Resolution nº 600, of November 8, 2012
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Approves the General Plan of Competition Goals (PGMC). |
Note: This text does not replace the one published in the Official Gazette on 12/11/2012, rectified on 26/11/2012 and 20/2/2013.
The BOARD OF DIRECTORS OF THE NATIONAL TELECOMMUNICATIONS AGENCY (ANATEL), pursuant to the powers granted it by article 22 of Law Nº 9472, of July 16, 1997, and article 35 of the Agency's Regulation, approved by Decree Nº 2338, of October 7, 1997;
CONSIDERING the need to set provisions to encourage and promote competition in the telecommunications sector, under the Brazilian Federal Constitution, for the General Telecommunications Law Nº 9472, of July 16, 1997 and Law Nº 12529, of November 30, 2011;
CONSIDERING the need to encourage a full, free, fair competition among companies that provide telecommunications services in view to promote diversity in the services with quality and at affordable prices to the population, as provided in article 3º, IX, of Decree No. 4733, of June 10, 2003;
CONSIDERING that, in order to develop competition, telecommunications service providers of collective interest shall make their networks available to other telecommunications service providers of collective interest, in the cases and under the conditions determined by Anatel, under article 155 of Law Nº 9472 of July 16, 1997;
CONSIDERING the rules provided in Decree nº 6654 of November 20, 2008 regarding transfers of concession or control of concessionaires resulting in an economic group containing concessionaires in more than one Region of the General Grant Plan (PGO);
CONSIDERING the regulatory principles, objectives, strategic purpose and particularly the actions defined in the General Update Plan for the Brazilian Telecommunications Regulations (PGR), approved by Resolution Nº 516, of October 30, 2008;
CONSIDERING the need to improve the regulation regarding the establishment of regulatory asymmetries determined on the basis of Significant Market Power (PMS) in a certain relevant market;
CONSIDERING the contributions received arising from Public Consultation Nº 41 of July 25, 2011, published in the Official Gazette of July 26, 2011, and the notices and comments submitted at the Public Conference held on September 5, 2011;
CONSIDERING the content of Proceeding Nº 53500.010769/2010; and
CONSIDERING the resolution adopted at its Meeting Nº 673 held on November 1, 2012,
DECIDES:
Article 1 To approve the General Plan of Competition Goals (PGMC), attached to this Resolution.
Article 2 This Resolution will be effective on the date of its publication.
JOÃO BATISTA DE REZENDE
Chairman of the Board
ANNEX
GENERAL PLAN OF COMPETITION GOALs (PGMC)
TITLE I
MISCELLANEOUS
CHAPTER I
PURPOSE AND SCOPE
Article 1. This Plan provides for the incentive and promotion of a full, free and fair competition in the telecommunications sector in accordance with Law Nº 9472, of July 16, 1997, in cases in which the probability of a Group with Significant Market Power exercising the market power in a certain relevant market requires the adoption of asymmetric regulatory measures.
Sole paragraph. For the purposes of the head of this article, this Plan sets forth:
I - criteria and guidelines to identify and analyze Relevant Markets of the telecommunications sector;
II - criteria and guidelines to identify Groups with Significant Market Power in each Relevant Market;
III - guidelines to adopt Asymmetric Regulatory Measures;
IV - Asymmetric Regulatory Measures for Relevant Markets;
V - general measures to be taken by Groups that contain concessionaires in more than one Region of the General Grant Plan (PGO);
VI - procedures to settle disputes among economic agents in matters directly related to the General Plan of Competition Goals;
VII - criteria and guidelines to follow up competition in Relevant Markets;
Article 2. Anatel will identify the relevant markets of the telecommunications sector, as well as the Groups with Significant Market Power, and review the need to adopt asymmetric regulatory measures in order to encourage and promote a full, free, fair completion as provided in this Plan.
CHAPTER II
GENERAL PRINCIPLES APPLIED TO COMPETITION
Article 3. Competition in the telecommunications sector is governed by the principles and rules contained in the Brazilian Federal Constitution, in Law Nº 9472, of July 16, 1997, Telecommunications Law – LGT, in Law Nº 12529, of November 30, 2011, and in Anatel Regulation, especially the following principles:
I - the social function of telecommunications networks;
II - free competition;
III - consumer protection;
IV - repression of anticompetitive practices;
V - economical and financial sustainability of the sector;
VI - prohibition of cross subsidize;
VII - non-discriminatory access, at fair, reasonable prices and conditions, to telecommunications networks and the infrastructure supporting the telecommunications service provision;
VIII - diversification in the delivery of telecommunications services;
IX - reduction of barriers to entry;
X - the efficient use of the radio-frequency spectrum;
XI - good faith and transparency;
XII - reduction of regional and social differences.
CHAPTER III
DEFINITIONS
Article 4. For the purposes of this Plan, additionally to the definitions of the applicable law and regulations, the following definitions will apply:
I - Wholesale Database (BDA): computer system with remote access containing a database on supply and demand of products in the Wholesale Market, and that allows the commercial and logistical management of the orders placed by the requester Groups and the agreements between the parties;
II - Wholesale Supply Supervisor Entity: a specific independent entity that follows up the supplies of products in the Wholesale Market and that organizes and follows up the requests queue;
III - Group: Individual Service Provider of Telecommunications Services or a group of Telecommunications Services Providers that have a control relationship, as controllers, controlled or affiliated companies, by applying the concepts of the Regulation for Verification of Control and Transfer of Control in Companies that Provide Telecommunications Services, approved by Resolution nº 101, of February 4, 1999;
IV - Group for Implementation of the Wholesale Supply Supervisor Entity and Wholesale Databases (GIESB): A Group created and coordinated by Anatel for the purpose of implementing the Wholesale Databases, the Wholesale Supply Negotiation System and the Supervisor Entity;
V - Infrastructure: easements, duct, conduit, pole, tower and off optical fibers, among others, owned, used or controlled, directly or indirectly, by a telecommunications service Provider;
VI - Asymmetric Regulatory Measures: measures adopted by Anatel that focus differently on a specific Group working in a Relevant Market, aiming to minimize the probability of exercise of Market Power and to encourage and promote a free, full and fair competition;
VII - Market: a space composed by supply and demand of telecommunications services, networks, infrastructures, equipment, activities or other inputs necessary for the provision of telecommunications services, defined by a geographic area;
VIII - Wholesale Market: a market of which offers are focused on the render of Interconnection, Network Elements, Infrastructure for Fixed or Mobile Access Networks and Transportation Networks, equipment, activities, and other inputs required for the rendering of telecommunications services;
IX - Relevant Market: A product or group of products and geographic area in which it is produced or sold such that a hypothetical monopolist, not subject to price regulation, would likely impose a small but significant and non-transitory increase in price, assuming the terms of sale of all other products remain constant;
X - Retail Market: A market the offerings of which aim to meet the demands of end-users of telecommunications services;
XI - Joint Provision of Telecommunication Services or Joint Offer: provision of different telecommunication services by the Group or through a partnership between Providers, whose enjoyment is simultaneous and in commercial conditions different from those existing for the individual offer of each service;
XII - Reference Offer of Products in the Wholesale Market: An isonomic and non-discriminatory offer that stipulates conditions for contracting Products in the Wholesale Market, and must be approved by Anatel;
XIII - Significant Market Power (PMS): a position that allows significant influence on the conditions of the Relevant Market;
XIV - Wholesale Negotiation Systems: computer system operated by the Wholesale Supervisory Entity that allows connection between such Entity, the requiring Groups and Groups supplying wholesale products, allowing the placement of purchase and sale orders for such products.
TITLE II
RELEVANT MARKETS
CHAPTER I
GUIDELINES TO DEFINE RELEVANT MARKETS
Article 5. For purposes of defining the Relevant Markets, Anatel shall consider the composition of the following dimensions:
I - Product: range of telecommunications services, networks, infrastructure for access and transportation networks, equipment, activities, or other inputs that have a significant degree of substitutability from the point of view of its users or its offerors, according to their features, prices and usability;
II - Geographical: geographical area in which the supply of products required for the provision of telecommunications services are interchangeable to the users, under the applicable federal regulations.
Article 6. Relevant Markets shall be identified, analyzed and continuously monitored by Anatel for the purpose of eventual adoption of Asymmetric Regulatory Measures and verification of their effectiveness in encouraging and promoting competition.
Sole paragraph. Relevant Markets shall cumulatively present the following conditions in order to, under the PGMC, be considered as the subject of an asymmetrical ex ante regulation:
I - presence of high, non-transitional barriers to structural entry;
II - maintenance, in a reasonable period of time, the probability of exercising market power;
III - insufficiency of existing competition laws and regulations to reduce the probability of exercising the market power.
Article 7. To identify the Relevant Markets, the wholesale and retail products shall be taken into account, as listed in art. 3º of Annex I of this Regulation.
Article 8. For purposes of identifying Relevant Markets the following geographical areas may be used, considering the specificity of the analysis of the market for each product:
I - National Territory;
II - PGO/PGA Region;
III - PGO Sector;
IV - Number Areas;
V - Registration Areas; and
VI - Municipalities.
Article 9. For purposes of defining the Relevant Markets Anatel may evaluate other Products and other Geographical Areas with the aim of promoting a free, full and fair competition.
