In the context of the epidemiological situation of the new COVID-19, following the approval of Decree-Law 10-A/2020 of March 13th, which established an exceptional and temporary package of measures, and taking into account the declared state of emergency in Portugal, Decree-Law 10-D/2020 of March 23rd has been published. 

Decree-Law 10/D/2020 establishes exceptional and temporary measures to respond to the COVID-19 epidemic, specifically in the electronic communications sector. 
This document (i) identifies which electronic communications services are to be considered critical; (ii) classifies priority customers; and (iii) defines exceptional and urgent measures that providers of electronic communications networks and services must adopt to guarantee continuity of those services.

  • Critical Electronic Communication Services: the following services are considered critical: voice and short messages services (SMS) on fixed and mobile networks; emergency services; data services on fixed and mobile networks to ensure access to services identified in the annex to Decree-Law 10-D/2020; and distribution of linear television and digital terrestrial television signals.
  • Priority Customers: during the provision of critical services, companies offering public communications networks or electronic communications services accessible to the public, priority customers must be prioritised. For example, the following are considered priority customers: Ministry of Health and entities providing healthcare integrated into the national healthcare service network, the General Staff of the Armed Forces and branches of the Armed Forces, Social Security services, the Bank of Portugal and other independent administrative entities, operators of essential services and the owners or operators of critical infrastructure, among others.
  • Exceptional Measures: if necessary, exceptional measures may be implemented (for example, reserving capacity on the mobile network and prioritising repairing breakdowns and disturbances in electronic communications networks and services).
  • Network and Traffic Management Measures: companies must give priority to routing certain categories of traffic, in a specific order. Certain functionalities may be limited or inhibited (video club, video platforms and restart TV), including access to online video game services (online gaming) and point-to-point connections (P2P). Additional measures may be carried out in relation to specific applications, services or categories. The measures adopted must be disclosed within five business days and must be published in a visible place on the respective websites, and inform ANACOM.
  • Public Awarness: public awareness campaigns should be carried out regarding possible changes to the use of electronic communications services during the epidemic, and good practices guides should be promoted among citizens and companies, regarding the responsible use of electronic communications networks and services.
  • Suspension of Obligations: among others and as better defined in the diploma, certain obligations are suspended regarding quality of service parameters, deadlines for responding to complaints from end-users, coverage, portability, security and integrity of electronic communications networks and services, and deadlines pending ANACOM's draft regulations are suspended.
  • Simplification Measures: certain procedures are simplified or exempted, for example: exemption from the obligation to temporarily license a station or radiocommunication network to support the mobile network and provide services to priority customers; and the authorization for certain employees or agents to move freely in Portugal, in order to ensure interventions required for the continuity of critical services and the needs of priority customers.

Decree-Law 10-D/2020 takes effect from March 20th and shall remain in force until the date when the national public health authority determines that prevention, containment, mitigation and treatment measures for COVID-19 disease should be terminated.

Also, on April 10th, Law nr. 7/2020 was approved (and took effect as of April 10th), which established exception and temporary mechanisms for replying to the COVID-19 epidemic, including in what concerns the provision of essential services (a qualification which includes electronic communications). This Law was rectified through Rectification Declaration nr. 18/2020, dated May 4th, and later by the recently approved Law nr. 18/2020 of May 29th, establishing the amendment to Law nr. 7/2020, in order to extend the deadlines for the measures adopted to support families in the context of the current public health crisis.

In this context, during the state of emergency and the following month, and in what concerns payments due as from March 20th 2020:

  • Until September 30th 2020, the provision of electronic Communications services may not be suspended in the event of unemployment, reduction of income in the family unit that is equal to or exceeds 20 %, or due to COVID-19 infection;
  • Until September 30th 2020, consumers that are unemployed or who have suffered a loss of income within his/her family unit that is equal to or exceeds 20% when compared to the previous month’s income may: (i) unilaterally terminate electronic communications service contracts (this does not give rise to a right to compensation of the supplier of the service); (ii) temporarily suspend electronic communications service contracts (without penalties or additional clauses), resuming on October 1st 2020;
  • If payments are owed regarding these services, the provider and the client should negotiate on a payment plan – negotiations should be initiated in the second month following the end of the above-mentioned deadline;
  • All public entities and companies providing public services which provide special numbers with the «808» and «30» prefixes must replace them by phone numbers with the prefix “2”, within a maximum 90 days following the entry into force of this law.

 

Ordinance no. 149/2020 of June 22 which executes no. 6 of Article 4 of Law no. 7/2020 of April 10, regulates the terms under which the demonstration of loss of income may be carried out, for the purpose of not suspending the supply of, among others, electronic communications services.

The demonstration of loss of income that is equal to or exceeds 20% is calculated by comparing the sum of the income of the members of the household for the month in which the change in income is caused, to the income received by the same members of the household in the previous month. To this end, various elements are considered, depending on type of work carried out (employment/self-employment) and the nature of the income at stake (pensions, social benefits, other income). :

Proof of the facts underlying the loss of income considers different variables and may be carried out through different documents (income receipts, statements by the employer or other paying parties).

The provisions of this Ordinance also apply to the unilateral termination of telecommunications contracts as well as to the temporary suspension of telecommunications contracts, as provided in no. 3 of Article 4 of Law No. 7/2020, of April 10, in its current wording. Finally, the Ordinance is in force since June 23 and is effective until September 30, 2020.

Following the formal conclusion of the State of Emergency in Portugal, the Government considers that the impact of the pandemic on the networks’ response capacity has been duly addressed, and that, consequently, the previous exceptional regime established by Decree-Law No. 10-D/2020, of March 23, is no longer necessary.

In this context, Decree-Law No. 51/2020, of August 7, was approved. Among other amendments, it revokes Decree-Law No. 10-D/2020, of March 23, which had established exceptional and temporary measures for the electronic communications sector in order to respond to the epidemiological situation caused by the new SARS-CoV-2, in the context of the State of Emergency.

As a result and as a summary, provisions such as the following shall no longer apply: (i) prioritisation of the continuity of provision of the so-called "critical services"; (ii) implementation of exceptional measures, in particular concerning network and traffic management level and prioritisation in the resolution of network and service failures and disruptions; and (iii) suspension of obligations and legal adequacy concerning, among others, response times to complaints and events related to network and service security and integrity.

This Decree-Law comes into force on the day following its publication in Diário da República, i.e., on August 8, 2020.

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This information is being updated on a regular basis.

All information contained herein and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.