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Sectorial Reports Communications in Portugal
Digital Audio Broadcasting - Radio in Portugal
Main Legislation
The broadband market in Portugal - Internet Services The Sector Overview ANACOM is the regulator, supervisor and representative of the communications and postal communications sector in Portugal. ANACOM is thus the regulatory authority for postal communications and electronic communications, in accordance with the base law for postal services, article 18 of Law no. 102/99 of 26 July, and also the law for electronic communications, articles 4 and 5 of Law no. 5/2004, of 10 February. ANACOM is endowed with the following responsibilities:
Throughout 2005, ANACOM implemented a wide range of regulatory measures. The regulator’s intervention in 2005 was guided by two main purposes: the reinforcement of competitive conditions and the reduction of some of the prices paid by the consumer, which were unbalanced with European average standards. The main vulnerabilities of the telecommunications sector are the following: mobile termination rates are still too high, focusing that for the regulator, mobile telephony should not be subsidised by fixed-to-mobile calls; there is a low level of competition in the local network (due to financial difficulties of operators) and in leased lines (a segment where high prices are combined with poor service quality and slow delivery times); a commercial offer of the local loop is not available; and finally, Portugal Telecom's cost accounting system needs to be improved, in order to establish the principle of cost orientation. The communications sector in Portugal is organised into the following areas:
Main providers Fixed Telephone (FTS)
AR Telecom - Acessos e Redes de Telecomunicações, SA CABOVISÃO - Sociedade de Televisão por Cabo, SA. COLT Telecom - Serviços de Telecomunicações, Unipessoal, Lda. EQUANT PORTUGAL, SA. G9SA - Telecomunicações, SA. NETVOICE - Comunicações e Sistemas, Lda. NOVIS TELECOM, SA. ONITELECOM - Infocomunicações, SA. PT Comunicações, SA. PT Prime - Soluções Empresariais Telecomunicações e Sistemas, SA. REFER TELECOM - Serviços de Telecomunicações, SA. TeleMilénio - Telecomunicações, Sociedade Unipessoal, Lda. (TELE 2) TMN - Telecomunicações Móveis Nacionais, SA. VODAFONE PORTUGAL - Comunicações Pessoais, SA. Mobile Services (MTS) UMTS (3G) Trunking service Internet services Internet service (with ADSL access) Internet service (with cable modem access) Telephone Service at a Fixed Location and Universal Service Fixed telephone service remains of significant importance in any society. It is historically connected to the universal service, which integrates the minimum set of services available for all users.
Law no. 29/2002, of 6 of December is First amendment to Law no. 91/97, of 1 of August (which sets out the general basis for the establishment, management and operation of telecommunications networks and the provision of telecommunications services). Articles 8 and 12 of Law no. 91/97, of 1 of August have been amended stating now that the concept of universal service must evolve to keep pace with advances in technology, market development and changes in user demand, its scope being altered where justified by the mentioned advances The basic telecommunications network is made up by the fixed subscriber access system, the transmission network and the concentration, switching or processing nodes, when allocated to the provision of the telecommunications universal service. The basic telecommunications network shall ensure the provision of the universal service, safeguarding to this effect the security of network operations, the maintenance of network integrity and the permanent operability of services. The entities offering the fixed telephony services have been licensed by ANACOM and are the following (October 2005): Indirect Access Providers (October 2005) Novis Telecom, S.A.
REFERTELECOM - Serviços de Telecomunicações, S.A PT - Comunicações, S.A. PT Prime - Soluções Empresariais de Telecomunicações e Sistemas, S.A. NetVoice - Comunicações e Sistemas, S.A. Broadnet Portugal, S.A. AR Telecom - Acessos e Redes de Telecomunicações, SA LISVOICE SYSTEMS - Comunicações Digitais, S.A. ADIANIS - Telecomunicações e Multimédia, S.A. Media Capital Telecomunicações, S.A. G9SA - Telecomunicações, S.A. ONITelecom - Infocomunicações, S.A. BT Portugal - Telecomunicações, Unipessoal, Lda. TELSOCOMM - Telecomunicações, Marketing e Informática, LDA. Equant Portugal, S.A. NEUVEX - Telecomunicações, Marketing e Informática, LDA Telemilénio - Telecomunicações, Sociedade Unipessoal, Lda. COLT Telecom - Serviços de Telecomunicações, Unipessoal, LdA. CABOVISÃO - Sociedade de Televisão por Cabo, S.A Vodafone Portugal - Comunicações Pessoais, S.A. Optimus - Telecomunicações, SA RADIOMÓVEL - Telecomunicações, SA TMN - Telecomunicações Móveis Nacionais, SA There is a direct relationship between the Regulations for the Operation of FTS and the regime applicable to the universal service of telecommunications as approved by Decree-Law no. 458/99, of November 5. As a result, the universal service currently includes the following services: access to the fixed telephony service (supporting voice, fax and data transmission communications) to all users who request such access; Provision of public pay-phones; and provision of telephone directories and directory enquiries services (which includes the telephone numbers of subscribers to the FTS and the mobile telephone service). Nonetheless, the concept of universal service must evolve to keep pace with advances in technology, market development and changes in user demand. The scope of universal service will be modified whenever this is justified by such evolution.