TITLE III
SIGNIFICANT MARKET POWER (PMS)
CHAPTER I
CRITERIA TO IDENTIFY A GROUP WITH SIGNIFICANT MARKET POWER
Article 10. To identify a Group with PMS in a Relevant Market, in a particular product within a specific geographical area, Anatel shall consider the following criteria:
I - market share;
II - capacity to exploit scale economies of the relevant market;
III - capacity to exploit scope economies of the relevant market;
IV - control over an infrastructure the duplication of which is not economically viable;
V - concomitant activity in wholesale and retail markets.
Paragraph 1. Anatel shall adopt the methodological guidelines provided in Annex II of this Regulation to identify groups with PMS in the Relevant Markets.
Paragraph 2. The above criteria shall be considered in conjunction to identify a Group with PMS in a Relevant Market.
Paragraph 3. Additionally to the criteria listed above, Anatel may adopt other relevant criteria in order to identify the peculiarities of the Relevant Market under analysis.
Article 11. The designation of a Group with PMS in a Relevant Market will be made through publication of an Act, that are exclusively of the competence of Anatel Board of Directors, and the relations of Groups with PMS in each market as well as the analyzes that underlie such relations shall be previously submitted to Public Consultation.
Sole paragraph. Anatel shall, every two (2) years, review the Act that designates Groups with PMS in a Relevant Market.
TITLE IV
ASYMMETRIC REGULATORY MEASURES
Article 12. To achieve the objectives of the PGMC, Anatel may apply to groups with PMS in each Relevant Market the following types of Regulatory Measures Asymmetric:
I - Transparence measures;
II - Isonomic and non-discriminatory treatment measures;
III - Measures to control prices of wholesale products;
IV - Measures requiring access and provision of specific network resources;
V - Obligations to provide wholesale products under the conditions specified by Anatel;
VI - Obligations to correct specific market failures or to meet the applicable laws or regulations; and
VII - Accounting, functional or structural separation.
Article 13. The Asymmetric Regulatory Measures listed in Annex I of this Plan will be applied to Groups with PMS in each Relevant Market defined in the Act referred to in art. 11.
Paragraph 1. In assigning the Asymmetric Regulatory Measures the following criteria shall be taken into account, among others:
I - Adoption of technical, isonomic and non-arbitrary criteria;
II - Imposition of a specific set of obligations in each Relevant Market;
III - Intervention in proportion to the existing risk;
IV - Assessment of impacts caused by Asymmetric Regulatory Measures;
V - Creation of incentives for investment in new infrastructures;
VI - Assessment of the cost and benefits of the intervention.
Paragraph 2. Anatel shall assess every four (4) years the Relevant Market and the Asymmetric Regulatory Measures listed in Anexo I of this Plan.
Paragraph 3. Anatel may change, on its own initiative or at order of the Interested Party, the Asymmetric Regulatory Measures upon change to Anexo I of this Plan, provided that it shall previously submit the proposed change to Public Consultation, in case the Asymmetric Regulatory Measures were not sufficient to encourage and promote a free, full, fair competition in the Relevant Markets or in case they are no longer necessary.
Article 14. All Groups with PMS in a Relevant Market must, additionally to the Asymmetric Regulatory Measures under this Plan, comply with other measures set forth in specific regulations on Services for Groups with PMS in their respective Relevant Markets.
TITLE VI
(Correction published in the Gazette of 26/11/2012)
TITLE V
SETTLEMENT OF DISPUTES RELATED TO THE PGMC
CHAPTER I
MISCELLANEOUS
Article 15. This chapter establish the Settlement of Disputes in relevant markets defined in the PGMC among telecommunications service Providers, which disputes will be settled under summary proceeding in accordance with the reasonable length of proceedings principle that is required for regulations that encourage and promote a free, full and fair competition in the telecommunications sector, and also in accordance with the principles provided in Law Nº 9472, of July 16, 1997, in Anatel Regulations and in the Brazilian law.
CHAPTER II
PROCEDURE TO SETTLE DISPUTES RELATED TO THE PGMC
Article 16. Procedures for Settlement of Disputes related to the PGMC may only be required by Providers that are part of a Group without PMS in the relevant market subject to the dispute, or entities representing them, against Providers that are part of a Group with PMS.
Paragraph 1. Providers without PMS is forbidden to file such Settlement of Disputes among them.
Paragraph 2. Providers with PMS and Providers without PMS is forbidden to require together for Settlement of Disputes.
Paragraph 3. Other hypotheses of dispute settlement to which the head of this article does not apply will be governed by Anatel Internal Regulation.
Article 17. The complaint shall be submitted to a first instance decision authority and must contain:
I - the claimant's details, including its corporate name and trade name, as applicable, its registration number with the Brazilian register of corporate taxpayers and its address;
II - a detailed explanation of the facts, which shall be consistent with the PGMC, as well as the grounds for the request, with all specifications;
III - the reasons that hinder an amicable agreement between the involved parties and the need of Anatel's intervention;
IV - the documents required to demonstrate the alleged facts, as well as evidence that may be relevant to the claim;
V - name, identification and address of any legal representative acting on behalf of the Claimant during the Dispute Settlement procedures, with specific powers to receive notices, confess, acknowledge the validity of the claim, settle, abandon, waive the right on which the claim is grounded, give release, make commitments, take and submit documents;
VI - date and signature of the Claimant or its legal representative.
Article 18. The First Instance Arbitral Authority shall rule the admissibility of the complaint.
Paragraph 1. Any absences in the complaint shall be mended within five (5) days from the receipt of the notice for amendment, otherwise the claim shall be denied.
Paragraph 2. Upon acceptance of the complaint or fulfillment of the diligence provided in the paragraph above, the Technical Advisory Body shall, as determined by the First Instance Arbitral Authority, serve a notice on the Defendant to present a defense within five (5) days, along with a complete copy of the complaint.
Paragraph 3. Providers with PMS have the burden of proof, except when it is demonstrated that, in the individual case, the claimant has better conditions to produce it.
Article 19. The claimant shall be denied in the following cases:
I - when it is defective;
II - when the party manifestly lacks standing to file the procedure;
III - when the plaintiff has no interest in the procedure;
IV - when the Procedure for Settlement of Disputes related to the PGMC does not correspond to the nature of the procedure, in which case the complaint shall be submitted to a authority having jurisdiction over the matter;
V - when the provisions of art. 18, paragraph 1, are not fulfilled; and
VI - when the Claimant does not state the address to which the notices must be sent.
Paragraph 1. Claimant shall be notified on the denial of the complaint.
Paragraph 2. Upon such denial decision, Claimant may file an Administrative Appeal to the Board of Directors within five (5) days from the receipt of notice of the decision, and the judge of first instance shall be entitled to revoke the decision within forty-eight (48) hours.
Paragraph 3. In case the First Instance Arbitral Authority does not revoke the decision within the term provided in the paragraph above, it shall submit the procedure to the Board of Directors.
Paragraph 4. The Board of Directors Decision shall not be allowed to file a Reconsideration Appeal.
Article 20. After the institution of the Dispute Settlement Procedure, the First Instance Arbitral Authority may notify the parties to present information and documents.
Article 21. Before the submission of the matters to resolution, the Dispute Settlement Procedure shall be submitted to the Technical Advisory Body, which shall issue a Technical Report on the matter within ten (10) days.
Sole paragraph. In the event of the institution of a Dispute Settlement Commission, as provided in art. 26, after the conclusion of the analysis set forth in the head of this article, the matter shall be submitted to a member of the Dispute Settlement Commission, upon random selection, which will report it at a deliberative meeting.
Article 22. The parties shall, if necessary, be convened to attend the Dispute Settlement Meeting.
Article 23. The Dispute Settlement Meeting shall be mandatorily attended by:
I - the first instance arbitral authority;
II - the Claimant, or its representative, which will be entitled to be assisted by a qualified professional;
III - the Defendant, or its representative, which will be entitled to be assisted by a qualified professional;
Paragraph 1. The Dispute Settlement Meeting shall be recorded in minutes, and may also be audio/video recorded, as the first instance arbitral authority determines.
Paragraph 2. The first instance arbitral authority may adopt easing mechanisms for the attendance of Providers without PMS at the Dispute Settlement Meetings.
Paragraph 3. The first instance arbitral authority may, according to the relevance of the matter and the representativeness of the plaintiffs, upon unappealable order, accept manifestation by other bodies or entities.
Paragraph 4. If Claimant does not appear at the Dispute Settlement Meeting, Claimant will be deemed to have abandoned the procedure.
Article 24. At the Dispute Settlement Meeting:
I - the first instance arbitral authority responsible for directing the procedures will call the parties, open the meeting and, after explanation of its objectives, summarize the contents of the complaint and of the defense;
II - the proposal of the plaintiff will be heard and subsequently the proposed settlement of the defendant;
III - the first instance arbitral authority will try to settle the dispute;
IV - if the parties reach an agreement as to the dispute, such agreement shall be made in writing and all the parties shall sign it.
V - if the parties do not reach an agreement, and if there are no elements to adopt a provisional remedy, the first instance arbitral authority may order that the parties present evidence at the hearing or within five (5) days, except when a longer period to present evidence is required;
VI - after the order to present evidence, the first instance arbitral authority shall close the Dispute Settlement Meeting.
Paragraph 1. The settlement provided in item IV shall be approved and, after the fulfillment of the conditions under such agreement, the case will be dismissed.
Paragraph 2. In the event of item V, after the presentation of evidence, the parties shall be served with a notice to present their allegations within five (5) days.
Paragraph 3. Upon the expiration of the period for the parties to present their allegations, the first instance arbitral authority shall, within fifteen (15) days, issue a provisional order.
