Ministério das Obras Públicas, Transportes e Comunicações (Ministry for Public Works, Transport and Communications)
Decree-Law
(This is not an official translation of the law)
Decree No 151-A/2000 of 20 July enshrined the legal provisions applicable to the licensing of radiocommunications networks and stations, the supervision of the installation of the said stations and the use of the radio spectrum, together with the establishment of the principles applicable to radio licensing fees, protection from exposure to electromagnetic radiation and the sharing of radiocommunications infrastructure.
With nearly nine years having elapsed since its publication, there are evident grounds for updating and amending this decree-law, as a consequence, above all, of the experience acquired from its application and of the entry into force of new legislation affecting the activity of the electronic communications sector electronic and the activity of its regulatory authority - ICP - Autoridade Nacional de Comunicações (ICP-ANACOM).
Indeed, in the period since Decree-Law No 151-A/2000 came into force, not only were the Statutes of ANACOM approved (in annex to Decree-Law No 309/2001 of 7 December), but also the Law of Electronic Communications, approved by Law No 5/2004 of 10 February (LEC), establishing the legal regime applicable to electronic communications networks and services and to associated services, which defines the assignments of the national regulatory authority in this field, in respect of the transposition of Directives Nos 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC, all of the European Parliament and of the Council of 7 March 2002, and of Directive No 2002/77/EC of the Commission of 6 December.
In this context, a number of changes have been introduced with respect to the obligations of users, particularly as regards matters of station identification and information signs, enabling better oversight and enforcement by ICP-ANACOM and ensuring the safety of the general population.
In order to update the law, article 22 on exposure to electromagnetic radiation was repealed, since this matter is now addressed by Decree Law No 11/2003 of 18 January, Administrative Rule No 1421/2004 23 November, and subsequent regulation issued by ICP-ANACOM.
Likewise, the regime governing the transferability of radio licenses has been made more flexible and brought further into line with the regime governing the transferability of rights of use of frequencies established in the LEC.
The issue of license revocation has also been reviewed, whereby radio licenses may now be revoked due to the non-payment, for a period of two consecutive years, of the respective fees for use of the spectrum.
Furthermore, with regard to the fee system, article 105 of the LEC sets out the system of fees applicable to electronic communications, making a distinction between fees that are defined exclusively by reference to associated costs (administrative) and those which reflect the need to ensure optimum use of resources (use), whereby paragraph 3 of said article 105 of the LEC refers to Decree 151-A/2000 in respect of fees payable for the use of frequencies, whether or not covered by a right of use.
The same law also establishes the possibility of rights of use of frequencies being allocated by selection procedures by comparison or competition, including by tender or auction, even while, in the latter case, the system of respective financial compensation is not clarified.
Whereas, in point a) of article 43 of the Statutes of ANACOM, it is set out that "fees and other revenues collected in the scope of management of the radio spectrum" constitute revenues of this Authority, it is deemed appropriate to make provision for the financial compensation derived from the auction in Decree-Law No 151-A/2000 and to establish the criteria whereby it should determined.
To this end, always in the light of the principles laid down in the LEC, an amendment is made to article 19 of this decree-law, without altering the legal regime provided for therein, which gives basis to Administrative Rule No 1473-B/2008 of 17 December.
Finally, and as a measure of simplification, provision is made for the use of electronic means, to be defined and publicised by ICP-ANACOM, in the procedures involving communication between ICP-ANACOM and holders of network or station licences, specifically those relating to the issue, amendment, transfer and revocation of licenses as well as all the required items for submission to said authority.
The nature and extent of the amendments justify the republication of Decree-Law 151-A/2000, adopting, in this respect, and in accordance with the provisions of paragraph 3 of article 1 of Decree-Law No 309/2001 of 7 December, the replacement of ICP with the current designation of ICP-ANACOM.
Accordingly:
Pursuant to point a) of paragraph 1 of article 198 of the Constitution, the Government decrees the following:
Article. 1
Amendment to Decree-Law no 151-A/2000 of 20 July
Articles 1, 2, 3, 4, 6, 7, 8, 9, 10, 12, 13, 14 º, 15, 16, 17, 18, 19, 21, 23, 25 and 29 of Decree-Law No 151-A/2000 of 20 July, as amended by Decree-Law No 167/2006 of 16 August, shall hereafter have the following wording:
"Article 1
[...]
1 - The present decree-law establishes the legal regime applicable to the licensing of radiocommunications networks and stations, the supervision of the installation of such stations and the use of the radio spectrum, as well as the regime applicable to the sharing of radiocommunications infrastructure.
2 - ...
Article 2
[...]
1 - ...
a) ...
b) ...
c) ...
d) ...
e) ...
f) ...
g) ...
h) ...
i) Radiocommunications Network: Combination of several radio stations that are able to communicate with each other;
j) ...
2 - ...
Article 3
[...]
1 - ...
2 - The use of the electromagnetic spectrum using optical radiation in non-guided resources shall be subject to registration with ICP-ANACOM, when such use is in connection with the supply of publicly available electronic communications services.
3 - ...
