1. What is the objective of this law?
Decree-Law No. 123/2009, as amended by Decree-Law No. 258/2009 establishes the regime that applies to the construction of infrastructure suitable for the accommodation of electronic communications networks, to the installation of electronic communications networks and the construction of infrastructure for telecommunications in housing developments, urban settlements and concentrations of building.
2. Who do Chapters II, III and IV of this law apply to?
- They apply to the State, the Autonomous Regions and local authorities;
- To all entities under the authority or supervision of bodies of the State, Autonomous Regions and local authorities, performing administrative tasks, regardless of their entrepreneurial nature, as well as to public companies and concessionaries, particularly those active in the field of infrastructure for roads, railways, ports, airports, water supply, sewerage, and transport and distribution of gas and electricity;
- To other entities in possession of or operating infrastructure encompassed by the public domain of the State, Autonomous Regions and local authorities;
- To electronic communications companies and entities in possession of infrastructure which is suitable for accommodating electronic communications networks for use by said companies in the exercise of their activities, pursuant to article 2 of Decree-Law No 258/2009 of 25 September.
3. What infrastructure is considered suitable for the accommodation of electronic communications networks?
Suitable infrastructure is infrastructure which can be used for the accommodation or maintenance of electronic communications networks or the components which comprise these networks.
Suitable infrastructure therefore includes: piping networks, masts, ducts, inspection chambers, manholes, cabinets or buildings, respective accessories and any associated infrastructures which can be used to accommodate or maintain electronic communications cables, equipment or any communications network resources, as well as bypass devices, joints or other equipment necessary for the transmission of electronic communications over such networks.
4. What are electronic communications networks?
Transmission systems and, where applicable, switching or routing equipment and other resources which enable the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed.
5. What is ''right of way''?
Right of way is the ability to access and use property of the public domain, for the purposes of constructing, installing, altering and repairing infrastructure which is suitable for the accommodation of electronic communications networks, or to repair cables, systems, equipment or any other resources or elements of electronic communications networks.
6. Who is guaranteed rights of way?
Undertakings providing publicly available electronic communications networks and services are guaranteed the right to use the public domain, in conditions of equality, for the implanting, crossing or passing over necessary for the installation of systems, equipment and further resources.
7. How is right of way assigned?
It is awarded by license under the terms of article 6 of Decree-Law number 123/2009 and the legislation applicable to property of the public domain.
8. Who is responsible for establishing the procedures for rights of way?
As right of way is the ability to access and use property of the public domain, the obligation to establish regulations in this respect naturally applies to all entities covered by article 2 which have jurisdiction over the public domain.
Therefore, it is incumbent on the bodies referred to in article 2 of Decree-Law No 123/2009 to establish regulations laying down the procedures for the allocation of rights of way in the public domain, where applicable, including the technical instructions referred to in article 11, which must comply with the principles set out in paragraphs 3 and 4 of article 24 of the Law of Electronic Communications, approved by Law No 5/2004 of 10 February.
9. What principles apply to regulations on allocation of rights of way?
The procedures shall be transparent, duly published and applied without discrimination and without delay, and the conditions attached to any such rights shall follow the principles of transparency and non-discrimination.
10. What are aspects are the regulations on rights of way required to contain?
It is mandatory for the regulations to contain:
a) Particulars to be attached to the application for the construction and installation of infrastructure, as well as the body to whom such application must be addressed;
b) Provisions on the reservation of space in ducts and other infrastructure for administration and use by the body managing the domain property or the body appointed by it, where applicable;
c) Obligations to repair infrastructure that is damaged as a result of interventions performed for the purpose of installing and/or repairing pipes, cables, ducts, manholes, masts, equipment and other resources;
d) Securities or other guarantees that the site where infrastructure is installed shall be restored to its normal conditions of use;
e) Procedures for unblocking infrastructure;
f) Rules on the prior notice to be given to gain support for intervention from other electronic communications companies wishing to install infrastructures in support of their networks systems and equipment.
11. What legal regime is applicable to rights of way in the municipal public domain?
The procedure for the allocation of rights of way with respect to property of the municipal public domain is conducted along with the prior notification required for construction by electronic communication companies of infrastructure suitable for the accommodation of electronic communications networks.
