UE Digital Agenda Scoreboard - Portugal's Report
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UE Digital Agenda Scoreboard - Portugal's Report

UE Digital Agenda Scoreboard - Portugal's Report

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UE Digital Agenda Scoreboard - Portugal's Report Document Transcript

  • 1. PORTUGAL MAIN MARKET DEVELOMENTS Portugal continues to have one of the highest ratios in the EU for investment (0.6%) and for total revenue (4.5%) as a percentage of GDP in 2009, which highlights the importance of the electronic communications sector in this country. Whilst the estimated market turnover in the electronic communications market in Portugal has slightly decreased (-1.8%), investment saw the highest growth rate in the EU (5.5%), when compared to other Member States. The public and private support for NGA deployment is delivering results: most operators continued to invest in NGA networks during 2010 and the number of households with access to high-speed broadband networks has grown to more than 5.3 million. The trend towards the use of bundled services continues: triple play has grown significantly to 9.0% and 7.4% of the population have opted to subscribe to a double play offer as of July 2010. The percentage of voice traffic originating on mobile networks (68.5%) compared to fixed networks (31.5%) continues to be relatively high in Portugal. The number of subscribers using an alternative operator for direct access in the fixed market is the second highest in the EU. MAIN REGULATORY DEVELOPMENTS During 2010, the Portugal National Regulatory Authority (hereafter ICP-ANACOM) adopted final measures for the mobile call termination markets and the leased lines markets, and notified draft measures for the fixed call origination and fixed call termination markets. The regulator is also working on the revision of fixed retail market on access and services and on the revision of the markets for physical network infrastructure access and wholesale broadband access, where it introduced geographic market segmentation in January 2009. Two infringement proceedings are currently pending in relation to the Universal Service Directive: one on the designation of universal service providers (C-154/09) and one on the availability of a comprehensive directory and directory enquiry service (C-458/07). In November 2010 and March 2009 respectively, the ECJ ruled that Portugal had failed to fulfil its obligations under the Universal Service Directive. Decisions by the Government are urgently needed as regards the universal service designation and the incumbents concession contract, where an infringement has been pending against Portugal since 2005. It should be noted that the Government still holds a ‘golden share’ in the incumbent, and a separate infringement proceeding is pending in this regard (C-171/08). In July 2010, the ECJ ruled in favour of the Commission by stating that Portugal had failed to fulfil its obligations under EU Law by restricting the freedom of movement of capital between Member States, a few days after the Government, despite the approval of shareholders, exercised its ‘golden share’ to block a bid by the biggest Brazilian mobile operator, Vivo. In 2010, the Institute for Cinema and Audiovisual (ICA) conducted a public consultation on the draft Cinema Law, which is aimed at promoting the cinema and audiovisual sector through a series of financial contributions and investments. As regards finantial contributions, Article 18 of the consultation draft Cinema Law, which as raised some concerns, provides for several contributions to be paid by various stakeholders, including a charge to be imposed onEN 1 EN
  • 2. telecoms operators of 1.5% of the annual operational profit derived from broadband services in the case of fixed operators and 0.25% in the case of mobile operators. NRA In 2011, the mandates of four out of five Members of the Board, including the President, will expire. ECONOMIC REGULATION Broadband Broadband plans In 2009, the Government signed a protocol with four of the main operators (other operators have joined since) in order to boost investment in NGA networks and adopted new national legislation1 in order to promote NGA investments, namely in-building infrastructure, access to public utilities infrastructure, tax aid measures and public tenders in underserved areas. In December 2010, two operators, signed an agreement to share NGA infrastructures. In February 2011, the regulator published a study on the deployment of NGA networks, which showed that government initiatives and regulatory measures have made an impact on investment by operators. One of the key developments was the imposition of a cost-oriented, open and non- discriminatory access obligation to ducts, poles and other installations of public utilities (such as highways, railways, ports, airports, water, transport, gas and electricity), which are suitable for electronic communications networks. ICP-ANACOM is working on the implementation of a centralised information system which will provide information on the different infrastructures and publicise construction works. From May to July 2009, five public tenders were launched