Article. 4
Assignment of frequencies
1 - ...
2 - In the exercise of its powers and the performance of its duties, ICP-ANACOM may, at any time, 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.
3 - ...
4 - ...
5 - ...
Article. 6
[...]
1 - The radio licensing provisions in this decree-law are without prejudice to compliance with the legal provisions applicable to the operation of electronic communication networks and services, whether or not publicly available, and to the rights of use of frequencies, where applicable.
2 - (Repealed)
Article. 7
[...]
1 - ...
2 - Such licences shall state:
a) ...
b) ...
c) ...
d) The validity period;
e) ...
f) ...
Article 8
[...]
1 - ...
2 - The categories of stations which, forming part of a radiocommunications network, require a licence are defined by ICP-ANACOM and published on its website.
3 - ...
4 - ...
Article 9
[...]
1 - ...
2 - ICP-ANACOM shall publish details on its website of which stations and networks, pursuant to the QNAF - Quadro Nacional de Atribuição de Frequências (National Frequency Allocation Table), are exempt from licensing under the terms of the preceding paragraph.
Article 10
[...]
1 - Users of radiocommunications networks and stations shall have the following obligations, without prejudice to other obligations arising from this decree-law and other applicable legislation:
a) To use the networks and stations for the purpose for which they are intended, refraining from the emission of baseless alarm, emergency or danger signals, or false or deceptive calls for help.
b) To keep the networks and stations in good working order and to refrain from causing interference with other radiocommunications networks and stations;
c) To comply with the restrictions applicable to radio equipment, in accordance with current legislation;
d) To pay the applicable fees within the time limits stipulated, in accordance with article 19;
e) To allow access to the sites where stations are installed and to guarantee the conditions required for their inspection by competent inspection personnel;
f) To use radiocommunications stations exclusively at the frequencies which have been attributed to them;
g) To use radiocommunications stations in accordance with the technical parameters established in accordance with the provisions of point e) of paragraph 2 of article 7 and point e) of paragraph 4 of article 8, at the sites so defined and in compliance with the remaining conditions stipulated in the respective licences;
h) To affix a plate, in a clearly visible location on the exterior of all fixed stations, stating the identity of the user and the contact details of a person who can afford access to the station under the terms stipulated by ICP-ANACOM in its own regulations.
i) To display informative signs, at the sites of stations with fixed location and their accessories, including antennas, warning of the risks of that facility, as stipulated by ANACOM in its own regulations;
j) To provide ICP-ANACOM with indication of the permanent contact details of the persons responsible for maintaining the stations and providing access thereto, keeping such contacts current;
l) To ensure that the stations used comply with the reference levels for the purposes of assessing exposure to electro-magnetic fields, as established in specific legislation.
2 - By decision of ICP-ANACOM, an exemption from the obligation laid down in point h) of the previous paragraph may be provided for radio stations to which it is inappropriate to affix identification, due to their location or due to the specific nature of their purposes, including security purposes.
3 - In cases where the use of networks or radio stations causes interference to authorized radio services, specifically emergency services, aeronautical navigation and mobile aeronautical services, users are required to suspend or modify the conditions of use, within the time limits determined by notification of ICP-ANACOM, maintaining such restrictions until further notice.
Article 12
[...]
1 - For the purposes of the award of a network licence or a licence for a radiocommunications station which constitutes or forms part of an electronic communications network, whether or not publicly available, respective applicants shall submit an application to ICP-ANACOM in accordance with paragraph 3.
2 - (Repealed)
3 - ICP-ANACOM shall determine and publish on its website the information to be included in the application and the requirements of the technical projects, according to the services concerned.
Article 13
[...]
1 - Temporary radiocommunications station or network licences may be granted for a period not exceeding 180 days and may be renewed once and for an equal period.
2 - ...
3 - ...
Article 14
[...]
1 - Network or station licences shall be transferable.
2 - For the purposes of the preceding paragraph, licensees are required to give ICP-ANACOM prior notice of their intention to transfer these licenses and of the conditions of transfer.
3 - The entity to which a license is transferred shall assume all the associated rights and obligations.
4 - ...
5 - ...
6 - ICP-ANACOM shall rule, within 45 days, on the content of the notification referred to in paragraph 2, and may oppose the transfer of licenses or impose any conditions required for the optimal management of the spectrum and, specifically, for the effective and efficient use of frequencies and to prevent distortion of competition.
7 - The transfer of licenses and network station does not suspend or interrupt the term for which these are licensed pursuant to the present decree-law, notwithstanding their renewal in accordance with article 15.
Article 15
[...]
1 - ...
2 - ICP-ANACOM may provide a different validity period for the licenses in cases in which these are associated with a right of use of frequencies or where there are good grounds, in particular the need for international harmonization or reassignment of frequencies.
3 - (Former paragraph 2)
4 - (Former paragraph 3)
Article 16
[...]
1 - ...
2 - ...
3 - ...
4 - In the circumstances referred to in this article, the prior licence shall be cancelled.
Article 17
[...]
