MEO holds a right of use for frequencies (RUF) of a national scope, for the provision of the digital terrestrial television broadcasting service, associated to Multiplexer A, intended for the broadcasting of free-to-air television programme services - RUF ICP-ANACOM No 6/2008.
Frequency bands assigned to the digital terrestrial television broadcasting service and allocated to MEO, for this purpose, were identified in the referred RUF (vide clause 7, paragraph 1), having been already amended and replaced on 10.03.20101, 09.03.20112, 04.04.20113 e 16.05.2013 4.
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 efficient use of spectrum; (d) meet another general interest objective defined in the law5.
As stated in the decision on the evolution of the DTT network, of 16 May 2013, “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.”
Also under the law - legal regime applicable to the licensing of radiocommunication networks and stations6 - 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, to the extent required to pursue the public interest, within the scope of the management of the radio spectrum and in accordance with the principle of proportionality and respect for established rights.
As regards the evolution of the DTT SFN network to an MFN network (MFN of SFN), the same decision of 16 May 2003 establishes the framework both for the network alteration and for a possible anticipation of such change.
As such, although ANACOM determined that MEO must “carry on with the installation of the MFN network (MFN of SFN)”, such installation was conditional upon the occurrence of one of two events (which were clearly set out by ANACOM in the referred determination).
One the one hand, MEO was bound to carry on with the installation of the MFN network (MFN of SFN) “following any harmonisation at international or Community level or when a higher degree of security exists as to the need of implementation of the digital dividend 2 and respective conditions”, always according to an autonomous decision on the part of this Authority, including the development schedule and plan that are established and published further to a proposal by MEO (as network operator).
On the other hand, ANACOM provided for the possibility of anticipating the installation of main transmitters relatively to moments mentioned above, “any costs arising therefrom being borne by PTC, in case the operating network fails, or is expected to fail, to present the necessary stability to provide the service with the levels of quality determined in Recommendation ITU-R BT.1735-1 and future revisions thereof”.
In the Report of consultation procedures on the draft decision that preceded this decision, ANACOM explained that this provision serves a different purpose than that of the established evolution, and is not dependent on a decision on the digital dividend 2. As such, this Authority clarified that the installation of main transmitters is the preferential solution in case the network fails to present stability and, as such, in the final decision it was made clear that, if justified on those grounds, MEO must ensure an advance installation of the referred transmitters, relatively to a future ANACOM decision on network transition.
As regards channels whose integration in the RUF MEO now requests, under point 5 of decision of 16 May 2013, ANACOM determined their reservation in the National Frequency Allocation Plan (NFAP), with full access by 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. As such, this Authority is entitled, in the exercise of its spectrum management powers, to dispose of these frequencies, for the purpose of this request.
On the other hand, also as regards the issue of integrating coverage obligations described above in RUF ICP - ANACOM No 06/2008, which also represents an amendment to the referred RUF, it follows from decision of 16 May 2013, in particular from point 3.3. thereof, that “minimum values resulting from information provided pursuant to point 3.A. become an integral part of RUF ICP-ANACOM No 6/2008, with any amendments that may be determined, binding the operator thereto as from that date.”
It must also be referred that conditions, rights and procedures applicable to the exercise of the activity, including rights of use, may be amended in cases of objective justification and in accordance with the principle of proportionality - article 20 of ECL.
As referred above, conditions associated to the RUF granted to MEO are currently set out in the respective qualifying document (RUF ICP-ANACOM No 6/2008), in endorsement 1 thereto, in determinations amending the operating channels of Mux A and also in decision of 16 May 2013, conditions described above being now also added.
Taking into account the successive amendments introduced to conditions associated to the RUF, ANACOM deems that there are grounds for reissuing the qualifying document which establishes it, as this is the solution that in a more transparent and integrated manner allows for the publication of amendments introduced by this determination. In addition, it is stressed that amendments arising from determination of 16 May 2013 have a deep impact in the RUF, as they do not only entail the integration of new frequencies (geographically defined), given that conditions associated at the moment of award apply throughout the territory.
1 ANACOM determination of 10.03.2010 (Alterations to DTT network associated with Mux A in Azoreshttps://www.anacom.pt/render.jsp?contentId=1018110), corresponding to endorsement No 1 to RUF ICP - ANACOM No 6/2008, available at 'Averbamento n.º 1 - DUF ICP-ANACOM n.º 6/2008' .
2 ANACOM determination of 09.03.2011 (Alterations to operating channels of DTT Mux Ahttps://www.anacom.pt/render.jsp?contentId=1076911) further to the general consultation procedure (Consultation on alterations to operating channels of DTT Mux Ahttps://www.anacom.pt/render.jsp?contentId=1064737).
3 ANACOM determination of 04.04.2011 (Alterations to operating channel of DTT Mux A in Mainland Portugalhttps://www.anacom.pt/render.jsp?contentId=1081451).
4 ANACOM determination of 16.05.2013 (Final decision on the development of the digital terrestrial television networkhttps://www.anacom.pt/render.jsp?contentId=1161743).
5 Cfr. article 30, paragraph 1, of ECL.
6 Cfr. article 4 of Decree-Law No 151-A/2000 of 20 July, as amended by Decree-Law No 264/2009, of 28 September.