Electronic Communications Networks The Law no. 5/2004, of 10 of February establishes the legal regime applicable to the electronic communications networks and services and associated services and defines the assignments of the national regulatory authority in this field, in the scope of the transposition of Directives nos. 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC, all of the European Parliament and of the Council of 7 March 2002, and of Directive 2002/77/EC of the Council of 16 September.
It is incumbent upon the NRA to perform the regulatory, supervising, monitoring and sanction functions provided for in the present law, in accordance with the assignments thereof. The regulatory objectives of electronic communications, to be pursued by the NRA are the following: a) To promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services; It is incumbent upon the NRA to adopt all the necessary, reasonable and proportionate measures to ensure that any undertaking is entitled to provide electronic communications services or to establish, extend or provide electronic communications networks, to publish annually the National Frequency Allocation Plan (NFAP), which shall comprise: the frequency bands and number of channels already allocated to undertakings providing publicly available electronic communications networks and services, including the date of allocation revision. Undertakings and rights of use Undertakings that wish to provide electronic communications networks and services are bound to submit previously to the NRA a short description of the network or service they wish to initiate and to notify an estimated date for starting the activity, submitting also the minimal information required to allow their full identification, on terms to be defined by the NRA (Article 21, Law no. 5/2004)
Undertakings referred to in paragraph 1 shall obtain evidence of the notification, via any legal means of acknowledgement of receipt, namely postal or electronic. Following the notification, undertakings may begin activity immediately, subject to the limitations resulting from the allocation of rights of use of frequencies and numbers. It is incumbent upon the NRA, within 5 days from the receipt of notification, to issue a declaration confirming its submission, describing in particular the rights in matters of access and interconnection and of instalment of resources provided. The rights of use for frequencies may be granted to providers of electronic communication networks or services or to entities that use those networks or services, namely to providers of radio or television broadcast content services, pursuant to applicable law. The rights of use are subject to some conditions described in article 32. To view to full legislation please click here Portability Number portability is the function that allows subscribers of public telephone services requesting it to keep the same number or numbers, for the same service, regardless of the company that provides it on a given location (the case with geographical numbers) and on the whole of the national territory (remaining numbers). Change is only possible within the same service. i.e., it is possible to change fixed telephone service provider and keep the same number, it is possible to change mobile telephone service provider and keep the same number and it is also possible to change non-geographical service provider (e.g.: 800 numbers) and keep the same number. However, it is not possible, for example, to carry a number from a fixed telephone service provider to a mobile telephone service provider or the other way around.
Portability has been available on fixed networks since 30 July 2001 and on mobile networks since 1 July 2002. The use of this function has been growing, with a total 307,302 portable numbers by the end of October 2005, of which 239,478 are fixed telephone service numbers, 67,491 belong to the mobile telephone service and 333 are numbers of non-geographical services. With the purpose of answering consumers’ legitimate interests in the scope of this function, ANACOM has decided the following: Since 30 June 2003, every time mobile network users make a national voice call to a portable number of another mobile network, they hear a free notice informing them of the new network of the called number. After 2 September 2005 – i.e., 10 working days after the publication of the Portability Regulation - the content of this notice should be as follows: “Warning: You are calling a subscriber that now belongs to […]. Please hold” (this information is provided in Portuguese). Should the callers want their mobile operator to inhibit the hearing of this notice, which should be made by their operator on a free basis and whenever technically feasible, they can ask their operator to inhibit it. According do the mentioned Portability Regulation, as from 1 January 2006 all mobile operators have the duty to inhibit this notice whenever asked to by the calling subscriber. Thus, there will no longer be any constraints to the mentioned technical feasibility. Should operators of the fixed telephone service and of the mobile telephone service have tariff plans that might imply that a call to a portable number is more expensive than before portability, they must maintain an information telephone service regarding the price of voice calls, data calls and short messages to portable numbers. According to the data received at ANACOM, the following information services are currently offered by the providers covered by the Portability Regulation (updated on 18 September 2003): Providers - Access numbers to the information service Mobile Networks and Services
The mobile services market in Portugal has experienced unprecedented growth.
The current mobile service operators are as follows; OPTIMUS - Telecomunicações, SA RADIOMÓVEL - Telecomunicações, S.A.
Fixed Telephone Network Operator Fixed Telephone Service Provider Resale service of telephone voice traffic Voice Transport Services in Closed User Groups Internet Service Provider (ISP) Data Transmission Provider Voice over Internet Service Virtual private networks services provider Virtual Private Network – VPN Trunking Provider Address: Sintra Business Park Edifício 9 - Abrunheira 2710 - 089 Sintra E-mail: mkt.ct@radiomovel.pt Website: www.radiomovel.pt REPART - Sistemas de Comunicação de Recursos Partilhados, SA TMN - Telecomunicações Móveis Nacionais, SA VODAFONE PORTUGAL - Comunicações Pessoais, S.A. Subscribers Penetration Rate Voice and SMS Traffic Portability Television At the moment there are three public television channels. Two of them use Portugal Telecom’s (the incumbent operator) broadcasting infrastructure; another has its own transmission network. The incumbent’s tariffs are supervised by the NRA (ANACOM) and the competition authority (DGCC) and are required to be cost oriented. The public tender for the granting of a licence for the Digital Terrestrial Television (DTT) network operator, was launched on 6 April 2001 (Administrative Rule No. 346/2001), with a single licence awarded to the consortium PTDP - Plataforma de Televisão Digital Portuguesa, S.A. The cable distribution network licence allows the operator to transmit third-party television programmes. Main Players RTP - Radiodifusão Portuguesa, S.A.
