By determination of 8 July 2010, ICP-ANACOM decided, in the specific context of refarming of the spectrum in the 900 MHz and 1800 MHz frequency bands, to unify into a single title the conditions governing the exercise of the rights of use of frequency granted to Optimus, TMN and Vodafone to provide the land mobile service (LMS), according to UMTS (2.1 GHz band) and GSM/UMTS technologies in the 900MHZ and 1800 MHz bands.
In this context, ICP-ANACOM considered it timely and appropriate to bring together, into a single title, the conditions governing the exercise of the right of use of frequencies, eliminating, wherever admissible and justifiable, the distinction between technologies and frequency bands used for the provision of LMS, thereby enhancing the effective application of the principle of technological neutrality.
ICP-ANACOM took the view that, since the GSM Directive and Decision 2009/766/EC 1 gave LMS operators the right to use systems other than GSM in the 900 MHz and 1800 MHz frequency bands, it was not fitting to continue to assess the obligations of operators, in particular with regard to coverage obligations, while ignoring this new reality.
Otherwise, ICP-ANACOM considered that it would be exacerbating inefficient use of the radio spectrum, insofar as this would mean disregarding voice coverage (measured under the 900 MHz and 1800 MHz licenses) when achieved through the use of frequencies at 2.1 GHz, and data coverage (measured in the 2.1 GHz license) when achieved through the use of frequencies at 900 MHz and 1800 MHz.
In the context of the multi-band auction, the rights of use of frequencies were allocated by ICP-ANACOM for the provision of publicly available terrestrial electronic communications services, whereby this Authority ensured, under its spectrum management responsibilities, the principles of neutrality in these frequency bands in terms of services and technology, subject to compliance with the obligations identified in the Radio Regulations of the International Telecommunication Union (ITU) and the National Table of Frequency Allocations (NTFA) - see article 1, paragraph 2 of the Auction Regulation.
In this context, ICP-ANACOM considers that neutrality should cover the rights of use of frequencies already assigned (before the auction) to the three mobile operators (Optimus, TMN and Vodafone), not restricting provision of services to the LMS, to the extent that, from a perspective of service neutrality, there is no impediment to use of these services for the provision of publicly available terrestrial electronic communications services.
On the other hand, from a standpoint of technological neutrality, compliance is achieved with the implementation of Decision 200/766/EC, as amended by Decision 2011/251/EU in the case of the 900 MHz and 1800 MHz bands 2.
This new reality justifies incorporation of the rights of use allocated under the auction process into a single title together with the previously allocated rights, maintaining a unit which guarantees harmonisation of the terms and conditions applicable to the various rights of use of frequencies which have been allocated and which also guarantees efficiency in the accomplishment of the coverage obligations imposed, in strict compliance with the principles governing the management of the radio spectrum which ICP-ANACOM is charged with ensuring.
This incorporation into a single title does not eliminate, nor can it eliminate, the existence of different rights of use of frequencies, which is also clear from the nomenclature proposed for the title, whereby express provision is made for the conditions associated with each right of use, and likewise for the different coverage obligations, the different periods of validity or specific access obligations.
ICP-ANACOM considers this aspect to be essential, as ensuring appropriate levels of legal security and certainty in the treatment of events that may occur throughout the continuance of such rights of use.
As such, ICP-ANACOM has opted to issue the titles in a unified manner, setting out the different rights of use allocated under the auction process, as well as rights of use allocated previously, in furtherance of the objective of increasing efficiency in the use of the radio spectrum, implementing the principles of neutrality of service and technology and increasing efficiency in the accomplishment of coverage.
On this occasion, ICP-ANACOM has opted to adapt the current obligations set out in the rights of use issued to the three mobile operators on 8 July 2010 to the legal regime resulting from the amendments made to Law no. 5/2004 of 10 February, as stem from Law no. 51/2011 of 13 September (Lei das Comunicações Eletrónicas (Electronic Communications Law)), in particular as regards the general conditions.
In the context set out above, the proposed unified title is structured as follows:
a) A general section whose provisions are applicable to all rights of use of frequencies therein (Section I);
b) A section setting out the general conditions as provided for in article 27 of the Lei das Comunicações Eletrónicas (Electronic Communications Law) (Section II); and
c) A final section divided into chapters, each of which sets out the specific conditions associated with each different right of use of frequencies allocated, in accordance with the provisions of article 32 of the same law (Section III).
1 Currently as amended by Decision 2011/251/EU.
2 In this regard, note is made that a Community Decision is currently undergoing approval on the 2.1 GHz band that will allow the deployment of other technologies in addition to UMTS.
