5. Conclusion and Determination

Whereas:

a. Law No. 35/2012, of 23 August, establishes the compensation fund for the electronic communications universal service provided for in the Electronic Communications Law, intended for the financing of net costs arising from the provision of the universal service.

b. The referred Law provides that companies providing public communications networks and/or publicly available electronic communications services on national territory are required to make an extraordinary contribution to the compensation fund, relatively to each of the years 2013, 2014 and 2015, exclusively intended for the financing of net costs that are approved by ICP - ANACOM in those years.

c. In 2013, ICP-ANACOM approved CLSU for the 2007-2009 financial years, for an overall amount of 66 810 982.34 Euros.

d. The two requirements defined in article 17 of Law No. 35/2012 to call the compensation fund, in compliance with ECL (paragraph 1 of article 97) have been met, namely: (i) existence of CLSU, further to the audit, which were approved and deemed by the Regulatory Authority to be unfair; and (ii) request by PTC to the Government for compensation for CLSU approved by ICP-ANACOM within the legally required period.

e. ICP-ANACOM is charged, under Law No. 35/2012, with performing all acts required for a proper administration of the compensation fund, being also incumbent upon the Regulatory Authority, pursuant to article 19 of the referred Law, to identify the bodies required to contribute to the compensation fund, for the financing of net costs to be compensated in the period preceding the designation by tender, and to set the precise amount of the respective extraordinary contribution.

f. In 2013, there were 133 companies registered with ICP-ANACOM as public communications network operators and/or publicly available electronic communications service providers.

g. Of the referred companies, 90 submitted to ICP-ANACOM information on the eligible turnover and 43 failed to submit any information, and out of the latter, 26 were deemed not to be active in 2013 (or the respective location remained unknown), and as regards another 10, the amount of eligible turnover was assumed to be based  on data conveyed for the purpose of the procedure for entry and settlement of the annual fee referred to in article 105, paragraph 1b) of ECL, however amounts concerned do not call into question these companies’ contribution to the Fund.

h. 21 companies providing electronic communications network and/or services were audited in the scope of Law No. 35/2012, including the ten companies with the largest relevant amount of eligible turnover.

i. As a result of the audit and of the analysis undertaken by ICP-ANACOM to other network operators and/or electronic communications service providers, and as detailed in chapters 2.1, 2.2 and 2.3, it was found that the sector’s eligible turnover amounts to 4 688 812 675.81 Euros (an amount which reflects the information conveyed by a body, in the scope of the prior hearing procedure referred in l).

j. On the basis of the calculated eligible turnover and in the light of the concept of company provided for in the Fund Law, the 4 companies (which cover 10 bodies) required to make an extraordinary contribution to the compensation fund for 2013 were determined, having been excluded all those that in the year concerned registered an amount of eligible turnover in the electronic communications sector lower than 1% of the sector’s overall eligible turnover.

k. The overall amount of the extraordinary contribution for 2013 corresponds exactly to the overall amount of CLSU approved by ICP-ANACOM in its determination of 19.09.2013, and there are no other amounts to be deducted, namely compensatory interest or other revenues assigned under the law.

l. Under articles 100 and 101 of the Administrative Procedure Code, a prior hearing of interested parties was held, 10 working days having been granted for interested parties to assess the draft decision. Contributions were analysed in accordance with the terms set out in the prior hearing report, which substantiates this decision and is deemed to be an integral part hereof.

m. Further to these contributions, the sector’s overall amount of eligible turnover was updated on the basis of data concerning a company that had failed to submit information.

n. This update does not alter the number of bodies required to contribute to the compensation fund, nor the respective contribution amounts.
o. Except for the situation referred in m), arguments put forward by some of the interested parties, as substantiated in the prior hearing report, did not determine the amendment of these bodies’ eligible turnover amount compared to the amount considered in the scope of the DD.

p. In the scope of comments received, MEO - Serviços de Comunicações e Multimédia, S.A.¹, requested, under article 12, paragraph 2, of Law No. 35/2012, of 23 August, a waiver of the requirement for the payment of its contribution, given that it was entitled, as US provider during the period concerned (2007-2009) to a compensation amount that exceeded the amount of the contribution.