Paragraph 4. The term set forth in the above paragraph may be extended for the same period only once upon justification of the first instance arbitral authority.
Article 25. The Dispute Settlement procedure will be dismissed on the court's own initiative:
I - if the subject matter changes or becomes impossible, useless or weakened;
II - if the Claimant abandons the case in writing or for his absence at the Dispute Settlement Meeting;
III - in case of expiration of the period for fulfillment of the obligations under the agreement made at the Dispute Settlement Meeting.
Paragraph 1. The parties will be notified of the dismissal of the case.
Paragraph 2. The judge of first instance shall, when it appears that the case does not contain a matter that is relevant to the PGMC, procure to submit the complaint to an authority having jurisdiction over the matter.
Article 26. The first instance arbitral authority may, when the evaluation and resolution of the Dispute Settlement procedure by a board is deemed to be appropriate by him, within three (3) days from the decision on the appealability of the complaint, as provided in art. 18, propose the President of Anatel to institute a Commission composed of three members, one of which shall be the chairman and other three members to act as alternate.
Paragraph 1. Once the members are appointed, the Commission will be responsible for the progress of the Dispute Settlement and fulfillment of its conditions. Any individual who has or has had a relationship with any of the parties, and because of such relationship such individual is not allowed to act in the procedure, as provided in Law Nº 9784, of January 29, 1999, such individual shall be substituted by his alternate.
Paragraph 2. Each member of the Commission and their alternates shall be appointed by Decree of the President of Anatel, which provide for the powers and duties of each member, including ancillary bodies of the Commission.
Paragraph 3. Upon the analysis of the Technical Advisory Body, the matter will be randomly distributed to a member of the Dispute Settlement Commission of the PGMC, which will report it at a deliberative meeting of the Commission, except in case of some impediment or suspicion over one of the members;
Paragraph 4. At Dispute Settlement Meetings, the only member of the Commission which shall be obliged to attend the meeting is the member who was randomly appointed as rapporteur of the Dispute Settlement Procedure.
Paragraph 5. The deliberative meeting of the Dispute Settlement Commission shall be held as follows:
I - the Dispute Settlement Commission of the PGMC shall meet whenever there is pending resolution of disputes;
II - the notice of the meeting shall be given by the Chairman, when there is any matter to be reported by him, or at the request of a commission member;
III - the deliberative meetings of the Dispute Settlement Commission of the PGMC shall be held with the mandatory presence of all its members and the Executive Secretary;
IV - upon the receipt of the case records by the rapporteur, the matter will be automatically included to the next deliberative meeting of the Commission;
V - deliberative meetings shall be held within a period not exceeding five (5) days and may be extended once, provided that the total period, including the period for review by the Technical Advisory Board, does not exceed the time limit provided in art. 24, § 3º.
Paragraph 6. All rules that are applicable to procedures conducted by a first instance arbitral authority also apply to Dispute Settlement Procedures conducted by a Commission, except rules that do not apply to decisions made by a board or commission.
CHAPTER IV
(Correction published in the Gazette of 26/11/2012)
CHAPTER III
DECISIONS
Article 27. The f first instance arbitral authority may, at his own discretion, during the procedure, or in case of threatened risk, before the event; or in case of unjustified resistance of the parties, or one of them; adopt provisional remedy, without the prior approval of the interested party.
Paragraph 1. The proceedings on the provisional remedy shall be carried out in separate records without prejudice to the progress of the merit process.
Paragraph 2. If there is appeal against the decision to adopt provisional remedy, the separate records shall be disjoined from the main procedure for analysis and judgment by the competent authority.
Article 28. Decisions of Dispute Settlement of the PGMC bind the parties to its terms, under penalty of filing a Procedure Determining Default (PADO), and the application of such penalty will consider the number of days of noncompliance with the decision of the first instance arbitral authority.
Article 29. In the event of institution of a Dispute Settlement Commission, as provided in art. 26, the Commission's decisions shall be made by a majority of the members, in a reasoned manner, and shall include as a minimum:
I - specification of the facts constituting the case as well as an indication of the actions to be taken by the responsible parties;
II - the period within which the steps referred to in the previous item are to be initiated and completed;
III - the exception of the dissenting vote, if any;
IV - the signature of all members who participated in the decision.
Sole paragraph. The votes of all members of the Commission shall be included in the records of the procedure.
CHAPTER V
(Correction published in the Gazette of 26/11/2012)
CHAPTER IV
APPEALS
Article 30. The parties may appeal the decision referred to in art. 28 within ten (10) days, to Anatel Board of Directors under Anatel Internal Regulations.
Paragraph 1. Appeals shall have priority in the Board of Directors' judgments, and shall be docketed within thirty (30) days from the random selection of the case to the Reporting Board Director.
Paragraph 2. No requests for reconsideration will be allowed with respect to the Board of Directors' decisions on appeals against provisional remedy granted by a first instance arbitral authority.
Article 31. After the return of the court records from the Board of Directors, which may ratify or modify any adopted provisional remedy, evidence will be presented to first instance arbitral authority and, before the final decision on the merits, the authority shall, as the arbitral authority deems to be necessary, forward the suit to the Federal Specialized Office of the Attorney General of the Union, under the Regulations, which shall be promptly reviewed.
Paragraph 1. Before the final judgment on the merits and before the submission to Anatel Federal Specialized Office of the Attorney General of the Union, if same occurs, the parties shall be notified to present their final allegations within five (5) days.
Paragraph 2. After the review defined in the previous paragraph, the first instance arbitral Authority shall, within fifteen (15) days, issue his decision on the merits.
Article 32. The effects of the decision on the merits shall relate back to the date the complaint was filed.
Article 33. After the decision on the merits, the parties shall be given notice on the moment from which they will be allowed to appeal as provided in Anatel Internal Regulations.
Article 34. The Arbitral Authority of first instance shall make available and keep on Anatel webpage an updated court reporter on all decisions regarding PGMC disputes that were issued by the Agency, with the exception of confidential and sensitive information, as well as a consolidated list of applicable agreements in any Dispute Settlement related to the PGMC.
Article 35. The procedure rules under the Anatel Internal Regulations shall be applicable as a supplement to the Procedure to Settle Disputes related to the PGMC.
TITLE VII
(Correction published on Official Gazette of 26/11/2012)
TITLE VI
WHOLESALE SUPPLY SUPERVISOR ENTITY
Article 36. Groups with PMS in Relevant Wholesale Markets shall engage a Wholesale Supply Supervisor Entity to implement and operate the Wholesale Supply Negotiation System for the purpose of intermediating, in an equitable and non-discriminatory manner, the process related to the procurement of wholesale goods supplied by Groups with PMS.
Paragraph 1. Groups with PMS in Relevant Wholesale Markets shall be responsible for charges arising from the engagement of a Supervisor Entity to render the services provided in this Title.
Paragraph 2. Such contract executed with the Supervisor Entity shall include, as a minimum:
I - conditions for the maintenance of the Supervisor Entity;
II - procedures and characteristics of the relationship between the Supervisor Entity and Anatel, including the provision of information to the Agency with respect to its business;
III - the Supervisor Entity's obligation to report to Anatel any failures and difficulties that may be found during the performance of its activities;
IV - mechanisms that may allow Anatel to, at any time, perform audits on its business;
V - mechanisms that may allow Anatel to intervene with processes related to the Entity's activities, so as to ensure the continuity and efficiency of same;
VI - guarantees of neutrality and integrity in the performance of its activities.
Article 37. Groups with PMS in Relevant Wholesale Markets shall not have control over the Supervisor Entity, and integrity, neutrality and independence of its operations shall be ensured.
Article 38. The Supervisor Entity shall meet the following requirements:
I - be a legal entity with administrative independence, financial and income autonomy, and operative neutrality;
II - be incorporated under the laws of Brazil, with its principal place of business and management located in Brazil;
III - have an indefinite duration term;
IV - be responsible for the dimensioning, employment, specification, planning and management of the equipment and systems required to perform its activities; and
V - allow the free participation of telecommunications service providers, under its organizational documents.
Article 39. The Supervisor Entity shall perform the following activities:
I - ensure centralized access to the Wholesale Databases and Wholesale Reference Offers from Groups with PMS in Wholesale Markets;
II - make available a Wholesale Supply Negotiation System as a negotiation platform for wholesale goods among telecommunications service providers of collective interest; and
III - provide the Agency with information related to its activities.
Article 40. The Wholesale Supply Negotiation System that the Supervisor Entity shall make available shall:
I - provide the employment of wholesale goods;
II - provide a control of the deadlines for conclusion of negotiation between the parties;
III - provide follow-up and control of the queue of Providers requesting wholesale goods;
IV - be integrated to the Wholesale Databases (BDA) of Groups with PMS in the Wholesale Markets.
Article 41. Groups with PMS in Relevant Wholesale Markets shall, within one hundred twenty (120) calendar days from the creation of GIESB, select and contract the Supervisor Entity.
Article 42. Every five (5) years, Anatel shall review the Supervisor Entity's activities for adequacy to the objectives of this Plan, and may, stating the reasons for such, engage a new Supervisor Entity.
Article 43. The activities performed by the Supervisor Entity may be performed with consideration, provided that the price for such activities do not hinder the negotiation of wholesale goods.
TITLE VIII
(Correction published on Official Gazette of 26/11/2012)
TITLE VII
GROUP FOR IMPLEMENTATION OF THE WHOLESALE SUPPLY SUPERVISOR ENTITY AND WHOLESALE DATABASES (GIESB)
Article 44. In order to implement the Wholesale Databases, the Wholesale Supply Negotiation System and the Supervisor Entity, the GIESB will be formed under Anatel coordination, within thirty (30) calendar days from the publication of the Resolution.
