This text seeks to provide information on the framework applicable to operators of inter-personal communications, covered by the New Electronic Communications Act.
What are interpersonal communications services?
This category includes services that cumulatively:
(i) allow direct, interpersonal, and interactive information exchange (excluding services where this interpersonal and interactive communication is a minor ancillary feature inextricably linked to another service - e.g. chat services associated with online games),
(ii) Through electronic communications networks,
(iii) Between a limited number of persons,
(iv) Whoever starts or participates in the communication can choose its recipients, and
(v) Are usually provided for a fee (either directly, by paying a price, or indirectly, through advertising revenue).
What types of interpersonal communications services are defined?
Number-based interpersonal communications services: connect or enable communication, using publicly assigned numbering resources (Article 3.1(uu)).
Note that, according to Recital 18 of the EECC, the mere use of a number as an identifier is not enough per se to qualify a service as a number-based interpersonal communications service. This concept of "number-based interpersonal communications service" refers specifically to services where (i) the number ensures connectivity or point-to-point connection, or (ii) allows contact with users who are holders of that number.
Many of the obligations foreseen for traditional electronic communications services will now apply to these services - as they are subject to the general authorization framework (Article 16.3) - since they benefit from numbering resources.
Number-independent interpersonal communications services: in contrast, these services do not allow for connection or communication with publicly assigned numbering resources (article 3.1(vv)) - these are the typically called over-the-top or OTT services, which are now covered by several rules arising from the New Electronic Communications Act.
What are the main obligations of public interpersonal communications services operators?
Apart from micro-enterprises providing only number-independent interpersonal communications services (Article 110.1), operators of public interpersonal communications services must:
(i) Enforce end-user rights (described in more detail in the text on end-user rights);
(ii) Provide use control mechanisms to consumers, micro-enterprises, small businesses, and non-profit organizations where services are billed on the basis of time or consumption volumes (Article 113.2(b));
(iii) Publish, in a clear, updated, comprehensive, and transparent manner, the terms and conditions applicable to its services, as well as the information set out in Schedule I (Article 116.1); and
(iv) Publish, at ANACOM's request, complete, comparable, and updated information on the quality of the service provided and on measures taken to ensure access for disabled end-users (Article 117).
What are the main obligations specifically applicable to public number-based interpersonal communications services operators?
(i) Abide by the general authorization framework - already provided for in the previous Electronic Communications Act, even though its application to these operators was not clear (Article 16.2);
(ii) Comply with the general conditions defined by ANACOM in connection with the general authorization framework (we refer, in this regard, to the text on the general authorization framework), including (Article 27): (a) access obligations; (b) obligations of interconnection of networks and interoperability of services; (c) obligations regarding the processing of personal data and the protection of privacy in the electronic communications sector; or (d) obligations regarding the security and integrity of public electronic communications networks;
(iii) Allow free connection to emergency services (112) (article 67.1) and provide information related to civil defense or of public interest (articles 68.1 and 119);
(iv) Detail in the relevant monthly invoices: (a) the services provided and their prices, and (b) the remaining lock-in period, as well as the price associated with the termination of the contract (Article 122);
(v) Comply with end-user and consumer notification obligations, before service provision is suspended (Articles 127 and 128);
(vi) Credit the amount corresponding to the periods of unavailability of the service to the end user, even if the latter does not request it (Article 129); and
(vii) Provide an offer not subject to a lock-in period and, if they wish to simultaneously submit offers with lock-in periods, limit these to 6, 12, or 24 months (Article 131).
Can access and interconnection obligations be imposed on operators providing these services?
As for operators providing number-based services, since they are subject to the general authorization regime, an access and interconnection obligation may be imposed to ensure: (i) end-to-end connectivity, or (ii) the interoperability of services (Article 103.1 (a) and (b)) - this obligation already applied to operators of traditional electronic communications services, and it remains to be seen how it will apply to the new services covered.
As for undertakings providing number-independent interpersonal services, these obligations can only be imposed by ANACOM to ensure interoperability, when the undertakings reach a significant level of coverage and number of end users and upon a decision by the European Commission to this effect (Articles 103.1(d) and 103.2).
What are the consequences of breaching such obligations?
Failure to comply with the applicable obligations may entail (i) civil liability, based on the breach of the end users' rights, as well as (ii) misdemeanor liability (Articles 178 and 179).
Key takeaways
The New Electronic Communications Act introduces significant changes to the provision of interpersonal communications services - services that, at least in most cases, were not covered by the previous legal framework.
Undertakings providing these services are subject to various obligations and conditions in their activity that did not result from the previous Electronic Communications Act, and that, to ensure greater legal certainty and clarity as to the OTT services' framework, became a reality with the approval of the EECC.
We underline the framework applicable from now on to operators of number-based interpersonal communications services. These operators are now subject to the general authorization regime, which puts them on a par with traditional electronic communications service operators - a clear reflection of their importance and growth in the market. This equivalence carries regulatory obligations with it, applicable not only to their relationship with ANACOM, but also obligations towards the consumer/end user.
Operators of number-independent interpersonal communications services will also have specific obligations, particularly regarding the protection of end users.
It is therefore important that the providers of these services adapt their practices, systems, and procedures to be ready for the new regulatory framework applicable to their activity in Portugal.
