Decision amending the right of use of frequencies granted to REPART – Sistemas de Comunicações de Recursos Partilhados, S.A. for operation of the mobile trunking service
I. Background
Draft decision and respective consultation procedure
By determination of the Management Board of ICP - ANACOM, of 10 November 2011, and further to the request submitted by REPART – Sistemas de Comunicações de Recursos Partilhados, S.A. (Repart), by letter received on 1 July 2011, approval was given to a draft decision amending the act of allocation of the right of use for frequencies for the Mobile Complementary Telecommunications Service - Mobile Trunking Service (SMRP) held by Repart, and consequently, the document in which the granted right of use had been drawn up (ICP - ANACOM No 132/2009).
It was also decided to submit the referred draft decision to the prior hearing of Repart (pursuant to articles 100 and 101 of the Administrative Procedure Code - CPA), as well as to the general consultation procedure (pursuant to article 8 of the Electronic Communications Law, as amended and republished by Law number 51/2011, of 13 September - ECL), a period of 20 working days having been set for assessment of both procedures.
Having been notified for the purpose, Repart did not comment on the mentioned draft decision.
By the deadline set for the purpose (14 December 2011), no comments were received also from interested parties.
In the light of the above, ICP - ANACOM takes the view that its decision should be maintained, being only updated the legal references resulting from the publication of Administrative Rule No 291-A/2011, of 4 November, which amends and republishes Administrative Rule No 1473-B/2008, of 17 December.
Therefore:
II. Assessment
1. Request
By letter dated 1 July 2011, REPART – Sistemas de Comunicações de Recursos Partilhados, S.A. (Repart) requested ICP - ANACOM to amend its Right of Use for Frequencies (DUF), clarifying and restating former requests made to this Authority, by letters dated 19 October 2010 and 6 January 2011.
With the referred amendment, Repart sought:
a) The switch-off of its analogue network (MPT 1327), involving the return of spectrum allocated in the 450-470 MHz band.
b) The reduction of coverage obligations, so as to guarantee, in the scope of TETRA network and in the 410-430 MHz band, the coverage of 26% of the population.
For this purpose, Repart briefly argued as follows:
- The Mobile Trunking Service (SMRP) has been increasingly replaced in the market by the Land Mobile Service (LMS), which is able to combine, in the same terminal, the typical trunking features, such as push to talk, and features of the mobile telephone service available to the general public.
- On its turn, Repart is integrated in the same business group of Radiomovel Telecomunicações, S.A. (Radiomovel), and all the commercial dynamics of the Group is focused on Radiomovel’s CDMA network, given that that network enables the provision of SMRP with a coverage which is significantly broader than that of analogue networks and TETRA. As such, Repart has developed, over the last few years, important commercial efforts to migrate its clients to Radiomovel’s CDMA network, making available in this scope an offer free of charge at the level of acquisition of new terminals and maintenance of the applicable tariff.
- For these reasons, the number of Repart’s clients has progressively decreased, a tendency which has deteriorated since 2008. This fact, combined with the increase of network operation costs (both analogue and TETRA networks), on account of the significant increase of spectrum costs, greatly contributed to deteriorate its operation margins, which were already negative, and determined the need to decrease its coverage needs, in the light of traffic and client reduction already occurred.
- In March 2008, Repart’s analogue trunking network consisted of [SCI] [ECI] base stations, serving [SCI] [ECI] active terminals. The evolution of the number of active terminals and traffic registered since March 2008 shows that, over the last few years, there was a sharp decrease in the number of contracted terminals and voice and data calls, with a significant impact on the number of “active” base stations.
- In March 2010, only [SCI] [ECI] base stations registered any client traffic, and of the [SCI] [ECI] contracted terminals, only [SCI] [ECI] terminals had performed traffic. On their turn, two base stations performed traffic of a single client.
- Regardless of the continuing migrations efforts, there is still a residual number of clients who have not migrated or whose migration has occurred in a slow manner, for a set of reasons for which Repart is not accountable, due namely to (i) the existence of data applications not directly compatible with other technologies, (ii) the need to present ‘radio terminals’ in ambulances for homologation purposes (where CDMA terminals are regarded as mobile telephones due to their setting), and also (iii) a certain inertia of some clients, for whom the technological upgrade of the network ensuring their professional communications is not a priority.
- Given the period of time which has elapsed since the implementation of the analogue network, its maintenance depends now on spare parts resulting from the reduction of the number of active channels, as the manufacturer has ceased to provide support this technology for over 5 years.
In summary, Repart’s operation based on analogue technology presents results which are increasingly negative, and the lack of use of a significant number of base stations by its client database is now becoming obvious, although Repart has kept its commitment to maintain this network active for as long as there are clients.
- In particular, Repart maintains today its analogue network (MPT 1327) operating for approximately [SCI] [ECI] users, a significant part of which is about to migrate to a more advanced technological solution, and the other part may, at any moment, migrate to the SIRESP network.