1 - ...
a) Failure to settle the fees described in paragraph 1 of Article 19 for a period of two consecutive years, in the event that the holder, subsequent to being duly notified to that effect, does not make payment within 10 days;
b) ...
2 - In the event of cancellation pursuant to the provisions of paragraph a) of the preceding number, ICP-ANACOM shall not grant the licence holder a new licence until a period of one year has elapsed following the date of the decision to cancel the licence.
3 - ...
4 - (Repealed)
Article 18
[...]
1 - ...
2 - For the purposes of the preceding paragraph, ICP-ANACOM shall determine, while undertaking appropriate disclosure on their website:
a) ...
b) ...
Article 19
[...]
1 - The use of radio spectrum is subject to payment of fees.
2 - To determine the amounts of fees referred to in the preceding paragraph, spectral parameters of coverage and use shall be taken into account, depending on the service:
a) ...
b) ...
c) ...
d) ...
e) ...
f) ...
g) ...
h) ...
i) ...
3 - ...
4 - In the circumstances provided for in paragraph 3 of article 13, an urgency fee shall be due for the issue of the licence.
5 - Reductions in the fees for spectrum use shall be granted when these fees are associated with networks and/or stations used while carrying out the activities referred to in the present paragraph:
a) Autoridade Nacional de Protecção Civil (National Authority for Civil Protection), Serviços Regionais de Protecção Civil dos Açores e da Madeira (Regional Civil Defence Services of the Azores and Madeira), the civil defence agencies referred to in points a), e) and f) of paragraph 1 and paragraph 2 of article 46 of Law No 27/2006 of 3 July;
b) other entities which, in the national territory, participate directly in the prevention, detection, surveillance and combat of fires and also those providing pre-hospital emergency assistance in the Autonomous Regions.
6 - The entities referred to in pint b) above are indicated by resolution of the Council of Ministers.
7 - ...
8 - In the event of failure to pay the usage fee, late payment interest shall be charged at the current legal rate, without prejudice, in the event of delay in payment exceeding 90 days, to the levying of a surcharge of 15% of the amount of the fee in question.
9 - ...
10 - (Repealed)
11 - The entities involved, at any given time, in SIRESP - Sistema Integrado de Redes de Emergência e Segurança (Integrated Security and Emergency Network System), shall be exempt from the payment of fees, referred to in paragraph 1, associated with the operation of the SIRESP network, specifically the respective managing entity, the operator and its users with respect to security and emergency.
12 - ANCTM - Autoridade Nacional de Controlo de Tráfego Marítimo (National Authority for Maritime Traffic Control) and the entity which, according to the provisions of the respective statutes, supports ANCTM in the performance of its remit, shall be exempt from the payment of fees referred to in paragraph 1, associated with the operation of networks and stations of the mobile maritime and radiodetermination services.
13 - Whenever the procedure for frequency allocation determined in accordance with law by ICP-ANACOM is by auction:
a) The respective regulation may establish a minimum allowed value for bids, as well as the minimum allowed value of intervals between bids, where applicable, taking into account the objective of the regulation established in article 5 of Law No 5/2004 of 10 February;
b) The value of the consideration actually paid by the parties involved with respect to the allocation of frequencies shall accrue to ICP-ANACOM, pursuant to its Statutes.
Article 21
[...]
1 - ...
2 - (Repealed)
Article 23
[...]
1 - Except where technically infeasible, holders of licences issued pursuant to this decree-law shall make agreements with a view to sharing existing or planned radiocommunications infrastructure with coincident locations, maintaining the specific requisites of operation, which agreements may refer to support structures, cables, filters, aerials and buildings.
2 - ...
3 - ...
Article 25
[...]
1 - ...
a) ...
b) ...
c) ...
d) ...
e) Failure to fulfil any of the obligations set out in points a), e), f), g) and h) of paragraph 1 and in paragraph 3 of article 10;
f) Failure to fulfil any of the obligations set out in points b) and c) of paragraph 1 of article 10;
g) Failure to fulfil any of the obligations in points i) and j) of paragraph 1 of article 10 and of paragraph 2 and of article 23;
h) Conducting the transfer of a license while failing to give notice, in violation of paragraph 2 of article 14, and failure to comply with the conditions imposed by ICP-ANACOM in respect of the transfer in violation of paragraph 6 of article 14;
i) (Repealed)
j) The installation of stations and aerials in violation of paragraph 1 of article 21;
k) (Repealed)
l) ...
2 - The offenses referred to in paragraphs a), b) and g) above shall be punishable with a fine of between 100 euros and 2500 euros or of between 150 euros and 5000 euros, according to whether they have been committed by a natural or legal person, respectively.
3 - The offenses referred to in paragraphs c), d), e), f), h), j) and l) of paragraph 1 shall be punishable by a fine of between 250 euros and 3740.98 euros or of between 500 euros and 44891.81 euros, according to whether they have been committed by natural or legal person, respectively.
4 - The offenses set out in e) and f) of paragraph 1 may be subject to the additional penalty of license suspension for a maximum period of two years.