SIC - Sociedade Independente de Televisão, S.A TVI - Televisão Independente, S.A. Cable Distribution Service Providers
Associação de Moradores de Almancil (Network not accessible to public) BRAGATEL - Companhia de Televisão por Cabo de Braga, SA. CABO TV AÇOREANA, SA. CABO TV MADEIRENSE, SA. CABOVISÃO - Sociedade de Televisão por Cabo, SA. CATVP - TV Cabo Portugal, SA. ENTRÓNICA - Serviços na Área de Telecomunicações, Lda. PLURICANAL LEIRIA - Televisão por Cabo, SA. PLURICANAL SANTARÉM - Televisão por Cabo, SA. TVTEL GRANDE PORTO - Comunicações, SA. DTH Distribution Service Providers Satellite operators: TV Cabo (Portugal Telecom+Via Digital) Legislation and complementary measures
Digital Television Television is about to undergo the most profound revolution to date. The switch from analogue to digital television, will transform the domestic TV set into a gateway to the Information Society. As broadcasting converges with the telecommunications and computing sectors, new operators will enter the business, and new regulatory models will evolve in response to the multi-channel, multi-platform universe. The advent of digital terrestrial television is particularly important, given the access of terrestrial broadcasting to the mass market. Alternative delivery mechanisms - cable, satellite and the internet - will, however, increasingly compete with terrestrial broadcasting, and subscription-based pay-TV channels will intensify their competition with free-to-air channels. Digital television has been mainly ensured by three types of supports: cable, satellite and terrestrial broadcasting (the latter is still not available in Portugal). More recently, other systems have emerged, such as, among others, systems based on asymmetric digital subscriber lines – ADSL – or on fibre-to-the home – FTTH, which are founded respectively in telephone service pair copper lines and in optic fibre to the home, both of which are in line as possible alternatives in the short and medium term. The Digital Terrestrial Television (DTT) uses the radio spectrum as a means of transmission. In view of the current analogue systems, DTT provides a far more efficient use and, therefore, considerable savings of the radio spectrum. There is thus a possibility that the spectrum may be used in other types of electronic communication services, or even for the increase of the television offer itself (at the level of the number of programs), reinforcement of the quality thereof (for example, high definition television) and introduction of new features (at the mobility and interactivity levels). The European Commission has stimulated the introduction of the digital television, namely, through the transition from analogue to digital radio broadcasting. In this context, and according to the eEurope Action Plan, State Members had to publish, up to the end of 2003, their intentions concerning the switchover policy (deactivation of the analogue system). The Commission has also stimulated these matters through its action as regards standardisation and interoperability. The launching of DTT and subsequent termination of the respective analogue service thus represent a technological, social and economic inevitability, allowing the release of the radio spectrum resources and, therefore, enabling an optimisation of its use, through the creation of new offers. Pursuant to Law no. 32/2003, of 22 August, television means the “organisation of programme services in the form of non-permanent images and sounds broadcast by means of electromagnetic waves or any other appropriate vehicle over the air, or by wire and able to be received by the general public, excluding telecommunication services available only upon individual request”. Television signals (images and sounds) are thus delivered to a broadcaster that transmits them through a means of dissemination to be detected by several receivers. Over decades, this dissemination was based in analogue technology over space (satellite and terrestrial television broadcasting) or achieved through a mixed network of fibre-optic and coaxial cable. Technological development has provided new and more effective means for the recording, storing and processing of electric signals and the possibility of the transmission thereof in a digital format, rather than analogue. The application of this concept to the transmission of television signals has been known as digital television. In practice, the sounds and images detected by a television camera are turned into a series of bits, which are input in a broadcaster, and thereafter transmitted at a distance, in digital format, to receivers. These receivers, through a set top box, carry out the conversion of the sounds and images so that they are perceptible to our senses. Nowadays, there are already television sets with built in receivers (integrated digital television), thereby enabling the access to digital television, without requiring a set top box. The processing and transmission of signals over a digital format present several advantages with regards to the analogue format, namely:
The aforementioned advantages enable television operators to provide more and better services to their clients. As a consequence, television tends to become an open door for the multiplication of offers, comprising, in addition to the conventional services of its early years, a myriad other services, including those concerning telecommunications or the information society. Therefore, the transition from analogue television to the digital format represents a deep transformation which involves, more than a simple technological evolution, a true revolution, with implications at several levels, symbolising an important step towards the emergence of the information society, and transforming the television into a privileged channel to the digital world, accessible to citizens in general. Technical standards for television broadcasting by terrestrial, cable or satellite transmission - Administrative Rule no. 711/98, of 8 of September Digital Television Mission Unit (DTMU) The DTMU aims at creating the necessary conditions for the elimination of possible obstacles to the effective development of and mass resort to digital television in Portugal – and the consequent migration/deactivation of the current analogue systems – in a sustained and balanced way, minimising possible asymmetries and maximising benefits for all economic agents, consumers in particular, based on a diversified offer (at the level of services, access to technological platforms and equipment) of quality, economically reasonable and accessible to the general population. The DTMU is structured as follows: Head Executive Office – Resp.: Mário Freitas
Process Coordination – Resp.: Paulo Serra Spectrum and Networks – Resp.: Miguel Henriques Technology and Equipments – Resp.: Jaques Afonso Market – Consumers – Resp.: Coelho da Silva Regulation – Resp.: Sara Silva Consultancy – Tavares da Silva Cable television Cable TV services were launched in 1994, first by Bragatel, then Cabovisão and then TV Cabo. TV Cabo is a full subsidiary of Portugal Telecom Multimedia (PT) the incumbent telecommunications group. Amongst the active cable companies TV Cabo is the dominant player, with 1.6 million clients and a market quota of 85%. Other cable companies include Bragatel, Cabo TV Madeirense, Cabovisão, Pluricanal, etc.
