According to the respective titles, NOS, MEO and VODAFONE hold rights of use for frequencies, on national territory, for the provision of publicly available terrestrial electronic communications services in the 1920-1980 MHz/2110-2170 MHz sub-band, for the UMTS system or for other systems that comply with technical constrains that are established in the scope of the implementation of Decision No 676/2002/EC of the European Parliament and of the Council, of 7 March (emphasis added).
In this context, and in the scope of the referred Decision No 676/2002/EC, Commission Implementing Decision 2012/688/EU, of 5 November 2012, on the harmonisation of the frequency bands 1 920-1 980 MHz and 2 110-2 170 MHz for terrestrial systems capable of providing electronic communications services in the Union1, was published in the meantime.
Under paragraph 2 thereof, by 30 June 2014 at the latest, or whenever applying article 9a of Directive 2002/21/EC at an earlier date to an existing right or issuing new rights to use part or all of the paired terrestrial 2 GHz band, Member States are required to designate and make available, on a non-exclusive basis, the paired terrestrial 2 GHz band for terrestrial systems capable of providing electronic communications services, in compliance with the parameters set out in the Annex.
As laid down in recital (2) of that Decision, the European Commission has supported a more flexible use of spectrum in its Communication on «Rapid access to spectrum for wireless electronic communications services through more flexibility», which inter alia addresses the terrestrial 2 GHz band and aims to avoid disruption of the market. The principles of technological neutrality and service neutrality have been confirmed by Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive).
The designation of the paired sub-bands 1 920-1 980 MHz and 2 110-2 170 MHz («the paired terrestrial 2 GHz band») for systems capable of providing electronic communications services is an important element addressing the convergence of the mobile, fixed and broadcasting sectors and reflecting technical innovation. Systems deployed in the paired terrestrial 2 GHz band should mainly target end-user access to broadband services.
This shows that the use of frequencies allocated to NOS, MEO and VODAFONE has already been made flexible for terrestrial systems able to provide electronic communications services, in compliance with technical harmonisation conditions introduced by the referred Decision, on the basis of the principles of technology and service neutrality, such requirement for flexibility having been reflected in the National Frequency Allocation Plan (NFAP), with reference to Decision 2012/688/EU.
As such, and bearing in mind article 16-A of ECL2, it is deemed that conditions identified in Commission Implementing Decision 2012/688/EU already reflect the principles of technology and service neutrality.
To this end, it should be clarified in the scope of titles ICP-ANACOM No. 01/2012, No. 02/2012 and No. 03/2012 that the use of frequencies assigned to NOS, MEO and VODAFONE in the 1920-1980 MHz and 2110-2170 MHz sub-band, for the purpose of the provision of publicly available terrestrial electronic communications services must comply with conditions established in Commission Implementing Decision 2012/688/EU.
1 Available at ''Commission Implementing Decision 2012/688/EU, of 05.11.2012''https://www.anacom.pt/render.jsp?contentId=1143184.
2 According to which it is incumbent on ANACOM, within the scope of its spectrum management powers, to guarantee the principles of technology neutrality and service neutrality, without prejudice to its power, under paragraphs 2 to 6, to provide for proportionate, non-discriminatory and substantiated restrictions as regards the technology used for electronic communications services as well as to the types of electronic communication services to be provided.
