2. Analysis

Determinations of RCM No. 37-C/2016 and of Law No. 33/2016, on reservations of capacity in MUX A and prices of the DTT signal carrying and broadcasting service, imply the amendment of conditions associated to RUF ICP - ANACOM No. 06/2008. Consequently, these amendments must also be incorporated in the corresponding qualifying title.

2.1.1. Amendment of capacity reservation and “must carry” obligations

2.1.2. Amendment of conditions related to the price charged for the DTT signal carrying and broadcasting service

2.1.1. Amendment of capacity reservation and “must carry” obligations

Capacity reservation and “must carry” obligations set out in RUF ICP - ANACOM No. 06/2008 are amended as follows:

a. Paragraphs 1 and 2, respectively, of RCM No. 37-C/2016, removed capacity reservations currently provided for in clause 15, paragraph 1 b) and c) of the title, resulting from paragraphs 1 and 3 of RCM No. 12/2008, which respectively concern the digital broadcasting (i) in standard definition of a free-to-air unrestricted access television programme service to be licensed under the Television Law (the so-called 5th channel) and (ii) in high definition, up to the switching off of analogue terrestrial television, in non-simultaneous mode - a single programme service at any given time - with  free-to-air unrestricted access, of programming elements of programme services distributed in MUX A (the so-called shared HD).

This removal must be reflected in the title.

b. Paragraphs 3 and 5 of RCM No. 37-C/2016 (safeguarded by paragraph 5 of article 6 of Law No. 33/2016), respectively, and paragraph 3 of article 3 of Law No. 33/2016, imposed four new capacity reservation obligations, intended (i) for the broadcast of two national television programme services, RTP3 and RTP Memória, in SDTV definition, and (ii) for the broadcast of two free-to-air unrestricted television programme services in SDTV definition, to be licensed under the Television Law.

These new obligations shall be provided for in paragraph 17.1.b) and c) of the title to be reissued.

c. Paragraph 3 of article 3 of Law No. 33/2016 imposed a capacity reservation obligation for the broadcasting of thematic programme services of the national radio and television public service, provided under the regime of free-to-air access subject to a subscription on the date of entry into force of that law.

This capacity reservation obligation for the broadcast of the referred programme services, in addition to RTP3 and RTP Memória, is subject to the satisfaction of the necessary technical and financial conditions, namely spare capacity in MUX A after fulfilment of remaining capacity reservations that are determined.

This obligation, with the referred constrain, shall be provided for in paragraph 17.2. of the title to be reissued.

d. Given the removal of capacity reservation obligations and the imposition of new reservations (vd. points a. to c. above), “must carry” obligations imposed under article 43 of the ECL must be adjusted accordingly.

The obligation to ensure the transmission, including the encoding, multiplexing, carrying and broadcasting, is specifically imposed, free of charge for final users, for: (i) the four new television programme services (namely, RTP 3, RTP Memória and the two new future programme services to be licensed under the Television Law), for which a capacity reservation was determined by RCM No. 37-C/2016 and by Law No. 33/2016, and which are dependent on the start of broadcasts; and (ii)  thematic programme services of the national radio and television public service provided under the regime of free-to-air access subject to a subscription on the date of entry into force of Law No. 33/2016, after having been satisfied the requirements for application of the corresponding reservation obligation.

This obligation shall be provided for in paragraph 17.4. of the title to be reissued.

e. Given the removal of capacity reservation obligations (vd. point a. above) and the imposition of new reservation obligations (vd. points b. and c. above), resulting from Law No. 33/2016 and RCM No. 37-C/2016, (i) the capacity to be reserved for video and audio components of programme services must be amended - in point 17.6. of the title to be reissued -, and (ii) capacity reservations for interactive services and improved audio quality through multichannel systems, of the AC-3 Dolby Digital 5.1 or Dolby Digital Plus type, must be removed (currently provided for in clause 15, paragraph 6 a) and b) in fine of the title).

Amendments concerned take into consideration: (i) MEO’s letter to ANACOM of 13.07.2016, following the publication of RCM No. 37-C/2016, in which the company analysed the current capacity available in MUX A, in the scope of the DTT operation, and the possible expansion of the offer of television programme services; (ii) the technical meeting between MEO and ANACOM, held on 12.09.2016; and (iii) MEO’s letter to ANACOM, of 14.09.2016, in which the company sends a new document with its perspective on the occupation of MUX A, bearing in mind the introduction of RTP3, RTP Memória and the two new “channels”.