Paragraph 1. The members of the GIESB are representatives of Anatel, as well as representatives of Providers with PMS in Wholesale Markets and Providers without PMS in Wholesale Markets, or entities representing them;
Paragraph 2. The members of the GIESB shall be appointed at its formation meeting;
Paragraph 3. After the Wholesale Supply Supervisor Entity is selected, same shall become a member of the GIESB;
Paragraph 4. Any disputes arising from the GIESB shall be settled by Anatel.
Article 45. GIESB's duties include, but are not limited to:
I - coordination, determination and preparation of a detailed schedule of activities and follow-up of the implementation of BDA , the Wholesale Supply Negotiation System and the Supervisor Entity;
II - standardization of technical, operating and visual interface respects of BDA and the Wholesale Supply Negotiation System;
III - standardization of follow-up of the management of Supplies as provided in this Plan;
IV - review and report of the implementation phases of BDA, the Wholesale Supply Negotiation System and the Supervisor Entity;
V - specification of characteristics of BDA and the Wholesale Supply Negotiation System;
VI - establishment of funding and compensation terms with respect to the Wholesale Supply Supervisor Entity;
VII - stipulation of rules for the purpose of ensuring the neutrality and integrity in the Supervisor Entity's performance of its activities;
VIII - coordination of business processes and offering of subsidies for Anatel settle any disputes that may arise in processes related to the implementation of BDA and the Wholesale Supply Negotiation System.
Article 46. The implementation of Wholesale Databases, the Wholesale Supply Negotiation System and the Supervisor Entity shall be divided into three (3) consecutive phases:
I - Phase 1: Planning and Development;
II - Phase 2: Validation;
III - Phase 3: Full Activation.
Sole paragraph. The coordination of each phase is the responsibility of GIESB.
Article 47. The deadlines to implement BDAs, the Wholesale Supply Negotiation System and the Supervisor Entity shall be fixed by GIESB.
TITLE IX
(Correction published on Official Gazette of 26/11/2012)
TITLE VII
ADMINISTRATIVE SANCTIONS
Article 48. Failure to perform the duties and the Asymmetric Regulatory Measures provided in this Plan, as well as disclosure of information that may lead Anatel to a misinterpretation of the data submitted by the Providers, shall be subject to the sanctions stipulated by law and the regulations.
RELEVANT MARKETS AND ASYMMETRIC REGULATORY MEASURES
CHAPTER I
PURPOSE AND SCOPE
Article 1. This Annex sets forth guidelines to identify Products in relevant markets to be considered for purposes of ex ante regulating in the General Plan of Competition Goals (PGMC), and stipulates the Asymmetric Regulatory Measures incidental on such markets, in order to encourage and promote competition.
Sole paragraph. The provisions contained in this Annex shall be periodically reviewed by Anatel, in the manner and on the terms and conditions provided in Title IV of the General Plan of Competition Goals.
CHAPTER II
RELEVANT MARKET PRODUCT DIMENSION
Art. 2 For the purposes of this Plan, additionally to the definitions of the applicable law and regulations, the following definitions will apply:
I - Bitstream: logical separation of the network that connects the termination of the subscriber or user to a point of concentration chosen by the requesting Provider;
II - Full Unbundling: availability by the telecommunications service Provider of collective interest to other telecommunications service Provider of collective interest of the whole spectrum of frequencies inherent to the access metallic pair;
III - Full Peering: a Class V Interconnection regime with direct interconnection between the Providers' networks to run traffic between them, without compensation;
IV - Fixed transportation network infrastructure: it covers active and passive elements used to support the interlink of centers or industrial exploration (buildings and sites; containers and remote cabinets; primary and secondary distributors of electrical and optical connections; ducts, conduits, terminal boxes and splices; towers and off optical fibers);
V - Fixed access network infrastructure: it covers active and passive elements used from the center up to the point of connection of the subscriber's external network to the internal network (buildings; remote cabinets; primary and secondary distributors of electrical and optical connections; poles, ducts, conduits, terminal boxes and splices; towers and off optical fibers);
VI - Class V Interconnection: Direct interconnection of Telecommunications Networks to support other Telecommunications Services of collective interest other than Fixed Switched Telephone Service (STFC) or mobile telecommunications service of collective interest, to run traffic, originating from and termination in such networks, including the connection of Telecommunications Networks to support Internet backbone.
VII - Interlink: Link between telecommunications networks to run traffic destined to third-party networks other than those that are directly connected, upon bilateral transit trade agreement;
VIII - Paid peering: a Class V Interconnection regime with direct traffic exchange between the Providers to run traffic between them, with compensation;
IX - Traffic Exchange Point (PTT): a network solution with the purpose of enabling the Class V Interconnection and the Interlink between telecommunications networks of several Providers that use different compensation and traffic routing regimes;
X - Wholesale Market Products: Backhaul Exploration, Industrial Exploration of Dedicated Lines (EILD), Interconnections and Interlinks of Telecommunications Networks, Bitstream, Full Unbundling and infrastructures composed of ducts, conduits, poles and towers, under the regulations;
Article 3. To identify the relevant markets in the product dimension, the following products shall be considered:
I - In Retail Markets:
a) Calls originated in STFC and destined to SMP, when the origin and destine networks belongs to different Economic Groups;
b) Data transmission offer through Multimedia Communication Service (SCM);
c) Personal Mobile Service offer for provision of such service out of the Service Provision Area;
d) Calls originated from SMP and destined to SMP when the origin and destination networks belong to different Economic Groups;
e) Delivery of pay television upon authorization of SeAC, DTH, MMDS or concession of TVC.
II - In Wholesale Markets:
a) Interconnection:
1. In fixed telephone networks: supply of fixed network elements necessary for an interconnection for termination telephone calls;
2. In mobile network: supply of call termination in mobile networks, including networks of Personal Mobile Service – SMP and networks of Specialized Mobile Service – SME;
b) Infrastructure and Networks:
1. Access in fixed network: wholesale supply with fixed access network infrastructure for data transmission by means of copper pair or coaxial cable in transmission rates equal to or lower than 10 Mbps;
2. Transportation: wholesale supply with fixed network infrastructure of local and long-distance transportation for data transmission at rates equal to or lower than 34 Mbps (EILD, backhaul and backbone);
3. Passive: passive infrastructure supply involving ducts, conduits, poles and towers.
c) National Roaming: Connectivity supply to visitor users from other mobile telecommunications networks; and
d) Interlink: traffic supply between telecommunications networks.
CHAPTER III
TRANSPARENCE IN WHOLESALE MARKET
Article 4. A Group with PMS in a Relevant Wholesale Market must provide all telecommunications service Providers of collective interest with equitable, non-discriminatory treatment in its supplies contemplated in such Relevant Wholesale Market.
Article 5. Groups with PMS in Relevant Wholesale Markets must prepare Reference Offers of Products in the Wholesale Market for approval by the relevant Superintendence.
Paragraph 1. Groups with PMS shall present for approval their proposed Reference Offers to Anatel within ninety (90) days from the date the Resolution is published;
Paragraph 1. Groups with PMS shall present for approval their proposed Reference Offers to Anatel within one hundred twenty (120) days from the date the Resolution is published; (Correction published on the Official Gazette of February 20, 2013)
Paragraph 2. In case the Reference Offer is not submitted by a Group with PMS and upon the expiration of the term provided in the paragraph above, Anatel may, in case of dispute, decide in a provisional manner on the conditions for employing new Wholesale goods.
Paragraph 3. While the Wholesale Database standardized by GIESB is not working, the Superintendence responsible for the approving Reference Offers shall adopt a simplified procedure for submission and approval of Reference Offers.
Article 6. Reference Offers approved by Anatel shall be mandatorily performed by Groups with PMS.
Article 7. Reference Offers of Products in the Wholesale Market shall be available on their latest version on the website and Wholesale Databases of the Groups with PMS in the Relevant Wholesale Market, containing at least:
I - General terms and conditions of the offer;
II - Technical aspects of the offer;
III - Prices or formula for fixing prices for each characteristic, function and resource;
IV - Provision of deadlines and any conditions to meet requests for access to additional services, infrastructures and functionalities;
V - Safety standards;
VI - Guaranteed quality levels;
VII - Standard agreements (or model agreements).
Paragraph 1. The conditions of the Reference Offers of Products in the Wholesale Market shall consider, among other things, the different network structures of Groups with PMS.
Paragraph 2. The Reference Offers provided in the head of this article shall be sufficiently separated so as to ensure that the contracting companies are not obliged to pay for unnecessary resources for the required product.
Paragraph 3. For the purposes of item I of the head of this article, the availability level of the equipment, means and infrastructure related to the Offer, the reimbursement modalities and requisition, delivery, activation and acceptance procedures in connection with the subject matter of the Offer shall be mandatorily described.
Paragraph 4. For the purposes of item II of the head of this article, the technical specifications of the equipment, means and infrastructures related to the Offer, including a detailing of physical and electrical characteristics of the users' interfaces and terminals shall be mandatorily described.
