Ministério do Equipamento, do Planeamento e da Administração do Território (Ministry for the Equipment, Planning and Administration of the Territory)
Decree-Law
To further develop the legal system contained in Law nr. 91/97 of 1 August, Decree-Law nr. 381-A/97 of 30 December came to regulate also the access system to the activity of public use telecommunication services provider.
Within the scope of the category for public use telecommunication services, that is those that are offered to the general public, the law only regulates the designated "addressed services", recognising the existence of regulations specifically applicable to broadcasting services.
The decree-law in question, by establishing rules for access to and exercising of the activity of addressed public use telecommunication services provider automatically subjected the respective providers to a set of different conditions and modes, to be applied according to the particulars of each of the services.
It is vitally important therefore to realise the set of conditions and modes, with which providers of the telecommunication services in question are bound to comply with, by approving the respective regulation.
The protection of the rights and legitimate interests of the users of the services supplied merited special attention, namely in terms of the need to divulge the conditions of supply, the situations susceptible to limiting access to and use of services, as well as the content of the contracts to be signed.
The regulation also contains norms and rules applicable to the supply of telecommunication services found in community legislation, namely provisions contained in Directive nr. 98/10/CE of the European Parliament and the Council, related to the application of the open network supply (ONS) to voice telephony and to the universal telecommunication services in a competitive environment, specifically applicable to the providers of mobile telephone services.
The ICP Consultative Council was heard.
Thus:
In the development of the legal system established by Law nr. 91/97 of 1 August, and under the terms of paragraph c) of point 1 of Article 198 of the Constitution, the Government hereby decrees that the following shall be valid as general law of the Republic of Portugal:
Article 1
Object and scope
1. The Regulation for the Exploitation of Public Use Telecommunication Services shall be approved, published as an annex to the present diploma of which it is an integral part.
2. The supply of audio-text services shall comply with the specific legislation.
Article 2
Revocation
Articles 1 to 3 and 11 to 13, points 1,3,4 and 6 of article 15 and articles 16 and 18 to 27 of Decree-Law no. 120/96 of 7 August shall be revoked.
REGULATION FOR THE EXPLOITATION OF PUBLIC USE TELECOMMUNICATION SERVICES
CHAPTER I
General and common provisions for the exploitation of public use telecommunication services
Article 1
Object and scope
1. The present Regulation shall be applicable to the exploitation of public use telecommunication services, with the exception of broadcasting telecommunication services.
2. The present Regulation shall not be applicable to the exploitation of the fixed telephone service, which shall adhere to specific legislation.
Article 2
Definitions
For the purposes of that set out in the present Regulation, the following definitions shall apply:
a. Mobile telecommunication services - telecommunication services where the subscriber access is carried out via an unfixed character system, by using spatial radio-electric transmission;
b. Mobile communication services via satellite - radio-communication service between land mobile stations and one or more satellites of a satellite mobile communications service;
c. Satellite mobile communications service - a satellite system of the fixed or mobile satellite service, of narrow or wide band, global or regional, geostationary or non-geostationary which allows for the supply of telecommunication services directly to the end users or via the public telecommunication networks from a satellite constellation;
d. Fixed telecommunication services - Telecommunication services where subscriber access is carried out via a fixed system;
e. User - the persons or entities that use or request public use telecommunication services.
Article 3
Providers
The exploitation of the services that are the object of the present Regulation shall be assured nationally by registered or licensed entities under the terms of Decree-Law no. 381-A/97 of 30 December.
Article 4
Exploitation rules
1. Within the service exploitation scope that they supply, the service providers may:
a. Totally or partially use, the means provided by operators of public telecommunication networks, under the conditions to be set by the parties;
b. Make available, whenever applicable, prefixes, identification codes or series of numbers foreseen in the National Numbering Plan, to be attributed by ICP under the terms set out by law.
2. When exploiting services, providers must:
a. Guarantee equal access to the services provided;
b. Guarantee use of the service within the coverage areas in a continuous manner;
c. Publicise the supply conditions, under the terms of article 5;
d. Comply with the specific obligations which will be set out in the licences, when these exist;
e. Provide for, inasmuch as is necessary and within their reach, so as to assure and respect, under the terms of the legislation in force, the secrecy of the communication of the service provided, as well as that set out in the legislation for the protection of personal data and privacy;
f. Comply with the numbering plan defined by ICP;
g. Notify users of the service in case of its termination, with a minimum 30-day prior notice;
h. Comply with the service quality standards contained in the licences, when these exist;
i. Guarantee free-of-charge access to the national emergency number, whenever technically possible.
3. Without prejudice to that set out in the previous point, the providers of public use telecommunication services shall be able to prevent specific conditions applicable to providers of audio-text services.
Article 5
Information on supply conditions
1. The entities responsible for exploiting or commercialising the services that are the object of the present Regulation shall be obliged to make available, in a suitable manner, detailed information on the supply conditions and access to and use of said services.