If the prior notification is not rejected by the municipal council, the right of way shall be considered as granted.
12. Where should Regulations on the allocation of rights of way be publicised?
The entities responsible for the establishment of procedures for the allocation of rights of way must ensure that they are made available in the SIC.
13. What rules apply to the construction of infrastructure for electronic communications by electronic communications companies?
The construction by electronic communications companies of infrastructure suitable for the accommodation of electronic communications networks, which does not involve housing developments, urban settlements and concentrations of buildings, shall be governed by Decree-Law No 123/2009, as well as by the prior notification procedure provided for in articles 35, 36 and 36-A of the legal regime governing urban building and development, approved by Decree-Law No. 555/99 of 16 December, duly adapted.
14. In what cases does the prior notice procedure not apply?
In two cases:
a) The installation and operation of infrastructure subject to municipal authorisation under the terms of Decree-Law No 11/2003 of 18 January;
b) Works necessary to prevent situations that endanger public health and safety, as well as works to repair faults or to clear blockages. In this case, the undertaking shall notify the municipality with regards to the works on the following working day by the most appropriate means of communication available.
15. What items must accompany the advance notification?
The items which must be submitted with the prior notification shall be determined by administrative rule to be published pursuant to paragraph 4 of article 9 of the legal regime of urbanization and construction, approved by Decree No. 555/99 of 16 December.
This administrative rule has not yet been published.
16. What is the maximum period provided by law for the municipal council to respond to a prior notification made on the construction of infrastructure suitable for the accommodation of electronic communications networks?
The municipal council has to respond to this notification within a maximum of 20 days following its receipt.
17. What are the possible responses of the city council, specifically provided for in Decree-Law No. 123/2009?
The municipal council may, in writing, and in a reasoned manner:
a) Determine the postponement of the installation and operation of infrastructure by these companies, for a maximum period of 30 days when, for reasons of planning and execution of the works, it intends to make the intervention subject to the obligation to give notice of the work so that other companies have the opportunity to express their intention to participate;
b) Reject the project execution when there is existing infrastructure suited to the accommodation of electronic communications in the public domain containing spare capacity which would satisfy the needs of the applicant.
18. Obligations of electronic communications companies which undertake works in the municipal public domain (article 8) - specification.
When carrying out works in the municipal public domain, electronic communications companies are required to restore paving, green and collective spaces, where applicable, and repair any infrastructure that was damaged as a result of the works.
19. What fees are payable for the use of property of the municipal public or private domain by electronic communications companies?
For the use and enjoyment of property of the municipal public and private domain, comprising the construction of installation of infrastructure suitable for the accommodation of electronic communications networks by undertakings providing publicly available electronic communications networks and services, the MFRW is payable pursuant to article 106 of the Electronic Communications Law, approved by Law No. 5/2004 of 10 February.
20. Besides MFRW, can municipalities charge any other fees for the use of the property of their public or private domain?
No. No other fees, charges or payments are allowed for the use and enjoyment of the property of the municipal public and private domain.
21. Are municipalities required to charge the MFRW?
No. Local authorities, observing the principle of equality and non discrimination, may choose not to charge the MFRW, with a view to promoting the development of electronic communications networks, but may not in this case, impose or collect any other fees, charges or payments instead.
22. Do the State and the Autonomous Regions charge for use of their private and public domains?
The State and the Autonomous Regions do not charge undertakings providing publicly available electronic communications networks and services any fees or make any other charge for the implanting, crossing or passing over necessary for the installation of systems, equipment and further physical resources required for their activity, on the surface or underground in the public and private domain of the State and Autonomous Regions.
23. What is the system of mandatory disclosure of projects?
This regime comprises the requirement to give prior notice of works that allow for the construction or expansion of infrastructure suitable for the accommodation of electronic communications, so that electronic communications companies can participate in the proposed works.
24. Who is required to publicise notice of the works?
Whenever the execution of works is planned which will allow for the construction or expansion of infrastructure suitable for the accommodation of electronic communications networks, the entities mentioned in Article 2 shall make such intention public.