for the deployment of NGA networks in 139 municipalities in rural areas, including the outermost regions of the Azores and Madeira. The areas within each of the five zones where selected based on the absence of investment in cable network infrastructures and in the absence of investment by alternative network providers in their own networks. The tenders were based on the principle of technological neutrality and open networks. The network operator’s had to provide a minimum download speed of 40 Mbps, to cover at least 50% of the population in each area and to include a wholesale access offer. All five tenders were finished by mid 2010. The investment for the five zones will amount to a total of €182 million, of which €106.2 million are EU funds. Market situation The usage of mobile broadband is increasing with an estimated datacard penetration rate of 12.0% as of January 2011, which is the sixth highest in the EU and slightly below fixed broadband penetration (20.5%). Consumers are benefitting from new offers for prepaid mobile broadband services, which offer theoretical download speeds of up to 21.6Mbps. 1 In particular, Decreto-Lei 123/2009 de 21 de Maio, Lei n.° 32/2009, de 9 de Julho and Decreto-Lei 258/2009, de 25 de Setembro.EN 2 EN
  • 3. The fixed broadband market grew last year at the same pace as the EU (approximately 2%) and the penetration rate reached 20.5%, which is below the EU average (26.6%). The market share of the incumbent operator continued to increase from 43.8% in January 2010 to 46.15% in January 2011. The new entrants market share decreased in the last year for both non-DSL lines (from 97.4% to 89%) and DSL lines (27.1% to 23.1%). More than 1.5 million of broadband lines had speeds of over 10 Mbps and 516 588 had speed higher than 2 Mbps. The percentage of cable lines (40%) remains more or less stable, FTTH has grown to 6%, whilst DSL lines slightly decreased to 53.4% of fixed broadband lines. Several offers of 100 Mbps, 200 Mbps, 300 Mbps and even 1 Gbps have been launched in the market, following FTTH deployments in urban areas by some alternative operators and the incumbent and the upgrade of the main cable operators network to EuroDOCSIS 3.0. The incumbent is now offering commercial services based on fibre, including a successful triple-play offer. At the end of 2008, the main cable operator merged with three small alternative operators. According to ICP-ANACOM´s data, at the end of the third quarter of 2010 there were 1.47 million households in Portugal cabled with optical fibre and 3.84 million households cabled with EuroDOCSIS 3.0 technology, mostly in Lisbon and the Northern regions of the country. LLU continues to be the preferred wholesale option for alternative operators, although the number of fully unbundled lines (shared access is not used) for the provision of broadband services has decreased from 269 066 in January 2010 to 229 098 in January 2011. The number of bitstream accesses provided to alternative operators has continued to decrease from 44 787 in October 2009 to 38 763 in January 2011. This evolution can be explained also by the growth of NGA enabled connections. Regulatory issues No major decision was taken in relation to broadband regulatory obligations in 2010. In January 2009, the regulator adopted final measures for the markets for physical network infrastructure access and wholesale broadband access, where it has proposed to geographically segment the market for wholesale broadband access. As a result of the geographic segmentation of the wholesale broadband access market, the market was divided into competitive and non-competitive areas2. Despite de-regulation in the competitive areas, the incumbent has continued to offer in those areas a bitstream service under the same conditions as in the non-competitive areas. This market analysis has been appealed by alternative operators before the national courts and the case is still pending. The regulator has started the revision of these markets. In February 2010 ICP-ANACOM approved a decision in order to improve the Local Loop Unbundling Reference Offer (known as ORALL) and its adaptation to market developments, which established some relevant modification such as: • introduction of premium and urgent service levels to repair faults; • increase of compensation for failure to comply with the quality service levels defined in the offers; • provision of more detailed information by the incumbent to alternative operators, promoting transparency and predictability about the wholesale service provided; 2 Areas with at least an LLU and a cable operator present and where the cable coverage is above 60% of households have been defined as competitive by ICP-ANACOM (184 local exchanges).EN 3 EN
