Offer for access to the PTC concessionaire ducts (consultation report and decision)

Decision on the offer for access to the PT Comunicações, S.A. concessionaire ducts

Preamble

Pursuant to the Electronic Communications Law - Law no. 5/2004, of 10 February - the public telecommunication service concessionaire should provide, through an agreement, the companies that offer electronic communications networks and services accessible to the public the access to ducts, posts and other installations and locations they own or which management falls under their responsibility, for installation and maintenance of their systems, equipment and further resources (art. 26, no. 1).

In accordance with the same Law, it is the responsibility of the concessionaire to provide an offer for access to these resources containing the access and use conditions, under such terms defined by ICP - Autoridade Nacional de Comunicações (ICP - ANACOM) (article 26, no. 4).

Within this scope, the concession agreement guaranteed the access to the functionalities of the basic telecommunication network, including ducts (article 7 of the Concession Bases approved by Decree-Law no. 31/2003, of 17 February).

In many cases, the entities that offer electronic communications networks and services accessible to the public are facing difficulties in doing further investments in ducts in certain geographic areas, in an economically efficient manner, existing also physical limitations to the feasibility in investing in ducts, the latter being conditioned, on certain conditions, by restrictions of occupation of the underground due to saturation of the same or, further more, by municipal restrictions.

In this context, investment in ducts should be compatible with economic efficiency criteria, avoiding any inefficient duplication in infrastructures or inconveniences for citizens and economic activities due to the frequent and extensive realization of soil and subsoil works, with consequent disturbances at traffic and territory planning level, apart from the repercussions of environmental order arising out from it.

Under the terms of subsection c) of paragraph no. 2 of article 5 of Law no. 5/2004, it is the responsibility of ICP - ANACOM to encourage efficient investments in telecommunications infrastructures.

In this sense, both the access to the already installed ducts and the share of necessary investments in the installation of new ducts will contribute to avoid the undesired duplication of infrastructures and to reduce the global amount of investment supported by each company, reducing consequently the costs. Therefore, it is important to make the access to the concessionaire's ducts compatible with the appropriate investment planning by the same, ensuring that the beneficiaries’ interests in the future concessionaire ducts be released in advance.

In addition, ICP - ANACOM has received claims from operators of fixed telephone networks and from operators of cable distribution networks related to the use of the concessionaire's infrastructures. The received claims refer, namely: (a) the impossibility for the operators to go on with the respective expansion plans through imposition of restrictions, by the concessionaire, in the infrastructure assignment conditions, namely sub-ducts, conduit space and visit chamber space and (b) pricing of too high fees and conditions that may be considered discriminatory.

Furthermore, the promotion of transparency in the conditions of access to ducts and associated infrastructure will contribute to a better market operation, notwithstanding the duties of inspection that pertain to ICP - ANACOM.

Within the scope of this decision the conditions of access to the concessionaire’s posts and masters are not included, regarding which the above-mentioned problems did not take place, or the sharing conditions regarding other concessionaire’s installations and places, which are foreseen in the Reference Interconnection Offer and in the Reference Offer for Local Loop Unbundling and which application is subsidiary as to this determination.

Taking into account these concerns, there is a need to create a set of mechanisms intended to promote the offer of an open network, contributing to ensuring conditions of a sound and effective competition and transparency in how the market operates.

This determination, in this context, fixes the general principles and conditions that should be followed in case of use and access to pipes and infrastructures of the concessionaire.

Thus, the interested parties being heard, the Board of Directors of ICP - ANACOM, pursuant to article 26 of Law no. 5/2004, of 10 February, determines:

1. For the purposes of the provisions contained in this determination and notwithstanding the definitions contained in article 3 of Law no. 5/2004, of 10 February, the following expressions will have the meaning set out opposite to it:

a) «Access», provision of access to ducts and visit boxes and respective use;

b) «Visit boxes», boxes for access to the cables installed along the ducts, which are integral part of the electronic communications network;

c) «Ducts», pipes or sets of pipes, mostly underground or disposed alongside roads, which support, condition and protect other pipes (sub-pipes) or electronic communication cables;

d) «Associated infrastructure», visit boxes and remaining infrastructures which will be indispensable for the installation, removal, maintenance or repair of electronic communication cables in ducts and sub-ducts;

e) «Concessionaire», PT Comunicações, S.A;

f) «Beneficiary entities», companies that offer electronic communications networks or services accessible to the public;

g) «Electronic communications networks offer», setting, operation, control or provision of said network;

h) «Electronic communications network», such as contained in subsection x) of article 3 of Law no. 5/2004;

i) «Public communications network», the electronic communications network used, in full or in part, to the supply of electronic communications services accessible to the public;

j) «National Regulatory Authority (NRA)», ICP - Autoridade Nacional de Comunicações (ICP - ANACOM), which statutes were approved by Decree-Law no. 302/2001, of 7 December;

k) «Electronic communications service», such as contained in subsection cc) of article 3 of Law no. 5/2004.

2. The concessionaire should provide, upon request of the beneficiary entities, use and access to the ducts and visit boxes that are its property or which management is its responsibility, complying with the principles of transparency, non-discrimination and cost orientation.

3. As to the access conditions:

3.1 The concessionaire must provide, by agreement, when requested by the beneficiary entities, access and use of ducts and associated infrastructure which are their property or which management falls under their responsibility, for the installation, maintenance and removal of systems, equipment and further necessary resources to the offer of electronic communications networks and services accessible to the public. Exceptions of physical and technical impossibility are accepted and or which may be a threat to the health and safety of the personnel who works in infrastructures, provided that duly reasoned and as such accepted by ICP - ANACOM.