These entities are:
- The State, Autonomous Regions and local authorities;
- All entities under the authority or supervision of bodies of the State, Autonomous Regions and local authorities, performing administrative tasks, regardless of their entrepreneurial nature, as well as public companies and concessionaires, particularly those active in the field of infrastructure for roads, railways, ports, airports, water supply, sewerage, and transport and distribution of gas and electricity;
- Other entities in possession of or operating infrastructure encompassed by the public domain of the State, Autonomous Regions and local authorities;
- Electronic communications companies and entities in possession of infrastructure which is suitable for accommodating electronic communications networks for use by said companies in the exercise of their activities, pursuant to article 2 of Decree-Law No. 258/2009 of 25 September.
25. What is the purpose of having mandatory disclosure of new works?
It allows electronic communications companies to participate in the planned works, with a view, specifically to the construction or expansion of infrastructure suitable for the accommodation of electronic communications networks.
26. How far in advance should new works be disclosed?
The announcement that works are to undertaken should be made available on the SIC, by its promoters, at least 20 days before the commencement date of their execution.
27. What items should be made available?
The entities shall make the characteristics of the works to be executed available on the SIC, along with the schedule planned for its execution, charges and other conditions to be observed. They shall also provide details of the deadline for applying to participate in the works, the point of contact which should be used to obtain clarification and any provisions precluding future works in the area covered by the notice.
28. In what period and how can one apply to participate in the works?
The deadline for joining the work to be executed may not be less than 15 days from the date of the notice. The electronic communications companies wishing to participate in the announced works should, during this period, apply to the promoter of works with a view to their participation.
29. Are there any situations where the specified time limits may be shortened?
In situations where, to ensure the fulfilment of public service obligations, the execution time of the works is not compatible with the above time limits, the authorities may reduce the time limits applicable to the announcement and collection of expressions of interest, ensuring that, after the works are completed, disclosure is made for the purposes of enabling subsequent access to electronic communications companies.
30. What are the rules on cost sharing?
Companies electronic communications must support the share of the investment cost of the work, corresponding to the differential of investment costs incurred as a result of their participation. This does not prejudice the right of access to infrastructure, whereby payment for such access should take into account the amount already incurred by the communications company in terms of the investment made in the work.
31. Can specific technical requirements be applied to the construction of suitable infrastructure?
Yes. The entities of article 2 may, if they deem it warranted, draw up technical instructions to govern the construction or expansion of infrastructure suitable for the accommodation of electronic communications networks.
32. Who is required to provide access to infrastructure?
The entities referred to in Article 2 of Decree No. 123/2009 are required to provide access to the infrastructure suitable for accommodating electronic communications networks which is in their possession or under their management.
It is recalled that these entities are:
- The State, Autonomous Regions and local authorities;
- All entities under the authority or supervision of bodies of the State, Autonomous Regions and local authorities, performing administrative tasks, regardless of their entrepreneurial nature, as well as public companies and concessionaires, particularly those active in the field of infrastructure for roads, railways, ports, airports, water supply, sewerage, and transport and distribution of gas and electricity;
- Other entities in possession of or operating infrastructure encompassed by the public domain of the State, Autonomous Regions and local authorities;
- Electronic communications companies and entities in possession of infrastructure which is suitable for accommodating electronic communications networks for use by said companies in the exercise of their activities, pursuant to article 2 of Decree-Law No. 258/2009 of 25 September.
33. Who are the beneficiaries of access to suitable infrastructure?
The beneficiaries are electronic communications companies. It is noted that under Decree-Law No. 123/2009, electronic communications companies are undertakings which, pursuant to the Law of Electronic Communications, approved by Law No. 5/2004 of 10 February, provide publicly available electronic communications networks or services.
34. What are the principles governing access?
Access should be provided on terms of equality, transparency and non-discrimination, subject to remuneration conditions which are orientated to cost. The procedures for obtaining the right of access must be rapid, transparent and appropriately disclosed.
35. Can access to infrastructure be refused?
Yes. The entities referred to in article 2 may refuse access to infrastructure suitable for the accommodation of electronic communications networks, which they hold or manage, in a duly substantiated manner, in three types of situations.