  • 4. The reference offer for access to ducts and associated infrastructure (known as ORAC), which was originally an obligation imposed on the incumbent operator as assignee of the public telecommunications service, became also a regulatory obligation imposed on that operator following the finding of significant market power in the market for physical network infrastructure access. The obligation of providing access to optic fibre has not yet been set out in detail. In October 2010, the regulator adopted amendments to ORAC, in particular regarding information about duct occupation in competitive areas, conditions for accessing poles and conditions for compensation. LLU prices have not been modified and continue to be just above the EU average: the monthly average total cost was €10.05 for full unbundling and €3.57 for shared access in October 2010 (compared to EU averages of €9.61 and €3.29 respectively). Mobile Market situation Mobile penetration continued to grow, amounting to 152%, the second highest penetration rate in the EU and well above the EU average (124%), which shows the intensive use of mobile services by subscribers. The average price per minute for mobile voice services in Portugal is at the EU average at €0.10, and the annual average revenue per user (€223) is below the EU average (€244). The proportion of prepaid customers (71.9%) continues to be one of the highest in the EU. Two mobile virtual network operators (MVNOs) and a few mobile service providers are currently offering a full range of mobile services, although their market share continues to be very low. Regulatory issues In March 2010, ICP-ANACOM notified the Commission draft measures on the mobile call termination markets. The Commission welcomed the considerable decrease of MTRs, but questioned the legal certainty of applying the glide-path with retroactive effect. The Commission comment was taken into account in the final decision. In May 2010, the regulator adopted final measures on this market without retroactive effect where symmetric MTRs will be decreased from 6 €-cents in May 2010 to 3.50 €-cents in August 2011. MTRs in Portugal, in January 2011, have decreased to 5.00 €-cents and continue to be just above the EU average (5.46 €-cents). MTRs are still based on benchmarking. However, the regulator is currently developing a bottom-up LRIC model for cost accounting following the Commission Recommendation on termination rates, which will be taken into account to set the MTRs from 2011 onwards. Roaming Regulation In July and August 2010, ICP-ANACOM re-launched a roaming promotion campaign on the internet and in the general media, which is aimed at informing consumers about the EU rules and applicable tariffs. Moreover, the Portuguese regulator published a website3 where 3 http://www.roaminglight.netEN 4 EN
  • 5. consumers can contact their operators in order to check information about roaming prices and conditions, and find out what is the cheapest host operator in a particular Member State. Fixed Market situation The incumbent increased its share in the fixed voice market in terms of call revenues (from 68.3% to 72.0%), whilst there was a decrease in its market share in terms of traffic (to 60.5%). VoIP originated calls represented 10.5% of traffic in the fixed sector. As of July 2010, 39.97% of subscribers were using a provider other than the incumbent operator for direct access, which is one of the highest figures in the EU. This figure shows that the use of alternative operators for the provision of fixed voice services has significantly increased in recent years, due to the increased take-up of bundled offers from cable and LLU operators, and the provision of fixed telephone services using mobile frequencies. Regulatory issues In April 2010, ICP-ANACOM notified a revised RIO, which foresaw a reduction of 5.3% in the price for call termination and 10% for call origination. In May 2010, the Commission questioned the legal certainty of applying tariffs with a retroactive effect and requested a revision of the cost methodology, which is currently a Fully Distributed Cost model. In this regard, the regulator foresees the development of a bottom-up LRIC model for setting fixed termination rates, in accordance with the Commission Recommendation on termination rates. The Commission also called on ICP-ANACOM to carry out a full review of the relevant markets and not just on amendments to remedies, as the last review was carried out in 2004. In October 2010, the regulator adopted final measures regarding the markets for wholesale terminating segments of leased lines, wholesale trunk segments of leased lines and retail leased lines and it will revise accordingly the leased lines offer (known as ORCA). Obligations were imposed on the incumbent in the terminating segments market. The market for trunk segments of leased lines was segmented geographically into competitive and non- competitive routes and obligations were imposed in the non-competitive segments. Regulation on retail market and trunk segments of leased lines on competitive routes was withdrawn. Ethernet leased lines were included in the relevant market and a new leased lines offer was imposed. Whereas the prices for traditional leased lines are cost-oriented, the prices for Ethernet leased lines are based on a retail-minus approach. Broadcasting Market situation The main platforms for the provision of broadcasting services are cable (37.0%) and analogue terrestrial TV, followed by satellite (16.9%) and IPTV (14.2%), which continues to experience significant growth. In addition to two analogue terrestrial networks, Portugal has very high cable network coverage, covering almost three out of four households, with several regional cable operators and one main nationwide cable operator. In February 2008, two public tenders were launched for the assignment of frequencies for digital terrestrial television, both for free-to-air (including certain must-carry obligations) and for pay TV channels. The incumbent was assigned the rights of use for the free-to-airEN 5 EN