3.2 Agreements that are the result of the negotiation referred to in paragraph 1 should be reported by the concessionaire to ICP - ANACOM, by sending a copy of the agreement, within 10 days as from the date of the signature of the contract.

3.3 The concessionaire may foresee in the reference offer for access to ducts and associated infrastructure, booking of space intended to maintenance or repair of ducts and associated infrastructure and or cable installation maintenance or repair works, this booking forecast having to be duly reasoned.

3.4 Notwithstanding the space intended to the maintenance and repair works of ducts and associated infrastructure and or intended to cable installation maintenance or repair works, the concessionaire should leave, to be used by the beneficiary entities, in each pathway, an area corresponding to at least 20% of the internal area of each duct (or of each pipe in the cases where the ducts accommodate several pipes, or of each sub-duct in the cases where the ducts or pipes accommodate sub-ducts). Therefore, and of course without prejudice of the situations where the capacity installed by the concessionaire is incompatible with the above-mentioned limit of 20%, the concessionaire should not install cables or equipment that exceed said limit, except as in the duly reasoned cases showing that the use of additional space is necessary to meet the needs associated to the provision of the concession services.

3.5 In any case, the concessionaire is not allowed to install, in the ducts, pipes, sub-ducts and associated infrastructure, cables or any equipment that do not correspond to the current or foreseeable needs in terms of service rendering and which, as a result of the undue excessive space occupation, prevent or limit the access to infrastructures by the beneficiary entities.

4. Entities that offer electronic communications networks or services accessible to the public have access to the infrastructures referred to in the previous paragraph.

5. The concessionaire must submit to ICP - ANACOM, for verification of its conformity with the minimum determined requirements, within 90 days, calculated as from the final determination of ICP - ANACOM, on the “offer for access to PT Comunicações, S.A concessionaire ducts”, a reference offer for use and access to ducts and associated infrastructure that are its property or which management is its responsibility, which must comply with the principles of transparency, non-discrimination and cost orientation. This reference offer should be published at least 30 days in advance as to the respective date of entry into force.

6. The reference offer referred to in the previous paragraph should be delivered every year, notwithstanding another periodicity to be defined by ICP - ANACOM, in view of the evolution occurred in terms of market needs and development of infrastructures, containing the following minimum data:

a) Detailed conditions related to the access to ducts and associated infrastructures, whereby the concessionaire, except for what is foreseen in part I of the Annex to this determination, should ensure as follows:

i) taking into account the legitimate interests of all parties involved, that those conditions are not discriminatory, the technical and operational quality of access to ducts and visit boxes being equivalent to the one they offer to themselves or to the entities with whom they maintain a group relation or dominance;

ii) that the beneficiary entities receive access, or reasoning should access be impossible, within a reasonable period of time equivalent to the one they offer to themselves or to the entities with whom they maintain a group relation or dominance;

iii) whenever it is physically or technically unfeasible to meet the access requests put forward by the beneficiary entities, that proposals of alternative pathways similar to the initial request are sent, together with the reasoning referred to above, in accordance with Part I of the Annex to this determination.

b) Draft of a contract to be entered into between the concessionaire and the beneficiary entities, which must foresee quality of service indicators and levels and clauses that foresee any breach thereto;

c) The indicators to be included in the draft of the contract should cover, namely:

i) The time required to reply to a request to use and have access to the ducts and visit boxes – time, in calendar days, that elapses between the time the concessionaire receives from the beneficiary entity a request to use and have access to the ducts and visit boxes until the time the beneficiary entity receives a reply as to the feasibility for the request to be met;

ii) Time required to install the infrastructures – time, in calendar days, that elapses between the confirmation date of the feasibility for the desired installation and the date for which is requested the beginning of the necessary physical tasks;

iii) Time to remove infrastructures – time, in calendar days, between the confirmation date of the feasibility for the desired removal and the date for which is requested the beginning of the necessary physical tasks;

iv) Time for maintenance and repair operations – time, in calendar days, between the confirmation date of the feasibility for the desired maintenance operation and the date for which is requested the beginning of the necessary physical tasks.

d) Prices that include the different items of the use and access to the ducts and visit boxes and the different items of the services to be provided, notwithstanding the provisions contained in Part II of the Annex to this document;

e) Sizes of ducts and volume occupied for purposes of the assignment of the space and respective pricing;

f) Description of the space available in the ducts and associated infrastructure, considered necessary for the development of the own infrastructures and that will probably be used during the validity of the reference offer;

g) Sequence of procedures and interactions to be established with the beneficiary entities in the provision of information and opening of files, related, namely, to:

i) availability of space in the desired ducts and visit boxes, pursuant to the terms referred to in the annex;

ii) installation or removal of infrastructures in pipes and visit boxes;

iii) procedures to request, accept and book maintenance and repair operations.

7. Whenever ducts, visit boxes and associated infrastructures are designed, the concessionaire must:

7.1 inform ICP-ANACOM and all the other beneficiary entities, before the enforcement of the obligation to previously notify the municipal authority and never less than 2 months before, whenever they will design ducts, visit boxes and other associated infrastructures, so that they can mention their interest.

7.2 the concessionaire should size, whenever technically and physically feasible, the new ducts, visit boxes and other associated infrastructures, taking into account the accommodation of everything reported by the beneficiary entities.

8. In case of litigation related to the obligations resulting from this determination, the administrative dispute resolution applies, under the terms of article 10 of Law no. 5/2004, of 10 February.

See also:

ANNEXhttps://www.anacom.pt/render.jsp?contentId=219605

(in portuguese)