- That being the case, given the not very significant number of terminals using the analogue network and its likely migration to other systems, it is pointless, in an economic perspective, to maintain the operation of that network. In addition, the network’s operation costs have increased, which significantly contributes to the deterioration of Repart’s operation margins, which have historically been negative.
In conclusion, Repart sought the amendment of the DUF it holds with the purpose of switching-off its analogue network (MPT 1327), as from 14 October 2011, accordingly returning the entire spectrum assigned to it in the 450-470 MHz band. The company proposed to inform its clients of the termination of service offer at least 90 days in advance.
Given the switch-off of the analogue network (MPT 1327), as well as the guarantee provided by the company, of maintaining the provision of the professional mobile trunking service in its TETRA network, Repart sought also the amendment of its DUF so that the company was under the obligation to ensure, in the scope of the mentioned TETRA network and in the 410-430 MHz band, a population coverage by 26%.
Meanwhile, pending the assessment of Repart’s first request, ICP - ANACOM received, on 13 October 2011, a new communication from the company in which it informed that it was no longer possible for it to postpone the switch-off of its analogue network, at national level, beyond 14 October 2011, date on which it was to return the analogue spectrum referred to in radio licence No 504445.
The company referred further that, on 8 July 2011, it sent to its clients a communication notifying the switch-off of the service offer, more than 90 days in advance, exceeding by far the 15-day notice period provided for in the Electronic Communications Law. According to the minute of this communication, the provision of services based on the analogue trunking technology would not stop before 30 September 2011.
However, as Repart considered that analogue frequencies would not be allocated to it as from 14 October 2011, the company requested an exceptional authorization to use them, free of charge, in the geographical zone of the Lisbon metropolitan area (up to 6 BTS) and until 31 January 2012, to allow one client, [SCI] [ECI] time to conclude the migration from [SCI] [ECI] to a different technology, service which for obvious reasons should not be interrupted.
On the day following this communication, 14 October 2011, ICP - ANACOM received a new communication from Repart, in which the company, invoking the letter referred to in the preceding paragraphs, “returns the original document of network licence No 504445” concerning its analogue network.
Taking into account Repart’s communication of 13 October, ICP - ANACOM requested of Repart, by letter of 21 October 2011, that it specified the locations of the 6 BTS it intended to continue using, the associated parameters [e.i.r.p., antennae] and the identification of frequencies required for each BTS.
Repart replied on 25 October 2011, informing that only 3 BTS would be necessary, and indicating the specifications, parameters and frequencies required.
2. Framework
By order of the Minister of Public Works, Transports and Communications (MOPTC), of 22 November 1993, issued pursuant to paragraph 2 of article 17 of the Regulation in annex to Administrative Rule No 796/92, of 17 August, and further to the Public Tender for allocation of a licence of national scope for the provision of the Mobile Complementary Telecommunications Service - Mobile Trunking Service (SMRP), launched by Order MOPTC 38/93-XII, of 11 June 1993, published in the Official Gazette , Series II, of 2 July 1993, Repart was granted licence No ICP-013/TCM.
By order of the Secretary of State for Housing and Communications, of 5 February 1999, Repart was authorized to use the TETRA system (Terrestrial Trunked Radio System) for SMRP provision purposes, new frequencies having been assigned to the company. The referred license was issued for a 15-year period, until 21 March 2009.
Further to a request submitted by Repart on 20 March 2008, and having been assessed, in the light of the regime laid down in Law number 5/2004, of 10 February, the obligations included in licence No ICP-013/TCM, resulting from the instruments of the public tender launched by Order MOPTC 38/93-XII, of 11 June 1993, as well as the proposal presented in the scope of the referred tender and of the former legal framework, it was found that such obligations were compatible and appropriate in the light of the new regulatory framework, thus remaining applicable.
Given the request presented by Repart, ICP - ANACOM decided, on 17 December 2008, to renew, for a 15-year period, the right of use for frequencies allocated to Repart for the provision of the mobile trunking service, specifying the general conditions associated to the service provision, the conditions associated to the rights of use for frequencies and the conditions associated to the use of numbers of the National Numbering Plan.
The request submitted by Repart consists of an amendment to conditions provided for in articles 1, 4 and 5 of Annex 2 of the right of use which qualifies the company to use frequencies required to provide the mobile trunking service (DUF ICP - ANACOM No 132/2009).
Under article 20 of the Electronic Communications Law (ECL) 1, the conditions applicable to the rights of use may be amended in cases of objective justification and in accordance with the principle of proportionality, by means of law, regulation or administrative act, as appropriate.
In such cases, the adopted amendment must be submitted to the general consultation procedure 2, whereby interested parties, namely users and consumers, must be provided with a period of time that is sufficient to submit their views on the proposed amendments, which shall be no less than 20 days, except in duly justified exceptional circumstances.
