Administrative Rule no. 1062/2004, of 25 August

Ministério da Economia (Ministry of Economy)

Administrative Rule

The Regulation for the Invitation to Tender for the Allocation of Licences of National Scope for the Use of Frequencies for Fixed Wireless Access, approved by Administrative Rule no. 465-B/99, of 25 June, established that, within at the least two years from the issue of licenses, the allocation of licenses carried out in the scope of the invitation to tender should be reviewed.

This rule results, on the one hand, from the regime determined in Decree-Law no. 381-A/97, of 30 December, which establishes the obligation to use allocated frequencies effectively and efficiently, and, on the other hand, from the particular case of frequencies tendered. It has to be noted that Portugal was one of the first countries to make these systems available, which emphasized the need for an express provision to be made that the allocation of frequencies be reviewed at the end of two years.

At present, it is generally acknowledged that the state of implementation of FWA systems did not achieve the prominence, dynamics and potential expected in 1999, when the invitation to tender was launched. There were from the outset obstacles of an economical, financial, technological and regulatory nature which contributed towards not being met the objectives of service development and geographic expansion expected at the time, which resulted in a situation of insufficient use of allocated frequencies, and therefore in the waste of resources.

This fact, together with the need to review the allocation of frequencies led ANACOM to launch in 2003 a public consultation in order to qualify the decision process and to assist the identification of appropriate measures for the sustained implementation of the FWA, namely in the scope of allocated frequencies.

The result of the public consultation promoted by ANACOM led to the conclusion that, in order to adapt the activity’s development conditions to the current reality, some of the aspects of the model of operation defined at the time of the invitation to tender should be altered. The draft decision on the alterations to be made was once more submitted by ANACOM to a consultation procedure, in May this year, pursuant to the rules provided for in the Law for Electronic Communications – articles 20, paragraph 2, and 8, of Law no. 5/2004, of 10 February.

Having completed that procedure, weighted all expressed positions and analysed the factors involved, there are grounds for giving a new impulse to the use of FWA systems.

The possibility of using allocated frequency bands to support the respective transmissions networks is currently forbidden. Nevertheless, the optimisation and rationalisation of resources may benefit therefrom, with advantages also for end-users, where licensed entities use frequencies under consideration with higher flexibility.

The alteration of the model for the allocation and operation of frequency bands at national level is also justified, having regard to the fact that through an appropriate geographic distribution per zones, it is possible to reconcile the spectrum needs of operators and the principle of effective use of frequencies, ensuring at the same time that operators who wish to continue using those means, may do so.

Moreover, and based on the knowledge of the factual situation, ANACOM has reasons to recover the rights that are not in effective use and to adapt consistently the titles of operators.

Within this context, it is also important to ensure equal treatment for all operators to whom rights of use for frequencies have been allocated.

Finally, it is necessary to alter the regime of usage fee regarding the radioelectric spectrum, in order to bring into line the burden they represent for holders of rights of use and the profit the latter derive therefrom, thereby also revealing the adopted model of geographical division.  Furthermore, the need to reassess the fee system was also stated in the administrative rule that established to respective values, at the time the invitation to tender was launched.

Therefore:

Pursuant to paragraph 7 of article 19 of Decree-Law no. 151-A/2000, of 20 July, and to paragraph 6 of article 1 of the Regulation in annex to Administrative Rule no. 465-B/99, of 25 June, the Government, through its Minister for the Economy, hereby orders the following:

1º - It is incumbent upon ANACOM to define a model for the use per zones of FWA frequency bands allocated to licensed entities following the invitation to tender for the allocation of licences of national scope for the use of frequencies for fixed wireless access, the regulation of which was approved by Administrative Rule no. 465-B/99, of 25 June, as well as of frequency bands allocated through order no. 24 237/99 (2nd Series), aiming at recovering rights of use for frequencies that are not in effective use.

2º - Frequency bands allocated through a tender and following the order no. 24 237/99 (2nd Series), the rights of which are held by the respective entities following the procedure referred to in the preceding paragraph, may be used in the transmission network of operators.

3º - It is incumbent upon ANACOM, pursuant to the preceding paragraphs, to adapt the respective qualifying titles, namely by adjusting obligations of coverage and installation of infrastructures comprised therein to frequencies that remain in the respective ownerships.

4º - The limitations comprised in paragraphs 3 and 4 of article 4 of the Regulation for the Invitation to Tender approved by Administrative Rule no. 465-B/99, of 25 June, cease to be applicable in view of the model of use per zones of FWA frequency bans that is adopted in the future.

5º - The use of frequency bands allocated for the fixed wireless access is subject to the payment of annual fees, per zones, according to the definition in the map in annex, the amount of which is to be calculated as follows:

Tu(annual) = α × L × W5

Where:

α  stands for the weighting that represents the value of the radioelectric spectrum unit per each frequency band allocated:

L represents the entire radioelectric spectrum allocated, in megahertz;

W₅ represents the weight that tries to pick up the social impact of the radioelectric spectrum in the different zones of the country, based on the social and economic development index:

6º - Administrative Rule no. 465-A799, of 25 June, is hereby repealed.

7º - The present statutory instrument takes effect as from 1 January 2004.

The Minister for the Economy, Carlos Manuel Tavares da Silva, on 5 July 2004.

ANNEX

(See original document)