The shift of major sporting events from FTA to pay TV in 1998 created political pressure to achieve a nation-wide availability of pay TV, so that every Portuguese household could have access to major sporting events and other programmes without constraints. Considering that high density urban areas where already cabled, TV Cabo chose to launch a satellite-based digital pay TV service, namely to connect lower density areas. These were first offered by TV Cabo in September 1998 via the Hispasat in co-operation with Spanish telecommunications platform Vía Digital. TV Cabo uses the same CA and API as Vía Digital (respectively, Nagravision and Open TV). In November 1999, TV Cabo launched NetCabo, the first broadband internet access via cable modem in Portugal. This service provides internet access to high-end customers with speeds up to 640 Kbps. In March 2005, Netcabo had approximately 336,000 subscribers. In addition, the company offers several premium channels, and a new service named Funtastic Life with a selection of information, entertainment, films and series channels Distribution Networks Percentage of Cabled Households and Subscribers by NUTS II - 2Q05
Some 39.8% of cabled households subscribed to cable television distribution service at the end of 2005, for growth of 0.5 percentage points over the previous quarter. The percentage of service subscribers vis-à-vis the Portuguese population stood at 14%.
Cabled Households
During 2005 the number of cabled households stood at 3.69 million, 1% more than in the previous quarter. There was also positive evolution in year-on-year terms, with 3.5% more cabled houses counted than in the same period of the previous year. In absolute terms, these percentages correspond to 35,000 more cabled houses than in the previous quarter and 125,000 more than in the same quarter of 2004. In this quarter, the number of cabled households in the autonomous regions of Madeira and the Azores remained practically unchanged. In the Central and Algarve regions this indicator rose by 1.6%. The most significant year-on-year growth was recorded in the Algarve (+5,1%). Since 2004, there have been no changes in the distribution of cabled households in the various regions, with the Lisbon region continuing to concentrate most cabled households (47%).
Cable Television Service Subscribers Distribution of Subscribers by NUTS II - 2Q05
DTH Television Service Subscribers Distribution of DTH Subscribers by NUTS II - 1Q05
Digital Audio Broadcasting - Radio in Portugal
Main players The main players in this sector are the following as per information dated 7 October 2005 VHF (Frequency Modulation)
Local Operators AM (Medium Wave)
T-DAB (Terrestrial Digital Audio Broadcasting): As for T-DAB, only one licence of national scope has already been granted. One of the objectives is to ensuring global territorial coverage, and the other to ensure 14 regional area receive coverage (as specified in the licence regulation approved by Administrative Rule nr. 470-B/98 of July 31). Only one licence was granted.
Digital Switchover policy The "target" switch-off date is set for 2007, but to be re-evaluated during the switchover period. A penetration criterion prior to turn-off will be set, with no decision on the re-use of spectrum released by analogue TV, but the issue is being studied. After ATO, a large amount of spectrum will be used to upgrade the capacity of digital networks (including the return channel) and to develop other networks that cannot be implemented due to the scarcity of frequencies.
Legislation
This statutory instrument provides, under article 20, that the installation of radio communication stations and respective accessories shall be subject not only to the legal consent of owners of urban or rural buildings but also to the approval procedures required by law, namely those within the competence of the local authorities, the restrictions to that installation being provided under article 21.
