Bringing the ex officio general regulatory supervisory proceeding started back in September to a close, the National Media and Infocommunications Authority (NMHH) has imposed a fine of HUF 48 million on UPC Magyarország Telekommunikációs Kft. for preventing its fixed and mobile telephony subscribers to reach the phone numbers in the On Line System Informatikai és Tanácsadó Kft. (OLS) network between 25 July and 18 September 2017. According to the first-instance decision of the proceeding just completed, UPC’s market behavior seriously violated fundamental EU and national legislation on the provision of telephone services, based on which UPC should have ensured that its subscribers had access to all phone numbers.

When determining the form of sanction and the amount of the fine, the Authority considers a number of aspects, including the severity of the case and the number of subscribers concerned, the injury to interest caused by the infringement, the financial gain achieved and the market impact. In addition to the subscribers, OLS itself also requested the proceeding, given that UPC refused to provide call forwarding even after consultations.

How did the infringement occur?

Between 25 July and 18 September 2017, for nearly two months, UPC failed to provide access for its own fixed and mobile subscribers to the numbers of OLS and numbers ported to OLS from other service providers, i.e. UPC subscribers could not reach OLS subscribers during the period of investigation. In addition, due to the peculiarities of the number portability system, during this period a small part of UPC’s subscribers (about 5%) could not even call subscribers who had ported their phone numbers from OLS to another service provider. The situation was further aggravated by the fact that UPC intentionally misinformed inquiring subscribers and directed them to the customer service of the other service provider, claiming that the issue was caused by the OLS network. In contrast, the investigation revealed that the unsuccessful calls were not caused by a network failure, but UPC itself blocked access to OLS subscribers because of a settlement dispute with OLS.

The investigation also states that UPC did not consider subscriber complaints due to unsuccessful calls as fault reports, failed to take the necessary steps to follow up on them, and only after the investigation began did UPC actually make arrangements that the subscriber initiated calls may get through to the subscribers of OLS and the other relevant service providers via a third service provider. It is also important to note that UPC did not pay liquidated damages to its subscribers for belated fault resolution, which would otherwise have been a legal obligation without being requested by the subscribers concerned. In addition, there were several of the phone numbers involved that belonged to public institutions, access to which would have been important to a number of subscribers for their social role and significance (local government, home for elderly people, general practitioner).

Experts of the Authority concluded that UPC failed to provide any or full access to approximately 22,000 phone numbers resulting in over 38,000 failed calls, which affected more than 4,000 UPC subscribers. Due to the unavailability of phone numbers previously operated by OLS but later ported to other service providers, third-party service providers and their subscribers were also affected by this issue.

Legislative background

According to EU legislation and the Hungarian regulation adopted in compliance thereof, telephone subscribers must be able to call any phone number within the so-called national numbering plan regardless of the service provider’s network. To enforce this regulation, Hungarian laws expressly impose on service providers the obligation to cooperate with each other by direct agreements or through intermediary service providers. If a number is ported to another network, the calling party’s service provider must ensure that the call is forwarded to the appropriate service provider.

By imposing the fine, NMHH stresses that all service providers are required to provide for the availability of all telephone numbers designated by the NMHH and listed in the national numbering plan from their own network. The business conduct of UPC seriously infringed the rights and interests of its subscribers, but also had a negative impact on the relevant market players and their subscribers. NMHH will continue to play a decisive role in defending subscriber rights and, based on the principles of progressiveness and proportionality, will severely sanction any unlawful market behavior.

This first-instance decision is not yet final and the condemned service provider may lodge an appeal to the President of the Authority.

Call to UPC subscribers

As a result of the proceeding, NMHH could only oblige UPC to comply with its obligation to pay liquidated damages for delayed fault resolution to only those 31 subscribers where UPC was able to identify the reporter of the faults, as OLS was named as the relevant service provider in the report. However, NMHH calls upon all UPC subscribers concerned that if they failed to call any number in the OLS network or ported therefrom in the above-mentioned period, and reported the issue to UPC (only in this case) but the service provider has failed to pay liquidated damages to them, please contact the service provider. By law, the service provider is obliged to pay liquidated damages for delayed fault resolution for each day between the ineffective lapse of the 72-hour deadline up to the actual resolution, i.e. 18 September 2017.