3. Information submitted by operators

In line with obligations set out in ANACOM’s Decision of 21.03.2014, this Authority received the following communications for the purpose of the determination of reference speeds:

• MEO sent by email (on 02.06.2014) and by letter (of 02.06.2014) a «ranked list of mobile broadband clients, under the terms provided for in the referred decision», in txt format and excel format, indicating in the list itself that the reference speed was 3 Mbps;
• NOS sent by email (on 02.06.2014) a «ranked list of clients, for the purpose of the establishment of the reference speed associated with coverage obligations in the 800 MHz band», referring in the annex that the reference speed was 4 Mbps;
• VODAFONE sent by email (on 30.05.2014) the list «concerning 31 March 2014, for the purpose of establishing and reviewing reference speeds associated with coverage obligations in the 800 MHz band», referring that “by applying the methodology defined in the above-mentioned determination, the reference speed that results from Vodafone’s calculations is 7.2 Mbps.»

Having analysed the information submitted, ANACOM requested the three operators, on 31.07.2014, to provide clarifications on the difference between the total of customers submitted for the purpose of compliance with the decision of 21.03.2014 and values reported in the scope of mobile service statistics for the 1^st quarter of 2014.

Following this request, operators briefly presented the following responses:

• On 06.08.2014, MEO declared that the reported total value of customers «concerned only the range of customers that effectively subscribed and used mobile broadband services, the maximum speeds of which were defined in the respective contracts, in the communication of tariff schemes corresponding to this service and in conditions of the service offer provided by MEO. As such, this range does not include users of the “Internet no telemóvel” (mobile phone internet) service, without this constituting failure to comply with the provision imposed by ICP-ANACOM, in the above-mentioned determination». MEO additionally refers that this exclusion results from the fact that access speeds indicated in offer conditions for the mobile phone internet service are not more than information on maximum and average registered speeds (the determining criterion for the subscription being the traffic volume, not the contracted maximum speed), and as far as mobile broadband offers are concerned, in offer conditions, MEO declares it makes available to users certain maximum download speeds in the provision of the contracted service. MEO further declares that the provision of information on mobile broadband offers based on the maximum contracted speed is inherent in the scope of the establishment of reference speeds, while the consideration of that criterion is not rooted in the provision of information for statistical purposes.
  
  MEO concludes by referring that in the scope of mobile phone internet offers, for the purpose of the establishment of reference speeds, the maximum speed to be taken into account is left to be established, given that it would not be reasonable to expect it to correspond to the maximum registered speed, as this would mean that the large majority of customers would use offers of speeds exceeding 150 Mbps, which is not in line with reality.
• On 08.08.2014, NOS referred that «the non inclusion of offers associated to mobile phone internet access, which are not directly associated to any maximum speeds, justify differences between values reported for the purpose of the reference speed associated to coverage obligations in the 800 MHz frequency band and values reported in the scope of mobile statistics». NOS further refers that mobile phone internet offers are not directly and explicitly associated to any underlying maximum speeds, the download speed not being a differentiating factor for these offers.
• On 08.08.2014, VODAFONE confirmed that «values submitted for the purpose of the establishment of reference speeds associated to coverage obligations in the 800 MHz band are correct, and that the correction of mobile service statistical information was already underway.»

In reply to communications received from NOS and MEO, ANACOM, by means of letters submitted on 07.11.2014, informed these operators of the following:

«a) Under paragraph 6 of article 34 of Regulation No.560-A/2011, of 19 October (Auction Regulation), the “mobile broadband service to be made available must enable data transmission speeds which are equal to the highest speed among those associated with the commercial offers subscribed to, at any given time, by customers in the lowest quartile of such offers when ranked according to maximum transmission speed of the offer subscribed to” (emphasis added);

b) Regardless of the commercial designation or classification of offers made by [NOS/MEO], the decision of 21 March 2014, which established the methodology for establishing and reviewing reference speeds associated with coverage obligations in the 800 MHz band, provides that “mobile broadband offers mean all offers supported on the mobile network, that are associated to maximum download speeds of 256 Kbps or more”, footnote No. 8 further clarifying that this means “offers the maximum speeds of which are defined in the respective contracts, in communications with users or in offer conditions” (emphasis added in both excerpts); 

c) In the report of the public consultation and prior hearing of stakeholders that were held prior to the adoption of the referred decision of 21 March 2014, and in the light of the position taken by MEO – Serviços de Comunicações e Multimédia, S.A. (then TMN – Telecomunicações Móveis Nacionais, S.A.) in the scope of tariffs of the mobile phone internet service, which according to this company should be excluded from the definition of relevant of commercial offers given that no maximum speed was associated thereto¹, this Authority replies that “as regards tariffs for which no speed is associated, ICP-ANACOM clarifies that they are not to be considered”, which implies, a contrario sensu, that all offers with an associated speed must be taken into consideration; and

d) The Auction Regulation and the decision of 21 March 2014, by using the word “associated”, include cases where, in contracts, in offer conditions or in any other communications, maximum speeds are associated both as contracted commitments on the part of the company towards subscribers, and as mere information on speed allowed by the Internet access service, on which subscribers may typically rely, without any guarantee of a minimum level of quality of service.»