As regards the imposition of capacity reservation obligations, described in points b. and c. above, the following must be explained:

• Paragraph 1 of article 3 of Law No. 33/2016 lays down that television programme services that are licensed and concessioned by the date of its entry into force (that is, RTP1, RTP2, SIC and TVI, at national level, and RTP Açores and RTP Madeira, in the respective regions), maintain the right to use the broadcasting capacity in DTT MUX A. The capacity reservation under consideration will thus be maintained in the title.
• Law No. 33/2016 does not explicitly provide for the reservation of capacity for the two new free-to-air unrestricted access television programme services, to be licensed under the Television Law. The referred reservation is, however, safeguarded by paragraph 5 of the respective article 6. In fact, this provision establishes that the analysis of technical and financial conditions required to integrate remaining programme services of the concessionaire of the radio and television public service in the free-to-air unrestricted access DTT, is without prejudice to the occupation of Mux A with new television programme services as provided for by RCM No. 37-C/2016 (namely, RTP3, RTP Memória and the two programme services to be licensed under the Television Law).
• The reservation of capacity for thematic programme services of the radio and television public service in DTT, under the regime of free-to-air unrestricted access, established in paragraph 3 of article 3 of Law No. 33/2016 (in addition to RTP3 and RTP Memória), is subject to the existence of spare capacity in MUX A, after remaining capacity reservations which the RUF holder is required to observe are satisfied.

“Must carry” obligations imposed by ANACOM under article 43 of ECL stem from reservations of capacity to which the RUF holder is bound ope legis. In fact, the legislator himself acknowledged, in article 2 of Law No. 33/2016, that the broadcasting of audio-visual media services provided under a free-to-air unrestricted access regime via DTT and complementary service is a matter of public interest, capacity reservation obligations having been determined (cfr. RCM No. 37-C/2016 and Law No. 33/2016), this means (reservation of capacity) having been specified for programme services covered by “must carry” obligations. In this context, in the light of such specification defined by law, ANACOM cannot but impose, under article 43 of ECL, the corresponding “must carry” obligations - as was the case also in the scope of the public tender for MUX A DTT, given that the Television Law and RCM No. 12/2008 had provided for reservations of capacity which were later established in the RUF.

As regards ARTV - Canal Parlamento, paragraph 2 of article 3 of Law No. 33/2016 lays down that “The broadcasting on the same Mux A of the video signal provided for the purpose by Assembleia da República is (…) hereby safeguarded, in compliance with the option provided for in Law No. 6/97, of 1 March, as amended by Law No. 36/2012, of 27 August, in accordance with the contractual terms defined with the network operator.”

ANACOM takes the view that neither paragraph 2 of article 3 of Law No. 33/2016, which merely safeguards the broadcasting of Canal Parlamento in MUX A, in accordance with the contractual terms defined with MEO, nor Law No. 36/2012, of 27 August, which amended Law No. 6/97, of 1 March, imposed on MEO, as DTT operator, an obligation for reservation of capacity, and consequently, a “must carry” obligation of Canal Parlamento in MUX A.

In this framework, the view set out in Decision of 02.05.2014 on the price charged by the then PT Comunicações, S.A. for the provision of the DTT service in MUX A is recalled¹:

“Under Law No. 36/2012, of 27 August, which amended Law No. 6/97, of 1 March, allowing the disclosure of parliamentary work on DTT, the duty to provide the signal exists (just like in the original law) on the part of the Portuguese Parliament, and distribution operators of television programme services hold a right to broadcast/access the signal. In other words, PTC it not made subject, as DTT operator, to capacity reservation and "must carry" obligations as far as Canal Parlamento is concerned, and such obligations have also not been imposed in the scope of the broadcast of this channel in cable distribution networks. 74
The explanatory statement of the respective draft law refers that "there has been no change in the special nature of Canal Parlamento" and "this nature and special status determine that to Canal Parlamento is not applied the television law".
(…)
However, as referred earlier, Canal Parlamento does not benefit from a "must carry" obligation on MUX A, and as such the regime of article 43 of ECL (which is specific for "must carry" obligations) does not apply to the regulation of this price.
 (…)
74 Note also that ERC, in the scope of its competencies, did not specify Canal Parlamento as beneficiary of ''must carry'' obligations.”

However, to clarify beyond doubt that the broadcasting of Canal Parlamento in MUX A is safeguarded, in accordance with the contractual terms defined with MEO, under paragraph 2 of article 3 of Law No. 33/2016, the title to be reissued is amended by reference to the Law (cfr. point 17.3. of the title to be reissued).

With respect to the amendment of the capacity to be reserved in MUX A, for video and audio components of programme services, set out in point 17.6. of the title to be reissued, it should be noted that:

The capacity reservation obligations determined by RCM No. 37-C/2016 require a higher speed than that provided for capacity reservations that were removed by determination of that same RCM, which implies a reassignment of capacity to programme services currently broadcasted in MUX A, namely as regards the audio component, which decreases from an average speed of 128 kbit/s to 96 kbit/s per programme service. However, according to information submitted by the operator, this decrease in capacity does not bring about a reduction in quality, due to the development of encoders used by network operators. These values are, in fact, already used in practise.