5 - The offenses set out in paragraphs b), c), d), f), h) and j) of paragraph 1 may be subject to the additional penalty of loss of the stations in favour of the State in the event that, within 60 days of the receipt of the notification of the decision, no application is made for the restitution of the sealed or dismantled stations.
6 - ...
Article 29
[...]
1 - ...
2 - (Repealed)
3 - Resolution of Council of Ministers No 23/98 of 12 February shall remain in force, pending the entry into force of the resolution referred to in paragraph 6 of Article 19.
4 - (Repealed)
5 - (Repealed)
6 - (Repealed.)"
Article 2
Additions to Decree-Law no 151-A/2000 of 20 July
An addition is made to Decree-Law no 151-A/2000 of 20 July by means of article 28-A, which shall have the following wording:
"Article 28-A
Use of electronic means
In proceedings involving communication between ICP-ANACOM and network or station licensees, in particular as regards the issue, amendment, transfer and revocation of licenses, as well as all the applications which are to be submitted to said Authority, electronic means may be used in terms to be defined and published by ICP-ANACOM."
Article 3
Legal References
References made in Decree-Law No 151-A/2000 of 20 July, as amended by Decree-Law No 167/2006 of 16 August, to Instituto das Comunicações de Portugal (ICP) shall mean ICP - Autoridade Nacional de Comunicações, known in abbreviated form as ICP-ANACOM, in accordance with article 1 of Decree-Law No 309/2001 of 7 December.
Article. 4
Transitional provision
Not later than 90 days following the publication of the present decree-law, ICP-ANACOM shall define and announce the electronic means to be available and used for the purposes of Article 28-A.
Article 5
Repeals
Paragraph 2 of article 6, article 11, paragraph 2 of article 12, paragraph 4 of article 17, paragraph 10 of article 19, paragraph 2 of article 21, article 22, points i) and k) of paragraph 1 of article 25, article 28 and paragraphs 2, 4, 5 and 6 of article 29 of Decree-Law No 151-A/2000 of 20 July are hereby repealed.
Article. 6
Republication
Decree-Law No 151-A/2000 20 July is republished as amended and with its current wording, in annex to the present decree-law which annex shall form an integral part thereof.
Article. 7
Production of effects
Article 2 shall take effect 90 days following the date on which the present decree-law enters into force.
Seen and approved by the Council of Ministers of 30 July 2009. - José Sócrates Carvalho Pinto de Sousa - Mário Lino Soares Correia.
Promulgated on 16 September 2009.
Let it be published.
The President of the Republic, ANIBAL CAVACO SILVA.
Approved on 16 September 2009.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
ANNEX
Republication of Decree-Law No 151A/2000 of 20 July
CHAPTER I
General Provisions
Article 1
Object and scope
1 - The present decree-law establishes the legal regime applicable to the licensing of radiocommunications networks and stations, the supervision of the installation of such stations and the use of the radio spectrum, as well as the regime applicable to the sharing of radiocommunications infrastructure.
2- Given the specific nature of the use involved, the following are excluded from the scope of this decree-law:
a) Military radiocommunications networks and stations which operate on wave bands whose management is delegated ICP - Autoridade Nacional das Comunicações (ICP-ANACOM) to Ministério da Defesa Nacional (National Defence Ministry);
b) Radiocommunications networks and stations which are the object of specific legislation.
Article 2
Definitions
1 - The following terms shall have the following meanings for the purposes of this decree-law:
a) Radiocommunications: telecommunication by radio waves;
b) Radiocommunications service: a public or private service, which is addressed or broadcast, which involves the transmission, emission or reception of radio waves for specific telecommunications purposes;
c) Electromagnetic wave: a wave, which is characterised by variations of electric and magnetic fields;
d) Electromagnetic spectrum: the frequencies associated with electromagnetic waves;
e) Radio wave: an electromagnetic wave with a frequency of less than 3000 GHz, which is propagated in space without an artificial guide;
f) Radio spectrum: all those frequencies associated with radio waves;
G) Optical radiation: electromagnetic radiation with a wave band of between the limit, which corresponds to X rays and the upper limit of radio waves;
h) Radiocommunications station: one or more transmitters or receivers or a group of transmitters and receivers, including other ancillary equipment, which is able to provide a radiocommunications service or radioastronomy service, in a specific location;
i) Radiocommunications Network: Combination of several radio stations that are able to communicate with each other;
j) Radio licence: an administrative authorisation, which confers on the license holder the right to use a radiocommunications station or network, within the scope of a radiocommunications service, in accordance with the terms and subject to the conditions established therein.
2 - Any other definitions regarding radiocommunications, which are not mentioned in the preceding paragraphs, shall be governed by the Radiocommunications Regulations, which are a schedule to the International Telecommunications Convention
Article 3
The use of the electromagnetic spectrum
1 - The use of the radio spectrum shall be subject to the licensing provisions set forth in chapter II of the present decree-law.
2 - The use of the electromagnetic spectrum using optical radiation in non-guided resources shall be subject to registration with ICP-ANACOM, when such use is in connection with the supply of publicly available electronic communications services.
3 - The resources referred to in the preceding number shall not have the benefit of protection from harmful interference.