  • 6. channels in December 2008, and started broadcasting them in April 2009. In July 2010, ICP- ANACOM accepted the request by the incumbent to return the frequencies for pay-TV services without losing the caution. ICP-ANACOM considered that the modifications occurred in the pay TV market reduced the impact of this platform on competition, thus the public interest underlying the granting of these rights of use would not be damage by this revocation. The Government indicated that the analogue signal should be switched off by 26 April 20124. In June 20105, ICP-ANACOM adopted the switch-off plan, which should start in January 2012 in the coastal area, which has 70% of the population, and finish in the 26th of April 2012. The pilot projects will take place in 3 selected areas between May and October 2011, according to a deliberation of ICP-ANACOM of December 20106. Regulatory issues There have not been any changes as regards regulation on the market for broadcasting transmission services. In 2007, ICP-ANACOM considered only the provision of analogue terrestrial television broadcasting services as a wholesale market susceptible to ex ante regulation. The regulator not only maintained the obligations imposed under the concession granted to the incumbent, but also mandated further obligations in order to ensure transparency and accounting separation. The review of this market is still pending. HORIZONTAL REGULATION Spectrum management, including refarming, digital dividend, GSM Directive In March 2010, the revised national allocation frequency plan (known as QNAF) was adopted, incorporating some of the last Commission Decisions7 and, in particular, withdrawing the technological restrictions on the 900 MHz and 1800 MHz bands and allowing the use of that spectrum for technologies other that GSM. This modification was meant as transposition of the Directive 2009/114/EC of the European Parliament and the Council, of 16 September 2009 (the so called GSM Directive). Moreover, ICP-ANACOM approved a proposal to unify under a single licence the conditions applicable to the right to use the frequencies in the 900MHz and 1800MHz bands by the three mobile network operators. The single licences were issued in the beginning of July 2010 concluding the 900 MHz and 1800 MHz bands refarming process. Following the launch of a public consultation on the Broadband Wireless Access (BWA) auction, in October 2009 ICP-ANACOM launched an auction for 36 frequency rights of use in the 3.4-3.8 GHz band following a two-phase combinatorial auction, with the first phase limited to the entities that do not hold rights of use in the 3.4-3.8 GHz band, are not dominant in the wholesale supply of broadband or do not hold rights of use in the provision of mobile services in order to foster new entrants. It is the first time the regulator is applying this system for spectrum assignment, where flexibility is enshrined due to the segmented approach in nine 4 Resolução do Conselho de Ministros n.° 26/2009, de 17 de Março 5 http://www.anacom.pt/render.jsp?contentId=1033345 6 http://www.anacom.pt/render.jsp?contentId=1064615 7 Commission Decisions 2006/771/EC (as amended by Commission Decision 2009/381/EC) and 2009/343/EC.EN 6 EN
  • 7. geographic areas and the principle of technical and service neutrality. In April 2010, the regulator confirmed the assignment of BWA frequencies to two companies. In January 2011, the regulator adopted national legislation regarding mobile communication services on board vessels. Therefore the national frequency allocation plan will be amended accordingly. According to information available to the Commission, Portugal is setting up the framework to grant an authorisation to the operators of systems providing mobile satellite services selected by the Commission in accordance with European Parliament and Council Decision No 626/2008/EC. Rights of way and facility sharing Under national law, the incumbent, as holder of a concession and as an operator with significant market power in the market for physical network infrastructure access, is obliged to provide a reference offer for access to ducts and associated infrastructure (known as ORAC) at cost-oriented prices. The offer is used by most operators. In 2009, in order to foster NGA deployment, new legislation8 was adopted which imposes an access obligation on all public infrastructure-based utilities. In November 2010, ICP- ANACOM approved the definition of the centralised information system and launched a tender for its management. This legislation also reinforces operators rights of way, mainly establishing a harmonised procedure for local authorities and coordinating underground intervention. Administrative charges In 2010, the Institute for Cinema and Audiovisual (ICA) conducted a public consultation