In order to enable the network operator to use statistical multiplexing, a speed of 14.4 Mbit/s for the video component, which implies an average speed of 1.8 Mbit/s per programme service, and a speed of 768 kbit/s for the audio component, which entails, as referred above, an average speed of 96 kbit/s per programme service, are reserved, as a whole, for the eight television programme services, of national scope, covered by capacity reservations in MUX A, on the Mainland.

Given the existence of programme services of a regional scope (RTP Açores and RTP Madeira) in the Autonomous Regions, the total speed in these regions shall be of 16.2 Mbit/s for the video component and of 864 kbit/s for the audio component.

So that new capacity reservations may be accommodated, it is also necessary to release capacity reserved for interactive services and for improved audio quality through multichannel systems, such as the AC-3 Dolby Digital 5.1 or Dolby Digital Plus types (provided for in current clause 15, paragraph 6, points a) and b) in fine), which must be ensured by MEO, it is recalled, if and when requested by television operators.

As regards the capacity reserved for interactive services, it is noted that it is not specifically provided for in contracts concluded between MEO and television operators, having the company declared that the referred operators, in the framework of the contract conclusion stage, renounced these interactive services², which were not implemented.

In its determination of 17 November 2015, on the conclusions of the thorough investigation conducted into the costs and revenues of the DTT service provided by MEO³, ANACOM referred that this capacity was reserved for MEO, and should remain as such, unless RUF No.6/2008 was amended - which is now the case, the final part of point b) of paragraph 6 of current clause 15 of the title being removed.

Lastly, under paragraph 4 of article 3 of Law No. 33/2016, the spare capacity in Mux A which may not be technically used to accommodate other television programme services and complementary services may be freely used by the holder of the respective RUF, reason for which current clause 6, paragraph 2, of the title is adjusted (point 6.2. of the title to be reissued).

2.1.2. Amendment of conditions related to the price charged for the DTT signal carrying and broadcasting service

The conditions related to the price to be charged for the DTT signal transmission service, including the encoding, multiplexing, carrying and broadcasting services, set out in clause 16 of RUF ICP-ANACOM No. 6/2008, are amended so as to accommodate determinations arising from Law No. 33/2016.

In this context, point 18. of the title to be reissued shall now lay down that:

a. As from the entry into force of Law No. 33/2016, the price of the DTT signal transmission service, including the encoding, multiplexing, carrying and broadcasting services (transmission service) charged by MEO must observe the principles of transparency, non-discrimination and cost-orientation, be based on the space effectively occupied by each television programme service and be limited by the price indicated in the variant scenario of the winning bid.

b. The price charged for signal transmission of the regional programme services in the Autonomous Regions is decreased in proportion to the size of the network in the geographic space concerned and shall not exceed values charged on the date of entry into force of Law No. 33/2016.

c. Referred prices shall be agreed upon between MEO and operators responsible for programme services subject to capacity reservations indicated in point 17.

d. The price to be charged by MEO for the signal transmission of each programme service must comply with the maximum price that is set by ANACOM, after hearing Autoridade da Concorrência (the Competition Authority) and Entidade Reguladora para a Comunicação Social (the Media Regulatory Authority), in accordance with assumptions referred in article 2 and in paragraphs 3 and 4 of article 4 of Law No. 33/2016, and having been satisfied criteria required by the Community legal framework for the imposition of ex ante regulatory measures.

e. MEO is required to review prices charged for the DTT signal transmission service to television operators, whenever deemed necessary by ANACOM, under paragraph 6 of article 4 of Law No. 33/2016.

As regards transitional provisions set out in paragraphs 2 and 3 of article 6 of Law No. 33/2016, it must be referred that, by letter of 9 January 2017⁵, further to a request from this Authority.

Later, by letter of 7 February 2017⁶, MEO provided information also on the conclusion of the addendum to the contract for provision of the signal encoding, multiplexing, carrying and broadcasting services over the digital terrestrial network and complementary coverage, concluded with SIC, having submitted the respective copy.

In view of the fact that MEO, as holder of the right of use for frequencies, and television operators, were able to reach an agreement in the meantime on contractual amendments to be introduced, namely as regards the price to be charged for the transmission service of the signal for each programme service,  the transitional regime provided for in paragraphs 2 and 3 of article 6 of Law No. 33/2016, which in any case results directly from the Law, no longer needs to be provided for in the RUF title to be reissued.

