1. Framework

Under Resolution of the Council of Ministers No. 37-C/2016, of 8 July, published in the Official Gazette, Series I, No. 130, of 8 July 2016 (RCM No. 37-C/2016), the Council of Ministers decided:

(i) To determine the discontinuation of the following reservations of capacity in Multiplexer A (MUX A)¹:

a. Reservation of capacity related to the free-to-air unrestricted access television programme service, provided for in paragraph 1 of Resolution of the Council of Ministers No. 12/2008, of 22 January (RCM No. 12/2008)²;

b. Reservation of capacity for the high definition broadcast, in non-simultaneous mode, of programme services distributed in MUX A, provided for in paragraph 3 of RCM No. 12/2008³

(ii) To determine the reservation of capacity in Multiplexer A as required for:

a. Two television programme services in SDTV definition⁴, so as to allow the provision of RTP3 and RTP Memória, programme services of the national public service, in the digital terrestrial television  broadcasting service intended for the broadcast of free-to-air unrestricted access television programme services⁵;

b. Two television programme services in SDTV definition, so as to allow the opening of a public tender for the award of a license, under Law No. 27/2007, of 30 July (Television Law), as it stands, for two free-to-air unrestricted access television programme services⁶.

Law No. 33/2016, of 24 August (Law No. 33/2016 or Law) aims to support the expansion of the provision of digital terrestrial television (DTT) programme services, under proper technical conditions and ensuring price control over the provision of the DTT signal carrying and broadcasting service.

Within the framework of its transitional provisions, Law No. 33/2016 lays down that ANACOM is required to adopt, within 30 days from the date of entry into force thereof, the necessary amendments to the title of the right of use for frequencies (RUF) held by the operator of the digital terrestrial network (namely RUF ICP-ANACOM No. 06/2008, held by MEO - Serviços de Comunicações e Multimédia, S.A., hereinafter ‘MEO’), in order to accommodate the changes arising from that law¹.

The referred statutory instrument lays down, in article 2, that “The broadcasting of audiovisual media services provided under a free-to-air unrestricted access regime via DTT and complementary service, especially the broadcasting of programme services of the radio and television public services established under the law and contract, shall be deemed to be a matter of relevant public interest for society, to the extent that it represents a factor for the promotion of pluralism, diversity, social inclusion and national cohesion, as well as of culture and education.” (emphasis added).

In this respect, this Law governs, in summary, the following set of matters:

(i) Reservations of capacity in MUX A²;

(ii) Conditions for the provision of the DTT signal carrying and broadcasting service, pricing included³.

1.2.1. Reservations of capacity in MUX A

As far as the reservations of capacity in MUX A are concerned, Law No. 33/2016 lays down as follows ⁴:

• Television programme services that are licensed and concessioned by the date of entry into force of the Law maintain the right to use the broadcasting capacity available in Mux A;
• The operator holding the RUF of a national scope for the DTT service associated to Mux A operation reserves broadcasting capacity for thematic programme services of the national radio and television public service provided under the regime of free-to-air access subject to a subscription on the date of entry into force of Law No. 33/2016.

The Law lays down, in paragraph 5 of article 6, that: “Without prejudice to the occupation of Mux A with new programme services, as provided for under Resolution of the Council of Ministers No. 37-C/2016, of 8 July, the technical and financial conditions required to integrate remaining programme services of the concessionaire of the radio and television public service in the free-to-air unrestricted access DTT shall be analysed.”

This statutory instrument also safeguards the broadcast, in Mux A, of the video signal provided for the purpose by Assembleia da República - the Portuguese Parliament (according to the power provided for in Law No. 6/97, of 1 March, as amended by Law No. 36/2012, of 27 August, and under the the contractual terms defined with the network operator)⁵.

Lastly, under the Law, the spare capacity in MUX A which may not be technically used to accommodate other television programme services and complementary services may be freely used by the holder of the respective RUF⁶.

1.2.2. Price charged for the DTT signal carrying and broadcasting service

As regards the price charged for the DTT signal carrying and broadcasting service, paragraphs 3 to 6 of article 4 of Law No. 33/2016 lay down as follows:

“3 - The price charged by the electronic communications operator holding the right of use for frequencies of a national scope for the DTT basic and complementary service associated to Mux A operation shall comply with the principles of transparency, non-discrimination and cost-orientation, shall be based on the space effectively occupied by each television programme service and shall be restricted by the price presented in the successful public tender bid.

4 - The price charged for carrying and broadcasting the signal of regional programme services in the Autonomous Regions shall be reduced in proportion to the size of the network in the geographic space concerned and shall not exceed amounts charged on the date of entry into force of this law.
 
5 - It shall be incumbent on ANACOM, in accordance with the assumptions referred to in article 2 and in paragraphs 3 and 4 of this article, and having been checked the criteria required by the Community regulatory framework for imposing ex ante regulatory measures, to determine the maximum price to be charged by the holder of the RUF associated to the operation of Mux A for the provision of the signal multiplexing, carrying and broadcasting service of each programme service, after hearing Autoridade da Concorrência (Competition Authority) and Entidade Reguladora para a Comunicação Social (ERC - the Regulatory Authority for the Media).

6 -  ANACOM shall assess whether prices charged for the provision of the broadcasting service to television operators require a review, on its own initiative and on an annual basis, in a strict, transparent and public manner, taking into account paragraph 3 of this article, and based on the eligible investment plan, the reduction of the value of fixed assets and depreciation.”

Paragraphs 2 and 3 of article 6 of Law No. 33/2016 establish, within the framework of transitional provisions, that:

“2 - The electronic communications operator holding the right of use for frequencies of a national scope associated to the operation of Mux A shall adopt, within 15 days from the amendment of the RUF, the contractual changes required to implement provisions laid down in articles 3 and 4.

3 - In the absence of an agreement regarding the contractual changes provided for within the deadline referred to in the preceding paragraph, each programme service shall pay the maximum price presented in the successful bid of the tender for allocation of a right of use for frequencies associated to the operation of MUX A, until a price is established under paragraph 5 of article 4.”

By decisions of 16 May 2013¹ and 1 October 2015², ANACOM decided to integrate new frequencies in RUF ICP-ANACOM No. 6/2008 and amended land-based population coverage obligations.

In the latter of the referred decisions, ANACOM found that “… conditions associated to the RUF granted to MEO are currently set out in the respective title (RUF ICP-ANACOM No. 6/2008), in endorsement 1 thereto, in determinations amending operating channels of Mux A and also in decision of 16 May 2013, conditions described above being now also added.” As such, “[t]aking into account the successive amendments introduced to conditions associated to the RUF, ANACOM deem[ed] that there [were] grounds for reissuing the title 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 this framework, the Regulatory Authority determined “To reissue RUF ICP - ANACOM No. 06/2008, incorporating in the respective title the preceding paragraphs, as well as amendments previously set out in endorsement No. 1 to the referred RUF, in determinations amending operating channels of Mux A, as well as in determination of 16 May 2013.”

The RUF has not been reissued to date.