on the draft Cinema Law, which is aimed at promoting the cinema and audiovisual sector through a series of financial contributions and investments. As regards contributions, Article 18 of the draft Cinema Law provides for several contributions to be paid by various stakeholders including a charge to be imposed on telecoms operators of 1.5% of the annual operational profit derived from broadband services in the case of fixed operators and 0.25% in the case of mobile operators. The Commission services are following-up the matter. In December 2008, Portugal adopted legislation9 approving a new system for the fees to be paid by postal and electronic communications operators, such as the administrative charges and rights of use for spectrum and numbering resources, which was complemented in July 2009 with the Regulation on the adoption, settlement and collection of fees10. In addition to an appeal to the national courts, some operators launched a complaint with the Commission in relation to this legislation regarding alleged state aid, which could also constitute a breach of the Authorisation Directive provisions on administrative charges. In particular, the legislation establishes that some revenues derived from the provision of universal service would not be considered for the calculation of the administrative charges, therefore reducing the amount 8 Decreto-Lei 123/2009, de 21 de Maio, Decreto-Lei n.°258/2009, de 25 de Setembro. 9 Portaria n° 1473-B/2008, de 17 de Dezembro and Regulamento n.° 300/2009, de 15 de Julho. 10 Regulamento n.°300/2009, de 15 de JulhoEN 7 EN
  • 8. paid by the universal service provider and increasing the amounts paid by other operators. The Commission services are also examining this issue. THE CONSUMER INTEREST Consumer complaints The regulator cannot issue binding decisions on conflicts between end-users and operators, but only impose sanctions on operators breaching regulatory obligations. The national arbitration centre dedicated to electronic communications consumer issues, which could issue binding decisions, has not yet been established. The electronic communication sector is perceived as a problematic one from the consumer point of view according to the main consumer association. The unit in the regulator dealing with complaints and requests for information received 15 789 complaints regarding electronic communications services in the first half of 2010. For the complaints directly addressed to ICP-ANACOM, the main issues continue to be contractual issues and billing. Tariff transparency and quality of service In August 2010, new legislation11 entered into force establishing limits on charges for unblocking equipment and for cancelling the contract during the loyalty period. In October 2010 ANACOM published a report12 that presents the results of the study, conducted for the fourth consecutive year, into the quality , from a user perspective, of the broadband Internet access services in Portugal, covering the following parameters: download speed, upload speed and latency . Regarding GSM/UMTS Mobile Communication Services, ANACOM published the following reports: - “Assessment of Quality Serviçe – Evaluation os QoS of voice and video. Telephony services and GSM and WDCMA network coverage, in the major urban centers and along the mais roads of mainland Portugal”13. - “Evaluation of QoS of voice (GSM) and video-telephony (UMTS) mobile services and networh coverage (GSM and WCDMA) in the main urban centers and along the main roads of the Autonomous Regions of Azores and Madeira14. - “Evaluation of QoS of voice (GSM) and video Telephony (UMTS) mobile services and network coverage (GSM and WCDMA) on Lisbon’s urban railway network (Azambuja, Cascais, Fertagus Sado and Sintra lines)”15. - “Evaluation of QoS of voice (GSM) and video-telephony (UMTS) mobile services and network coverage (GSM and WCDMA) on the Alfa Pendular (high-speed) service of CP (Portugal railways) (Braga-Porto-Lisboa_Faro lines)”16. 11 Decreto-Lei n.° 56/2010, 1 de Junho 12 http://www.anacom.pt/render.jsp?contentId=1056551&languageId=1 13 http://www.anacom.pt/render.jsp?contentId=1072863&languageId=1 14 http://www.anacom.pt/render.jsp?contentId=1021961&languageId=1 15 http://www.anacom.pt/render.jsp?contentId=1021956&languageId=1 16 http://www.anacom.pt/render.jsp?contentId=1021929&languageId=1EN 8 EN
  • 9. These evaluations were performed through the analysis of technical parameters which give a view of quality from the consumer’s perspective. Number portability/switching The number of fixed ported numbers decreased in the last year (269 177 porting transactions between January and September 2010 compared to 327 457 the previous year); on contrary, the use of mobile number portability remains low (100 411 porting transactions between January and September 2010 compared to 89 144 the previous year). The low churn in the mobile market is a combination of factors, such as the strong network effects reinforced by differences between on-net and off-net tariffs, a preference for prepaid services (sometimes simultaneously with more than one operator)and handset subsidisation. The average period for porting numbers has been reduced and is now 3.65 