D - ANACOM's position

ANACOM cannot accept arguments put forward, nor grant any of the requests submitted, in the light of the actual scenario. In fact:

1. It is true that Euro da Sorte, on 1 April 2016, in the scope of the assessment on the determined suspension, requested the deployment of ANACOM's inspectors to its premises. However, the grounds invoked for the deployment did not concern the coordination of efforts between this Authority and Euro da Sorte “so as to bring its market performance in line with ANACOM's guidelines”, as it declares. Euro da Sorte alleged at the time not only that the sending of value-added messages had always been preceded by the confirmation, on the part of the user, of the service request, but also that several of the corrective measures that had been determined were already in place, the verification of these situations having been requested.

The inspection activities that were performed after this assessment (on 11 and 13 April) were thus intended to check these statements on the part of Euro da Sorte, in particular the one regarding the confirmation by users prior to the sending of value-added messages. It was incumbent on ANACOM to establish, in the light of the report presented by Euro da Sorte, whether the main basis for the temporary suspension of the right of use for access codes was correct. The Authority thus requested additional elements - call lists and recordings - that could prove the alleged confirmations.

These demarches, which were performed on account of claims made by the stakeholder, as well as elements collected, only confirmed the evidence that had led to the suspension, contradicting all allegations made by Euro da Sorte, notwithstanding the fact that, even in its last assessment, it continued to declare that confirmations on the part of users as to the request of the service existed. As such, ANACOM’s understanding as to the facts and the respective legal framework remains the same.

2. For this purpose, ANACOM sought to implement corrective measures by the established deadline - 6 April. However, due to unwillingness of the company for the purpose, the demarche only took place on 11 April and continued on 13 April.

ANACOM's journeys to Euro da Sorte's premises are not to be interpreted as an extension of the deadline established in the Determination of 22 March 2016 for the adoption and demonstration of corrective measures, nor had they any suspensive effect - on this issue also ANACOM fails to agree with the stakeholder's view. Anyway, this extension was never requested by the company.

As stated earlier, ANACOM aimed to confirm or reject one of the assumptions for the suspension of the use of access codes; and, on the other hand, in the light of the date on which demarches took place (11 and 13 April, that is, after expiry of the established deadline) to verify whether imposed corrective measures had been adopted, as alleged by the company - within the established deadline, that is, by 6 April 2016.

It should be stressed that the maximum period allowed by paragraph 1 of article 13 of Decree-Law No. 177/99, ten working days, had been granted for the adoption of the necessary corrective measures.

3. Euro da Sorte implicitly admits that on 6 April not all corrective measures had been implemented. Moreover, in contrast to what was claimed, not even on 13 April 2016 was the company able to demonstrate to this Authority that such measures had been implemented.

Euro da Sorte now declares that on 11 April 2016 ANACOM's inspectors discussed with the member of staff responsible for the computer system “how the VAS subscription process should be adopted”, that such process was “under a stage of final design” and that a “10-day time-limit was estimated for the respective implementation”. However, the company informed only that it was endeavouring to “implement an automatic mechanism in the company’s app platform”, which was never described, not even being alleged the date foreseen for the respective conclusion, let alone being demonstrated that such mechanism complied with the determination.

The company claims also that on 13 April 2016, “the development of the computer system” had already “taken place”, having been requested from ANACOM “the temporary reconnection of the LA (Nos. 68954 and 68955)”, for testing purposes.

It must be referred here that the request was submitted to ANACOM on that date, but concerning only the “68955” access code, not the “68954”¹ code, which shows unfamiliarity with the technical aspects of the mechanism to be implemented and with the need to test the system by resorting also to the “68954” code, without which it would be impossible to comply with the compulsory step related to the sending of the information message,  this record being associated to the subsequent confirmation (if any) of the service request by the user.

On the other hand, on 13 April 2016 - date on which the company refers that the computer development allegedly was to be tested was already completed - the member of staff responsible for the computer system informed the manager of Euro da Sorte that it estimated that “the period of time required to develop the integration of MO services” was 10 working days, tests included².