Article 4
Assignment of frequencies
1 - ICP-ANACOM shall, in the exercise of its powers and the performance of its duties, attribute such frequencies as are necessary for the operation and use of radiocommunications networks and stations which use the radio spectrum.
2 - In the exercise of its powers and the performance of its duties, ICP-ANACOM may, at any time, 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.
3 - In the cases provided for in the preceding number, ICP-ANACOM shall give notice of its decision to the licence holders and state the reasons therefor.
4 - In the cases provided for in paragraph 2, compensation shall be awarded to licence holders in consideration of all or part of the costs proven as being incurred as a consequence of the alteration, cancellation or replacement of frequency allocations. The said compensation shall be awarded in accordance with general criteria to be established in a statutory instrument by the member of the Government responsible for communications.
5 - In the event that a frequency assignment is altered or replaced pursuant to the provisions of paragraph 2 and specifically for the allocation of such frequencies to the operation of new services, ICP-ANACOM may decide that the compensation referred to in the preceding number shall be payable by the beneficiary of the new allocation.
CHAPTER II
Licensing
Article 5
Licences
1 - The use of radiocommunications networks and stations shall be subject to licensing, in accordance with the provisions of the present decree-law.
2 - ICP-ANACOM shall be responsible for the granting of the licences referred to in the preceding number.
3 - ICP-ANACOM shall have the power to authorise the use of the radio spectrum for the conduct of technical trials and scientific studies on a case-by-case basis and waiving the requirement for licensing.
Article 6
Regulations governing radiocommunications operations and access thereto
1 - The radio licensing provisions in this decree-law are without prejudice to compliance with the legal provisions applicable to the operation of electronic communication networks and services, whether or not publicly available, and to the rights of use of frequencies, where applicable.
2 - (Repealed.)
Article 7
Network Licences
1 - A radio licence shall be required for the use of radiocommunications networks.
2 - Such licences shall state:
a) The licence holder's identity;
b) The purpose for which the licence is granted;
c) The issue date;
d) The validity period;
e) The technical parameters applicable to the stations which comprise the network;
f) The number and locations of the stations which comprise the network, where applicable.
Article 8
Station licences
1 - The use of stations which comprise a licensed radiocommunications network shall not require a licence, except in the cases set out in the following number.
2 - The categories of stations which, forming part of a radiocommunications network, require a licence are defined by ICP-ANACOM and published on its website.
3 - The use of stations which are not part of a radiocommunications network shall be subject to a licensing procedure.
4 - Station licences shall state:
a) The licence holder's identity;
b) The purpose for which the licence is granted;
c) The issue date;
d) The licence validity period;
e) The specific technical parameters of each station, within the scope of the network or service of which they are part;
f) The location of the station, where applicable.
Article 9
Licence exemption
1 – ICP- ANACOM shall establish the grounds for exemption:
a) From the network licence referred to in article 7;
b) From the station licence referred to in no. 3 of article 8.
2 - ICP-ANACOM shall publish details on its website of which stations and networks, pursuant to the QNAF - Quadro Nacional de Atribuição de Frequências (National Frequency Allocation Table), are exempt from licensing under the terms of the preceding paragraph.
Article 10
User obligations
1 - Users of radiocommunications networks and stations shall have the following obligations, without prejudice to other obligations arising from this decree-law and other applicable legislation:
a) To use the networks and stations for the purpose for which they are intended, refraining from the emission of baseless alarm, emergency or danger signals, or false or deceptive calls for help.
b) To keep the networks and stations in good working order and to refrain from causing interference with other radiocommunications networks and stations;
c) To comply with the restrictions applicable to radio equipment, in accordance with current legislation;
d) To pay the applicable fees within the time limits stipulated, in accordance with article 19;
e) To allow access to the sites where stations are installed and to guarantee the conditions required for their inspection by competent inspection personnel;
f) To use radiocommunications stations exclusively at the frequencies which have been attributed to them;
g) To use radiocommunications stations in accordance with the technical parameters established in accordance with the provisions of point e) of paragraph 2 of article 7 and point e) of paragraph 4 of article 8, at the sites so defined and in compliance with the remaining conditions stipulated in the respective licences;
h) To affix a plate, in a clearly visible location on the exterior of all fixed stations, stating the identity of the user and the contact details of a person who can afford access to the station under the terms stipulated by ICP-ANACOM in its own regulations.
i) To display informative signs, at the sites of stations with fixed location and their accessories, including antennas, warning of the risks of that facility, as stipulated by ANACOM in its own regulations;
j) To provide ICP-ANACOM with indication of the permanent contact details of the persons responsible for maintaining the stations and providing access thereto, keeping such contacts current;
l) To ensure that the stations used comply with the reference levels for the purposes of assessing exposure to electro-magnetic fields, as established in specific legislation.
2 - By decision of ICP-ANACOM, an exemption from the obligation laid down in point h) of the previous paragraph may be provided for radio stations to which it is inappropriate to affix identification, due to their location or due to the specific nature of their purposes, including security purposes.