Under article 22, it is established that the competent authorities shall be responsible for the setting of reference levels for the purpose of assessment of the exposure to electromagnetic fields emitted by radio communication stations. With regard to the fact that these reference levels have not been settled hitherto, the Instituto das Comunicações de Portugal – Autoridade Nacional de Comunicações (ICP - ANACOM) has adopted, by determination of 6 April 2001, the reference levels provided in the Council Recommendation n.º 1999/519/EC of 12 July 1999, which have been applied, as a technical parameter, to every radio-communication station installed subsequently. However, the procedure as to the approval from the municipality concerning the installation of support infrastructures for radio-communication stations and respective accessories has not yet been regulated, and likewise the constraints regarding the protection of the environment, the cultural heritage and the urban and rural landscape, as well as the territorial planning have not been stipulated. Moreover, there continues to be no legal standard establishing the reference levels for the purpose of assessment of the exposure to electromagnetic fields (0 Hz to 300 Hz) as well as the respective monitoring and measurement procedures. In view not only of the eminently transitory and limited nature of the determination of ICP – ANACOM but also of the increasingly pressing need to ensure the security and trust of populations, the Government hereby intends to provide the mechanisms for the setting of reference levels on exposure of the general public to electromagnetic fields (0 Hz to 300 Hz). ICP – ANACOM is assigned the competence to establish the procedures concerning the monitoring of the intensity levels of the electromagnetic fields. This statutory instrument wishes to meet the legislative blank regarding the approval from the municipality for the installation and functioning of the support infrastructures for radio communication stations, with regard to their atypical and specific nature and the need to standardise the action of municipalities in this issue, in order to expedite the whole procedure, characteristics which are fundamental for the compliance with obligations relating to the provision of the service by mobile telecommunications operators. Thus, it is clear that the intervention of the municipality concerning the protection of the environment, the cultural heritage and the urban and rural landscape, as well as the territorial planning, does not conflict with the respect for the imperative need to encourage and support the pursuit and promotion of the information society development, and especially of the public service improved by the telecommunications sector. To view the full diploma please - click here
Licences
The use of radio communications networks and stations shall be subject to the possession of a licence, in accordance with the provisions of this decree-law.
The ICP shall be responsible for the granting of the licences referred to in the preceding number. The ICP shall have the power to authorise the use of the radio spectrum for the conduct of technical trials and scientific studies, on a case-by-case basis, without the need for a licence. Full legislation on Notice of 10.7.2003, published on 23 of July E-commerce
The revolution of information technologies and their widespread dissemination on the internet over the last decade have led to an unprecedented development of electronic commerce, making it one of the pillars of the information society.
ANACOM plays an important role in this domain, for which it has been, designated the central supervisory authority, and with powers in all areas regulated therein, a function added to its position as the national regulatory authority for electronic communications and postal services. In this context, new duties with respect to regulation, supervision, disputes and information will fall upon ANACOM. The use of expressions such as ‘electronic commerce’, ‘digital money’, ‘online transactions’ and ‘online banking’, etc., is increasingly common nowadays. They correspond to practices that mark contemporary society and which have changed the way we organise our lives and manage our businesses. From the time the first computer networks appeared until the launch of electronic mail in 1971, the web in 1991, browsers in 1993 and the popular online services in 1995, the internet has changed the way millions of people handle their personal and professional lives. For the economy, the internet has changed traditional relationships between buyers and sellers, providing new models for purchasing, sales and the provision of services to customers. Although companies had adopted electronic commerce as far back as the early 1970s, using systems based on EDI (Electronic Data Interchange) technology, it was the internet, more specifically the web that strongly boosted its development, making it one of the main aspects of the digital revolution now affecting contemporary societies. Electronic commerce can be defined as comprising transactions of goods and services between computers via computer networks, in respect of which payment and/or delivery of the products in question is not necessarily carried out by electronic means. According to this definition, two distinct activities may be identified in electronic commerce: one direct, the other indirect. In direct electronic commerce the payment and delivery of the products and services ordered is done online, while in indirect electronic commerce products and services are ordered by electronic means but, due to their nature, continue to be subject to physical delivery, using traditional distribution channels for this purpose. Contrary to the direct activity, indirect electronic commerce does not allow the exploitation of the full potential of global electronic markets. To better enjoy its advantages, the existence of efficient international distribution channels is necessary, in a sufficient number to assure delivery of those products. According to the electronic commerce classification based on the type of players involved in the transactions, four main kinds of electronic commerce are recognised: Business-to-Business (B2B)
Although B2B commerce has been practised for several decades, specifically by means of EDI technology, the B2B model has only begun to stimulate new forms of business co-operation by recourse to the most recent available technologies, enhancing companies’ competitiveness and helping them to successfully meet the new challenges of globalisation. Business-to-Consumer (B2C) Business-to-Administration (B2A) Consumer-to-Administration (C2A) Main Legislation Electronic commerce This statutory instrument aims mainly at transposing Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000. The directive on electronic commerce, notwithstanding the designation, does not regulate electronic commerce to the full extent: wide areas are left open, either because they are part of the contents of other directives, or because they were not deemed to be sufficiently consolidated for a Community harmonisation or rather because such harmonisation is not required. On the other hand, it governs issues such as contracts concluded by electronic means, the regulation of which only makes sense as a matter under ordinary law and not just under commercial law. In the task of transposing, the legislator opted to put aside more wide and ambitious solutions for the regulation of the sector under consideration, and adopted an instrument of which the scope is mainly that of the directive. Even so, the opportunity was taken, in addition, to address some issues not governed by the directive, which required regulation in the Portuguese legal order. The transposition presents the difficulty of reconciling neutral categories that are peculiar