C. Conclusion

1. Timeliness of the application and the legitimacy of intervention by ANACOM

As follows from the reasoning put forth in the notified draft decision, and as is concluded in the analysis and consideration of the report of the prior hearing, which documents form an integral part of the present determination, the request for administrative resolution of disputes that gave rise to the present process was presented by Radiomóvel with less than one year having elapsed since the beginning of the dispute whose settlement was required.

When in 2006, ANACOM refused to take a position on the process brought by Radiomóvel after the refusal of interconnection by Vodafone, it was because the request for intervention was deemed untimely.

The refused requests were based on titles giving authorisation to the activity of Radiomóvel - license - which should be interpreted according to the framework conferred by Law No 5 / 2004 of 10 February - LCE - Lei das Comunicações Electrónicas (Electronic Communications Law), which law has been in application since 2004.

Refusal of the application, made with such basis, occurred on 20 July 2004, which date was regarded as the beginning of the dispute, whereas Radiomóvel only sought the intervention of ANACOM under article 10 of the LCE in July 2006, almost two years after the start of the dispute. Given the time elapsed, the request for intervention could not but be considered as untimely.

In the case now under consideration, the denied interconnection corresponds to requests made under Right of Use of Frequencies ANACOM-05/2008.

The grounds now presented by Radiomóvel call for a reanalysis, on the part of the other operators and providers of electronic communications services, of applications for interconnection given that the different wording of that title might solve queries and reservations that addressees of the request for interconnection may have.

Considering the dates on which the denials to requests for interconnection made by Radiomóvel, following the adaptation of the license and renewal of their right of use of frequencies, occurred - between 16 and 28 January 2009 - and considering the date on which intervention by ANACOM was requested - 30 March 2009 -, it cannot but be concluded that such a request was made prior to the expiry of the period required in paragraph 2 of Article 10 of the LCE, and as such, said request cannot but be considered timely.

Intervention by ANACOM shall always be legitimate and justified in the exercise of its powers under article 63 of the LCE in order to guarantee proper access and interconnection in accordance with the regulatory objectives laid down in article 5 of the same Law, which reasoning is also is cited in the notified draft decision.

2. As regards the existence of a right of Radiomóvel to interconnection and as regards the obligation of the respondents to answer reasonable requests for access made to them for the termination of calls originated on the mobile network of Radiomóvel.

Pursuant to article 22 of the LCE, "undertakings which provide publicly available electronic communications networks and services enjoy the following rights: a) To negotiate interconnection with and obtain access or interconnection from other providers of publicly available communications networks and services, under the conditions of and in accordance with the present law”.

Pursuant to article 62 of the LCE, the freedom of companies to negotiate is recognised whereby undertakings are entitled to negotiate and agree between themselves technical and commercial arrangements for access and interconnection, whereas article 64, paragraph 2 of the LCE sets out that the "operators shall have a right and, when requested by other undertakings, an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of services” ¹.

The conditions attached to the right of use of frequencies ANACOM No 5/2008 include to "negotiate and obtain access or interconnection from other undertaking offering publicly available electronic communications networks and services under the conditions of and pursuant to Law No 5/2004 of 10 February, without prejudice to the powers of the National Regulatory Authority under the law, particularly in the context of the analysis of markets”.

Such provisions unequivocally give rise to the affirmation that Radiomóvel has the right, and the other companies called to account in the present process the obligation, to negotiate interconnection among themselves in order to ensure the provision and interoperability of their services.

Moreover, following the analyses of markets conducted, PTC, Sonaecom, TMN and Vodafone have been declared as undertakings with significant market power (SMP): Sonaecom, TMN and Vodafone in the wholesale market for voice call termination on individual mobile networks and Grupo PT, as well as the three companies named above, in the wholesale market for call termination on public telephone networks at a fixed location.

The declaration of SMP gives rise, for each of the named companies, under the terms so established by ICP-ANACOM, to the obligation to respond to reasonable requests for access which are submitted to them for the termination of calls originated on the mobile network of Radiomóvel.

