4. Amendment of RUF ICP-ANACOM No 6/2008 allocated PTC

PTC must be provided with the appropriate and necessary means to change to the MFN network, so that the company is able to implement the model described in the preceding point, a process that will occur in stages, as noted earlier.

As referred above, PTC holds a right of use for frequencies (RUF), of a national scope, for the provision of the digital terrestrial television broadcasting service, connected to Multiplexer A, intended for the broadcast of free-to-air television programme services - RUF ICP-ANACOM No 6/2008.

The frequency bands assigned to the digital terrestrial television broadcasting service and allocated to PTC for this purpose have been identified in the referred RUF ICP-ANACOM No 6/2008 (see clause 7, paragraph 1), and have been amended and replaced on 10.03.2010¹, 09.03.2011² and 04.04.2011³.

Under the law - radiocommunications networks and stations licensing legal regime⁴ - ICP-ANACOM is entitled, at any time in the exercise of its powers and the performance of its duties, to alter, cancel or replace the allocation of frequencies for the operation and use of radiocommunications networks and stations, within the scope of the management of the radio spectrum and in accordance with the principle of proportionality and respect for established rights.

In the case under consideration, according to RUF ICP-ANACOM No 6/2008 (clause 7, paragraph 1), following any international or Community harmonisation, frequencies identified therein may be amended, pursuant to article 20 of ECL, where the reallocation of certain frequencies is required for management reasons.

Consistently, under the law, conditions, rights and procedures applicable to the exercise of the activity, including the rights of use, may be amended in cases of objective justification and in accordance with the principle of proportionality - article 20 of ECL.

Moreover, as results from RUF ICP-ANACOM No 6/2008 (clause 3), PTC is bound to comply with rules that may be published in the future, even where provisions other than those laid down on the date the RUF was allocated are concerned, in case they result from public use needs or requirements of the service provided by the company, as provided for in the mentioned article 20 of ECL.

Under the law, the use of frequencies depends on the allocation of rights of use only where this is necessary to: (a) avoid harmful interference; (b) ensure technical quality of service; (c) safeguard an efficient use of spectrum; and (d) meet another general interest objective defined in the law - article 30, paragraph 1 of ECL.

It is unquestionable, in the opinion of ICP-ANACOM, that the digital terrestrial television broadcasting service intended for the broadcast of free-to-air television programme services means that the use of associated frequencies is subject to requirements of coverage and technical quality of the service, which are also connected to general interest objectives. These requirements - the mentioned conditions - arise from the RUF allocated to PTC in 2008 and, as such, should be maintained.

It is well known that PTC has explicitly shown its intention to maintain «the MFN network currently being used [constituted by the three temporary licensed transmitters] its settings remaining, together with the network operating on channel 56 (see RUF ICP-ANACOM No 06/2008), as a united and integrated DTT network», having subsequently conveyed that the existing solution should be «maintained and reflected in the national qualifying document that grants the rights of use for frequencies connected to Mux A».

In the scope of powers conferred to ICP-ANACOM under the law, this Authority is bound, in the scope of spectrum management, to plan frequencies and to allocate spectrum (article 15 of ECL). In this context, it should be taken into account that there are MFN networks already planned, duly coordinated at international level within the 2006 Geneva Agreement (GE06) and available for immediate implementation, which integrate the 3 channels currently in use in the scope of the temporary network license allocated to PTC. In addition, ICP-ANACOM is entitled currently to dispose of these frequencies due to the switch-off - and corresponding release of frequencies formerly in use by the analogue television broadcasting service⁵. Under the National Frequency Allocation Plan (NFAP), the 470-790 MHz frequency band is allocated, among other applications of a secondary nature, to the digital television broadcasting service.

The transition to the MFN network implies the reservation of the necessary frequencies for the purpose, with full access of the RUF holder to the digital terrestrial television broadcasting service, connected to the Multiplexer A, intended for the broadcast of free-to-air television programme services.