to a directive, which consists of a concentrate of different legal systems, with the frameworks in force in our legal order. The conciliation between the compliance with the directive and the integration in the Portuguese categories was taken as far as possible, so that the implemented ruling is understandable to recipients. The directive’s own systematisation is thus altered and the concepts meet, where possible, the correspondent frameworks of the Portuguese law. The directive assumes contents of previous directives. Particularly important is the directive on contracts concluded at a distance, which has been already transposed to the Portuguese law by Decree-law no. 143/2001 of 26 April. It seems to be illustrative to declare explicitly the supplementary nature of the respective transposition instrument. The same can be said with regard to the directive concerning the distance marketing of consumer financial services, the transposition of which is currently under way. One of the main purposes of the directive is to ensure the exercise of the freedom of establishment and the freedom to provide information society services in the European Union, despite the limitations laid out. The scheme adopted consists in making service providers subject to the legal order of the Member State where they are established. This was thus provided for, clarifying as mush as possible concepts that are expressed in general terms, though somewhat imprecise, such as “information society service”. This is understood as any service provided at a distance by electronic means, in the scope of an economic activity at the individual request of a recipient of services – which excludes sound or television broadcasting. Recital 57 of Directive 2000/31/EC recalls that “the Court of Justice has consistently held that a Member State retains the right to take measures against a service provider that is established in another Member State but directs all or most of his activity to the territory of the first Member State if the choice of establishment was made with a view to evading the legislation that would have applied to the provider had he been established on the territory of the first Member State”. Another strong purpose of this directive is to determine the liability regime of intermediary service providers. The legislator aims more specifically at establishing the conditions of irresponsibility of these providers with regard to the possible illegal contents of messages they render available. The first step is to declare the absence of a general obligation on the part of the intermediary service provider to monitor the information that they transmit or store, or to which they provide access. A list of the common duties of all intermediary service providers is also presented. The legislator has followed the ruling of the specific liability regime of the activities provided by the directive itself: “mere conduit”, “caching” and “hosting”. The opportunity was taken to provide also for the situation of intermediary providers of network content association services (such as search engines and hyperlinks), which assimilates the regime established for providers of hosting services. The resource to schemes for the provisional settlement of disputes that arise regarding the lawfulness of contents available on the network is introduced, with regard to the urgent nature that a settlement prima facie may present. This task is assigned to the respective supervision entity, without prejudice to the final decision of the dispute, which shall be a court decision. The directive also regulates the so-called commercial communications. It seems preferable to consider “network advertising communications”, bearing in mind that only the advertising activity is concerned. In this scope the issue of unsolicited communications arises, left open to a wide extent by the directive. The approval in the meantime of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the transposition of which is yet to be accomplished, was taken into account. Article 13 of this directive concerns unsolicited communications, establishing that messaging for the purposes of direct marketing are only authorised with regard to recipients who have given their prior consent. The system established is inspired thereupon. Within this context, this statutory instrument also represents the partial transposition of that directive as far as article 13 (unsolicited communications) is concerned. Electronic contracts Another very critical issue is that of the moment of conclusion of the contract. The directive does not rule it, as it does not aim to harmonise civil law. Member States have taken very different positions. The legal significance of the acknowledgement of receipt is under consideration, here in particular, as it may be deemed or not as acceptance. The last position mentioned is adopted, being that of the majority, as the acknowledgement of receipt is intended to ensure the effectiveness of the electronic communication only, rather than to express a negotiating position. Nonetheless, it is also clarified that the online provision of products or services is deemed as a contract offer or invitation to treat, whether it includes or not all the necessary particulars for the contract to be concluded through the mere acceptance of the recipient. The legislator aims also at regulating the conclusion of contracts by means of computers, that is, the fully automatic conclusion of contracts, without human intervention. It is established that to such contracts shall apply the common regime, except in cases where such regime suggests an action (human action). The framework for the application of the provisions on mistake is also determined. With regard to the fact that the directive provides for the use of schemes for the out-of-court settlement of disputes, including through the adequate electronic channels, the legislator had to find the appropriate way to transpose this principle. The several functions assigned to public entities advise the option for supervision entities. Where the responsibility is not upon special entities, an entity of central supervision shall operate: this task is performed by ICP-ANACOM. Supervision entities have functions in the fields of the investigation of breach proceedings, which are provided for, as well as to apply the respective fines. The amount of the fines is set at very broad limits, in order to be discouraging, but at the same time, to adapt to the variety of situations that may arise. Additional sanctions may be associated to the breaches; however, the more serious additional sanctions shall be confirmed by court order, on the supervision entity’s own motion. Provisional measures are provided for, and are to be applied by the responsible supervision entity, which may determine, modify or lift them at any moment. Lastly, this statutory instrument intends also to allow the resource to schemes for the out-of-court settlement of disputes that arise in this field, avoiding impediments brought forth by general legislation, namely to the settlement of such disputes by electronic means. The following entities were consulted: the National Committee for Data Protection, ICP-ANACOM, the Bank of Portugal, the Portuguese Securities Market Commission, the Insurance Institute of Portugal, the Innovation and Knowledge Mission Unit, the Consumer Institute, the Portuguese Association of Consumer Protection, the Portuguese Phonographic Association and the Portuguese Society of Authors. To view the full diploma - click here Legal rules governing electronic documents and signatures The Decree-Law no. 62/2003, of 3 of April aims to align the legal regime for digital signatures established in Decree-Law no. 290-D/99 of 2 August to Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999, on a Community framework for electronic signatures.
