Under the terms of the Statutes of ICP-ANACOM, the Advisory Council is required to issue its opinion on the Management Plan
I
In general terms
The Advisory Council considers that the governing values and principles of ICP-ANACOM's activity, as set out in the 2012-2014 Management Plan, to be appropriate.
ICP-ANACOM has set itself the goal of being a "reference in the regulators' universe" - this is a laudable ambition. However, accomplishment of this goal calls for improvements in the way that ICP-ANACOM works and acts, especially with regard to those aspects which have most bearing on its relationship with the market:
- Effectiveness of the Public Consultation mechanism;
- The amount of time taken to conclude analysis and decision-making;
- The reasoning for its decisions;
- Promptness in responding to requests from operators;
- Compliance with deadlines which ICP-ANACOM itself sets.
The Advisory Council highlights the cooperation efforts which ICP-ANACOM has undertaken recently with regard to operators, including through the seminars and meeting which it has held with these parties. This has provided the regulator with a more solid understanding of the problems facing the sector, enabling it to respond in a more immediate and suitable manner.
In its Management Plan, ICP-ANACOM states that its mission is to regulate, supervise and monitor the market in order to assure that all citizens are provided with diverse choice and universal access to communications services, affirming that its activity is focused on users and citizens in general. It is recognised that the best way of fulfilling the interests of users and citizens in general is by bringing about an appropriate level of competition in the market.
Situations remain which call for the regulator to intervene and whose resolution has been postponed, owing to delays - not regulatory holidays - which jeopardise the development of sustainable competition in the market. Given the sector's characteristic dynamism, the length of time involved in taking decisions, including the implementation of regulatory measures, is decisive for the effectiveness of these decisions. A good decision may be rendered wholly ineffective in terms of its impact when not taken in good time.
In the Memorandum of Understanding agreed with the Troika, referring to the set of obligations assumed by Portugal before the IMF, ECB and EC as part of the current economic adjustment programme, the objectives stipulated with regard to the electronic communications and postal sector are: to increase competition in the market and reduce barriers on entry; guarantee access to networks; and strengthen the powers of the National Regulatory Authority. There follows a set of specific measures which Portugal is called upon to adopt immediately; with the transposition of the "Better Regulation" Directive, at least 10 specific recommended measures have been implemented, including on the elimination of barriers on entry and the need to adopt "remedies" which promote competition in fixed communications. ICP-ANACOM made no reference in this regard, perhaps since the recommended measures were mostly or entirely scheduled for 2012. Nevertheless, even while all measures are accomplished in a timely manner, ICP-ANACOM sh
ould consider the Memorandum, and in this respect, comment on its reasonableness and on its impact on its regulatory activity in the short term.
II
In specific terms
1. The Advisory Council takes the view that the Management Plan, which sets out the intention of the regulator to implement and evaluate measures on net neutrality, does not address other due measures which reflect the sector's evolution, and which it would be fitting to address, such as:
- Sustainability of the Internet business;
- OTT ("Over the Top");
- Network neutrality;
- Triple-play offers and access to content;
- Fixed-mobile convergence (Smartphones, Tablets);
- Social networks and their impact on the traditional framework of privacy and data retention.
2. Numbering
The review of the rules governing the use of numbering constitutes an omission that has to be noted. In 2010, ICP-ANACOM published the results of a public consultation on reforming and giving flexibility to the rules governing the use of E.164 numbering. This issue, which has received no follow-up, is of great interest to operators, especially since it will allow greater flexibility of offers and will enable offers which are better aligned with the paradigm of network convergence.
The current rules of the Plano Nacional de Numeração (National Numbering Plan) are out of step with the market. However, the entry into force of the new legal framework is the right moment to review, systemise, clarify and consolidate all the rules associated with this issue in a single document.
3. Review of markets 1, 2, 3, 4 and 5
In the Management Plan presented by ICP-ANACOM, the review of markets 1, 2, 3, 4 and 5 is only scheduled to commence in 4th quarter 2013 and to conclude in 1st quarter 2014.
Given the timetable of periodic revision associated with such analysis, and also the time which has elapsed since any of these markets were subject to analysis, it is to be concluded that the plan for 2012-2014 will imply conclusion of the analysis of markets 1, 2, 3, 4 and 5 by the end of 2011.
