1. Following Determination DE-031302-CA, of 24/09/2002, regarding the intervention of ICP - ANACOM in the resolution of the network interconnection dispute that opposes ONIWAY - INFOCOMUNICAÇÕES, S.A. to VODAFONE TELECEL - COMUNICAÇÕES PESSOAIS, S.A. and OPTIMUS - TELECOMUNICAÇÕES, S.A., and at the end of the deadline granted to the operators to be interconnected, ANACOM has carried on, as from 15/10/2002, actions to supervise compliance with the above-mentioned Determination.
2. On that date and on the following days, there was not interconnection between ONIWAY and VODAFONE and between ONIWAY and OPTIMUS. Although both VODAFONE and OPTIMUS have publicly disclosed that they were going to comply with the Regulator Determination, they did not make the interconnection and did not submit a justification for that omission to ICP - ANACOM for that purpose.
3. Failure to comply with the determinations of ICP-ANACOM in matters of interconnection constitutes an administrative offence - vide paragraph no. 1 of article 36, namely the respective subsection m), whenever the case falls upon the scope of article 16, no. 3, as it does.
4. Pursuant to article 35 of Decree-Law no. 415/98, failure to comply with the obligations foreseen in this diploma by the network operators and or by service providers constitutes a breach to the interconnection condition foreseen in subsection h), of paragraph 1 of article 11 of Decree-Law no. no. 381?A/97, of 30 December, and the regime contained in article 32 of the same diploma shall apply to it.
5. Article 32 of Decree-Law no. 381-A/97 foresees that, should any licensed or registered entity fail to comply with any condition or applicable mode, it is the responsibility of ICP (hereby ICP?ANACOM) to suspend, up to two years at the maximum, or to revoke, in full or in part, the registration or licensing acts, notwithstanding all applicable fines.
6. The measures foreseen in the law to compel the addressees of the determinations of the Regulator to the respective fulfilment are, therefore, the instauration of a countermanding process that can culminate in the application of fines which amount cannot exceed EUR 44,891.81, and the suspension, up to 2 years, of the registration or license, or the respective revocation. In accordance with the provisions of paragraph 6 of article 32 of Decree-Law no. 381-A/97, should the situation be restored by the operators, as far as suspension is concerned, the latter may at any time be released.
7. Furthermore, pursuant to the provisions contained in subsection h) of paragraph no. 1 of article 6, and in subsection h) of article 9 of the Statutes, approved by Decree-Law no. 309/2001, of December 7, it is the responsibility of ANACOM to safeguard the interest of consumers regarding the possibility of suspending the licenses of the operators who do not comply with determination of 24/09/2002.
8. Terms under which the Board of Directors determines:
1º - To initiate a countermanding process against VODAFONE and OPTIMUS, the addressees of the determinations contained in paragraphs 1 and 2 of Part I of Determination dated 24-09-2002, since they did not comply with those determinations. Therefore, they are both charged of having practised the illicit foreseen in subsection m) of paragraph no. 1 of article 36 of Decree-Law no. 415/98, of December 31, being the responsibility of the Regulatory and Legal Affairs Department to carry out the respective preparation.
2º - To inform VODAFONE and OPTIMUS that, notwithstanding what is determined in paragraph 1 above, and considering that such failure is subject of being corrected by providing interconnection to ONIWAY, maintenance of that behaviour may determine application of the sanction foreseen in article 32 of Decree-Law no. 381-A/97, of December 30.
3º To inform the involved operators that ANACOM shall not fail to take the measures deemed necessary, within the scope of its functions, to guarantee to the consumers the appropriate clarification on the public use of the communications in question.
4º To notify VODAFONE and OPTIMUS of the determination adopted herewith as well as to inform ONIWAY of the same.