36. What situations are provided by law for refusal of access?
- Where the accommodation of electronic communications networks in infrastructure under consideration is not technically feasible;
- Where the use of infrastructure by electronic communications companies renders them ineffective with respect to the main purpose for which they were established, where it puts the safety of people or property at risk, where it implies a serious risk of infringement of legal, regulatory or technical rules regarding obligations of public service which the respective service provision must fulfil;
- Where there is a lack of available space as a result of the state of occupation or as a result of the need to ensure space for own use, or for the purpose of performing maintenance or repair.
37. Before refusing access, and in uncertain cases, can the entities of article 2 seek the cooperation of ANACOM?
Yes. Prior to refusing access, where they are uncertain as to whether there are any applicable grounds for refusal, entities may request the intervention of ANACOM.
38. And after access is refused, how may ANACOM's intervention be requested and for what purpose?
Where, in a specific situation, an entity has refused access to infrastructure, any of the involved parties may apply to ANACOM for a binding decision on the matter. In this case, the dispute settlement regime provided for in article 10 of the Law of Electronic Communications, approved by Law No 5/2004, of 10 February, shall apply, with due adaptation.
39. What are the requirements for applying to ANACOM for intervention?
The application addressed to ANACOM must identify the infrastructure to be verified, its route and main areas affected, as well as other details deemed to be relevant for the assessment of the possibility of using the infrastructure under consideration to accommodate electronic communications networks.
40. What action does ANACOM take when it receives a request for intervention?
In these cases it is incumbent upon ANACOM to decide whether it is possible for the infrastructure in question to accommodate electronic communications networks.
For this purpose, ANACOM shall hear the applicant, the entity in possession of the infrastructure and, where appropriate, the respective sector regulator, and shall rule within a maximum of 15 days. In the event that no ruling is given by this time limit, the application shall be considered as granted.
41. Can suitable infrastructure be occupied by only one operator?
Any contractual clause that provides for exclusive occupation of infrastructure suitable for the accommodation of electronic communications networks by one electronic communications company, or by one of the entities referred to in article 2, or by both, shall be deemed to be null and void.
42. Can the entity in possession the infrastructure reserve space for its own use?
Yes. Entities in possession of infrastructure may reserve space for their own use in present or future infrastructure suitable for the accommodation of electronic communications networks, provided that this reservation is duly substantiated.
43. Can the installation of networks in suitable infrastructure be made subject to specific technical requirements?
Yes. Entities in possession of infrastructure may draw up and publicize technical instructions governing the installation of equipment and systems for electronic communications networks in infrastructure which is in their possession or under their management.
44. What are the general obligations of entities in possession of infrastructure suitable for the accommodation of electronic communications?
- Provide ANACOM with information on infrastructure suitable for the accommodation of electronic communications networks which is in their possession or under their management.
- To draw up a record with geo-referenced information on infrastructure suitable for the accommodation of electronic communications networks.
- To draw up and to publicize the procedures and conditions for access to and use of said infrastructure.
- To respond to applications for access to said infrastructure.
- To respond to enquiries on the respective infrastructure.
45. What aspects must be included in the rules drawn up by the entities of article 2 with regard to access and use of their suitable infrastructures?
The rules to be issued must contain at least the following elements:
a) The entity to whom applications for access and use must be addressed, for the purpose of installing, maintaining and repairing electronic communications networks to be accommodated in such infrastructure, as well as the offices or contact points to which applicants should apply;
b) The items which must be attached to the application;
c) The time periods governing rights of access and use, procedures and conditions for renewal of such rights;
d) Applicable standard contractual conditions, forms and description of elements and data which should be contained in the file;
e) Applicable conditions of remuneration for access to and use of infrastructure;
f) Technical instructions for the use of infrastructure;
g) Penalties for non-compliance or misuse of infrastructure;
h) Other requirements to which the allocation of the right of use is subject.
46. What are the principles applicable to access remuneration?
Remuneration for the access to and use of infrastructure must be orientated to cost, taking into account the costs incurred through construction, maintenance, repair and improvement of such infrastructure.
