the mobile network, (ii) resources accumulated in code "67" and (iii) call centre numbers, numbers or blocks of numbers that, due to the transfer of rights of use for numbers between companies which may not be accumulated by a single provider, for the above-mentioned reasons, must be the subject of a migration plan for the return to ICP-ANACOM of resources released in the meantime. Optimus is entitled to decide which numbers or blocks are returned per type of resource.
This is a matter which ICP-ANACOM will monitor in detail so as to permanently ensure, on the one hand, the effective and efficient use of numbers by Optimus and, on the other hand, non-discrimination in the conditions of access to resources of the National Numbering Plan relatively to other providers of electronic communication services, with due respect for "Criteria and principles for the management and assignment of numbering resources", namely the minimum 60% rate of the usage capacity of previous assignments of numbers which may be assigned to subscribers and also unit allocations for numbers identifying the operator or the network.
1 Published at: Transfer to SONAECOM of rights of use for numbershttps://www.anacom.pt/render.jsp?contentId=799778.
2 Published at: Transfer of rights of use of numbering - draft decisionhttps://www.anacom.pt/render.jsp?contentId=1152484.
3 Given that in the final decision of December 2008, ICP-ANACOM, taking into account that it was relevant for users to be used to some call centre number, considered that numbers of this type associated to the provision of mobile services (1693) could co-exist with similar numbers for the provision of fixed telephone services (1610).
4 Vide Accumulation of numbers for data network access services, as identified by PNN code ''67''https://www.anacom.pt/render.jsp?contentId=1137299.
