Reviewing the most relevant rules on the provision of the universal service (“US”) under Articles 147 through 161 of the New Electronic Communications Act.


What is the US?

The US is the “minimum set of provisions (...) which must be made available, at an affordable price, in the national territory to all consumers, according to the specific national conditions, whenever there is a risk of social exclusion resulting from the lack of such access that prevents citizens from fully participating in the social and economic life of society” (Article 147(1)).

In essence, it involves the provision of one or more services that the legislator deemed essential to make available, at a given time, to all users, regardless of their social and economic conditions. The US is, in other words, the ‘last stronghold’ – or a “safety net”, as stated in Recital 212 EECC – of electronic communications services that must exist and be provided at affordable prices and throughout the territory.


What services are included in the US?

Considering the technological evolution of the last decades, it would be fitting that the New Electronic Communications Act would, in line with that foreseen in the EECC in this respect (especially in Article 84), update the services that should be included in this concept, by reference to the framework foreseen in its predecessor.

The concept of US accordingly includes (i) “an adequate broadband internet access service at a fixed location”; (ii) “voice communications services, including the underlying connection, at a fixed location”; and (iii) “specific measures for consumers with disabilities, in order to ensure equivalent access to the services which are available to other users as part of the universal service” (Article 148).

Although this issue was already addressed in the previous Electronic Communications Act, it is noteworthy that the New Electronic Communications Act includes specific measures for users with disabilities as part of the US itself.

As for the remaining services included in the US, they were similarly already foreseen in the previous Electronic Communications Act, although “broadband internet access” (and no longer mere “connection to a public communications network at a fixed location”) is now foreseen and the concept of ‘underlying connection’ has been added to the scope of voice communications services.

However, the new framework removed two services from the scope of the US: (i) the provision of a comprehensive telephone directory and directory enquiry service; and (ii) the adequate provision of public payphones, which is understandable given the continuous drop in the use of these services, despite their occasional relevance in certain locations. Although these services have been removed from the scope of the US, there is nothing to prevent them from continuing to be provided.


Who benefits from the US?

As already mentioned, the purpose of the US is to ensure that the entire population has access to the minimum set of services included in this scope. While all users can theoretically benefit from the US, the truth is that it mainly benefits those who have difficulty “participating fully in the social and economic life of society”, typically those who live in more remote areas or have more pronounced financial difficulties.

In any case, according to the EECC (Article 84(5)), the New Electronic Communications Act (Article 148(4)) gives the Government the power to extend the scope of the US to end users that are micro, small and medium-sized enterprises and non-profit organisations, thus extending the range of potential beneficiaries of the US.

The extension of regulatory measures of a more social nature to these entities is, in fact, one of the most innovative features of the New Electronic Communications Act.


What specific measures are brought in for citizens with disabilities?

It is the Government's remit to adopt the specific measures foreseen for citizens with disabilities, while ANACOM is tasked with evaluating the conditions for ensuring access to the US in the national territory by consumers with disabilities and proposing to the Government the measures it deems appropriate to ensure equivalent access for those users (Article 154).

ANACOM can propose that the Government adopt specific measures and provide, free of charge or at affordable prices, related terminal equipment, as well as (i) integrated voice and retransmission services; (ii) handset amplifier equipment, so as to increase the volume of the handset, for persons with hearing disabilities; (iii) luminous call alerts, namely a device that activates a visual signal when the terminal equipment receives a call; (iv) simple braille invoices; (v) fixed destination calls, allowing calls to be automatically established to a preset number defined by the customer; (vi) the possibility of making free calls to a preset number for directory information services; and (vii) customer support lines in Portuguese Sign Language, when warranted.


How are US providers called?

There is no significant departure from the previous framework. If the Government decides to impose obligations to ensure the availability of an adequate broadband internet access service and voice communications service for end users at a fixed location, it may appoint one or more undertakings to guarantee such availability throughout the national territory (Article 161).

The undertakings responsible for providing the US should be selected through an effective, objective, transparent, proportionate and non-discriminatory procedure ensuring that all undertakings start on a level playing field and that the US is provided in a cost-effective manner.


Who funds the US and how are any net costs incurred in the provision of the US offset?

As already established in the new Act's predecessor, ANACOM is tasked with checking whether the provision of the US is an excessive burden for the providers of this service, and with defining the concept of ‘excessive burden’ (see footnote 1) (Article 157 et seq.).

