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Decree-Law no. 188/81, of 2 of July02.07.1981
Published in D.R. number 149 (Series I) of 2 July 1981
Ministério das Obras Públicas, Transportes e Comunicações (Ministry for Public Works, Transport and Communication)
(This is not an official translation of the law)
1. Communications - society s real nervous system - are increasingly assuming vital importance in a direct proportion to the degree of civilisation attained and at the same time are a factor of development. The efficiency of communications - in a steady state of technological evolution, the maxim for telecommunications - is indispensable for economic and administrative activities, defence, safety of people and property and social life, both accompanying and fostering progress.
Notwithstanding, the sector has remained subject to outdated legislation, even affecting some vital areas, the most blatant example being Law nr. 5786 of 10th May 1919 (still in force in matters which are far from being without importance) which is today quite obviously obsolete.
Thus arises a need to proceed with the reform of the present legislation which shall promote, make possible and correspond to the progress, expansion and minimum cost of communications. The present law - which, moreover, was considered in the Government Programme, corresponds to an international standard and results from Portugal membership of the UIT, CEPT and UPU - which constitutes the first step in this direction.
2. Reasons of a technical, economic and social nature require that the scope of the communications sector be extended, not only to include the new services which the technological revolution has introduced - in particular with regard to telecommunications - but also to activities which unequivocally constitute telecommunications services, such as the transmission of radio and television broadcasting.
In effect, the production of radio and television broadcasting (which obviously falls within the scope of social communication) is one thing, but the simple transmission of these programmes by wire or hertzian waves is quite another (unequivocally falling within the communications area). This, regardless of whether one or other activity is or not pursued by different bodies.
3. The maintenance of the operation of the non-competitive communications service is dictated by reasons which justified that system, namely the compulsory public nature of the service, the vital nature which it assumes and the sensitive aspects which it involves, such as the inviolability of the confidentiality of correspondence which point unequivocally towards direct management on an exclusive basis by the State and minor public bodies.
4. The nature and importance of the public communications service implies the guarantee of a basis for use which obeys the principles included in this area. However, at the same time, - and without entailing any conflict with the constitutional principle of the freedom of speech - any abusive use of the service which inflicts moral or material damage on either the State, the communications operators or the respective users shall have to be prevented.
5. The legal regime relating to the confidentiality of correspondences, forming part of the area of the rights, freedoms and guarantees of citizens, is the exclusive jurisdiction of the Assembly of the Republic. However, it is still somewhat shocking that such an important matter in the communications area have not the merit to be include in the law which determines the legal bases for this same area.
To bring these two areas together, it was thus decided to lay down formally as a principle the prevailing statutory regime in this area, summarising in some general principles the essence of an area which is set forth in an excessive amount of legislation.
6. The role of the Government with regard to the coordination and supervision of public communications operators has been, in many cases, more theoretical than real due to the fact that the Government does not possess technical infrastructures to support it. The Communications Institute of Portugal has emerged to fill this loophole and it shall take relevant action by providing indispensable support to the coordination and intervention of the Government in the communications area.
As regards tutelage, this shall be effected pursuant to the criteria of uniformity with regard to all minor public bodies in the sector who are to provide support to the Governmental supervision so as to ensure that decentralisation constitutes an instrument of greater efficiency, with the respect for the autonomous regions own duties.
7. The problem of the legal regime of the personnel in the public communications sector - which always involves aspects of great sensitivity and which are by no means unimportant as it deals with the human element - shall be resolved having in mind the following aspects: an own statute for the personnel of small public bodies of the sector so as to ensure relative justice between their professionals, easier management and harmonious development; the creation of a legal framework suitable for the needs of public service and which ensures job stability and, finally, the safeguard of any acquired rights and the participation of the representative bodies of the personnel in the drawing up of the aforementioned statute.
8. Finally, innovations shall be made with regard to the pre-installation of communications infrastructures, in order, not only, to a general rationalisation policy but also the guarantee of a shorter access to the use of the telecommunications service by the citizens; the purchasing of subscriber equipment is liberalised, as has been done successfully in other countries, and the legal regime ensuring the installation, protection and conservation of essential telecommunications infrastructures shall be updated.