This proves that by that date - well beyond the 10-day time limit set for the purpose - the corrective measures determined on 22 March 2016 had not been adopted at computer level, at least all of them, not even for testing purposes, involving: (i) the implementation of an automated mechanism in the operating platform/app, so as to ensure that Euro da Sorte could only order the provider of support services to send value-added messages after a confirmation was received; and (ii) a computer record without human intervention, in a durable medium, of all confirmation messages and orders issued to the provider of support services to send value-added messages.

As such, the rejection of the suspension lifting request for testing purposes was fully justified, given that it was untimely³. In fact, even if the technical design of the measures had been concluded on 13 April, it would have taken place after the deadline established for implementation.

In addition, as far as remaining corrective measures imposed are concerned, it must be stressed that the Contest regulation, the amendment of which had been imposed, was not modified at the company’s website, nor did Euro da Sorte prove that it had requested its amendment before the Secretary General of the Ministry of Internal Administration. It was not even alleged that the content of value-added messages to be sent from the “68955” code had been amended, to cease to inform that the entry in the contest was free-of-charge.

Lastly, it should be noted that the company only submitted one script to ANACOM, on 1 April 2016, which allegedly had been redrafted but which, on the contrary, was always used in calls made by the company’s telephone operators, as results from the inspection action dated 11 April.

4. Euro da Sorte now alleges that the computer programme has been developed and that it only allows the subscription of value-added services after a confirmation by the user has been given, with no human intervention on the part of the company, which allows the automatic creation of a list “including all information (free sms; reply from the customer via his/her own mobile phone; record of the sending to the operator).”

The company declares also that the promotion contest under consideration is now over, and that in its opinion there is no reason to prevent the lifting of the right of use for allocated access codes or the maintenance of its registration as provider of message-based value-added services.

However, these arguments may not be accepted, in the light of facts described and of the legal framework arising from Decree-Law No. 177/99.

The truth is that Euro da Sorte, as a company registered as provider of message-based value-added services, failed to use allocated access codes in compliance with conditions and limits set out under paragraph 2 a) of article 6 as well as conditions provided for in article 9-A of Decree-Law No. 177/99.

The provision of the type of service⁴ described by Euro da Sorte, when the company requested the allocation of access codes, requires that providers send to the customer, at no cost, a clear and unambiguous message, including the identification of the service provider, the nature of the service to be provided, the total price due and a request for confirmation of the service demand, under paragraph 1 of the referred article 9-A. The absence of reply to this confirmation request, under paragraph 3, implies the absence of a contract.

As the referred provisions were breached, by virtue of paragraph 1 of article 13 of the same statutory instrument, ANACOM was required to suspend the use of access codes allocated to the service provider, indicating the necessary remedies, establishing a time limit not exceeding 10 days for the purpose of - as the Authority actually did.

In case of failure to comply with measures imposed within the deadline, it follows from paragraph 3 of article same article 13 that this Authority must revoke the allocation of access codes, as well as the service provider’s registration. The legislator left ANACOM no degree of discretion - this is a binding power, where, in case the assumptions described in the provision are met, this Authority is required to carry out the referred revocations.

As such, the fact that no contest is currently running and that Euro da Sorte alleges that all measures still with practical purpose have been fulfilled, is irrelevant for the decision to be adopted (as well as for other allegations made by the stakeholder, referred earlier): it may not be ignored that the deadline established for bringing the company’s activity in line with the law, and for demonstrating this to ANACOM, expired on 6 April 2016.

Accordingly, considering the facts already described, the failure to abide by conditions imposed by ANACOM may not have a different consequence that that which was established in Draft Decision of 5 May 2016.

Any deployment to the stakeholder's premises thus becomes pointless, the request submitted for this purpose being therefore rejected.

5. Lastly, it must be clarified that a “multiple subscription” service, as described by the stakeholder - that is, a service where a single confirmation for subscription purposes originates the sending of more than one value-added message - must be barred at no cost, and may only be activated, generically or selectively, after a written request has been made by the subscriber, by virtue of paragraph 3a) of article 45 of Law No. 5/2004, of 10 February, as amended by Law No. 42/2013 of 3 July. Moreover, the information message sent by Euro da Sorte⁵ referred only the price of a value-added message, not clarifying that this price would be charged for each message sent, or the number of messages that could be sent. Range 68 is not appropriate for a service provided in this fashion, as it is only intended for the provision of services which fall outside codes 61, 62⁶ and 69 (the latter two of which must be barred by default, as referred earlier).