It is clear that Radiomóvel has the right to obtain access to the network of PTC, Sonaecom, TMN and Vodafone and these companies have the obligation to provide such access, according to terms by which interconnection is made available to other undertakings and in observance of the obligations imposed in the context of the procedures of market analysis, observing, in particular, the obligation to respond to reasonable requests for access and the obligation of non-discrimination.

Meanwhile, the fact cannot be ignored that the Operation Regulation in annex to Administrative Rule No 797/92 of 17 August, already recognized that providers of SMRP have a right to interconnect with the fixed telephone service. By amending the legal regime applicable to telecommunications, arising from Lei de Bases das Telecomunicações (Basic Law of Telecommunications) - Law No 91/97 of 01 August - and other legislation adopted in its development, such right was enhanced ².

As such, the interconnection recognized pursuant to the right of use of frequencies granted to Radiomóvel does not depreciate the original and current nature of the service. This nature is conferred by the conditions by which the providing company is entitled to make use of the frequencies and not by the terms by which it is offered interconnection.

The determination that the respondents grant interconnection of their networks with the network of this operator does not confer on the latter any right of use of frequencies that were assigned to it for any purpose for which there is no provision.

The fact of obtaining interconnection from the respondent companies in the context of the present process does not give any legitimacy to the provision by Radiomóvel of a service which is similar to that offered by other providers of the mobile telephone service/MTS/GSM-UMTS.

Any use of the rights of interconnection conferred on Radiomóvel which exceeds the limitation established in respect of the right of use of frequencies which, as referred to in paragraphs 1 and 2 of Right of Use No. 5/2008 are intended solely for provision of SMRP, will be unlawful and, as such, shall be sanctioned by ANACOM under the powers of supervision and oversight conferred upon it by law.

Indeed, ANACOM has means which enable it to enforce compliance with conditions attached to the right of use granted to Radiomóvel and, in particular, whether or not traffic between members of different closed user groups and among members of each group and other users services exceeds the established maximum limits. Therefore, not only does interconnection not give rise to eligibility for the provision of other services, the violation of the established rules legitimises sanctioning intervention by ANACOM which, without prejudice to the application of fines fitting any offense, may intervene in the use of the powers conferred upon it by article 110 of the LCE.

As referenced by the respondents to the case under consideration, any failure to comply with the right of use of frequencies can only be ascertained after it has occurred. In this respect, the situation in analysis is no different from any other event of non-compliance, and, in fact, it may not always be possible to correct its impact or its negative consequences.

However, a risk of non-compliance by Radiomóvel does not legitimize violation by other market agents of obligations laid down in law or by regulatory measures.

Weighing up the interests present, it is easily concluded that the damage caused by the refusal to grant a legitimate right of Radiomóvel is certainly greater than that resulting from a possible incident of breach of conditions attached to the right of use of that company, which would determine corrective and sanctioning intervention.

Notwithstanding this conclusion, it is noted that ANACOM does not stand in the way of the inclusion, in the context of contracts to be concluded, of mechanisms which provide for the cessation of the obligation of interconnection in the event that the object of such is other than the provision of electronic communication services by a company authorised for their provision. In the case of SMRP, this safeguard cannot legitimise the suspension or termination of interconnection without prior demonstration, in a separate process led by ANACOM, that, in breach of the conditions governing the use of frequencies assigned to SMRP, Radiomóvel is providing other services.

Although the law does not set a deadline for companies to reach an interconnection agreement, the good faith that is required from the parties in negotiating and concluding contracts (article 227 of the Código Civil (Civil Code)) is not compatible with the perpetuation of the negotiation process which precedes the conclusion of interconnection agreements.

As such, in the context of the present process, there is justification for fixing a time limit by which it is required that the concluded interconnection agreements shall be notified to ANACOM.

Taking as a reference the procedures in the Reference Interconnection Offer (RIO) to which PTC is subject, it is reasonable to determine the obligation on the companies involved to notify ANACOM of the conclusion of interconnection agreements within 90 days (consecutive) from the date of the final decision that will be issued (see point 12 of the RIO and annex 2 of the same Reference Offer).