ICP-ANACOM’s Management Board, in the scope of tasks assigned pursuant to article 97 of ECL (paragraphs 2, 3, 4 and 6) and in the exercise of powers granted under articles 4 and 19, paragraphs 1, 2 and 3 of Law No. 35/2012, of 23 August 2012, and by article 26, point l) of Statutes published in annex to Decree-Law No. 309/2001, of 7 December, hereby determines:

1. To order, for the purpose of the calculation of the electronic communications sector’s overall eligible turnover:

a. The review of eligible turnover amounts for the following companies: [BCI]

Confidential

[ECI], further to audits carried out, as described in chapter 2.1;

b. The review of the eligible turnover amount for the following company: ([BCI] Confidential [ECI]), as a result of arithmetical corrections introduced, as described in chapter 2.2;

c. The establishment of the amount of eligible turnover for the following companies: ([BCI]

Confidential

[ECI]), according to the amount communicated for the purpose of the entry and settlement of the annual fee referred to in article 105, paragraph 1b) of ECL, as described in chapter 2.3, as such companies failed to provide information for the purpose of Law No. 35/2012;

d. The update of the ET amount for ULTRASERVE - Consultoria e Apoio Empresarial, Lda., according to data conveyed by the company in the scope of the prior hearing  of interested parties.

2. To establish, on the basis of information provided by electronic communications network operators and service providers, and bearing in mind point 1, that the sector’s overall eligible turnover amounts to 4 688 812 675.81 Euros.

3. To approve the list of bodies that, in accordance with the calculated eligible turnover and in compliance with article 18 et seq. of Law No. 35/2012, are required to pay an extraordinary contribution to the compensation fund, as well as the amount each body is required to pay, according to the table below, where the total value of such contribution corresponds to the amount of compensation to be paid to MEO Comunicações e Multimédia, S.A.², for net costs incurred in the 2007-2009 financial years, as approved by ICP-ANACOM in 2013.

(1) On 2014.12.29 the merger by means of acquisition of MEO – Serviços de Comunicações e Multimédia, S.A. into PT Comunicações, S.A. was registered, having the company resulting from this merger been renamed as from this date MEO – Serviços de Comunicações e Multimédia, S.A..
(2) Corresponds at present to NOS Comunicações, S.A.
(3) Corresponds at present to NOS Açores Comunicações, S.A.
(4) Corresponds at present to NOS Madeira Comunicações, S.A.
Note: Values expressed in Euros.
Values were calculated in compliance with the Fund Law, at cent level.
Source: Information from companies, audit results and ICP-ANACOM calculations.

4. To order the issue of the Invoice/Settlement Notice of contributions identified in the preceding point, which shall refer to this decision and respective grounds, and indicate the Compensation Fund as active party and respective Tax Identification Number, defence measures and means of payment.

5. To authorize, further to the request made and pursuant to paragraph 2 of article 12 of Law No. 12/2012, applicable ex vi article 20, paragraph 1 of the same statutory instrument, MEO - Comunicações e Multimédia, S.A.³ not to pay the contribution to which it is bound as the amount of compensation to which it is entitled is higher. As such, to the amount of compensation to which the company is entitled is deducted the amount of the contribution.

6. To notify bodies covered by the determination in point 1 of the approval of this decision and of the amendment to the respective amount of eligible turnover, where appropriate.

7. To notify bodies covered by determination in point 3, under paragraph 5 of article 11 of Law No. 35/2012, which applies by virtue of article 19, paragraph 3 of the same statutory instrument, of the approval of this decision.

8. To publish this decision at ICP-ANACOM’s website, in compliance with paragraph 6 of article 11 of Law No. 35/2012, which applies by virtue of article 19, paragraph 3 of the same statutory instrument.