ACOP
This association says it has no comments to make regarding the Auction Regulation.
CABOVISÃO
CABOVISÃO has, in principle, no interest in the rights of use of frequencies in the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2.1 GHz and 2.6 GHz bands.
FENACOOP
FENACOOP, generally speaking, does not oppose the approval of the regulation under consultation. It emphasises that it is essential to boost the transparency of the process and competition in the market, so that consumers may have access, without geographical or social, economic or other obstacles, to quality electronic communications services and the best price and draws attention to the document “10 Rights and Principles of the Internet”, published by the United Nations in April 2011. Finally, it concludes that at the moment at which the auction for the fourth mobile generation is about to be launched, the Internet as a space of affirmation of human rights needs to be carefully considered.
PT GROUP
The PT GROUP is of the opinion that the adoption of the auction model as a procedure for allocating the rights of use of the frequencies in question, to the detriment of the traditional public tender procedure, is not sufficiently justified. On this point, it considers the reasons used by ICP-ANACOM, and which are related with the greater flexibility of implementation and the need to approximate the value of the spectrum to the reality of the market, to be manifestly insufficient.
[SCI] [ECI]
GRUPO ZON
In spite of there being a broad range of guidelines that it considers correct, GRUPO ZON also considers that the necessary conditions for the promotion of competition in the Portuguese mobile market have not yet been met in the draft regulation. Portugal has a unique opportunity to create conditions for the effective promotion of competition, through the possibility of the entry of a new mobile voice and broadband operator with its own network, entirely or partly owned. For this it is necessary to guarantee that the competitors are able to obtain the adequate quantity and combination of spectrum, without which the offers to be provided will not be credible or long-lasting.
GRUPO ZON considers that in Portugal the mobile communications market is far from being a market with the levels of competition necessary for the sustainable development of an information society, being fundamental for that development that the model of allocation of frequencies create conditions for the entry of additional competitors under sustainable conditions.
In relation to the lack of competition and dynamism of mobile communications in Portugal, it should be noted that Portugal is a closed mobile market where the same two operators have competed (in a relatively weak manner) for about 15 years, both of which have sought to block the entry of new companies in the market.
With regard to the MVNO operations, GRUPO ZON mentions that the three mobile operators managed to, pre-emptively and benefiting from the lack of regulatory intervention, reduce the (already very limited) space for the entry of MVNOs, through the launch of low cost offers.
OPTIMUS
[SCI] [ECI]
VODAFONE
VODAFONE is of the opinion that the adoption of the auction as a mechanism of allocation may address the objectives proposed by the regulator: ensure the possibility of implementation of different services, ensure the possibility of use of different technologies; create conditions for a flexible allocation, according to the needs of each operator; promote an efficient use of the spectrum, through a correct valuation of the same by the market and discourage inconsistent spectrum allocations. Notwithstanding, it considers that the pursuit of these objectives is not ensured by the design of the auction.
It reiterates the need for a response to the request for clarification previously sent to ICP-ANACOM. VODAFONE highlights that it is considering resorting to all legal means at its disposal to ensure that its rights are guaranteed, in the event that the absence of information hinders the acquisition of sufficient and adequate spectrum.
This operator highlights that the auction processes are complex procedures that require particular care from their participants. In this context, it registers concerns regarding the deadlines defined for the auction, proposing their extension, as well as the organisation of clarification sessions, namely to become acquainted with the electronic platform.
VODAFONE makes reference to the public interest objectives that must govern the auction, to underline that only from a subsidiary and complementary perspective can the objective of generating proceeds from the auction process be taken into consideration, with precedence given to the existence of benefits for the Portuguese population in the technological advancement of the country and the development of the Information Society.
It also considers the guarantee of transparency of the process to be fundamental, namely with respect to the knowledge of the qualified and awarded entities in each sequence, as well as the knowledge of the amounts bidded by each bidder, considering that these are elements provided in European auction models, constituting the two main vectors that must guide the spectrum usage rights allocation procedure.
It further considers that the principle of the efficient use of spectrum must never be limited or even decreased relative to a complementary objective of increasing the financial proceeds of the State.