Under these terms:
The Governments of the Autonomous Regions of the Azores and Madeira having been heard:
The Government decrees the following under the terms of subparagraph a), nr. 1 of article 201 of the Constitution:
Communications in general
1. Communications is perceived as being the service through which is made the transport and transmission of messages or data using appropriate technical means.
2. The concept of messages or data is used in a broad sense, namely covering written texts, symbols, signals, images and audio.
(Classification by nature)
1. Concerning their nature, communications cover the following types:
a. Post office or postal service, perceived such as the transport and distribution of mail and written information;
b. Telecommunications are the transmission, emission or reception of symbols, signals, text, images, audio or data of any nature by wires, radio, optical or other electromagnetic systems.
2. Telecommunications cover by his nature the following areas:
a. The telegraph service;
b. The telephone service;
c. The telex service;
d. The data communication service;
e. Others, namely videophone, facsimile, teletext and videotext.
(Classification by type of users and the interests they pursue)
1. According to the users and the interests they pursue, communications cover the following types:
a. Civil communications, that cover the public use and the private use of certain civil entities;
b. Armed forces communications;
c. Security forces communications.
2. Public communications, as referred to by the first part of section a) of preceding number, are the ones that meet the collective need to send and receive messages or data in both directions or only in the latter.
3. Armed forces and security forces communications, referred to in sections b) and c) of nr. 1, are those which meet the collective needs of:
a. National defence;
b. Public order and security.
4. Private communications of other civil bodies are those reserved by Government authorisation to public or private bodies, bearing in mind:
a. The satisfaction of interests which justify legal protection;
b. International agreements and treaties.
(Classification by types of addressees)
1. According to the addressees, communications cover the following types:
a. Individual communications or by mail;
b. Mass communication.
c. Individual communications or mail are those sent only to certain people or bodies.
d. Mass communications are those sent to the public in general.
1. It is perceived as communications operators the public or private entities that make the transport or the transmission of messages or data by adequate technical means.
2. Pursuant to the nature of communications, the operators may be classified in the following types:
a. Post office or postal services operators;
b. Telecommunications operators.
3. Pursuant to the types of communication addressees, the communications operators may be of the following types:
a. Mail operators,
b. Mass communications operators.
4. Depending on the nature of communications users and their pursued interests, the operators may be of the following types:
a. Civil communications operators;
b. Armed forces communications operators;
c. Security forces communications operators.
5. The civil communications operators referred to in section a) of the preceding number cover by his side the following types:
a. Public communications operators;
b. Private communications operators of certain civil entities.
(National Telecommunications Council)
1. The National Telecommunications Council is the Government advisory board in the telecommunications field, namely:
a. Concerning the coordination of the civil sectors of the armed and security forces;
b. Concerning the coordination of mass communications by media bodies.
2. In terms of precedence, the National Telecommunications Council reports of the Prime Minister.
3. The National Telecommunications Council maintains all the responsibilities and powers endowed upon it by Decree Law nr. 317/79 of 23rd August.
(Communications Institute of Portugal)
1. The Communications Institute of Portugal (ICP) is hereby created as a public institute endowed with a corporate entity and administrative and financial autonomy, depending hierarchically of the Minister of Transport and Communications, the following duties being incumbent upon the former:
a. The management of the radio spectrum;
b. Providing support to the Government in the coordination, tutelage and planning of the public communications sector;
c. The representation of this same sector.
2. The Institute referred to in the preceding number shall be governed by their its statutes to be approved by a regulatory decree issued by the Ministers of Finance and Planning, of Transport and Communications and of Administrative Reform.
3. The Communications Institute of Portugal shall have the following responsibilities concerning the management of the radio spectrum, namely:
a. The assignment of frequencies;
b. The determination and inspection of the conditions of use;
c. The supervision of radio installations with the exception of those concerning the armed forces;
d. The control and supervision of radio interference;
e. The levying of fines, whenever appropriated.
4. The Communications Institute of Portugal shall have the following duties with regard to the supervision and coordination of public communications operators:
a. To advise the Government in the tutelage and coordination of the public communications operators;
b. To propose the general policies and the organisation and overall planning of the public communications sector;
c. To draw up draft bills and regulations for the sector;
d. To analyse and advise with regard to legislation and regulation proposed by public communications operators;
e. To propose the technological development and scientific research policy applied in the sector;
f. To proceed, in collaboration with other interested entities, to the standardisation and homologation of material and equipment;
g. To supervise the quality and cost of the services provided by the public communications operators;
h. To supervise whether the public communications operators have complied with the legal and regulatory provisions relating to their business;
i. Pursue other duties to be defined in their statutes.
