1. Background and prior hearing

By determination of 2 March 2017¹, ANACOM decided as follows:

1. To approve the agreement concluded between MEO - Serviços de Comunicações e Multimédia, S.A., NOS Comunicações, S.A., and Vodafone Portugal - Comunicações Pessoais, S.A., on the distribution of the 196 parishes each company is required to cover, in order to meet additional coverage obligations imposed under determination of 18 February 2016, as laid down in Annex 2 to this determination, deemed to be an integral part hereof.

2. To define the geographic scope of additional coverage obligations imposed on each operator, under the referred determination of 18 February 2016, in accordance with the list of distribution of parishes as tend to lack mobile broadband coverage, approved under the previous point, which thus becomes an integral part of titles laying down rights of use for frequencies ICP-ANACOM No. 01/2012, ICP-ANACOM No. 02/2012 and ICP-ANACOM No. 03/2012.

ANACOM further decided, in the abovementioned determination, «3. To order MEO - Serviços de Comunicações e Multimédia, S.A., NOS Comunicações, S.A., and Vodafone Portugal - Comunicações Pessoais, S.A., to notify ANACOM by 21 March 2018 of any amendment, bilateral and consensual, to this agreement, for the purpose of approval thereof», having submitted this point to the prior hearing of the referred companies for 10 working days, pursuant to articles 121 et seq of the Administrative Procedure Code.

By the expiry of the prior hearing time limit, on 17.03.2017, only the opinions from NOS and MEO had been received, having the latter declared that it has no comment to make on the referred prior hearing.

On its turn, NOS referred that the draft decision under consideration restricts the benefits that justified the operators’ proposal to consider the possibility of additional bilateral exchanges, given that a true assessment of conditions of coverage implementation, as well as the consequent detection and/or confirmation of interest in additional exchanges, will only take place in the course of the period of time for implementation, which, as foreseen by ANACOM, may run up to 2019.

The company restates that the definition of bilateral exchanges is without prejudice to interests intended to be safeguarded by coverage obligations and it allows greater efficiency of resources, thereby requesting that point 3 of the DD is given further consideration, so that the limit provided therein is extended, preferably by one more year.

Highlighting the fact that only NOS expressed its disagreement with the draft decision, ANACOM takes the view that no new arguments were provided to justify the amendment of point 3 of its decision.

In this regard it is recalled that determination of 18 February 2016 only provided for the possibility, in the absence of an agreement between operators or in case of a partial agreement, that ANACOM decided on the distribution of parishes. In this situation, it was admitted that operators could agree on an exchange of parishes that had been assigned to each of them within one month at the most – a situation which did not take place, as operators were able to reach an agreement on the distribution of parishes, agreement which has already been approved by ANACOM.

Notwithstanding, this Authority did weight the submitted request, by offering operators the possibility to make bilateral exchanges of parishes by mutual agreement. In weighing up the situation, ANACOM considered that the agreement for distribution of parishes as tend to lack mobile broadband coverage must stabilize, and any bilateral and consensual amendment thereto duly approved, by the date of entry into force of obligations for additional coverage of these parishes, being thereby appropriately ensured a predictable compliance with coverage obligations, both in the perspective of operators and of final users of services.

In this context, and while acknowledging that any subsequent bilateral exchange of parishes would not affect the ultimate target of additional coverage obligations, ANACOM provided for the postponement by an (additional) period of around one year (by 21 March 2018) of the deadline for the referred bilateral exchanges, by mutual agreement, granting operators a longer period of time to plan and assess the detection and confirmation of interest in additional exchanges.

In conclusion, ANACOM reiterates the grounds that justified its initial decision, namely the need to ensure, in a timely and final manner, the stability of the approved agreement, and the respective public disclosure, restating that this is the option that seems to be most appropriate, in the light of the various interests involved.