Paragraph 5. For the purposes of item III of the head of this article the following shall be mandatorily described:
I - the criteria for discounts, which shall be applied in an equitable, non-discriminatory manner, and the concession of discounts under subjective criteria is not allowed;
II - the criteria and periodicity for adjusting the offer's prices, considering the Telecommunications Service Index (IST) created by Anatel or other index that may substitute it;
Paragraph 6. For the purposes of item IV of the head of this article the following deadlines shall be mandatorily described:
I - deadline for delivery, which is the time between the date of engagement until the actual availability;
II - contract term, which is the time set forth for the duration of the contract and the minimum contract term that the contracting operator is obliged to accept;
III - deadline for remedy, which is the period of time from the moment in which a notice of damage is given to the contractor operator's relevant unit until the moment in which the products and services under the Offer are resumed.
Paragraph 7. For the purposes of item VI of the head of this article, the standards, amounts and other parameters required to assess quality shall be mandatorily expressed.
Paragraph 8. The Superintendence responsible for approving Reference Offers may discharge the Group with PMS from the obligation to submit any part of the items described in the head of this article upon order duly stating the reasons for such, as well as it may order for the inclusion of any other information.
Article 8. The standard offer agreement referred to in art. 7º, VII, shall include, at least, the following aspects:
I - technical characteristics;
II - the criteria and periodicity for adjusting the offer's prices, considering the Telecommunications Service Index (IST) created by Anatel or other index that may substitute it;
III - term of the agreement;
IV - agreed quality levels, expressing the standards, values and other parameters that are necessary to assess quality, maintaining quality levels similar to the products offered to Providers that are part of a Group with PMS;
V - deadlines, conditions and procedures to activate, deactivate and accept offers;
VI - deadlines and procedures for invoicing, objecting amounts and making payments for services provided;
VII - applicable penalties for nonperformance of the agreement;
VIII - grant of credits for failures resulting in reduction of agreed quality levels or stoppage of services, which were not caused by the requesting Provider or force majeure as duly justified;
IX - an applicable form for electronic information exchange regarding amounts payable on a monthly basis;
X - deadline for remedy;
XI - conditions and procedures to extend the agreement; and
XII - conditions to terminate the agreement and deadline for notice to the other party.
Article 9. Upon the approval of the Reference Offers of Products in the Wholesale Market, Anatel shall review:
I - the possibility to reply retail offers from Groups with PMS in Wholesale Markets by Groups without PMS in the same Wholesale Markets;
II - adjustment of prices to the offer costs of wholesale goods;
III - incentive to investment in modernization and expansion of telecommunications infrastructures and networks, considering deadlines to recover investments in same; and
IV - fulfillment of provisions, criteria, deadlines and limits set forth in this Annex.
Article 10. Anatel shall give notice on the approval of the proposed Wholesale Product Reference Offer within thirty (30) days.
Paragraph 1. The deadline provided in the head of this article shall be suspended when no clarifications and documents required to review the process are submitted as requested by Anatel.
Paragraph 2. The deadline provided in the head of this article shall be extended for the same period, only once, upon justification of the Superintendence responsible for the approval.
Paragraph 3. The submission of the Reference Offers shall be made by means of a computerized system made available by Anatel.
Paragraph 4. While the system referred to in paragraph 3 is not made available, Groups with PMS shall file such documents by physical or electronic media.
Paragraph 5. Upon the expiration of the deadlines provided for approval, its sale is allowed under the provisions of the proposed Offer while there is no manifestation as to the approval by Anatel.
Article 11. Groups with PMS in Relevant Wholesale Markets shall, at least every six (6) months, submit its Reference Offers of Products in the Wholesale Market for review.
Sole paragraph. Anatel may, at any time, reasonably order review of the Reference Offers of Products in the Wholesale Market, and the Group with PMS shall, within thirty (30) days, present the review of the Offer.
Article 12. Groups with PMS in a Relevant Wholesale Market shall, as to the offers contemplated in the head of art. 5º:
I - dimension, engage, specify, plan and administer the equipment and systems necessary to perform management and follow-up activities for the offers;
II - manage the offers in a continuous and uninterrupted manner;
III - manage and control the fulfillment of requests for wholesale offers;
IV - ensure exchange of information that is required to fulfill requests for wholesale offers with requesting Groups, by means on remote interfaces;
V - ensure publicity, transparence and isonomy in wholesale offers, with publicity of prices, deadlines and other commercial conditions;
VI - provide a non-discriminatory treatment in the fulfillment of requests from other requesting Groups, with a continuous follow-up of practices and results (fulfillment sequence and deadlines);
VII - keep an updated Wholesale Database;
VIII - set the activities and times of performance for wholesale offers, considering the deadlines under the regulations.
Article 13. The Group with PMS in a Relevant Wholesale Market shall create a unit or department, with an executive board nature established under articles of incorporation or organization, which shall be solely responsible for order processes, sales and delivery of products regarding the Reference Offers of Products in the Wholesale Market referred to in the head of art. 5º.
Paragraph 1. The service to the requesting Groups shall be performed solely by the executive board referred to in the head of the article, in an efficient and timely manner, and the offerer Group with PMS shall disclose its contact details to the executive board on the main website of its Provider responsible for performing the offer, and such contact details shall include, as a minimum, telephone number(s), electronic mail(s) and mailing address.
Paragraph 2. While it is not possible to amend the articles of incorporation or organization to include the executive board referred to in the head of the article, the Group with PMS shall create it or formalize it by resolution of its Board of Directors within six (6) months after the publication of the Resolution.
Article 14. The Group with PMS in the Relevant Wholesale Market shall develop a Wholesale Database (BDA) with remote, updated real-time access containing control and sequential monitoring mechanisms for queue requests made by Groups requesting the offers referred to in the head of art. 5º, including requests from Providers that are part of the Group with PMS, as well as internal requests from the offerer Provider.
Paragraph 1. The Wholesale Database shall be made available on the main website of the Group with PSM's Provider responsible for implementing the offer.
Paragraph 2. All offers shall be made available in Wholesale Database and be associated with a corresponding number or code.
Paragraph 3. All orders shall be included in the Wholesale Database in chronological order and shall receive a number corresponding to such order so that the requesting Groups may follow up its implementation.
Paragraph 4. The Wholesale Database shall, at least, contain information on the title and description of the offer, name of the requesting Provider, identification whether the requesting Provider is part of the offerer Group or not, the origin and destination municipality(ies) contemplated in the order, the date of the order, the order situation or status, the date of completion or placement of the offer and sequential position of the order in the queue, as well as price information.
Paragraph 5. The Wholesale Database shall be accessed by first instance arbitral authority in any Dispute Settlement procedure or by the members of the Commission, if any, and all requesting providers, according to the access profiles determined by the GIESB.
Paragraph 6. No marketing of products in the Wholesale Market may be performed without the entry of the supply & demand operation to the Wholesale Database, including the one performed by Providers that are part of the Group with PMS.
Paragraph 7. The Wholesale Database shall be standardized by the GIESB and shall be running within ten (10) months from the publication of the Resolution.
Article 15. The full information of the Wholesale Databases, including prices, shall be preserved for a minimum period of five (5) years, and when requested by Anatel, the Group with PMS in the Relevant Wholesale Market shall provide this information, by electronic or printed means, within a period not exceeding three (3) days.
Article 16. The Group with PMS in the Relevant Wholesale Market shall bear the implementation and maintenance costs of the Wholesale Database, and also the content and terms of availability of the resources associated to the offerings before Anatel.
Article 17. It is the responsibility of the Group with PMS in the Relevant Wholesale Market to communicate failures and difficulties found when managing the offers to Anatel.
CHAPTER IV
WHOLESALE SUPPLY WITH FIXED ACCESS NETWORK INFRASTRUCTURE FOR DATA TRANSMISSION BY MEANS OF COPPER PAIR OR COAXIAL CABLE IN TRANSMISSION RATES EQUAL TO OR LOWER THAN 10 MBPS
Article 18. The Group with PMS in the Relevant Wholesale Market with fixed access network infrastructure for data transmission by means of copper pair or coaxial cable in transmission rates equal to or lower than 10 mbps shall:
I - submit the Reference Bitstream Offers, under art. 5º of this Annex;
II - submit Reference Full Unbundling Offers, when the transmission is performed by means of copper pair, as provided in Article 3, Article 5 of this Annex;
II - submit Reference Full Unbundling Offers, when the transmission is performed by means of copper pair, as provided in Article 5 of this Annex; (Correction published in the Official Gazette of November 26, 2012)
III - promote and keep updated on its website, the Reference Offers that must expressly contain technical and commercial information that is necessary to the Bitstream operation, including Bitstream Contract, Co-location Contract and Operating Procedure Manual;
IV - submit, when requested by Anatel, a copy of executed bitstream contracts, a list of all bitsreams, categorized by location and served Provider, and a list of bitstream requests in progress, stating the status of service.
Sole paragraph. The Reference Bitstream Offer and Reference Full Unbundling Offer shall provide for technological alternatives enabling the sharing of the Access Network among several Groups.
Article 19. The following information shall be included in the Reference Bitstream Offer and the Reference Full Unbundling Offer, additionally to the information provided in art. 7º of this Annex:
I - prices, terms of service and discounts in service plans on offers of STFC, SCM and Joint offers with lower monthly fixed prices offered by the Group with PMS in the geographical dimension of the relevant market.
II - conditions for unbundled access to the local loop, including:
a) specification of network elements and relevant parameters regarding the architecture of the local network that are the object of the access offer, including identification of fiber optic trunks in specific parts of the access network;
b) information concerning the locations of physical access points and availability of local loops in specific parts of the access network;
c) specification of technical conditions related to access and use of local loops, covering, among others, technical characteristics of the local loop's metallic pair, the equipment used, spectral limitations and electromagnetic compatibility requirements designed to prevent interference with other systems, restrictions and their justification with respect to the equipment to be installed.
d) restrictions on use.