5. The Communications Institute of Portugal have the following duties with regard to the representation of the communications sector:
a. Directly represent the public interest related to the sector activity near the other national bodies without prejudice of the own competencies of the operating companies;
b. Represent the public interest of the sector in its relationship with bodies from other countries and similar international organisations without jeopardising the competence of the Ministry of Foreign Affairs;
c. Represent the Minister of Transport and Communications on the National Telecommunications Council.
6. The following shall constitute revenue of the Communications Institute of Portugal:
a. The rates levied in the management of the radio spectrum;
b. The contributions determined for the communications operators;
c. The participation's, appropriations and subsidies endowed to it by the State;
d. Any other revenues from its activity or eventually assigned.
(Public use of services)
1. It is permitted to all to use public communications services provided that the legal and regulatory provisions are observed.
2. The law may define priority of use of services and establish preferences to the benefit of bodies that pursue public interests worthy of special protection.
3. The communications intended for domestic and foreign public security and for the protection of human life have absolute priority.
1. The communications operators endowed with the corporate statute of public nature may carry on activities not included in their main objective when:
a. Such activities are related with communications; or
b. The pursuance of such activities constitutes a good use of the communications infrastructures.
2. The following is included within the scope of the preceding number, beyond other additional activities:
a. The postal parcel transport service;
b. The postal or telegraphic orders and cheques service;
c. The issue of stamps and their sale;
d. The edition of publications related with communications.
1. Public communications services shall be exploited exclusively by the State or other public corporations.
2. However, the exclusiveness referred to in the preceding number does not cover the following with regard to postal services:
a. The private transportation of mail as a non-profitable activity or a subsidiary of another main activity, provided that this transportation is made by the sender himself or at his own expenses within the limits of a certain area;
b. The transportation of mail which has been prepaid and stamped at the post office in the place of origin;
c. The transportation of mail among several establishments, agencies or delegations which belong to the same transportation company provided that this is undertaken by the company itself and that the mail relates solely to matters connected with their service.
3. The same exclusiveness, also, does not cover in the telecommunications domain:
a. The establishment of systems fully included within the confines of a private property without crossing public roads and without connection or interference, direct or indirectly, with any external system;
b. Those private authorised systems of bodies with corporate statute of public nature provided that they do not interfere with any other telecommunications systems.
1. All types of public telecommunications services shall be rendered under the direct management of the State or by other collective persons of public nature.
2. The possibility of indirect State management in those cases allowed by Law nr. 46/77 of 8th July is maintained by means of :
a. The granting of a concession;
b. The granting of a licence.
1. The public communications operators can not accept, transmit or distribute any correspondence or objects when it is verified that by any reason, they do not obey to the legal and regulatory provisions which shall namely aim to:
a. Prevent that the mail is used to cause damage to the State, bodies operating this service, addressees or third parties;
b. Contribute to the efficient operation of the services of the communications operators.
2. Those operations relative to postal objects and telecommunications that infringe the mentioned in the preceding number shall be immediately suspended at the time when the infringement was detected, regardless of whether the offender is liable in civil or criminal terms.
(Secrecy of correspondence)
1. The prevailing statutory regime concerning the secrecy of mail is maintained. This is summarised in the following numbers.
2. As regards postal communications, this secrecy consists in the prohibition of the reading of any mail even though not enclosed in a sealed envelope as well, the mere opening of closed mail.
3. As regards telecommunications, secrecy consists in the prohibition of acknowledgement about any message or information unless the operation of the service so requires.
4. With regard to all communications, the secrecy of all correspondence also covers the interdiction to reveal to third parties:
a. The content of any message or information that has been, duly or unduly, acknowledged;
b. The relations between senders and addressees;
c. The addresses of either party.