VODAFONE presents its disagreement regarding the provision of the spectrum extension of the 900 MHz GSM (e-GSM) to entities without experience in the market. On this point it considers that the decision is contrary to the interests of the current providers of LMS, inasmuch as these may capitalise on the greatest synergies from the allocation of this spectrum - due to the knowledge and experience acquired in the exploitation of this band and the two technologies currently permitted – being therefore in a position to better and more quickly satisfy the public interest. It also considers that this delimitation of access would not hinder the objectives of ICP-ANACOM concerning the promotion and increase of market competitiveness, given the existence of multiple frequency bands. On this issue, VODAFONE also considers that ICP-ANACOM omits to mention the justification behind the decision to provide all potentially interested parties with the possibility of acquiring the spectrum e-GSM, as well as the consequences, in terms of guarantee of material equity of individuals, in the event that the auction process results in a final and objective impossibility of the current LMS operators to carry out refarming along all of its extension and in terms of the wasted opportunity of evolution and growth for the operators, for the benefit of consumers, and ultimately, for the economic activity of the country.
VODAFONE also considers that ICP-ANACOM must guarantee that the current rights and obligations of all the entities qualified for the provision of the same services are identical and not discriminatory, reinforcing therefore the need for attention on the part of the regulator to the currently existing rights of use of frequencies and the possible need for review immediately after the auction so as to avoid the existence of situations that penalise operators and are not in line with the market context and the principles outlined in this process. VODAFONE is thus of the opinion that both the current obligations as well as those that result from the auction process must be proportional, fair and reasonable, ensuring the principle of equality of all its intervenients, and one should namely consider that at the moment immediately after the auction, the current rights of use of frequencies must allow the use of all technologies in all frequencies, similarly to that which results from the Draft Auctioning Regulation
for future rights of use of frequencies.
Understanding of ICP-ANACOM
In relation to the comments of the PT GROUP regarding the insufficient justification as to the adoption of an auction as a procedure to allocate the rights of use of frequencies in question (an issue only raised by this entity), ICP-ANACOM reiterates the positions set out in the public consultation report on the draft decision regarding the delimitation of the rights of use, within the scope of the ECL, as well as the necessary flexibility for the allocation of rights to be provided with regards to technological neutrality and the services associated to them. In addition, the PT GROUP did not present any information that would enable ICP-ANACOM to conclude differently relative to the adequacy of this mechanism for the allocation of the rights in question, with the addition that, within the scope of the introduction of LTE, this has been the most used mechanism in the European Union space.
With regards to the comment of VODAFONE on the e-GSM band, ICP-ANACOM reiterates the discussion in the report mentioned above, highlighting that within the scope of recent public consultations, as occurred, for example, in the public consultation relative to the availability of frequencies in the 2.6 GHz band (launched by determination of 11 December 2008), there were several entities that manifested an interest in this spectrum, including those that do not hold spectrum usage rights in the 900 MHz band.
As such, taking into account the principles established in the ECL, namely in its article 31, no arguments seem to exist that justify a possible exclusivity of access to the spectrum for current LMS operators. In any event, ICP-ANACOM takes note that this particular spectrum may have more value for the current mobile operators than for entities that do not possess spectrum in this frequency band, which will result in an additional bidding capability that may have negative consequences in terms of the equilibrium of the various auction participants.
As for the principle of equality, it is ICP-ANACOM's understanding that the same, as defined by VODAFONE, is not brought into question as a result of the allocation of rights of use under the terms defined in this auction process.
Under no. 2 of article 1 of the regulation, the rights and frequencies to be allocated are destined for the provision of any service through the use of any technology, provisions that are in accordance with the principle of technological neutrality, underpinning the new community regulatory framework of electronic communications which shall soon be transposed into national legislation.
This principle, of transversal application, will be valid for all frequency bands available for electronic communications services announced in the NTFA and will not be limited to the frequency bands in question in the present auction or the rights of use allocated in said auction.
Finally, ICP-ANACOM clarifies that it responded to the request for clarification made by VODAFONE during the course of the consultation procedure, not having considered the mentioned clarifications indispendable for this entity to comment within the scope of this public consultation, as actually happened.
As such, ICP-ANACOM understood that providing clarifications during the course of the consultation could constitute an anticipation of the final position of this Authority, which it only intended to issue after having given due consideration to all the contributions of the various intervenients.