III - conditions for location sharing, including:
a) information about the share locations;
b) sharing options of the locations defined in the preceding paragraph, including energy and space shares and, if appropriate, remote or virtual shares;
c) equipment characteristics, including any restrictions on equipment that can be installed;
d) security issues, including, among others, standards and measures to ensure network integrity and safety standards to be met by both parties;
e) rules for space allocation (ordering, booking, investment planning, budgeting, pricing and invoicing).
f) access conditions for the contracting operator's staff;
g) rules for the sharing of space when limited;
h) conditions for Anatel to visit the sites where the physical sharing is allowed or sites where the sharing has been refused for lack of capacity.
IV - regarding information systems:
a) conditions for access to the transferor operator's operational support systems;
b) information systems or databases for pre-order;
c) ordering of maintenance requests;
d) repair and invoicing.
V - supply conditions, including:
a) information on deadlines and any conditions to meet requests for access to additional services, infrastructures and functionalities, including, but not limited to:
time required to fulfill the requests for provision of services and resources;
Service Level Agreements (SLAs);
fault repair;
procedures to resume the normal level of service; and
quality parameters of service.
b) standard contract terms, including, where appropriate, compensation for failure to meet the deadlines for fulfilling requests;
c) provision of non-discriminatory clauses of Service Level Agreements (SLA).
VI - conditions for the provision of passive infrastructure elements, including:
a) technical details for passage and fixing of cables on poles, ducts and conduits, including its dimensions, used volume and excess capacity for the purpose of assignment of space;
b) technical features to share towers, including excess capacity for the purpose of assignment of space;
c) feasibility analysis criteria for the sharing of passive infrastructure elements;
d) procedures for installation and removal of cables, equipment and other elements.
Sole paragraph. The information referred to in paragraph I of this Article shall be made available in the electronic system provided in art. 10, § 3º, of this Annex.
Article 20. Until the Reference Bitstream Offer is not approved in dispute settlement procedures involving such offers, Anatel shall provisionally use, as a reference value, a percentage of the lowest retail price of the Group with PMS in the wholesale market with a fixed access network infrastructure for data transmission via copper pair or coaxial cable at transmission rates lower than or equal to 10 Mbps.
Sole paragraph. The reference value provided in the head of the article may follow the Replicability Assessment Methodology and will be used only after the expiration of the terms provided in art. 5º, § 1º e § 2º, and art. 10 of this Annex.
Article 21. Until the Reference Full Unbundling Offer is not approved in dispute settlement procedures involving such offers, Anatel shall provisionally use, as a reference value, a percentage of the lowest retail price of the Group with PMS in the wholesale supply market with a fixed access network infrastructure for data transmission via copper pair at transmission rates lower than or equal to 10 Mbps.
Article 21. Until the Reference Full Unbundling Offer is not approved in dispute settlement procedures involving such offers, Anatel shall provisionally use, as a reference value, a percentage of the lowest retail price of the Group with PMS in the wholesale supply market with a fixed access network infrastructure for data transmission via copper pair or coaxial cable at transmission rates lower than or equal to 10 Mbps. (Correction published on the Official Gazette of November 26, 2012)
Sole paragraph. The reference value provided in the head of the article may follow the Replicability Assessment Methodology and will be used only after the expiration of the terms provided in art. 5º, § 1º e § 2º, and art. 10 of this Annex.
Article 22. The Group with PMS shall bear all costs related to adapting its network to allow the implementation of Bitstream and Full Unbundling.
Article 23. Until its Reference Offers are not approved, the Group with PMS in the Relevant Wholesale Market with fixed access network infrastructure for data transmission via copper pair or coaxial cable at transmission rates lower than or equal to 10 Mbps shall ensure to Groups without PMS the fulfillment of requests corresponding to twenty percent (20%) of the physical capacity of the elements mentioned in the Infrastructure Sharing Regulations among Telecommunications Service Providers, as approved by Resolution Nº 274 of 5 September 2001.
Sole paragraph. The performance guarantee provided in the head of the article shall only be used after the expiration of the terms provided in art. 5º, § 1º e § 2º, and art. 10 of this Annex.
Article 24. The party contracting the unbundling of network elements (whether full unbundling or bitstream) shall bear the costs for the marketing and customer service to the User as Bitstream and Full Unbundling.
Sole paragraph. The Group without PMS shall be fully responsible for the operation and implementation of telecommunications services, as provided under the head of the article, to the subscriber and Anatel, including as to the proper functioning of the service support network, even if it is owned by third parties, in which case the right of recourse is granted.
CHAPTER V
WHOLESALE SUPPLY WITH FIXED NETWORK INFRASTRUCTURE OF LOCAL AND LONG-DISTANCE TRANSPORTATION FOR DATA TRANSMISSION AT RATES EQUAL TO OR LOWER THAN 34 MBPS
Article 25. The Group with SMP in the Relevant Wholesale Market with fixed network infrastructure of local transportation and long distance data transmission at rates equal to or lower than 34 Mbps shall submit Reference Offers for Industrial Exploitation of Dedicated Lines, backhaul Exploitation and Interconnection (Class V), in accordance with applicable regulations and art. 5º of this Annex.
Paragraph 1. In the offer for Industrial Exploitation of Dedicated Lines, the Group shall also comply with the provisions contained in the Regulations of Industrial Exploitation of Dedicated Lines.
Paragraph 2. In the backhaul exploitation offer, the Group shall also comply with the provisions of the Regulations of the General Plan of Universalization Goals.
Paragraph 3. In the Interconnection offer (Class V), the Group shall also comply with the provisions contained in the General Interconnection Regulations.
Article 26. The following information shall also be included in the Reference Offer for Industrial Exploitation of Dedicated Lines, additionally the information provided in art. 7º of this Annex:
I - prices, terms of service and discounts in service plans on offers of STFC, SCM and Joint Offers with lower monthly fixed prices offered by the Group with PMS in the geographical dimension of the relevant market;
II - price for connection to the IP network for internet access;
III - conditions for the location sharing, if applicable, including:
a) information about the share locations;
b) sharing options of the locations defined in the preceding item, including physical share and, if appropriate, remote or virtual shares;
c) equipment characteristics, including any restrictions on equipment that can be installed;
d) security issues, including, among others, standards and measures to ensure network integrity and safety standards to be met by both parties;
e) rules for space allocation and sharing, which shall apply in an equitable and non-discriminatory manner, including reserve, hiring, deadlines and prices or formula to determine them;
f) access conditions for the contracting Providers' staff;
h) conditions for Anatel to visit the sites where physical sharing is allowed or sites where the sharing has been refused for lack of capacity.
IV - offer conditions, including:
a) information on deadlines and any conditions to meet requests for access to additional services, infrastructures and functionalities, including, but not limited to:
time required to fulfill the requests for provision of services and resources;
Service Level Agreements (SLAs);
failure repairs;
procedures to resume the normal level of service; and
quality parameters of service;
b) standard contract terms, including, where appropriate, compensation for failure to meet the deadlines for fulfilling requests;
c) making non-discriminatory SLA projects available.
V - conditions for the provision of passive infrastructure elements, including:
a) technical details for passage and fixing of cables on poles, ducts and conduits, including its dimensions, used volume and excess capacity for the purpose of assignment of space;
b) technical features to share towers, including excess capacity for the purpose of assignment of space;
c) feasibility analysis criteria for the sharing of passive infrastructure elements;
d) procedures for installation and removal of cables, equipment and other elements.
Paragraph 1. The information provided in "I" should be reported in the electronic system provided in art. 10, § 3º, of this Annex.
Paragraph 2. The Reference Offer shall include transmission rates equal to or lower than 34Mbps, as provided in the Electronic System under art. 10, § 3º, of this Annex.
Article 27. Until backhaul exploitation and EILD Reference Offers in dispute settlement involving such offers are not approved by Group with PMS in the Relevant Wholesale Market with fixed network infrastructure of local and long distance transportation for data transmission at rates equal to or lower than 34 Mbps, Anatel shall use the reference values established in Act No. 2716 of May 15, 2012 or other act that may supersede it.
Article 28. Until Interconnection Reference Offers (Class V) in dispute settlement involving such offers are not approved by Group with PMS in the Relevant Wholesale Market with fixed network infrastructure of local and long distance transportation for data transmission at rates equal to or lower than 34 Mbps, Anatel shall use compensation rules based on full peering.
Sole paragraph. The compensation rule provided in the head of the article shall only be used after the expiration of the terms provided in art. 5º, § 1º e § 2º, and art. 10 of this Annex.
Article 29. Until its Reference Offers are not approved, the Group with PMS in the Relevant Wholesale Market with fixed access network infrastructure of local and long distance transportation for data transmission at rates lower than or equal to 34 Mbps shall ensure to Groups without PMS the fulfillment of requests corresponding to twenty percent (20%) of the physical capacity of the elements mentioned in the Infrastructure Sharing Regulations among Telecommunications Service Providers, as approved by Resolution Nº 274 of September 5, 2001.
Sole paragraph. The performance guarantee provided in the head of the article shall only be used after the expiration of the terms provided in art. 5º, § 1º e § 2º, and art. 10 of this Annex.