In the event of excessive burden, under the terms to be defined by ANACOM, the rules for calculating the net cost set out in Article 158 of the New Electronic Communications Act should be followed, broadly in line with that established in its predecessor.

Once the net cost has been calculated and ANACOM concludes that the US provider is subject to an excessive burden, it is incumbent on the Government to promote adequate offset through one or both of the following mechanisms: (i) offset from public funds; and (ii) allocation of the cost among undertakings offering electronic communications networks and services within the national territory (whereas, under the previous act, only undertakings offering electronic communications networks and services accessible to the public within the national territory contributed to the offset fund). An offset fund administered by ANACOM or by another independent body designated by the Government is thus established for this purpose.


Does the US still fulfil its “social regulation” function under the New Electronic Communications Act?

As mentioned here, the “social regulation” function in electronic communications – which typically used to be the remit of US providers, given its intrinsic nature and underlying principles, especially that of accessibility – is now mainly ensured by the internet social tariff scheme, enacted by Decree-Law 66/2021, of 30 July 2021 (“DL 66/2021”).

By redefining the scope of the US and creating the internet social tariff, its importance has dramatically decreased, with the internet social tariff making it possible to almost fully ensure the fulfilment of the underlying objectives of the US.

This primarily arises from three considerations:

(i)       On the one hand, the most socially relevant service included in the scope of the US is arguably the “adequate service of broadband internet access at a fixed location”, which is already ensured by the internet social tariff – as evidenced by DL 66/2021. The internet social tariff allows consumers on low incomes or with special social needs to benefit from broadband internet access at a reduced price;

(ii)      On the other hand, the catalogue of minimum guaranteed services resulting from the provision of broadband internet access service at a fixed location, provided for in the New Electronic Communications Act (Article 149/2), is the same as the catalogue of minimum services resulting from the provision of the internet social tariff (see footnote 2) (Article 3(1) of DL 66/2021); and

(iii)     Lastly, the prices charged to users for the provision of the US should be affordable (and regularly monitored by ANACOM), a principle also adopted by the internet social tariff regulation. Tariffs are defined by an ordinance of the member of the Government responsible for digital transition, following a reasoned and non-binding proposal issued by ANACOM (see footnote 3).

In addition to these aspects, it must also be noted that upcoming tenders for the coverage of very high-capacity public electronic communications networks in “'white areas'” – i.e., areas of the country where there is no penetration of these electronic communications networks – are expected to push the US further into obscurity.

The internet social tariff, which to some extent was a precursor to the New Electronic Communications Act, now pursues the main goals of the US. As such, it is unclear what role the US will play under the New Electronic Communications Act, with everything suggesting that it may be a chapter of little practical application.


Key takeaways

In line with the EECC's provisions, and the natural evolution of the provision of the US in the various countries, it appears that the New Electronic Communications Act directly and indirectly attaches less importance to the US.

At any rate, and subject to keeping, in broadly similar terms, the previous rules on the appointment of US providers and their financing, the New Electronic Communications Act updated its scope and purpose, removing certain services that have become obsolete or of little importance from the scope of the US.

The most significant development in terms of the US relates, however, to a parallel development in the sector: the approval of the internet social tariff brought in the large slice of “social regulation” that previously fell upon the US and ends up fulfilling the goals that have always underlaid it.



1 - ANACOM determined the concept of excessive burden with the provision of broadband internet access service within the context of the internet social tariff, in its decision dated 27 September 2021. ANACOM considered that an excessive burden exists when the net cost arising from the provision of this service, verifiable and verified, is equal to or greater than 3% of the revenues earned with this provision or when the previous criterion is not fulfilled and the provider is able to demonstrate that its competitive capacity in the market has been affected materially. The following were considered for this purpose, among others: the evolution of profitability indicators and related metrics, market share, prices charged by the provider and competitors, and the ratio of customers/accesses in IST to customers/accesses in the non-regulated market.

2 - Electronic mail; search engines, allowing the search and consultation of all kinds of information; online training and basic educational tools; online newspapers or news; buying or ordering goods or services online; job search and job search tools; professional networking; internet banking; using e-government services; using social networks and instant messaging; and calls and video calls (with standard quality).

3 - Under Ordinance 274-A/2021 of 29 November 2021, the price of the social tariff for fixed or mobile broadband internet access is 5 euros per month, plus VAT. Where the social tariff for fixed or mobile broadband internet access must be preceded by activation services and/or access equipment, the flat rate price to be charged for this purpose is 21.45 euros.