5. The secrecy of correspondence only ceases under the terms of criminal law.
(Tutelage of communications operators)
1. The public communications operators are legally bound to the Government trough an administrative supervision.
2. The aforementioned supervision shall always include:
a. The approval of tariffs, charges and licensing;
b. The approval of regulations governing public use of the services;
c. The inspection of the services so as to guarantee the legality or quality of the service provided;
d. The definition of the technical aspects of the operational policy of the sector in international bodies and in meetings which have as by objective the signing or revision of treaties and agreements;
e. The approval of the annual and multi-annual development and financial plans;
f. The authorisation of the creation of bodies whose object is related to the sector.
3. With regard to public corporations, the Government supervision shall cover also the competence for:
a. The approval of annual budgets;
b. Authorisation to obtain loans in foreign or national currency, in the latter case when this is for a period greater than that established by law and, in this way, to settle the operating plan and other operating conditions, including guarantees to be provided, without jeopardising the applicable legislation;
c. Assignment of supervisory powers;
d. Authorisation for real estate alienation of a value greater than the one that will be settled by law;
e. Declaration of the public utility for those expropriations necessary for the attainment of the objectives of the communications operators and their eventual urgency, approving their projects;
f. Authorisation to issue postage stamps.
(Personnel of minor public bodies)
1. The statutory regime of the professionals of minor public bodies which belong to the public communications sector may adopt principles of public right which are suitable for the requirements and responsibilities of the service.
2. Professionals of the bodies mentioned in the preceding number are considered as being those workers providing services of a permanent nature.
3. The unions and workers committees representing the personnel of the various bodies shall participate in the drawing up of the statutory regime referred to in this article.
1. The following telecommunications infrastructures, despite being allocated to the respective communications operator bodies, belong to the State public domain:
a. Overhead, underground and subfluvial or submarine telecommunications cables or sets of wires;
b. Stations of submarine cable;
c. Radioelectrical centres;
d. Satellite telecommunications centres;
2. The installation of telecommunications infrastructures shall always be undertaken with the safety criteria to be settled by the Government.
3. The infrastructures referred to in the preceding number shall determine the settlement of public easements which are indispensable:
a. For their installation;
b. For their protection and maintenance.
4. By virtue of the easements referred to in the preceding number and so as to protect the infrastructures in question, the bodies to whom these infrastructures have been assigned when they are corporate entities of public nature, may:
a. Regardless of legal action, order the owners of the servant real estate to comply with the easement obligations incumbent upon them;
b. After notification, to take the necessary measures, namely by demolishing those built works in contravention of the law.
5. The communications infrastructures belonging to private communications operators are excluded from what is mentioned in nr. 1.
(Pre-installation of communications infrastructures)
1. The urban developments, construction of buildings and construction of roads shall include the installation of:
a. Mail boxes;
b. Infrastructures of telecommunications services.
2. The installations referred to in the preceding number shall be undertaken pursuant to norms drawn up by the Communications Institute of Portugal and approved:
a. By the Ministers for Transport and Communications, Internal Affairs and Housing and Public Works for Portuguese mainland;
b. By the Ministers for Transport and Communications, Internal Affairs and by the Minister of the Republic, having been heard the opinions of the Regional Governments of the Autonomous Regions of Azores and Madeira .
3. The installations referred to in the present article are subject to the inspection of the body operating the respective communications service.
1. Any subscriber of the public telecommunications service may acquire, at his own expense:
a. Telephone sets;
b. Other terminal equipment.
2. The Communications Institute of Portugal shall shall settle the following:
a. The standardisation and the homologation procedure for the equipment referred to in the preceding number;
b. The interconnection conditions of the said equipment to the telecommunications network.
3. It is incumbent upon the bodies operating the telecommunications service the inspection in order to assure the settlement in the preceding number.
Final and transitory provisions
(Tutelage of the communications inserted in the media bodies)
The supervision of those communications inserted in the media bodies shall be maintained under the exact terms included in the statutes of such bodies.
1. The statutes of the Communications Institute of Portugal shall be approved by a regulatory decree issued by the Ministers of Finance and Plan, of Transport and Communications and Administrative Reform, having been heard the opinions of the Regional Governments of the Autonomous Regions of the Azores and Madeira.
2. Until the articles referred to in the preceding number come into force, all the duties of those bodies operating communications shall remain in effect.
Seen and approved in the Cabinet Meeting of 14th May 1981 - Francisco José Pereira Pinto Balsemão. Enacted on 22nd June 1981. That this shall be published. The President of the Republic, ANTÓNIO RAMALHO EANES
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