3 - In cases where the use of networks or radio stations causes interference to authorized radio services, specifically emergency services, aeronautical navigation and mobile aeronautical services, users are required to suspend or modify the conditions of use, within the time limits determined by notification of ICP-ANACOM, maintaining such restrictions until further notice.
Article 11
Prohibited radiocommunications
(Repealed)
Article 12
Allocation of licences
1 - For the purposes of the award of a network licence or a licence for a radiocommunications station which constitutes or forms part of an electronic communications network, whether or not publicly available, respective applicants shall submit an application to ICP-ANACOM in accordance with paragraph 3.
2 - (Repealed)
3 - ICP-ANACOM shall determine and publish on its website the information to be included in the application and the requirements of the technical projects, according to the services concerned.
Article 13
Temporary licences
1 - Temporary radiocommunications station or network licences may be granted for a period not exceeding 180 days and may be renewed once and for an equal period.
2 - In the cases referred to in the preceding number, the licensing application shall be submitted to ICP-ANACOM at least 10 days prior to the date on which it is proposed the licence should come into force.
3 - In exceptional cases, ICP-ANACOM may waive compliance with the time limit referred to in the preceding number.
Article 14
Transferability of licences
1 - Network or station licences shall be transferable
2 - For the purposes of the preceding paragraph, licensees are required to give ICP-ANACOM prior notice of their intention to transfer these licenses and of the conditions of transfer.
3 - The entity to which a license is transferred shall assume all the associated rights and obligations.
4 - The transfer of a network licence shall imply the transfer of all the licences of the stations which comprise the network, if any.
5 - The temporary licences provided in article 13 shall not be transferable.
6 - ICP-ANACOM shall rule, within 45 days, on the content of the notification referred to in paragraph 2, and may oppose the transfer of licenses or impose any conditions required for the optimal management of the spectrum and, specifically, for the effective and efficient use of frequencies and to prevent distortion of competition.
7 - The transfer of licenses and network station does not suspend or interrupt the term for which these are licensed pursuant to the present decree-law, notwithstanding their renewal in accordance with article 15.
Article 15
Validity and renewal of licences
1 - Licences shall be valid for a period of 5 years and shall be renewed automatically for an equal period, unless written notice ICP-ANACOM give written notice, stating grounds, at least 60 days prior to the expiry of the term of the licence.
2 - ICP-ANACOM may provide a different validity period for the licenses in cases in which these are associated with a right of use of frequencies or where there are good grounds, in particular the need for international harmonization or reassignment of frequencies
3 - In the event that a licence holder does not intend to renew its licence, it shall give notice of this fact to ICP- ANACOM at least 60 days prior to the expiry thereof.
4 – Except where notice is given as referred to in the preceding number, ICP-ANACOM shall presume that the licence holder intends to renew the licence and shall send a new licence certificate to the licence holder prior to the expiry thereof.
Article 16
Alteration of licences
1 - Licences may be altered in the following circumstances:
a) At the instance of ICP-ANACOM, at any time, in accordance with the principles of the protection of the public interest and proportionality;
b) Upon application by the licence holder, subject to the approval of ICP-ANACOM.
2 - ICP-ANACOM shall, for the purposes of the provisions of paragraph a) of the preceding number, give reasonable notice to the licence holder of the alteration to be made, stating the grounds therefor, and issue the amend licence in accordance therewith.
3 - In the circumstances referred to in point b) of paragraph 1, ICP-ANACOM shall, in the event that it approves the alteration, issue the altered licence accordingly.
4 - In the circumstances referred to in this article, the prior licence shall be cancelled.
Article 17
Cancellation of licences
1 - Licences may be cancelled in the following circumstances:
a) Failure to settle the fees described in paragraph 1 of Article 19 for a period of two consecutive years, in the event that the holder, subsequent to being duly notified to that effect, does not make payment within 10 days;
b) Upon the request of the holder.
2 - In the event of cancellation pursuant to the provisions of paragraph a) of the preceding number, ICP-ANACOM shall not grant the licence holder a new licence until a period of one year has elapsed following the date of the decision to cancel the licence.
3 - The cancellation of a licence shall not give rise to an entitlement to the reimbursement of any fees paid prior to the cancellation date.
4 - (Repealed)
Article 18
Technical officers in charge of radiocommunications networks and stations
1 - ICP-ANACOM may make the granting of a radiocommunications network or station licence subject to the identification by the applicant of the technical officer responsible for the project, installation and maintenance of the network or station.
2 - For the purposes of the preceding paragraph, ICP-ANACOM shall determine, while undertaking appropriate disclosure on their website:
a) The radiocommunications services in respect of which responsible technical officers are required;
b) The technical qualifications required of said technical officers.
CHAPTER III
Fees
Article 19
Fees
1 - The use of radio spectrum is subject to payment of fees.
2 - To determine the amounts of fees referred to in the preceding paragraph, spectral parameters of coverage and use shall be taken into account, depending on the service:
a) The number of stations used;
b) The frequencies or channels assigned;
c) The frequency band;
d) The bandwidth;
e) The level of congestion in the region of implementation;
f) The level of economic and social development in the region of implementation;
g) The area of coverage;
h) The type of use and user;
i) The exclusive or shared nature of the frequencies or channels assigned.