Article 30. Until its Reference Offers are not approved, the Group with PMS in the Relevant Wholesale Market with fixed access network infrastructure of local and long distance transportation for data transmission at rates lower than or equal to 34 Mbps involving STFC Concessionaire on Local Modality shall, upon request, provide access to at least fifty percent (50%) of the backhaul capacity, as established under the General Plan of Universalization Goals for Fixed Switched Telephone Service provided under a public regime in force, to other Groups in the provision of collective interest services.
Sole paragraph. The performance guarantee provided in the head of the article shall only be used after the expiration of the terms provided in art. 5º, § 1º e § 2º, and art. 10 of this Annex.
Article 31. The Group with PMS in Relevant Wholesale Market with fixed network infrastructure of long distance transportation for data transmission at rates equal to or lower than 34 Mbps shall, within ninety (90) days from the first request for Class V Interconnection or Interlink, implement at least one Traffic Exchange Point at the Registration Area (AR) of the request and which does not have a Traffic Exchange Point.
Paragraph 1. The Group with PMS in a Relevant Wholesale Market with fixed infrastructure of long distance transportation for data transmission at rates equal to or lower than 34 Mbps shall submit Class V Interconnection and Interlink Reference Offers to run traffic, under current law and art. 5 of this Annex.
Paragraph 2. The Group with PMS in a Relevant Wholesale Market with fixed network infrastructure of long distance transportation for data transmission at rates equal to or lower than 34 Mbps shall provide a routing capacity sufficient to the demand at Traffic Exchange Points, and shall allow the disclosure of ASs (Autonomous Systems) connected at its network.
Paragraph 3. The Reference Wholesale Offer for Class V Interconnection shall include full peering and paid peering compensation schemes, and the Reference Wholesale Offer for Interlink shall include the transit mode offer.
Paragraph 4. The Traffic Exchange Point shall be implemented in the most populous municipality of each Registration Area (AR) where the Group has PMS.
Paragraph 5. If more than one Group with PSM is identified in a Registration Area (AR), the Traffic Exchange Point should be implemented in a common location.
Paragraph 6. In Registration Areas (AR) where at least one Traffic Exchange Point is operative, any provider that is part of the Group with PMS in the Relevant Wholesale Market with fixed network infrastructure of long-distance transportation for data transmission at rates lower than or equal to 34 Mbps shall be required to participate in PTTs indicated by Anatel, offering Class V Interconnection and Interlink capacity.
CHAPTER VI
OFFER OF PASSIVE INFRASTRUCTURE
Article 32. The Group with PMS in the Relevant Market of Passive Infrastructure shall:
I - present Reference Offers of access to passive infrastructure elements (ditches, pipes, conduits, poles, and towers and similar infrastructure), as provided in art. 5º of this Annex, based on the criteria set forth in the Infrastructure Sharing Regulations among telecommunications service providers, as approved by Resolution Nº 274 of September 5, 2001;
II - disclose and keep updated on its website, the Reference Offers that shall expressly contain the technical and commercial information that is necessary to operate the sharing of infrastructure;
III - submit, as requested by Anatel, copies of contracts, the relation of shared infrastructures, broken down by location and served Provider; and the relation of requests for sharing in progress, stating the status of service.
Sole paragraph. The Reference Offer of Passive Infrastructure shall provide technological alternatives enabling the sharing by more than one Group.
Article 33. The following information shall be included in the Reference Offer of Passive Infrastructure, additionally to the information provided in art. 7º of this Annex:
I - geographical distribution of the network formed by the Passive Infrastructure, where applicable, including:
a) specification of network elements and relevant parameters regarding the architecture of the local network that are the object of the offer;
b) information concerning the locations of physical access;
c) restrictions on use.
II - conditions for the use of Passive Infrastructure elements, including:
a) technical features for passage and fixing of cables on poles, ditches, ducts and conduits, including its dimensions, used volume and excess capacity for the purpose of assignment of space;
b) technical features to share towers and similar infrastructures, including excess capacity for the purpose of assignment of space;
c) feasibility analysis criteria for the sharing of passive infrastructure elements;
d) procedures for installation and removal of ducts, conduits, cables, equipment and other elements.
III - conditions for location sharing, including:
a) information about the share locations;
b) sharing options of the locations defined in the preceding sub-item, including energy and space shares;
d) security issues, including, among others, standards and measures to ensure network integrity and safety standards to be met by both parties;
d) specification of the technical conditions related to the access and use of infrastructure elements, including, but not limited to, used equipment, spectral limitations and electromagnetic compatibility requirements designed to prevent interference with other systems, restrictions and their justification with respect to equipment to be installed.
e) rules for space allocation (ordering, booking, investment planning, budgeting, pricing and invoicing);
f) access conditions for the contracting operator's staff;
g) rules for the sharing of space when limited;
h) conditions for Anatel to visit the sites for possible physical sharing or sites where the sharing has been refused on grounds of lack of capacity.
IV - regarding information systems:
a) conditions for access to the transferor operator's operational support systems;
b) information systems or databases for pre-order;
c) ordering of maintenance requests;
d) repair and invoicing.
V - supply conditions, including:
a) information on deadlines and any conditions to meet requests for access to additional services, infrastructures and functionalities, including, but not limited to:
time required to fulfill the requests for provision of services and resources;
Service Level Agreements (SLAs);
fault repair;
procedures to resume the normal level of service; and
quality parameters of service;
b) standard contract terms, including, where appropriate, compensation for failure to meet the deadlines for fulfilling requests;
c) provision of non-discriminatory clauses of Service Level Agreements (SLA).
Sole paragraph. The information referred to in paragraph I of this Article shall be made available in the electronic system provided in art. 10, § 3º, of this Annex.
Article 34. Until the Reference Offers of Passive Infrastructure are not approved in dispute settlement involving such offers, Anatel will provisionally use, as a reference value, a percentage of the lowest price in the market used by the Group with PMS.
Sole paragraph. The reference value provided in the head of the article shall only be used after the expiration of the terms provided in art. 5º, § 1º e § 2º, and art. 10 of this Annex.
Article 35. Until its Reference Offers are not approved, the Group with PMS in the Relevant Passive Infrastructure Market shall ensure to Groups without PMS the fulfillment of requests corresponding to ten percent (10%) of the physical capacity of the elements mentioned in the Infrastructure Sharing Regulations among Telecommunications Service Providers, as approved by Resolution Nº 274 of September 5, 2001.
Sole paragraph. The performance guarantee provided in the head of the article shall only be used after the expiration of the terms provided in art. 5º, § 1º e § 2º, and art. 10 of this Annex.
Article 36. The Group without PMS contracting the sharing shall be fully responsible for the operation and implementation of telecommunications services to the subscriber and Anatel, including as to the proper functioning of the service support network, even if it is owned by third parties, in which case the right of recourse is granted.
Article 37. The Group with PMS in the Relevant Passive Infrastructure Market shall, where applicable, comply with the provisions of the Infrastructure Sharing Regulations among Telecommunications Service Providers.
Article 38. Pursuant to art. 10 of Law No. 11.,934, of May 5, 2009, the sharing of towers by telecommunications service providers using transmitters of radio stations, as defined in art. 73 of Law No. 9472, dated July 16, 1997, is mandatory in situations where the distance between them does not exceed five hundred (500) meters, except in cases where there is a justified technical reason.
CHAPTER VII
INTERCONNECTION OFFER IN MOBILE NETWORKS
Article 39. A Provider that is part of a Group with PMS in the Market of Interconnection Offer in Mobile Networks shall present a Reference Interconnection Offer in Class II, III and IV as defined in the General Interconnection Regulation (RGI), pursuant to art. 7 of this Annex.
Article 40. The Reference Interconnection Offers in Mobile Networks shall be approved by Anatel.
Sole paragraph. Upon the approval of the Offers, Anatel shall follow the rules provided in RGI and shall ensure that all usage of mobile network (VU-M) does not obstruct the adoption of the updated values of communication values (VCs) established in the Concession Agreements for STFC Providers, in the form established in the regulation approved by Resolution Nº 576, of October 31, 2011, Regulation and art. 7 of Regulation of Remuneration for the Use of Networks Providing Personal Mobile Service, approved by Resolution Nº 438 of July 10, 2006.
Article 41. The reference value of VU-M (RVU-M) for Providers that are part of a Group with PMS in the Market of Interconnection Offer in Mobile Networks, to be effective from February 24, .2016, shall be determined based on cost modeling, as provided in art. 14 of the annex to Resolution No. 438 of July 10, 2006, under a Resolution to be published by December 31st, 2013.
Sole paragraph. The reference value of VU-M (RVU-M) for Providers that are part of a Group with PMS in the Market of Call Terminations in Mobile Networks, from 24/02/2014 to 24/02/2016, shall be limited to:
I - from 24/02/2014, up to 75% of the VU-M value effective on 31/12/2013; and
II - from 24/02/2015, up to 50/5 of the VU-M value effective on 31/12/2013.
Article 42. In the relationship among Providers that are part of a Group with PMS in the Market of Call Terminations in Mobile Networks and SMP Providers that are part of Groups without PMS, a compensation is due only for the use of the SMP's network when the outgoing traffic in a given direction exceeds a limit:
I - of 80% of the total traffic run among the providers from 01/01/2013 to 23/02/2015; and
I - of 60% of the total traffic run among the providers from 24/02/2015 to 23/02/2016.
Sole paragraph. From 24/2/2016, the SMP Network Use Value (VU-M) shall be due to the SMP Provider whenever its networks is used to originate or terminate calls.