Bearing in mind that ANACOM is required to monitor the conditions associated to the service, a maximum time-limit of 30 days after the conclusion of the contract is hereby established so that prices agreed upon between MEO and television operators, as well as any amendments thereto, are notified to ANACOM, in line with paragraph 4 of current clause 16., which will be reflected in point 18.5. of the title to be reissued.

Whereas:

(i) By determination of 20.10.2008, ANACOM endorsed the proposal submitted by the Commission appointed in the scope of the public tender for allocation of a RUF of a national scope for the provision of the terrestrial television broadcasting service, associated to MUX A, having allocated to the then PT Comunicações, S.A., the corresponding RUF, according to the bid in the variant scenario submitted to the tender;

(ii) The condition set out in clause 16, paragraph 2, of the title issued originally, which would bind the company to the basic tender bid, was not satisfied;

(iii) As clearly results from ANACOM’s decision of 12.07.2008⁷, notwithstanding the revocation of the rights of use for frequencies associated to Multiplexers B to F introduced by that act, the RUF associated to MUX A remained unchanged, not having been affected the terms and conditions set out therein, namely as regards the obligation to observe the variant scenario presented by MEO in the winning bid. In this context, the referred decision expressly indicated that “notwithstanding the application for revocation submitted by PTC, this company remains bound to terms and conditions, specifically as regards the price for providing the service to television operators, set out in the variant scenario of the bid submitted to the FTA operation tender, given that the condition provided for in clause 16, paragraph 2, of the issued title, was not fulfilled, otherwise the company would be bound to observe the basic tender bid”;

all references to the basic scenario (paragraphs 2, 3 and 4 of current clause 16.) are hereby removed.

As referred above, ANACOM decided, on 1.10.2015, to reissue RUF ICP-ANACOM No. 06/2008, incorporating in the respective title determinations established at the time, as well as amendments previously set out in endorsement No. 1 to the referred RUF, and those which had resulted from determinations amending operating channels of Mux A, as well as determination of 16 May 2013. ANACOM takes this opportunity to implement that determination.

Accordingly, the following amendments arising from previous determinations issued by ANACOM shall be integrated in the title:

• The amendment of frequencies for the Autonomous Region of Azores resulting from endorsement No. 1¹ to RUF ICP-ANACOM No. 06/2008 (amendments incorporated in paragraph 7.1.);
• Amendment of the name of PT Comunicações to MEO, resulting from endorsement No. 2² to that title (amendments incorporated in paragraph 1 and throughout the text);
• Amendment of some operating channels of MUX A in the DTT service by determination of 09.03.2011³ (amendments incorporated in paragraph 7.1.);
• Replacement of channel 67 assigned to MEO for the Mainland, for channel 56, by determination of 04.04.2011⁴ (amendments incorporated in paragraph 7.1.);
• Amendments stemming from decision of 16.05.2013, on the evolution of the DTT network, and of 01.10.2015, on obligations for terrestrial coverage and amendment of the RUF (amendments incorporated in paragraph 7.1., 7.2., 9.1.c), 10. and 11.);
• Amendments stemming from decision of 14.01.2016, correcting Decision of 01.10.2015, on land-based coverage obligations and amendment of the DTT RUF (MUX A) (amendments incorporated in paragraph 9.1.c) and in table of Annex 2 to the title);
  and
• Identification of points that define the area associated to each assignment set out in annex 1 to the Decision on the evolution of the DTT network (MUX A), of 24.10.2013⁵ (reference incorporated in the note to Annexes 1 and 3 to the title);

Still on the subject of the reissue of RUF ICP-ANACOM No. 06/2008, amendments introduced for the purpose of compliance with provisions of RCM No. 37-C/2016 and Law No. 33/2016 are also incorporated, as explained in point 2.1. above.

On this occasion, ANACOM introduces also the following updates to the title, which have no substantial impact:

(i) In view of the publication of Decree-Law No. 39/2015, of 16 March, which approved ANACOM’s Statutes, references to the name of this Authority are updated (under paragraph 1 of article 2 of the referred statutory instrument);

(ii) Bearing in mind legislative amendments introduced in the meantime, references to provisions of the Electronic Communications Law (ECL - Law No. 5/2004, of 10 February, as it stands) are updated;

(iii) In line with titles of rights of use for frequencies recently issued by ANACOM, references to “clauses” are replaced by “paragraphs”, and some strictly editorial improvements are introduced, also taking into account that this refers to the reissue in 2016 of a RUF allocated on 20 October 2008;

(iv) Current clause 13 is removed, on account of the redundancy as regards the provision in current clause 8, now paragraph 8. of the title to be reissued;

(v) In view of the system adopted, current clause 17 becomes paragraph 16., integrating chapter III (conditions associated to the right of use for frequencies) and the title of chapter IV now concerns the price.