47. What remuneration is applicable to access to public ITUR infrastructure?
In accordance with Decree-Law No. 123/2009, public ITUR infrastructure is part of the municipal public domain. Therefore, the installation of cabling and the occupation of public ITUR is only subject to MFRW.
48. What is the remuneration applicable to access with respect to suitable infrastructure belonging to public or private domain of local authorities?
The use of infrastructure suitable for the accommodation of electronic communications networks that belong to the public or private domain of local authorities shall be subject to the MFRW, whereas the collection of any other fee, charge or remuneration is prohibited.
49. Can ANACOM's intervention be requested to decide on the access remuneration?
Yes. At the request of an electronic communications company or an entity in possession of or managing infrastructure, ANACOM shall assess and decide, in a particular case, whether the amount requested is appropriate in the light of the rules applicable to access remuneration. On the principles applicable to remuneration of access, see answer to question 46http://www.anacom.pt/render.jsp?contentId=1002722.
For this purpose, the entity managing the infrastructure shall demonstrate to ANACOM that the requested amount is appropriate, and shall provide all other elements requested by the Authority to examine the matter.
50. How can sectoral regulators intervene where access is to the suitable infrastructure of an entity which is subject to this regulation?
When access is to infrastructure which is in the possession of an entity subject to regulation, ANACOM must consult the respective sector regulatory authority, which shall make its decision known within a non-extendable maximum period of 15 days, whereas failure to issue a decision in the specified period shall constitute consent.
Where the decision of ANACOM is contrary, in whole or in part, to the opinion delivered by the sector regulator, the former must duly substantiate its decision, presenting specific reasons for rejecting the conclusions reached in that opinion.
51. Who should requests for access to suitable infrastructure be directed to?
Electronic communications companies wishing to install their networks in infrastructure which is suitable for accommodating electronic communications networks must make the request for access to the entity responsible for their administration.
52. Is there a legal deadline for responding to a request for access?
Yes. Any application for access for the use of infrastructure referred must be assessed and responded to within not more than 20 (working) days from the effective reception by the entity responsible for the administration and management of such infrastructure, whereas failure to provide an opinion within this time limit shall be deemed as constituting acceptance.
53. Is there a legal deadline by which electronic communications companies have to complete the installation of systems and equipment in suitable infrastructure?
Yes. Where the application for access is granted, the electronic communications companies is bound to conclude the installation of systems and equipment within four months, otherwise the respective right of access expires.
54. Are electronic communications companies required to effectively use the suitable infrastructure to which they been granted access?
Yes. Electronic communications companies are required to use infrastructure to which they have access in an effective and efficient manner.
55. Under what conditions are electronic communications companies required to remove their networks?
Electronic communications companies shall remove cables, equipment and any other resources belonging to their networks which are not actually in use and which are not expected to be used during the course of the following year, bearing the respective costs, provided that:
- The infrastructure concerned is needed by the entity that is in possession of or manages the referred infrastructure; or
- The infrastructure is needed to accommodate the network components of other electronic communications companies which shown interest in such accommodation.
56. What happens if the electronic communications companies required to undertake the removal of networks fails to proceed with such removal?
Where electronic communications companies fail to remove network elements within a period of 30 days following the date that such removal is requested, the entity managing the infrastructure or, with the consent of said entity, the interested electronic communications company, may remove the respective components, bearing the costs of this intervention, without prejudice to the liability of the company responsible for such removal.
57. Can electronic communications companies freely replace electronic network resources accommodated in suitable infrastructure to which they have been granted access?
Without prejudice to established contractual conditions, electronic communications companies may replace systems, equipment and other resources accommodated in infrastructure mentioned with others that are technologically more advanced and more efficient, insofar as this replacement does not entail an increase in occupied capacity.