In compliance with the above-mentioned directive and the recent legislative developments in Member States of the European Union, a technologically neutral terminology is used. The references that reflected an option for the prevailing technological model, digital signatures produced through cryptographic techniques, are thus deleted. The words “digital signature” are replaced, as appropriate, by “qualified electronic signature” or “qualified electronic signature certified by an accredited certified entity”. References made to “private keys” are replaced by “signature creation data” and references to “public keys” by “signature verification data”. This decree-law establishes three modalities for electronic signatures: the electronic signature, the advanced electronic signature and the qualified electronic signature, which correspond to different levels of security and reliability. Accordingly, new definitions are introduced in article 2, and duties of certifying entities that issue qualified certificates are reinforced. The assessment and certification of the compliance of electronic signature products used for the provision of services regarding qualified electronic signatures by a certified entity or for the creation or verification of qualified electronic signatures is assigned to certification bodies. Moreover, in order to ensure a better and larger supervision of these entities by certificate holders and third parties, a register of the accrediting authority is created, which, though it is to be considered as having no more than a declaratory value, is compulsory for certifying entities issuing qualified certificates. The possibility of certifying entities that issue electronic signatures deemed to be specially secure and reliable, the qualified electronic signatures, requesting the accreditation thereof to the accrediting authority, is retained. Qualified electronic signatures issued by an accredited certified entity are of an equivalent evidential value to that of a private signed document, pursuant to article 376 of the Civil Code, whereas the remaining electronic signature modalities are to be taken into consideration freely in court. The regime applicable to electronic signatures of legal persons is clarified in the sense that it is clearly stated the legal persons may hold a signature creation device. However, this decree-law does not establish, as far as the representation of legal persons is concerned, a regime different from the one resulting from the provisions governing this issue. Within the adopted position of technology neutrality regarding the law, it is incumbent upon the certifying entity to assess if the signature ensures the intervention of the natural persons who, under the law or bylaws, represent the legal person. The provisions as to certificates of other States are likewise amended, so as to ensure a free flow of electronic signature products within the internal market. To view the full diploma please - click here Domain name registration
New rules have recently been published by the entity responsible for registration of domain names in Portugal, the FCCN (Fundação para a Computação Científica Nacional). The new rules have been in effect since 5 February 2001. One of the innovations is the creation of sub-domains. The sub-domains are not compulsory as applicants may register domain names directly under .pt or under the sub-domains: .net.pt, .gov.pt, .org.pt, .edu.pt, .int.pt, .publ.pt, .com.pt, and .nome.pt.
Rules applicable to domain names registered under .pt
Five types of entity may register domain names under .pt: legal persons, public entities, individual merchants, professionals and trademark holders. The last two types of entity were introduced by the new rules. The significance of the eligibility of trademark holders is significant. According to the old rules, foreign entities were obliged to establish a local presence and register with the tax authorities in order to be able to register a domain name.
This is no longer the case. A foreign entity that holds a trademark may now register a domain name in Portugal without the need for the establishment of a local presence in Portugal. In this situation the trademark must be protected in Portugal (national, community or international trademark) and the domain name must correspond to the nominative elements of the trademark. The names registered under the .pt domain must correspond either to the name of the applicant entity or correspond to a trademark held by the applicant. The applicant may be the holder of the trademark or an entity authorised to use the trademark for the purpose of registering a domain name. When the domain name corresponds to a trademark the rules contain two conditions. The first condition is that the domain name must not correspond to a name that may create any confusion as to the ownership of the name, for example because it coincides with well known trademarks or trademarks with reputation that belong to third parties. The second condition is that the name may not be composed of expressions that do not have a distinctive character, because they designate the species, quality, quantity, purpose, value, geographic origin or production time if the goods or services, or other characteristics of the goods or services.
The broadband market in Portugal Internet Services
The last year of ANACOM’s activity was marked by an increase of the regulatory action in the scope of the broadband market, with emphasis on the alterations in the “ADSL PT Network” wholesale offers and the Reference Unbundling Offer (RUO), and on the definition of broadband markets, which for the first time include the access over the cable distribution network.
ANACOM intervened in the scope of the “ADSL PT Network” wholesale offers, compelling PT Comunicações to provide a higher number of access points, and more appropriate ones, thus enabling alternative operators to use the available resources more efficiently and making possible an increased flexibility with regards to the definition of retail offer conditions, namely concerning high speed local access, contention ratio as well as other elements such as quality of service. The ATM access at regional and national level was introduced, and several classes of service and new classes of local access were made available. Some prices regarding this offer were also decreased, with regard to the principle of cost orientation of prices as well as the coherence between the RUO, the ATM and IP interconnection and the retail offers of the PT Group.