3 - The fees shall be reduced in the case of the temporary licences envisaged in article 13
4 - In the circumstances provided for in paragraph 3 of article 13, an urgency fee shall be due for the issue of the licence.
5 - Reductions in the fees for spectrum use shall be granted when these fees are associated with networks and/or stations used while carrying out the activities referred to in the present paragraph:
a) Autoridade Nacional de Protecção Civil (National Authority for Civil Protection), Serviços Regionais de Protecção Civil dos Açores e da Madeira (Regional Civil Defence Services of the Azores and Madeira), the civil defence agencies referred to in points a), e) and f) of paragraph 1 and paragraph 2 of article 46 of Law No 27/2006 of 3 July;
b) other entities which, in the national territory, participate directly in the prevention, detection, surveillance and combat of fires and also those providing pre-hospital emergency assistance in the Autonomous Regions.
6 - The entities referred to in pint b) above are indicated by resolution of the Council of Ministers.
7 - The amount and periodicity of payment of the fees referred to in the preceding paragraphs, and the percentage reductions referred to in paragraphs 3 and 5, shall be fixed by statutory instrument, by the member of the Government responsible for communications.
8 - In the event of failure to pay the usage fee, late payment interest shall be charged at the current legal rate, without prejudice, in the event of delay in payment exceeding 90 days, to the levying of a surcharge of 15% of the amount of the fee in question.
9 - The amount of the fees charged in accordance with the preceding numbers shall constitute revenue of ICP-ANACOM.
10 - (Repealed)
11 - The entities involved, at any given time, in SIRESP - Sistema Integrado de Redes de Emergência e Segurança (Integrated Security and Emergency Network System), shall be exempt from the payment of fees, referred to in paragraph 1, associated with the operation of the SIRESP network, specifically the respective managing entity, the operator and its users with respect to security and emergency.
12 - ANCTM - Autoridade Nacional de Controlo de Tráfego Marítimo (National Authority for Maritime Traffic Control) and the entity which, according to the provisions of the respective statutes, supports ANCTM in the performance of its remit, shall be exempt from the payment of fees referred to in paragraph 1, associated with the operation of networks and stations of the mobile maritime and radiodetermination services.
13 - Whenever the procedure for frequency allocation determined in accordance with law by ICP-ANACOM is by auction:
a) The respective regulation may establish a minimum allowed value for bids, as well as the minimum allowed value of intervals between bids, where applicable, taking into account the objective of the regulation established in article 5 of Law No 5/2004 of 10 February;
b) The value of the consideration actually paid by the parties involved with respect to the allocation of frequencies shall accrue to ICP-ANACOM, pursuant to its Statutes.
CHAPTER IV
Establishment and installation of radiocommunications stations and networks
Article 20
Installation of radiocommunications stations
1 - The installation of radiocommunications stations and their accessories, i.e. aerials, on urban or rural land, shall be subject to the consent of the proprietors, in accordance with the law.
2 - The provisions of the preceding number does not waive the need for any other licensing or authorisation procedures required by law, i.e. those within the competence of the local authorities.
3 - The proprietor or holder of a radiocommunications station and its accessories, i.e. aerials, shall be liable for any loss and damage caused thereby to third parties.
4 - For the purposes of this decree-law, the use of radiocommunications resources shall be presumed whenever there are outdoor aerials.
Article 21
Restrictions on the installation of radiocommunications stations
1 - The installation of radiocommunications stations and their accessories, i.e. aerials may not, in addition to other legal restrictions:
a) Obstruct access to chimneys or works to repair the roofs of buildings;
b) Give rise to harmful interference which affects stations entitled to protection or radio broadcasts;
c) Infringe existing radio easements.
2 - (Repealed)
Article 22
Electromagnetic exposure and radiation
(Repealed)
Article 23
Sharing of infrastructures
1 - Except where technically infeasible, holders of licences issued pursuant to this decree-law shall make agreements with a view to sharing existing or planned radiocommunications infrastructure with coincident locations, maintaining the specific requisites of operation, which agreements may refer to support structures, cables, filters, aerials and buildings.
2 - A plate identifying the users and the contact details of the person(s) able to grant access to the installation shall be affixed to the outside of shared installations, in a visible location.
3 - When an agreement pursuant to the paragraph 1 is not concluded and where such non-conclusion is without grounds, ICP-ANACOM may determine on the sharing of existing infrastructures in a specific geographic area.
CHAPTER V
Supervision and penalties
Article 24
Supervision
1 - ICP-ANACOM shall supervise compliance with the provisions of this decree-law, by way of its inspectors or agents, duly appointed by the Management Board of ICP-ANACOM.
2 - ICP-ANACOM may inspect radiocommunications networks and stations, in order to ascertain whether the installation and operation thereof complies with the applicable conditions.
3 - The measurements taken by ICP-ANACOM shall, when duly recorded and identified, constitute evidence of the manner in which the radio spectrum is used by radiocommunications networks and stations.