Since no public consultation has been launched to date, in our view, it seems impossible that this assumption will be realised, especially since the process associated with Article 7 is now more complex and time consuming.
Accordingly, it is to be concluded that, in this respect, the plan contains a lapse/omission, particularly with regard to 2012; the regulator must therefore carry out a review of the plan, incorporating a coherent schedule for the conclusion of these reviews. Given existing priorities, it is essential that the schedule allows presentation of the conclusions of the analyses of markets 4 and 5 no later than the end of first quarter 2012.
4. Revision of Market 7
ICP-ANACOM's Management Plan makes provision for the revision of market 7, including a review of the glide-path, between 3rd quarter 2011 and 2nd quarter 2013. Meanwhile, in the report on the consultation on the costing model of mobile networks, published in July 2011, it is noted that the glide-path to be determined in 2011 should establish the evolution of termination prices at least until the end of 2012. While it is recognised that the references made in this consultation report and in the Management Plan are not necessarily incompatible, the Advisory Council highlights the need to bring the deadline for executing the actions related to market 7 and its context into line with the time frame of the glide-path in terms of the evolution of mobile network termination rates to be determined in 2011, so as to not jeopardise its determination pursuant to the Commission's 2009 Recommendation on this issue.
5. Impact of the fees model in force since 2009
While the fees which apply to the sector are set by the Government and not by ICP-ANACOM, this is an issue which, as well as being a generator of revenues, is also a key instrument of regulatory policy, affecting barriers on entry, operator sustainability and, ultimately, competition in the market. The fees may and should constitute a means of influencing the charges and fixed costs incurred by operators, which, in the current context, makes particular sense. As such, it is considered that the lack of actions related to sector-applicable fees constitutes an omission in the Management Plan which needs to be addressed. As such, it is suggested that, as the Authority responsible for the promoting the communications market and for this market's balanced development, ICP-ANACOM should seek to improve the current model, undertaking an analysis of the sector impact stemming from the fees model which entered into force in 2009 and which is supported by communication service providers.
6. Revision of regulated offers
It is also noted that the Management Plan fails to refer to a review of the regulated offers associated with markets 1,2,3,4 and 5 during the period covered. Specifically, given the explicit references to the review of other offers, e.g. RELLO/LLRO, no reasons are given for omitting reference to reviews of the other offers, such as RUO, Rede ADSL.PT, RIO and WLRO.
It would be fitting if the review of these offers, provided for in the context of the Regulator's decision on this issue, was concluded no later than the first quarter of 2012.
With regard to the RELLO/LLRO, despite the explicit reference in the plan to their review in 2013, it is considered important to bring this date forward to the end of 2011, due to the prevalence of issues in these offers which have impeded their use by operators.
7. Access to fibre
The objective and timetable proposed for conducting a study on the offer of access to fibre may give rise to queries.
Without further information, it is accepted that the purpose of this study in ICP-ANACOM's Management Plan entails a comprehensive examination of the existing models of access to fibre and an evaluation of the most suitable means of fibre access in Portugal in light of the particularities of the national market, where such an obligation is imposed.
The timetable for the study is out of step with the timings stipulated for the analysis of markets 4 and 5. Since the obligation of access to fibre is a key point in the analysis of these markets, it is incomprehensible that a study which might contribute to the enactment of any obligations that may be imposed would be scheduled for the end of 2012, that is, subsequent to the market analysis and the imposition of the obligation. As such, it is reiterated, that it is not deemed reasonable that the next analysis of markets 4 and 5 will not take place until the last quarter of 2013.
In this respect, ICP-ANACOM should clarify the precise purpose of this study.
8. Spectrum Management
In its Management Plan, ICP-ANACOM highlights how management of the spectrum is an essential part of its activity. However, the plan omits several actions in this area.
In the context of the consultation on the NTFA 2010-2011, ICP-ANACOM states that the definition of the terms and conditions governing secondary spectrum trading is dependent on the transposition of the regulatory framework. However, given that this transposition is being concluded, the Advisory Council does not comprehend why ICP-ANACOM's plan for the next 3 years does not provide for any action related to secondary spectrum trading.
9. DTT and Digital Broadcasting
The Advisory Council considers that ICP-ANACOM should explain and clarify actions to be undertaken in terms of the deployment of DTT and Digital Broadcasting, in particular with respect to the switch-off in 2012 and the allocation of the digital dividend.
The Advisory Council, 7 October 2011.
