Pursuant to paragraph 5 of article 11 of Regulation no. 560-A/2011 of 19 October, ICP - Autoridade Nacional de Comunicações (ICP-ANACOM) has issued the following general clarifications:
1. Clarification on paragraph 1 of article 13 of the Regulation
The envelope referred to in paragraph 1 of article 13 of the Regulation, in addition to the requirements set forth in this paragraph, must also meet the following requirements as specified in paragraph 2 of article 12:
a) it must be addressed to the Chairman of the Management Board;
b) it must bear reference to the application to the auction; and
c) it must not include items which would enable identification of the applicant.
2. Clarification on point e) of paragraph 1 of article 13 of the Regulation
In the event that the applicant, under the terms of the second part of point e) of paragraph 1 of article 13 of the Regulation, opts to give its consent that ICP-ANACOM may consult its tax and contribution payment status over the Internet, the applicant shall, for the purposes of processing its application, attach proof that said consent is given.
3. Clarification on point g) of paragraph 1 of article 13 of the Regulation
The declaration described in point g) of paragraph 1 of article 13 is to:
- identify the holders (natural of legal persons) of the applicant’s social capital and indicate the amounts of said holdings; and
- in the event that one or some of their shareholders are legal persons, include information by which ICP-ANACOM is able to verify compliance with the stipulations of paragraph 2 of article 8, taking into account the criteria established in article 21 of the CVM - Código de Valores Mobiliários (Securities Code).
Given that any relationships of control or significant influence are relevant both in the context of paragraphs 1 and 2 of article 8, by application of paragraph 4 of the same article, and in the context of paragraph 4 of article 25 of the Regulation, in the event that ICP-ANACOM deems that it lacks the necessary elements in the documents attached to the application whereby it is able to assess such relationships, it may request additional information pursuant to article 5 in order to verify compliance with the rules of the auction, particularly in respect of the responsibilities of the Management Board as set out in point g) of paragraph 2 of article 4.
4. Clarification on articles 12 and 13 of the Regulation
Where an application is submitted by an incorporated legal person, the application described in paragraph 1 of article 12 and each one of the declarations referenced in points a), f), g) and h) of paragraph 1 of article 13 of the Regulation are to be signed by the person(s) with powers to legally bind the applicant, legally recognised in this quality.
Where an application is submitted by a legal person not yet incorporated, the application described in paragraph 1 of article 12, each one of the declarations referenced in points a), f), g) and h) of paragraph 1 of article 13 of the Regulation and the documents specified in points a) and b) of paragraph 2 of article 13 of the Regulation are to be signed by the person(s) with powers to legally bind all the constituents, legally recognised in this quality and in respect of their powers to undertake the act.
In all cases, once legal recognition is ascertained, no further documents are required to prove the status and powers of the signatory(ies).
5. Clarification on paragraph 4 of article 27 of the Regulation
The representatives of the bidders at the live session referred to in paragraph 4 of article 27 of the Regulation are required to bring a document of representation for this purpose.
The declaration referred to in point f) of paragraph 1 of article 13 of the Regulation serves only to authorise the persons specified therein to present bids in the name of and on behalf of the applicant.
6. Clarification on point b) of paragraph 4 and on paragraph 5 of article 35 of the Regulation
Paragraph 5 of article 35 of the Regulation states that “the obligation of access set out in points b) and c) of the preceding paragraph shall be binding upon third parties which shall undertake, within a period of 3 years, to use their frequencies in the 800 MHz or 900 MHz frequency bands in such a way as achieves coverage corresponding to availability of the service to no less than 50% of the national population”.
ICP-ANACOM was presented with an interpretation whereby it was considered that the reference made in said paragraph 5 of article 35 "to use their frequencies in the 800 MHz or 900 MHz frequency bands” implied that the right to benefit from network access as defined in point b) of paragraph 4 of said article 35 would be limited to undertakings which have rights of use of frequencies in these bands.
ICP-ANACOM clarifies that, following a systematic interpretation, paragraph 5 of article 35 is to be applied in conjunction with point b) of paragraph 4 of said article 35, under which the right to benefit from national roaming agreements is unequivocally granted to undertakings which hold rights of use of frequencies in the bands above 1 GHz and which do not hold rights of use of frequencies in respect of more than a total of 2 x 5 MHz cumulatively in the 800 MHz and 900 MHz bands; the provisions of this point include undertakings which do not hold rights of use in these latter frequencies.
As such, point b) establishes a limit exceeding which undertakings lose eligibility to enjoy a right of access to the network referred to therein.Accordingly, it is to be made clear that undertakings which hold rights of use of frequencies in the bands above 1 GHz and which do not hold rights of use of frequencies in the 800 MHz and 900 MHz bands are made beneficiaries of national roaming agreements pursuant to point b) of paragraph 4 of article 35 of the Auction Regulation.
Furthermore, it is to be made clear that, in accordance with said paragraph 5 of article 35, undertakings seeking to exercise their right to benefit from national roaming agreements pursuant to said point b) of paragraph 4 of article 35 and holding rights of use of frequencies in the 800 MHz or 900 MHz bands shall undertake to ensure coverage, with use of these frequencies, corresponding to the provision of services to not less than 50% of the national population. Accordingly, the purpose of paragraph 5 of article 35 is not to retract a right conferred by point b) of paragraph 4 of the same article but is instead to stipulate an additional condition to holders of frequencies in the 800 and 900 MHz band.
This meaning is also reflected in the report of the second public consultation on the Draft Auction Regulation wherein it is affirmed that “any operator which has acquired frequencies in bands above 1 GHz and which has not acquired rights in the 800 MHz or 900 MHz bands is made a beneficiary of the access obligation established under point b) of paragraph 4; indeed the purpose of the provision of this point is precisely to make it possible for undertakings which have acquired spectrum above 1 GHz but which have not acquired spectrum below 1 GHz, or which have acquired only a small amount of spectrum (up to 2 x 5 MHz in the 800 MHz or 900 MHz band), to present a nationwide commercial offer even while the respective network is not fully developed.”Under these terms, undertakings holding rights of use of frequencies above 1 GHz and not holding rights of use of frequencies in the 800 or 900 MHz bands are not subject to any commitment to ensure coverage in order to benefit from national roaming agreements pursuant to point b) of paragraph 4 of article 35.
This interpretation is the one that is established by the effective wording of point b) of paragraph 4 of article 35 and is also compatible with the position set out by ICP-ANACOM in the report of the second public consultation on the Draft Auction Regulation, on page 178 of the public version thereof.
7. Clarification on daily and public information regarding the auction
In order to provide public disclosure, and as has been the practice in other European countries, during the course of the bidding phase, the results of the last round of the day of auction will be published on ICP-ANACOM’s website on a daily basis, comprising information on the lot prices (best offers) in this same round.
Given the schedule established for the rounds in article 18 of the Regulation, disclosure will be provided following conclusion of the last round of the day, either on the same day or on the following day in the morning.
8. Clarification on the communication of applicants and bidders with the Management Board
Regular communication between applicants and bidders with the Management Board is effected in various ways during the course of the auction, under the terms of the Regulation:
- in respect of requests for clarification as provided for under article 11 of the regulation, through the specific email address or at the public attendance service at ICP-ANACOM’s head office; and
- during the bidding phase, though the electronic platform or though the alternative means as provided for under the Regulation.
However, other forms of communication with the Management Board are not precluded for other situations.
9. Model wording of provisional guarantees to be provided pursuant to paragraph 10 of article 30 of the Regulation
a) Bank Guarantee
Please refer to the portuguese version.
b) Insurance guarantee
Please refer to the portuguese version.