days for porting fixed numbers and 3.26 days for porting mobile numbers, measured from the date when the recipient operator submits the request to the donor operator, which is below the EU average. The maximum wholesale price for a single ported fixed or mobile number is €4.6 and further reductions are applied for blocks of numbers, until € 0.74 for each number for Direct Dial In Numbers ranges with 100 numbers. In January 2010, the regulator imposed a fine of €0.5 million on the incumbent for having breached portability rules, and some months later, it imposed two further fines of € 67 500 and € 57 500 on Sonaecom. The regulator has published on line information about citizens’ rights regarding portability and has opened misdemeanour procedures on delays related to the response to portability requests and has also developed supervision actions related to non compliance with the timeframe for mobile numbers porting. Net neutrality No major issue has been reported by the different stakeholders, although there seems to be overall support for more transparency. Universal service In 2005, the Commission started infringement proceedings because of its concern that the current concession contract, whereby the incumbent operator will continue to provide universal service until 2025, unduly excludes any other operator from being designated as a universal service provider. In November 2010, the ECJ ruled that Portugal had failed to fulfil its obligations under the Universal Service Directive. Some decisions by the Government are urgently needed as regards universal service designation and the incumbents concession contract, where an infringement has been pending against Portugal since 2005. On 12 March 2009, the ECJ also ruled that Portugal had failed to fulfil its obligations under the Universal Service Directive concerning the availability of a comprehensive directory and directory enquiry service (C-458/07). Since 30 May 2010 the universal service provider has been providing a comprehensive directory enquiry service. Moreover, subscribers data from all operators will be gradually included in the comprehensive paper directories provided by PTC, and the process should be completed in all regions by 14 June 2011. The Commission services are monitoring the progress made as regards the availability of a comprehensive directory.EN 9 EN
  • 10. ICP-ANACOM has rejected so far the incumbent’s claims for compensation for the cost of universal service (approximately €100 million a year on average): prior to 2001, on the basis that the market had not yet been fully liberalised, and, subsequently, on the basis that the data provided was incomplete. In January 2011, it launched a consultation on the draft decision on the concept of unfair burden and the net cost methodology, and released an external study on these topics. Both sector and public funding financing options are foreseen under national law as a possible compensation mechanism for the provision of universal service. European emergency number 112 Whilst 85% of the Portuguese population know 112 as a number to call in case of emergency in Portugal, only 31% are aware that this emergency number can be called from other Member States17. The Portuguese authorities have implemented the first phase of an overall reorganisation of the 112 system, aimed at reducing the number of answering centres (from the existing 18 centres to 2 main centres, in addition to the centres in Madeira and the Azores) and addressing other issues such as linguistic capabilities. Harmonised numbers for harmonised services of social value (116) The numbers 116000 (the hotline for missing children) and 116111 (children helplines) are operational and the service is provided by the Instituto de Apoio à Criança. The numbers 116123 (emotional support helplines), 116006 (the helpline for victims of crime) and 116117 (non-emergency medical on-call services) have been reserved, but have not yet been assigned. ANACOM has made public its decisions since September 2007 and informed the relevant authorities on the existence of these numbers, their scope and conditions. e-Privacy The national data protection authority, Comissão Nacional de Protecção de Dados, is responsible for sanctioning any breaches with fines of up to €10 million, although it does not have competence to solve consumer complaints, which need to be submitted directly to the police. On 28 January 2011, on the occasion of the European Data Protection Day, the CNPD launched a self-evaluation test to check the degree of identity vulnerability and released a handbook with information on how to prevent identity theft. Information campaign on Message-Based value Added Services As part of the commemorations of Consumer Day and in association with the Portuguese Consumers Protection Authority, ANACOM has launched (15 March 2010) an information campaign to raise awareness among citizens about Message-Based value Added Services. This campaign centres on the widespread distribution of a leaflet, which at first will be available as of today at all Municipal Consumer Information Centres (CIAC). 17 Flash Eurobarometer survey on the European emergency number 112 (February 2011).EN 10 EN