In the light of the framework put forward and considering that both operators disclosed on 31.03.2014 maximum access speeds provided in the scope of the mobile phone internet service, whereby NOS’ view according to which the referred offers are covered by the scope of exclusion acknowledged by ANACOM (offers without an associated speed) is not correct, nor is correct MEO’s view according to which these offers should be excluded as maximum associated speeds do not represent a contractual commitment, this Authority ordered NOS and MEO, in same communication of 07.11.2014, to submit a new ranked list of clients, in compliance with point 2.4 and Annex 1 of decision of 21.03.2014, including also, duly ranked, offers of the Internet access service in the scope of the mobile telephone service.

NOS submitted a new list, on 18.11.2014, referring that it included «all mobile broadband offers made available by NOS». For this list a reference speed corresponding to 4 Mbps was indicated.

On 21.11.2014, MEO sent ANACOM a communication, declaring its «surprise at the statement (...) in the sense that the term “associated” covers cases where, in particular, maximum speeds are disclosed in offer conditions, even as mere information on speed allowed by the Internet access service and on which subscribers may typically rely, without there being any guarantee of a minimum level of quality of service.

In this regard, it is important to clarify, yet again, that the element that references and characterizes these commercial offers, and the key criterion leading  users to subscribe them, is the traffic volume (download and upload) included in each tariff, not the maximum speed contracted by customers or which they may typically expect. In fact, access speeds indicated in service offer conditions merely indicate maximum and average speeds registered at a particular time by MEO, in the context of the use of the referred service, this information not being intended to be emphasised in the scope of the marketing/advertising of various tariff schemes of the service.»

The company adds that offer conditions explicitly refer that «for the mobile phone internet service, MEO’s monthly tariffs register the following speeds:» and that «the effective download and upload speeds may vary depending on several factors, and it is not possible to guarantee the speed provided to each and every connection, at any given moment, as this depends on the client’s terminal, the level of use of the network, the network coverage or the server to which the client is connected.»

It concludes referring that «the information that ICP-ANACOM now intends this company to submit is not appropriate for the purpose of establishing reference speeds, not even that provided for in the decision of March 2014, given that, with the association and maximum speeds of networks in mobile phone internet tariffs, the methodology approved to identify the lowest quartile and respective maximum speed would be called into question.»

MEO ends requesting a meeting with ANACOM to discuss the matter.

Having the meeting taken place on 24.11.2014, ANACOM restated, by letter of 04.12.2014, its view on the matter; and, given that the list submitted by MEO in annex to its letter of 06.08.2014 did not integrate the offers of mobile phone Internet access service, the Authority determined the submission of a ranked list of clients, in compliance with point 2.4 and Annex 1 of decision of 21.03.2014, including also, duly ranked, offers of the Internet access service in the scope of the mobile telephone service.

On 10.12.2014, and in reply to ANACOM, MEO complied with this request, submitting a new list «including mobile phone internet offers, having determined the speed associated to mobile phone internet tariffs as described below», although the company considers this Authority’s views not to coincide with the literal sense of the determination of March 2013.

As far as these offers are concerned, MEO refers that «the company collected information provided herein on the basis of the actual speed verified on the national territory by measuring the average speed experienced with the use of 3G technology, in mobility tests carried out throughout the streets of district capitals, where downloading sessions of files of a relevant size (several Gbps) are held. In our view, this is a possible way of finding the speed that clients may expect to experience when accessing the Internet, using mobile phone Internet, taking into account the non-marketing/association by MEO of a specific speed to such offers.»

MEO points out that the reference speed of the new list corresponds to 4 Mbps.

As regards the information conveyed by NOS and VODAFONE, ANACOM checked their compliance with the determination of 21.03.2014, namely taking into account values reported in the scope of quarterly statistics of mobile services and information publicly available in websites of providers.

In this context, NOS was further requested, by email of 27.04.2015, to provide clarifications on the difference between the total number of subscribers reported by NOS in the scope of this procedure and the value reported by this provider for indicator 2.5.1.1. of the mobile service statistical questionnaire for 31.03.2014. Likewise, clarifications were also requested on speeds assigned for some plans (4 Mbps), which according to information available on the company’s website, had “download speeds up to 150 Mbps, for all tariff schemes” except for “locations without 4G coverage,... which allow surfing with download speeds up to 21.6 Mbps».

NOS replied on 12.05.2015, informing that the difference between the total number of subscribers reported for the purpose of the determination of the reference speed and the value of the 2.5.1.1. indicator mentioned above is mainly due to the fact that the former value included «data events (MMS, WAP and Messenger) that are not considered in the 2.5.1.1. indicator of the mobile service quarterly report». Moreover, NOS referred that «given legal impositions associated to the fact that detailed communication data are not held for more than 6 months, the exercise may not be undertaken a second time, so as to separate out these values (at least with the reference date of 30 March 2014)». Nevertheless, NOS stressed that «even if the entire difference was removed from the number of clients reported for offers of speeds up to 4 Mbps... and placed in any higher speed, the final result would remain unchanged». ANACOM confirmed that the detected difference does not change the conclusion concerning the reference speed.

As regards the difference between the speed assigned to some plans and the speed specified in the company’s website, NOS explained that offers concerned were offers «associated to the use of mobile broadband via terminals marketed in March 2014», while the information collected by ANACOM in the company’s website concerned «broadband offers through boards», a fact which ANACOM was able to establish. It was also found that the number of subscribers associated to these situations was low.