2. For the purposes of that set out in the previous point, the following information must be made available:
a. Conditions of service access and use;
b. Service ease;
c. Minimum contract periods and conditions for renewing contracts;
d. Procedures when invoices are not paid;
e. Applicable prices;
f. Coverage areas of the services provided:
3. For the purposes of that set out in paragraph a) of the previous point, service providers must indicate, namely, conditions related to equipment, guarantees, service connection and repair deadlines, quality levels, support services, as well as restrictions pertaining to service access and use.
4. Any alteration to the supply conditions referred to in point 1, namely, when involving price aggravation, must be communicated with a minimum 15-day prior notice of its coming into force, not only to users but to ICP, as well.
Article 6
Service supply and use
1. The services included in the present Regulation must be provided in a regular and continuous manner.
2. The suspension or restriction of the telecommunication services supply shall only be allowed in the following cases:
a. Emergency situations or force majeure, namely, extreme weather conditions, earthquakes, floods, thunderstorms or fires, when these do not allow for the guarantee of the continuous supply of services;
b. The need to assure communication secrecy and guarantee compliance with the norms related to the protection of personal data and privacy;
c. The need to avoid interference, when applicable, between radio-communication systems or other spatial or land technical systems;
d. Failure of the users to comply with the conditions for service access and use, namely when there is a payment delay.
3. When the situations set out in paragraph a) of the previous point arise, the provider must assure, inasmuch as is possible, the service supply to all users by immediately publicising the beginning and end of the emergency situation, as well as its nature and extent.
4. The supply restrictions foreseen in paragraphs b) and c) of point 2 must be communicated to the user within 24 hours.
5. The restrictions to supplying and providing services referred to in paragraph d) of point 2 must be communicated to the user with a minimum 8-day prior notice following the date of their being verified, respecting the system foreseen in article 5 of Law no. 23/96 of 26 July, with the necessary adaptations.
6. When the restrictions referred to in paragraphs a) and c) of point 2 interrupt the service supply for a period longer than forty eight hours, no payment for the service provided shall be owed and a discount shall be made between the amount corresponding to the duration of the interruption and the subscription price, when it exists.
7. The provider, when accused of the damages incurred if he fails to observe the deadlines referred to in points 4 and 5, shall be held liable for compensation costs.
Article 7
Maintenance and repair
1. The service provider shall be responsible for maintaining and repairing the materials and equipment used by him in providing the service.
2. For the purposes of that set out in the previous point, whenever it is indispensable to have access to the installation area, the provider must arrange with the service user the date and time to take care of maintenance and repairs.
3. For the purposes of that set out in the previous point, users must allow the duly identified personnel employed by the service provider to have access to the areas where material and equipment to be repaired is found, as long as they have been previously notified of and agreed upon the date foreseen for repairs.
4. The user shall be responsible for material and equipment which is the property of the service provider and shall be obliged to compensate him in the case of loss, damages resulting from improper use and installation modifications that have not been authorised.
Article 8
Infrastructure installation
The installation of infrastructures by the registered or licensed entities for the rendering of public use telecommunication services shall conform to the provision in article 17 of Decree-Law no. 381-A/97 of 30 December.
CHAPTER II
Of mobile telecommunication services
SECTION I
Specific rules for exploiting mobile telephone services
Article 9
Contracts
1. It is compulsory that adhesion contracts for providing mobile telephone services must be in writing and provide details of the information referred to in point 2 of article 5.
2. The adhesion contracts must also contain the following elements:
a. Time needed for service connection;
b. Types of maintenance service offered;
c. Quality standards of the services offered;
d. Process for resolving conflicts, when these arise;
e. Subscriber compensation or refund systems when there is service non-compliance or disregard for the contracted quality standards;
f. System and manner for providing guarantees when these are required for providing the service;
g. Indication of the express wish of the user regarding the inclusion or non-inclusion of personal data in user directories and circulation thereof via information services, including or not including circulation of said data to third parties.
h. Mention of ICP approval.
Article 10
Information service and directories
1. Providers of mobile telephone services must guarantee a free-of-charge listing in the subscriber directory for subscribers who expressly request it. Said registration is to be done via computerised or electronic means, and shall comply with the norms relating to the protection of personal data and privacy.
2. The information contained in the directory referred to in the previous point must constantly be updated and made available to those subscribers requesting it, via computerised or electronic means.
3. Providers of mobile telephone services must also guarantee a free-of-charge information service which encompasses the numbers of all subscribers included in the directory.
SECTION II
Specific rules for exploiting satellite mobile communication services
Article 11
Service exploitation
1. Service exploitation shall be conditioned inasmuch as the providers demonstrate the following:
a. That the operator of the network supporting the services is duly licensed;
b. That the frequencies consigned to the supporting network operator are indicated in the technical project.
2. In developing the exploitation of services, providers must:
a. Notify ICP of the change in operator of the network supporting the services they offer, with a 20-day prior notice;
b. To ask ICP for the radio-electric licensing of the satellite land stations to be used, except in those cases foreseen by law.
3. Where the support network operator has been changed, providers must present the elements referred to in paragraphs a) and b) in point 1.
