Bearing in mind the international framework, namely at EU level, as well as expressions of interest in the use of the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2,1 GHz and 2,6 GHz bands, conveyed in responses received in the scope of the public consultation on the 2009-2010 National Frequency Allocation Plan (NFAP), as well as of prior public consultations promoted by ANACOM, and given the need to (i) ensure an efficient use of frequencies, (ii) maximize benefits for users and (iii) facilitate the development of competition, this Authority takes the view that it should make the referred frequency bands available for applications in the scope of terrestrial electronic communications networks and services, in compliance with the principles of technological and service neutrality, without prejudice to powers identified in the NFAP.
In situations where the use of frequencies is dependent upon the allocation of rights of use, according to the National Frequency Allocation Plan (NFAP), it is incumbent upon ANACOM, pursuant to paragraph 3 of article 19 of Law number 5/2004, of 10 February (ECL - Electronic Communications Law) to allocate the referred rights. ANACOM is also charged with the approval of regulations on the allocation of rights of use for frequencies where selection procedures, namely auctions, are involved, except where such allocations concern frequencies which are made available for the first time within the scope of electronic communications, or otherwise where such frequencies are intended to be used for new services, in which case such power is conferred on the Government (article 35, paragraphs 4 and 5 of ECL). Selection procedures and criteria must be objective, transparent, non-discriminatory and proportionate and must take account of the regulatory objectives set forth in article 5 of the ECL.
By determination of 17 March 2011, ANACOM approved a draft decision on the limitation of the number of rights of use of frequencies granted in the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2,1 GHz and 2,6 GHz bands and definition of the respective allocation procedure.
According to this determination, ICP-ANACOM proposes to limit the number of rights of use of frequencies for the provision of publicly available terrestrial electronic communications networks and services, as follows:
a. One right of use of 2×1,25 MHz in the 450 MHz frequency band;
b. Up to six rights of use of 2×5 MHz in the 800 MHz;
c. Up to two rights of use of 2×5 MHz in the 900 MHz;
d. Up to six rights of use of 2×5 MHz in the 1800 MHz;
e. Up to two rights of use of 5 MHz (unpaired spectrum) in the 2,1 GHz frequency band;
f. Up to 14 rights of use of 2×5 MHz and up to two rights of use of 25 MHz (unpaired spectrum) in the 2,6 GHz frequency band.
In this scope, ANACOM proposes an auction to be the selection procedure, as it is deemed to be the most appropriate procedure for granting the rights of use under consideration, taking into account the implementation flexibility planned to be provided - namely, through the possibility to operate different services and to use different technologies (technological and service neutrality) and the flexible allocation of spectrum according to the needs of each operator -, as well as to the need to bring the value of the spectrum at stake closer to the market reality.