CHAPTER VIII
NATIONAL ROAMING OFFER
Article 43. The Group with PMS in the Relevant Market of National Roaming shall:
I - present Reference Offers of National Roaming including at least voice, data and text message services, as provided in art. 5º of this Annex.
II - disclose and keep updated on its website, the Reference Offers that shall expressly contain the technical and commercial information that is necessary to operate the National Roaming;
III - disclose and keep updated on its website, the Plans, offers or anything that may substitute it, or that may have the lowest price or a larger base of users in each Registration Area, expressly containing, as a minimum, the Roaming prices effectively used and other technical and commercial information that is necessary to operate the National Roaming;
IV - submit Anatel, a copy of the agreements made for supply of National Roaming;
Sole paragraph. The Reference Offer of National Roaming shall include offers of all technologies provided by the Provider to its users.
Article 44. The following information shall also be included in the Reference Offer of National Roaming, additionally to the information provided in art. 7º of this Annex:
I - conditions for the provision of National Roaming offer, including at least:
a) information on covered areas;
b) technical characteristics of voice, data, and text message services, including the technologies available, per each Registration Area;
c) security issues and confidentiality of proprietary information, including, among others, standards and measures to ensure network integrity and safety standards to be met by both parties;
Article 45. Anatel shall, upon approval of the Reference Offer of Providers defined as PMS in the National Roaming Market, assess the compatibility of the proposed prices with the lowest value of Roaming actually charged by the PMS to its users.
Article 46. The Group without PMS that is a party of a National Roaming Contract shall be fully responsible for the operation and implementation of telecommunications services to the user and Anatel, including as to the proper functioning of the service support network, even if it is owned by third parties, in which case the right of recourse is granted.
Article 47. A Provider that is part of a Group with PMS in the National Roaming market shall execute a roaming contract with a Provider that is part of a Group without PMS, as requested by same, at least under the conditions set forth in the Reference Offer of National Roaming.
Sole paragraph. In the absence of an agreement to execute the National Roaming contract, the Provider that is part of a Group without PMS in such relevant market may submit Anatel a request for dispute settlement, as provided in this PGMC.
Article 48. In dispute settlement procedures involving Reference Offers of National Roaming, as such offers are not approved, Anatel shall provisionally determine the reference value to be charged by the Visited Provider with PMS to the origin Provider of the Visiting User, and may not exceed the lowest Roaming fee actually charged by the Provider that is part of a Group with PMS to its users.
Sole paragraph. The reference value provided in the head of the article shall only be used after the expiration of the terms provided in art. 5º, § 1º e § 2º, sole paragraph,, and art. 10 of this Annex.
CHAPTER IX
MEASURES FOR GROUPS THAT HAVE STFC CONCESSIONAIRES ACTING IN SECTORS OF MORE THAN ONE REGION UNDER THE GENERAL GRANT PLAN - PGO
Article 49. Transfers of control that result in a Group containing STFC Concessionaires in sectors of more than one region according to the General Grant Plan - PGO imply compulsory Group's operations in other Regions, in compliance with subsection I of § 1 of art. 6º of the PGO, subject to the provisions of art. 6º of the Plan.
Paragraph 1. Mandatory action involves the construction of transportation network infrastructure in the seats of the municipalities in other Regions under the following conditions and terms:
I - municipalities with a population corresponding to fifty percent (50%) of the population of other Regions within three (3) years after the effective transfer of control;
I - municipalities with a population corresponding to sixty percent (60%) of the population of other Regions within five (5) years after the effective transfer of control; and
III - municipalities with a population corresponding to seventy percent (70%) of the population of other Regions, within seven (7) years after the effective transfer of control.
Paragraph 2. To calculate the total population served, the total population of the municipality shall be taken into account, according to updated data from the Brazilian Institute of Geography and Statistics - IBGE.
Paragraph 3. The Group shall annually submit Anatel a list of municipalities served.
Paragraph 4. Anatel shall monitor the Group's investments in other Regions until the full performance of the provisions of this Article.
Paragraph 5. For Groups which at the date of publication of this Regulation are working in more than one Region under the PGO, the calculation of the time limits provided in paragraph 1 shall be from the publication of the Resolution.
METHODOLOGICAL GUIDELINES FOR IDENTIFYING RELEVANT MARKETS AND GROUPS WITH PMS
I - Introduction
This methodology sets the basic guidelines for identifying economic group with PMS in the Relevant Market under the PGMC.
The procedure for identifying a Group with PMS in a particular relevant market is divided into three steps: Market Analysis, Characterization of the dimensions of the Relevant Market and Analysis of the necessary conditions for such group to present PMS.
II - Market Analysis
Analyze whether a telecommunications market may be considered, under the PGMC, as the subject of an asymmetric ex ante regulation.
1. The market will be considered the subject of an asymmetric ex ante regulation when it presents high structural and non-transitory barriers to the entry:
1.1 High structural barriers exist, for the purposes of the PGMC, in markets where it is possible to observe alternatively substantial economies of scale and/or scope, high costs, significant switching costs, restricted supply of capital for investment and benefits based on strong network externalities, use of scarce resources or the exclusive domain of technology;
1.2. High structural barriers may not represent competition constraints on a Market characterized by increasing growth rates;
2. A market presenting clear evidence of intense rivalry shall not be considered under PGMC;
3. Markets in which the completion risk may be more efficiently handled by Brazilian competition law and regulations will not be the subject of asymmetrical regulatory measures under the PGMC;
4. Markets in which the prospect of duration of the probability of exercise of market power does not exceed five (5) years shall not be considered under the PGMC;
5. Emerging markets shall receive incentives to increase investments of "regulatory holiday" type, unless the absence of intervention causes a total closure of the market and impedes competition in the long term;
6. Symmetric regulation shall be considered in identifying markets, mainly to assess whether their existence does not eliminate the probability of exercise of market power.
III - Definition of the dimensions of the Relevant Market
To characterize each Relevant Market in relation to its product and geographic dimensions.
1. Wholesale or retail products establishing their relationship within the supply chain, as defined by PGMC.
1.1. Retail products shall be defined before the wholesale products are defined, and corrections may be assigned by means of asymmetric measures in related wholesale market(s) only upon the probability of exercise of market power in the retail market.
2. Two-sided market, in such case the effects of asymmetric measures regarding the interdependence between the concerned markets shall be analyzed; or other approaches, since they are usual in the antitrust theory and may increase the rigor in defining the relevant market.
3. The product dimension shall cover substitute products or services for a specific set of users or Providers.
3.1. The definition of substitute products or services must include a two-way replacement movement, i.e., there should be no consumer preference in the transaction, since definitive shift from the consumption of a product or service to another shall not be deemed as substitute.
3.2. The applicant shall make the substitution in the usual way.
3.3. The notion of substitution shall meet at least two criteria: (i) the substitute product shall be effective in achieving the intended purpose and (ii) there shall be no significant difference in their relative price.
4. In the absence of data, the geographical boundary shall be the smallest geographic area where it is possible to evaluate the probability of exercise of market power, preventing that less disaggregated boundaries present a false idea on excessive market concentration.
4.1. It is unnecessary to determine PMS to a Group in areas where a high level of competition has been previously identified. 4.2. The geographical boundary shall be consistent with the regulations applicable to the concerned Relevant Market.
5. There may be areas where, even with a single offeror Group, the market conditions present evidence that residual demand may prevent the exercise of market power and therefore they are areas where asymmetric regulation will not apply.
IV - Analysis of the conditions for a Group to have PMS
The criteria analyzed to determine a Group with PMS in a relevant market are:
1.1. It means the holding of a market share greater than 20% of the Relevant Market.
a) The criterion of market share does not constitute an exclusive criterion and the following shall be also taken into account: (i) the stability of the market share over time and (ii) the difference between the market shares between the Group with PMS and the set of Groups without PMS.
2. Capacity to exploit scale economies of the Relevant Market:
2.1. It evaluates whether the volume of telecommunications operations of a Group allows it to get decreasing marginal costs, considering the number of users served by the same Platform(s) and network(s).
2.2. This criterion identifies the holder of PMS given that, in a Group with greater capacity to exploit high economies of scale existing in the relevant market, the total costs are decreasing as the fixed costs are shared over a very large user base. Thus, the Group with PMS has no advantage over Groups without capacity to exploit high economies of scale existing in the market, which may facilitate the exercise of market power.
3. Capacity to exploit scope economies of the Relevant Market;
3.1. It evaluates whether the provision of different services on a single network infrastructure allows the Group to obtain decreasing average unit costs as the integrated offering of telecommunications services grows.
3.2. This criterion considers the possibility of sharing any relevant stage of the operation with another service offered by the Group.
3.3 This criterion identifies a Group with PMS given that the economy of scope provides reduced average costs in the joint production of different goods.
4. Control over an infrastructure the duplication of which is not economically feasible:
4.1. This criterion evaluates the leadership over networks and platforms used in providing the service and its physical infrastructure to support the network.
4.2. This criterion identifies the Group with PMS given that the infrastructure is a key input to the supply of products and services in the Relevant Market and understood as the telecommunications network and supporting infrastructure (ditches, ducts, conduits, poles, and towers) of that network.
5. Concurrent activity in wholesale and retail markets:
5.1. It considers the provision of services and products by the Group which are inputs for other Providers that participate in the Market, simultaneously to the provision of services and products to end consumers.
5.2. This criterion identifies the Group with PMS given that the concurrent activity in the market of inputs and the market of final products allows the Provider to get much lower cost levels compared to other competitors, and may also limit the sale of inputs, thereby protecting the market of final products against the entry of new competitors.