The intervention of ANACOM regarding the provision of a class of service of 2 Mbps within the “ADSL PT Network” wholesale offer was also reflected at the level of the maximum high speed provided to the final client, in view of which subsequent offers of 4 Mbps, 8 Mbps and 16 Mbps were launched, supported both in the LLU and in the “ADSL PT Network” offer.
In the scope of the RUO, the intervention of ANACOM concentrated mainly on the reduction of the maximum time limits associated to the supply of active and non-active loops and the decrease of prices of services provided within that offer (including the signal transport service), aiming to ensure coherent conditions between the different wholesale and retail offers of the PT Group.
In the scope of market assessments carried out, the wholesale supply of broadband access, including broadband access services supported over the public switched telephone network and also the cable distribution networks, was identified as relevant market, and the undertakings of the PT Group operating in the market under consideration were identified as significant market power operators. As far as imposed obligations are concerned, the non-discrimination obligation and the price control obligation (through the retail-minus rule) should be highlighted, such obligations providing that the “ADSL PT Network” wholesale offer shall enable alternative operators to reply and compete (with an appropriate return level) with the retail offers of broadband internet access provided by the PT Group, regardless of the technology used. According to the defined schedule for the process of market assessment, the public consultation and draft decision concerning this market were pursued in November 2004, and the final determination is expected to be issued in the course of May 2005.
ANACOM intends to ensure the existence of several additional wholesale offers, coherent between them (IP, ATM and LLU), which demand different levels of investment on the part of competitive operators, and, in compensation, enable different levels of differentiation of offers provided to end-users. To this extent, the regulatory action shall enable the development of a higher level of competition and the diversification of services provided, and shall also promote an efficient investment of those operators, upgrading at the same time the existing infrastructures and ensuring that end-users derive the maximum benefit in terms of choice, price and quality.
To this end, ANACOM’s action has shown a gradual approach, in the light of the new regulatory framework, favouring the promotion of competition in the market of electronic communications, having due regard to the proportional nature of its measures. By means of coherence between the wholesale prices of different offers, alternative operators are given the opportunity to climb the “investment ladder”. Alternative operators may opt for migrating from one form of access to a higher level, through the investment in their own infrastructures, and subsequently, by adding value to their offers as they go up the value chain.
The regulatory action in the broadband market – in parallel, naturally, with the initiatives of the different market operators and initiatives of other public entities – has presented the opportunity for the development and growth of that market. The coverage expansion of wholesale offers (both the “ADSL PT Network” offer and the LLU) has contributed, among other factors, towards the increase of broadband penetration.
ANACOM takes the view that, following a stage of relatively intense regulatory activity, there are conditions for a higher level of competition in the broadband market, with expected results in the provision of more and better services, at better prices for consumers, which shall contribute towards the increase of the adoption of broadband access services. ANACOM shall continue monitoring closely the broadband market, with a special focus on the assessment of time limits and conditions in the scope of the RUO and the verification of the stipulated and available quality of service, following complaints on time limits and unbundling faults, and shall take the appropriate measures to ensure the compatibility with the market needs and the safeguard of interests of users. Others data transmission services providers in activity - 2nd quarter 2005 Postal Services Pursuant to the legal framework in force, and being the regulatory authority for communications, it is incumbent upon ANACOM to regulate, supervise and represent the postal sector. Under its Statutes, it is also incumbent upon this Authority to disclose the regulatory framework in force, its responsibilities and initiatives, as well as the rights and obligations of communications operators and consumers. Having regard to the several questions that increasingly have been posed, ANACOM has deemed appropriate to disclose, with some level of detail, its assignments in the postal sector, particularly with regards to the provision of the universal postal service, thereby contributing towards a better clarification of the regulatory framework of the postal sector in Portugal.
The main express mail service providers in activity - 2nd quarter 2005 are: Chronopost Portugal – Transporte Internacional, SA.
CTT EXPRESSO – Serviços Postais e Logística, SA. D.H.L. – Transportadores Rápidos Internacionais, Lda. Federal Express Corporation – Sucursal em Portugal GL Transportes, Unipessoal, Lda. Guipuzcoana Transportes Coimbra, Unipessoal, Lda. Guipuzcoana Transportes Porto, Unipessoal, Lda. Ibercourier – Serviço de Transporte Urgente, Lda. Logista Transportes e Transitários, Lda. Rangel Expresso, SA. TNT Express Worldwide (Portugal), SA. UPS of Portugal – Transportes Internacionais de Mercadorias, Lda Service providers not covered by the category of express mail in activity - 2nd quarter 2005
Sources: ANACOM |
08 September 2010
We are delighted to invite you to our next cocktail evening which will be hosted by BPCC Member Money Mais on Wednesday September 8.
08 September 2010
Informal Business Drinks at Hotel Meliã in VN Gaia. Let us know of your intention to attend and turn up from 6:30pm onwards.
25 September 2010
Torneio de Golfe das Câmaras de Comércio no campo de golfe da Praia d'El Rey em Óbidos. Patrocinado por Aguirre Newman e Logica.
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