Economy and the Digital Transition, Infrastructure and Housing and Territorial Cohesion
Order
(This is not an official translation of the law)
Whereas:
a) The European Commission’s «2030 Digital Compass: the European way for the Digital Decade» refers to the need for investment in secure and performant sustainable digital infrastructures, aiming to have all European households covered by a Gigabit network and all populated areas covered by 5G by 2030;
b) The Government intends to guarantee access to very high capacity networks for the entire population, with the aim of ensuring coverage of the entire national territory, guaranteeing coverage of all households by a Gigabit network by 2030, with priority being given to low density areas, favouring territorial cohesion and developing inland regions;
c) With regard to the previous recital, the Action Plan for Digital Transition, approved by the Government in April 2020, determines a set of basic conditions, namely in terms of connectivity and infrastructures, the implementation of which facilitates and enhances the success of all the Plan’s measures, contributing to the creation of a true digital society;
d) The «Connectivity Working Group» (GT Conetividade) was set up with the aim of analysing the existing needs in the national territory for very high capacity fixed and mobile network coverage, as well as the availability of public (namely from the European Union) and private funding for investment in connectivity infrastructure, and of launching public procurement procedures for the installation, management, operation and maintenance of very high capacity electronic communications networks in «white areas»;
e) For this purpose, it is necessary to carry out a survey that includes the geographical coverage of existing very high-capacity networks and the expected coverage of new networks, with information on companies’ plans for the deployment of very high-capacity networks;
f) The identified needs and, namely, the definition of «white areas» in the national territory and in particular in inland regions, with low population density and economic viability challenges, make it necessary to create a connectivity strategy, that allows finding the most adequate and economically viable solutions to guarantee the access to an ultra-fast Internet, suitable to fulfil the «digital needs» of the population, with quality, mitigating the digital divide, promoting the construction of the digital society and, specifically, developing inland regions, within the scope of Programa de Valorização do Interior (PVI – the Inland Regions Development Programme);
g) The PVI includes the +CO3SO Proximidade (teleservices) and +CO3SO Digital (digital agenda) measures, which require network coverage for their implementation, and which will act as development motors and investment anchors in inland regions;
h) The strategy referred to in the previous recitals should be based on a model of balanced coverage between the mobile and fixed networks, supported by technological neutrality and the principle of an open network, which can make use of any available technology;
i) The Regulation on the Auction for the Allocation of Rights of Use for Frequencies in the 700 MHz, 900 MHz, 1800 MHz, 2.1 GHz, 2.6 GHz and 3.6 GHz bands («5G Auction Regulation») sets coverage obligations until 2025, which will enable the country to ensure progress, through the mobile network, in meeting the referred European Commission’s Compass, particularly in low-density areas;
j) In this scope, the following objectives were thus established: the mitigation of deficiencies in terms of coverage and capacity provided by the existing mobile networks, as well as the guarantee of the country’s economic and social cohesion, thereby meeting the expectations of the population and the national economic fabric, also enabling the national objectives defined for mobile broadband in the scope of the Action Plan for Digital Transition and of the National Programme for Territorial Planning Policy (PNPOT), and the European objectives defined for the responsible and resilient development of a «Gigabit Society» to be met;
k) With regard to fixed networks, according to DESI (The Digital Economy and Society Index) data, in the first half of 2020, high-capacity fixed residential penetration reached 70%, with slower penetration - despite growth, close to the average - in low-density regions (inland regions and Autonomous Regions);
l) While keeping in mind the goal of all households being covered by a Gigabit network by 2030 and all populated areas covered by 5G, the Government intends to immediately begin a «first phase» of this process by allocating funds from public funds to the installation, management, operation and maintenance of very high-capacity networks in low-density territories, with a view to increasing the penetration of these networks, correcting inequalities in the growth of this penetration throughout the country;
m) Thus, without prejudice to the future establishment of an interactive map of fixed and mobile electronic communications network coverage, whose legislative process is underway, as well as the geographical survey process to be carried out under Directive EU 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code, it is imperative, right now, to move forward with the collection of critical information for the achievement of some of the objectives listed above;
n) Autoridade Nacional das Comunicações (ANACOM) is entrusted, pursuant to its Statutes, approved by Decree-Law No 39/2015 of 19 March, with the mission of assisting the Government in the field of communications, at the request of the Government and/or on its own initiative, including the provision of the necessary technical support and the drafting of opinions, studies, information and draft legislation, without prejudice to its powers as the national regulatory authority, under the applicable legislation;
In this context, for the purposes of achieving the objectives set out in the recitals listed above, pursuant to paragraph 1 of article 14, paragraph 1 of article 29 and paragraph 1 of article 30 of Decree-Law No 169-B/2019, of 3 December, and in the use of the powers delegated by the Minister of State, Economy and Digital Transition, the Minister of Infrastructure and Housing and the Minister of Territorial Cohesion through Orders No 12483/2019 of 31 December, 11146/2020 of 12 November and 2551/2020 of 24 February, respectively, ANACOM is hereby entrusted, in compliance with paragraph 2 b) of article 8 of its Statutes, approved by Decree-Law No 39/2015 of 19 March, with the following:
1 – Collecting updated information on the coverage of very high capacity public electronic communications networks in the national territory.
2 – Collecting information on the expected geographical coverage of new very high capacity networks. This should include information on any company’s plans for rolling out broadband networks, including very high capacity networks, or upgrading broadband networks of at least 100 Mbps.
3 – The information requested for the purposes of paragraphs 1 and 2 shall be provided within the periods and in accordance with the requirements to be determined by ANACOM.
4 – Identifying geographical areas without very high capacity on the basis of information collected in accordance with paragraphs 1 to 3.
5 – The collection of information and identification of geographical areas, referred to in the previous paragraphs, shall comply with European Union rules on state aid for the deployment of broadband networks.
6 – Drafting tender specifications for tendering procedures to be carried out by the Government for the installation, operation and maintenance of very high capacity networks in the identified areas and in compliance with the provisions of the following paragraphs.
7 - Specifications shall comply, in particular, with the following principles:
a) Ensuring compliance with EU state aid rules for the deployment of broadband networks;
b) Ensuring that the deployment of very high capacity networks includes, where necessary, the construction of infrastructure suitable for the accommodation of such networks;
c) Defining phased coverage obligations by 2030 that enable the provision of a minimum speed of 1 Gbps to all households, in line with the European Commission’s targets;
d) Ensuring that companies seeking to operate networks under publicly funded contracts make available exclusively wholesale offers, which must include, inter alia, transparency and non-discrimination obligations;
e) Ensuring the inclusion of clawback clauses in contracts for the installation, management, operation and maintenance of public electronic communications networks, so as to guarantee reimbursement to the State in case of breach of contractual obligations;
f) Ensuring that the tender procedure is divided into geographical zones, covering the entire national territory;
g) Ensuring technological neutrality, in accordance with EU and national law, allowing contractors to design and manage their own networks.
8 – Submitting to the Secretary of State for Digital Transition, the Assistant Secretary of State and Communications and the Secretary of State for the Development of Inland Regions, the list of the geographical areas identified under paragraph 4, as well as the proposed specifications, under paragraphs 6 and 7, within at the most 45 days from the date of communication to ANACOM of this order.
9 - This Order shall take effect on the date of its signature.
21 October 2021. - The Secretary of State for Digital Transition, André Eduardo de Aragão Gonçalves de Azevedo. – The Assistant Secretary of State and Communications, Hugo Santos Mendes. – The Secretary of State for the Development of Inland Regions, Isabel Cristina Fernandes Rodrigues Ferreira.