58. Who is required to prepare a register of infrastructure?
The following entities in possession of infrastructure suitable for accommodation of electronic communications networks are required to prepare a register:
- The State, Autonomous Regions and local authorities;
- All entities under the authority or supervision of bodies of the State, Autonomous Regions and local authorities, performing administrative tasks, regardless of their entrepreneurial nature, as well as public companies and concessionaires, particularly those active in the field of infrastructure for roads, railways, ports, airports, water supply, sewerage, and transport and distribution of gas and electricity;
- Other entities in possession of or operating infrastructure encompassed by the public domain of the State, Autonomous Regions and local authorities;
- Electronic communications companies;
- Entities in possession of infrastructure which is suitable for housing electronic communications networks used by electronic communications companies.
The above entities shall maintain a continuously updated register of the infrastructure that is in their possession.
59. What information must be included in the register?
The register should contain descriptive and geo-referenced information of infrastructure suitable for the accommodation of electronic communications networks, namely ducts, inspection chambers, manholes and associated infrastructure.
60. What are the minimum elements of the register?
The minimum elements to be included in the register are as follows:
a) Location, geo-reference, layout and main resources allocated;
b) Most relevant technical characteristics, including size, type of infrastructure and type of use;
It is incumbent upon ANACOM to define the minimum elements listed above.
61. Where are the registers published?
The registers are published in SIC (see answer to question 65http://www.anacom.pt/render.jsp?contentId=1002786).
62. Must all suitable infrastructure be registered or are there exceptions?
Where it is not certain whether the infrastructure is able to accommodate electronic communications networks, it is incumbent upon ANACOM, at the request of the entities, to decide on its inclusion in the record, taking into account reasons submitted by such entities and the utility of infrastructure under consideration within the context of the development of electronic communications access networks, namely the connection of end users to core networks.
The existence of non-recorded infrastructure shall be without prejudice to the right of access thereto by electronic communications companies.
63. Are the entities which keep registers required to inform the electronic communications companies on issues related to the respective infrastructure?
Yes. These entities are subject to two types of disclosure requirements, one that is more general and the other more specific. Accordingly, these entities are required to:
a) Respond in a timely and non-discriminatory manner, within no more than 10 days, to enquiries made by interested electronic communications companies, indicating contact particulars for the purpose;
b) Supply interested electronic communications companies with information providing clarification, namely accurate indications with respect to the location and available capacity in existing infrastructure, where requested, within no more than 10 days.
64. What is the SIC?
The SIC is the central information system provided for in Decree-Law No. 123/2009. It is a means for ensuring the provision of information on infrastructure suitable for the accommodation of electronic communications networks.
65. What information should be disclosed in the SIC?
The SIC should contain the following information:
a) Procedures and conditions governing the allocation of rights of way;
b) Announcements on the construction of infrastructure suitable for the accommodation of electronic communications networks;
c) Records, with geo-referenced, comprehensive and integrated information of all infrastructure suitable for the accommodation of electronic communications networks, including public ITUR infrastructure;
Procedures and conditions that apply to the access to and use of infrastructure which is suitable for the accommodation of electronic communications networks.
66. Who manages the SIC?
ANACOM is responsible for the design, management and maintenance of the SIC, and is also responsible for maintaining its accessibility and availability.
67. Who ensures that the information contained in the SIC is updated?
The entities that provide information for inclusion in the SIC are responsible for the permanent updating of information. Similarly, all information contained in the SIC is binding upon the entities responsible for its production and provision.
68. Who has access to the SIC?
The SIC is based on the principle of information sharing and reciprocity.
Therefore the SIC is accessible to all those entities which are required to provide information to the SIC and which fulfil this obligation, in accordance with the law. Sectoral regulators also have access to the SIC.
In any case, ANACOM is responsible for assigning credentials to access the system.
69. How can the SIC be accessed?
The information on the SIC is available through a private electronic network with access made remotely by obtaining access credentials that are provided by ANACOM.
70. How is the confidentiality of certain information guaranteed?
It is incumbent on Gabinete Nacional de Segurança (National Security Office) to provide an opinion, based on grounds presented by bodies managing infrastructure included in the SIC, on which information should be deemed as confidential or reserved, ANACOM being then responsible for deciding which classification is to be given to the referred information, having heard the entity managing the infrastructure and CADA - Comissão de Acesso aos Documentos Administrativos (Commission of Access to Administrative Documents).