Article 25
Offences
1 - The following shall constitute offences, without prejudice to other applicable sanctions:
a) Use of the electromagnetic spectrum while not being registered with ICP-ANACOM, contrary to the provisions of paragraph 2 of article 3;
b) Use of the radio spectrum without the authorisation of ICP-ANACOM, contrary to the provisions of paragraph 3 of article 5;
c) Use of a radiocommunications network, contrary to the provisions of paragraph 1 of article 7;
d) Use of unlicensed stations, contrary to the provisions of paragraphs 2 and 3 of article 8;
e) Failure to fulfil any of the obligations set out in points a), e), f), g) and h) of paragraph 1 and in paragraph 3 of article 10;
f) Failure to fulfil any of the obligations set out in points b) and c) of paragraph 1 of article 10;
g) Failure to fulfil any of the obligations in points i) and j) of paragraph 1 of article 10 and of paragraph 2 and of article 23;
h) Conducting the transfer of a license while failing to give notice, in violation of paragraph 2 of article 14, and failure to comply with the conditions imposed by ICP-ANACOM in respect of the transfer in violation of paragraph 6 of article 14;
i) (Repealed)
j) The installation of stations and aerials in violation of paragraph 1 of article 21;
k) (Repealed)
l) Failure to comply with a determination of ICP-ANACOM, contrary to the provisions of no. 3 of article 23.
2 - The offenses referred to in paragraphs a), b) and g) above shall be punishable with a fine of between 100 euros and 2500 euros or of between 150 euros and 5000 euros, according to whether they have been committed by a natural or legal person, respectively.
3 - The offenses referred to in paragraphs c), d), e), f), h), j) and l) of paragraph 1 shall be punishable by a fine of between 250 euros and 3740.98 euros or of between 500 euros and 44891.81 euros, according to whether they have been committed by natural or legal person, respectively.
4 - The offenses set out in e) and f) of paragraph 1 may be subject to the additional penalty of license suspension for a maximum period of two years.
5 - The offenses set out in paragraphs b), c), d), f), h) and j) of paragraph 1 may be subject to the additional penalty of loss of the stations in favour of the State in the event that, within 60 days of the receipt of the notification of the decision, no application is made for the restitution of the sealed or dismantled stations.
6 - Attempted and negligent commission of the offences envisaged in this decree-law shall be offences.
Article 26
Seizure and restitution of stations
1 - All or part of stations, which served or were intended to serve for the commission of an offence, or which are the result of an offence, may be seized provisionally, as may any stations or parts of stations, which are likely to constitute evidence.
2 - Seized stations shall, whenever possible, be included in the proceedings or placed in the custody of a custodian, which acts shall be recorded in the seizure order. Seized stations shall, whenever possible, be wholly or partially sealed.
3 - Stations seized shall be returned as soon as the continued retention thereof for evidential purposes is no longer necessary, unless the proper authorities intend to declare them forfeit.
4 - Stations shall be returned in any event, as soon as the decision regarding the offence is final, unless the same are declared forfeit.
5 - Whenever possible, the same persons, who were present at the affixing of seals shall be present at the removal thereof, on which occasion they shall check whether the seals have been subject to tampering and whether the seized stations have been altered in any way.
Article 27
Offence procedures
1 - The application of the fines and additional penalties provided for in the present decree-law shall be a matter for the Chairman of the Management Board of ICP-ANACOM.
2 - The commencement of proceedings regarding offences shall be a matter for the Management Board of ICP-ANACOM, while the instruction of such proceedings shall be conducted by the proper departments of ICP-ANACOM.
3 - 60% of the revenue derived from the application of fines shall revert to the State and 40% thereof shall revert to ICP-ANACOM.
4 - ICP-ANACOM may make public the punishment of offences and the additional penalties imposed, pursuant to the provisions hereof, as appropriate.
CHAPTER VI
Transitional and final provisions
Article 28
Alteration of licences
(Repealed.)
Article 28-A
Use of electronic means
In proceedings involving communication between ICP-ANACOM and network or station licensees, in particular as regards the issue, amendment, transfer and revocation of licenses, as well as all the applications which are to be submitted to said Authority, electronic means may be used in terms to be defined and published by ICP-ANACOM."
Article 29
Repeals
1 - The following legislation is hereby repealed:
a) Decree-Law No 147/87 of the 24th March, as amended by Decree-Law No 149/91 of the 12th April, without prejudice to the provisions of paragraphs 5 and 6 of this article;
b) Decree-Law No 320/88 of 14th September, as amended by Decree-Law No 146/91 of 12th April, without prejudice to the provisions of paragraphs 5 and 6 of this article;
c) Decree-Law No 144/97 of 7th July;
d) MOPTC Order 16/94-XII of 27th April.
2 - (Repealed)
3 - Council of Ministers Resolution no. 23/98 of 12th of February shall remain in force until such time as the resolution referred to in paragraph 6 of Article 19 enters into force.
4 - (Repealed)
5 - (Repealed)
6 - (Repealed)
