Legal framework and background

Law 5/2004, of 10 February, which established the legal regime applying to electronic communications networks and services and to related resources and services (ECL), defines in its article 105 that fees may be imposed for the following acts, the respective proceeds going to ICP - ANACOM:

a) Declarations supporting rights issued by the National Regulatory Authority (NRA) pursuant to  paragraph 5 of article 21;
b) The exercise of the activity of electronic communications networks and services provider, on an annual basis;
c) The assignment of frequency usage rights;
d) The assignment of rights of use for numbers and the reservation thereof;
e) The use of numbers;
f) The use of frequencies.

According also to the ECL, the amounts of fees referred to in points a) to d) must be “determined with regard to the administrative costs incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in article 28, which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring of compliance and other market control, as well as regulatory work involving the preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; such fees shall be imposed upon undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and associated charges”.

Administrative Rule number 1473-B/2008, of 17 December, established the amounts of the previously mentioned fees, which came into force on 1 January 2009. The publication of the Administrative Rule was preceded by a discussion within ICP-ANACOM´s Advisory Board, which specifically includes representatives from electronic communications networks and services providers. This discussion was based on a document entitled “ICP-ANACOM Fee Model”.

Under paragraph 5 of article 105 of the ECL, the NRA must publish an annual report of its administrative costs and of the total sum resulting from the collection of fees referred to in points a) to d) of paragraph 1, in order to perform the appropriate adjustments with respect to the difference between the total sum of fees and administrative costs. That report, which we are now presenting, only relates to the fees the amounts of which are determined based on administrative costs, excluding the fees mentioned in points  e) and f) of article 105 of the said Law, since these fees should “reflect the need to ensure the optimal use of frequencies and numbers”, and therefore cannot be cost-oriented. It should be noted that the fees referred to in points a), c) and d) of paragraph 1 of article 105 of the ECL were set on the basis of “the unit costs related to the issue of declarations, based on a typical situation, and under the assumption of efficient performance by ICP-ANACOM ¹”, which implies that, for fees of this type, there are no direct adjustments between their amount and the costs actually borne, except where unit costs are subject to revision.

As for the fees referred to in paragraph 1b) of the mentioned article 105 of the ECL, a costing methodology was established in order to determine the costs related to the different areas of operation, based on the ABC – Activity Based Costing - system. At the same time, this Authority developed an additional process for cost classification which enables it to determine these costs in compliance with paragraph 4 of article 105 of the ECL, also enabling the distribution of costs related to ICP-ANACOM’s other activities, pursuant to its Statutes. This methodology is described in Annex I, a document which was already part of the “ICP-ANACOM Fee Model” discussed by ICP-ANACOM’s Advisory Board.

By determination of the Management Board of ICP - ANACOM (MB) taken on 30.07.2010 (DE2442010CA), carrying out the provisions laid down in Administrative Rule number 1473-B/2008, and based on the amount of relevant income submitted by electronic communications services and networks providers, the following was approved:

a) The total sum of regulation costs as regards the activity of electronic communications networks and services provider, amounting to 31.526.163 €;
b) The publication on ICP-ANACOM’s website of a document explaining how administrative costs were calculated, pursuant to paragraphs 1 and 2 of Annex II to Administrative Rule number 1473-B/2008, attached as Annex I hereto;
c) The carrying out of an audit to providers that showed, for 2010, relevant income and high figure deviations (relatively to the 2009 civil year), the respective procedures being required, taking specifically into account the fact that one of the operators of a significant size had adopted the view that a large portion of its income should not be deemed as relevant income. This audit aimed to assess whether criteria used by the various providers were uniform and, if necessary, to correct values submitted.

The audit mentioned in point 1.5, carried out by Ernst & Young, showed that changes to relevant income submitted by some operators were justified. Based on the audit report, the following was approved by MB determination of 25.11.2010 (DE3482010CA):

a) To establish a new t2 contribution rate of 0,5770%, set pursuant to paragraph 2 of Annex II to the above-mentioned Administrative Rule;
b) To settle the fees due for engaging in the activity of electronic communications networks and services provider, considering the changes to the value of the Relevant Income that resulted from the said audit.

Following the determination mentioned in the previous point, ICP - ANACOM published on its website data on how the value of the t2 contribution rate, of 0,5770%, had been calculated, as well as on the new total sum of Relevant Revenues determined within the audit performed by Ernst & Young, which amounted to 5.464.947.360 Euros.