CHAPTER III
Specific rules for exploiting fixed services
Article 12
Connection of terminal equipment
Service providers encompassed by the provisions of the present chapter shall be particularly obliged to ensure an adequate access point to the services at the user's premises, so as to allow the terminal equipment to be connected whenever technically necessary.
SECTION I
Of voice transport services in closed user groups
Article 13
Modes of exploitation
1. Under the terms of the present Regulation, voice transport services in closed user groups may be provided in the following ways:
a. To a group of users without inter-functioning with the fixed telephone service (FTS);
b. To a company or closed user group (CUG) using one or two FTS terminal points.
2. For the purposes of that set out in paragraph b) of the previous point, the following shall be considered as closed user groups:
a. Companies in domain relations and companies in group relations, under commercial law terms;
b. Satellite mobile communication services - radio-communication service between land mobile stations and one or more satellites in a satellite mobile communications system;
c. Individual persons, exercising freelance professions in different work places which they either own, lease or sub-lease;
d. Civil companies exercising their activities, under the terms of the previous paragraph.
Article 14
Traffic property
The revenue associated with the traffic arising from voice transport services in closed user groups shall be the property, in its entirety, of the providers of these services.
Article 15
FTS access and use
The connection of voice transport services in closed user groups to other public telecommunication networks or to public use telephone services shall be carried out via the FTS. For this purpose, providers shall be subject to the FTS tariff system applied to the public in general.
Article 16
Specific obligations
1. The following shall constitute specific obligations of the providers of voice transport services in closed user groups:
a. To guarantee, by the adequate technical means, that the services provided do not at any time take on the FTS form, where it would be technically impossible for a communication originating from a FTS client and destined for a voice telephony service client to be addressed to a FTS client;
b. To guarantee that all communication between users in different groups shall be exclusively carried out via the FTS;
c. To keep a magnetic register, for a minimum 90-day period, of the origin and destination of the communications carried out within the scope of the services they provide, without prejudice to that set out in the legislation applicable to the protection of personal data.
d. To keep an up-to-date directory with detailed information of all their users, as well as to make available documents proving the relations which exist between entities of each closed user group.
e. To provide ICP, upon request, with the respective numbering plan and information foreseen in the previous paragraph.
2. It shall be the responsibility of the providers to guarantee that the users of their services comply with that set out in paragraphs a) and b) of the previous point.
SECTION II
Satellite communication services
Article 17
Specific rights and obligations
1. To accede directly to the satellite organisations shall constitute the specific right of the satellite communication service providers, under the terms and conditions established by former.
2. The following shall constitute the specific obligations of satellite communication service providers:
a. To ask ICP for the radio-electric licensing of the land satellite stations to be used, except in those cases foreseen by law;
b. To notify ICP of the change in operator of the satellite networks supporting the services they offer.
CHAPTER IV
Inspection and Penalties
Article 18
Inspection
1. It shall fall upon ICP to inspect compliance with that set out in the present Regulation, by means of its employees mandated for this purpose or other agents duly accredited by ICP's Board of Administration.
2. The employees and agents referred to in the previous point shall be obliged not to divulge any information or data which has come to their knowledge when exercising their functions and which constitute commercial or industrial secrecy
Article 19
Non-compliance
Where the obligations foreseen in the present Regulation are not complied with, the system foreseen in article 32 of Decree-Law no. 381-A/97, of 30 December, shall be applied.
Article 20
Punishable offences and fines
1. The following shall constitute punishable offences:
a. The providing of public use telecommunication services by unregistered and or unlicensed entities;
b. The violation of the obligations foreseen in point 2 of article 4, point 4 of article 5, articles 6 to 8, points 2 and 3 of article 11, article 12, articles 15 and 16, and point 2 of article 17.
2. The offences foreseen in the previous point shall be punishable by a fine of PTE 100,000 to PTE 750,000 and of PTE 1,000,000 to PTE 9,000,000, for offences committed by individual or collective persons, respectively.
3. Of the offences foreseen in the present diploma, attempt and negligence shall also be punishable.
Article 21
Fine processing and application
1. It shall fall upon the Chairman of ICP's Board of Administration to apply the fines foreseen in the present Regulation.
2. It shall fall upon ICP to institute and prepare the process.
3. 60% of the amount derived from the fines shall revert to the State, and 40% to ICP.
4. ICP may adequately publicise the penalties applied to the punishable offences.
CHAPTER V
Final provision
Article 22
Additional Legislation
The provisions in Decree-Law no. 381-A/97, of 30 December, shall be applied, with due adaptations, to those cases not foreseen in the present Regulation.
Seen and approved by the Cabinet on 29 April 1999 - Antonio Manuel de Oliveira Guterres - Antonio Carlos dos Santos - Joao Cardona Gomes Cravinho - Jose Socrates Carvalho Pinto de Sousa.
Enacted in Ponta Delgada, Azores on 20 July 1999.
Let this be published.
The President of the Republic, JORGE SAMPAIO.
Countersigned on 22 July 1999.
The Prime Minister, Antonio Manuel de Oliveira Guterres.
