Euro da Sorte was notified, under articles 121 and 122 of the Administrative Procedure Code, to comment the draft decision within a time-limit of 10 working days. The company promptly submitted a written reply to the file, on 12 May 2016, having claimed in brief as follows:
- Further to Determination of ANACOM of 22 March 2016, Euro da Sorte presented a written reply on 1 April, informing that “it requested the deployment of the inspection team to its premises, in order to join efforts so as to bring its market performance in line with ANACOM’s guidelines”;
- That “subsequently to this request, and in the course of the ongoing analysis (inspection) process which had begun prior to the notification of the temporary suspension, the necessary demarches were tackled, pursuant to ANACOM’s determination, and those already under way were reassessed - adjustment of the computer programme; drafting of a customer contact methodology (script); restructuring of specifications/regulation of the promotion contest, etc.”;
- That “the meeting of 11 April 2016 took place in the presence of the member of staff responsible for the computer system, having been discussed on the spot on this date how the VAS subscription process should be adopted (through a mechanism without human intervention), that is, the subscription confirmation would be required from the customer, the sending of the message without human intervention being processed by collaborators of Euro da Sorte. On this same date, it was reported that such process was under a stage of final design, and that a 10-day time-limit was estimated for the respective implementation. In fact, as explained by the member of staff responsible for the computer system, the process required “incorporation” with the system of operators, its implementation taking around 10 days (implementation; tests; fault analysis, etc.)”;
- “The inspection process still ongoing, in the course of the 2nd deployment - 13 April 2016, and having the development of the computer system taken place, the temporary reconnection of the LA was requested (Nos. 68954 and 68955), on this same day 13 April 2016 (date of the last inspection) so that changes introduced could be tested (a situation which the member of staff responsible for the computer system had informed at the inspection site, at the time of the 1st journey of the inspection team)”;
- That “as the inspection process remained under way (inspection files being continuously issued), the deadline under consideration was extended, under the law”;
- That the task scheduled by ANACOM to take place on 6 April 2016 only failed to occur due the fact that the representative of the company was required to be in court that same day;
- That, even so, “ANACOM decided to maintain the inspection process - CONTINUOUSLY REQUESTING FOR MORE ELEMENTS - on 11 and 13 April 2016”, the company questioning why did ANACOM choose to maintain the referred inspection activity;
- That the “computer programme that was developed and exists today does not require any human intervention from the collaborators of Euro da Sorte; the customer receives the information SMS, replying through its mobile phone to Euro da Sorte’s server; this is submitted by computer to the mobile service operator without human intervention, the operator then sending the VAS message. As far as this “computer communication” is concerned, a list is automatically created including all information (free sms; reply from the customer via his/her mobile phone; record of the order issued to the operator). As such, the sole human intervention is certainly that of the customer, when he/she confirms the service. Consequently, items 1 and 2 of the determination have been fully met, and ANACOM may analyse this situation in particular, if the Authority so wishes. As referred above, it has only not been tested, due to the suspension of LA”;
- Due to “corrections requested (...) it does not require a high number of external collaborators, given that the system has become automatic, (...)”, there is no longer also the “need to record contacts with customers (...)”;
- That “there is no human mean to effectively control the operation of the company’s external collaborators as regards the telephone process, and their activity may have been not as correct or spontaneous as required. However, this situation has been remedied by nature”;
- As far as VAS emails and subscription are concerned, “as explained and certainly not included in the file, the referred subscription takes place in two clear moments; sending of email; reception of information message; confirmation and sending of VAS”;
- That “although ANACOM concludes for the non-existence of confirmation by the customer, it is a fact that it existed. It may be argued that the formula used by collaborators was not as trustworthy or straightforward as it should have been. Nevertheless, confirmations existed, although it is clear that the adopted methodology required a better framework, which the company acknowledges”;
- That “services of a continuous nature show a characteristic that distinguishes them from others: they are provided in the market through a specific code - 62, and the subscription remains ad aeternum, until a will to the contrary is shown by the subscriber (communication by telephone; sms; email; registered letter), to cease the continuation of the service concerned”;
- That in this case, the situation is different given that “at no time is there a continuous-message sending service, rather the acceptance of a multiple subscription process (1, 2, 3 or 4 messages, in a single act of expression of will). And given that subscriptions are individual, to each of these subscriptions corresponds an information message and a value-added message”;
- That “no promotion contest is currently running, which means that all related issues are duly brought together in the above reply, as the association between value-added services and the referred promotion contest has been duly removed”;
- That it fails to comprehend ANACOM’s lack of understanding on “the issue of the promotion contest, it was a “plus” granted by the company to its subscribers of value-added services”;
- That in fact, “as Euro da Sorte conceived the arrangement, subscribers of its value-added services would always be offered a free-of-charge possibility to be the winners of a promotion contest. There is no doubt that there was a direct difference between these two realities: the subscription of value-added services on the one hand, and on account of such subscription, an automatic qualification to a draw in a promotion contest”;
- That “the ongoing contest has reached an end and no further request for another promotion contest exists”.
The company concludes that “it is willing today to operate according to the wishes and understanding of ANACOM”, given that:
- “the computer programme is already developed, as set out above, that is, it allows only the subscription of value-added services through the confirmation of the subscriber, without any intervention on the part of Euro da Sorte, Lda.”;
- “Euro da Sorte, Lda., does not intervene either directly or indirectly in the subscription process, through its collaborators”;
- “subscribers decide whether they wish to subscribe the service, in a free and clear way, through confirmation on their mobile phone”;
- “from this moment on, the subscription operates regardless of the action of collaborators or of a script”;
- “various exterior stimuli shall be maintained, in addition to the bundled sending of information messages”;
- “The contest regulation provided for its conclusion by the end of April 2016, and for this reason it is no longer subject to discussion”;
- “as of today, any VAS subscription process does not relate directly to any ongoing promotion contest, and for this reason issues on the script or action of collaborators of Euro da Sorte are dealt with by nature, as this is not prevented by documents established so far”.
Finally, Euro da Sorte requests that ANACOM:
a) Meets the “current situation” and does not issue “an act devoid of content”, taking into account that the intended measure “has no subject-matter”, as measures imposed have been duly adopted and nothing hampers the maintenance of Euro da Sorte’s activity;
b) In the light of the general principle of collaboration in good faith, decides “not to maintain inspection activities” and carries out “a real, effective and simple assessment of the method currently adopted” on 16 May 2016;
c) Repeals the temporary suspension still in effect, and issues a determination ordering the opening of the LA concerned, as well as the maintenance of the company’s registration.