The intended amendment represents an alteration of a valid administrative act, performed by ICP - ANACOM, of allocation to Repart of the right of use of frequencies for the mobile trunking service, allowed under article 147 of the Administrative Procedure Code (APC), and repealing rules apply.
In this context, ICP - ANACOM, as author of the valid act to be amended, is the authority empowered to practise the administrative act amending the DUF concerned, which must take on the form of repealed act according to articles 142 and 143 of the Administrative Procedure Code, which apply ex vi article 147.
Valid administrative acts which constitute legally protected rights or interests may be altered (i) in the part where they affect the interests of their addressees or (ii) where all interested parties agree with the repeal of the act and inalienable rights or interests are not at issue (article 140, paragraph 2, of APC, which applies by virtue of article 147 of the same Code).
In the case under consideration, the request for amendment was made by Repart itself, however it must be found whether there are other interested parties in the implicit sense of article 140 of the APC, that is, whether there are holders of legally protected rights or interests whose agreement is required for the repeal of amendment of the act.
Having assessed the issue, it was concluded that commitments undertaken by Repart in the proposal submitted to the above-mentioned tender, as well as conditions resulting from the allocated right of use for frequencies, did not create in the legal sphere of third parties any consistent and concrete legally protected rights or interests which justifies the need for their agreement.
3. Assessment
Within the electronic communications sector, the Electronic Communications Law ensures (transposing the framework defined at Community level) the “freedom to provide electronic communications networks and services” (article 19, paragraph 1).
From this regime does not follow the obligation to remain in the market (to provide electronic communications networks and services) by whoever wishes to exit it, without prejudice, obviously, to compliance with obligations to safeguard, in particular, the interests of consumers or of other economic agents, which on this issue, the Law or the Regulator may impose. The applicable conditions must be assessed on a case-by-case basis, given the intention of abandoning the activity concerned.
3.1. In this case, it cannot but be considered that Repart is free not to wish to perform the activity for which its right of use for frequencies was granted - as regards its analogue network (MPT 1327).
In fact, statistic data available at ICP - ANACOM confirm that the company has showed a decrease of customers in that network, having fallen from [SCI] [ECI] clients in December 2006 to [SCI] [ECI] clients in December 2010, which corresponds to a decrease of the number of active terminals from [SCI] [ECI] to [SCI] [ECI]. In the same period, the company has also presented negative results, the most serious situation having occurred in 2007 and 2009, with negative net results of 452 and 416 thousand Euro, respectively.
In this context, having been analysed Repart’s request as regards the switch-off of its analogue network and consequent return of spectrum assigned in the 450-470 MHz, ICP - ANACOM concludes that, from a spectrum-management perspective, there is nothing to prevent, in this part, the amendment of the right of use for frequencies No 132/2009.
On the other hand, to comply with the legal regime that protects users of electronic communication services, the company, on its own initiative, informed its clients, on 8 July 2011, that the provision of the service supported over its analogue network would terminate not before 30 September 2011, a behaviour which largely exceeds, to the benefit of users, the 15-day prior notice set for this purpose in article 39, paragraph 1 c) of ECL.
However,
(i) Given Repart’s request of 13 October 2011, concerning the specific situation of one client, as regards which the company is willing to maintain (partially) its analogue network to allow time to migrate to another technology;
(ii) Considering, from the above assessment, that the assumptions which justify the amendment of the act allocating to Repart the right of use for frequencies existed by 14 October 2011, as requested by the company;
This Authority determines that the amendment of REPART’s DUF ICP - ANACOM No 132/2009, as far as the switch-off of the analogue system (MPT 1327) in the 450-470 MHz band is concerned, should take place in stages, as follows:
- Switch-off of the analogue system (MPT 1327) in the 450-470 MHz band, except for 3 BTS in the Lisbon metropolitan area, and return of the corresponding spectrum allocated in that band, except for the spectrum required for the use of the mentioned 4 BTS (4 channels), with effect from 14 October 2011;
- Full switch-off of the analogue system (MPT 1327) in the 450-470 MHz band on 31 January 2012, including the 3 BTS which will continue to operate in the Lisbon metropolitan area, to safeguard the migration of the system used by [SCI] [ECI], and consequent return of the concerned spectrum.
In parallel, and at radio licence level, ICP - ANACOM believes that the request on the use of the referred BTS implies, under point b) of paragraph 1 of article 16 of Decree-Law number 151-A/2000, of 20 July 3, the amendment of the radio network license held by Repart (no 504445), reducing its scope to the technical parameters required to ensure the use of those 3 BTS.
This amendment to Repart’s radio license shall be considered in the scope of the settlement of the fee for use of radio spectrum, under article 19 of the mentioned Decree-Law number 151-A/2000, of 20 July, as well as article 13 and point 1.2.1. of annex IV to Administrative Rule number 1473-B/2008, of 17 December 4.
3.2. Repart requested also the reduction of its coverage obligations based on a coverage plan of the TETRA network, which, according to it, exclusively reflects the current needs of its clients.
In this scope, a study of a theoretical coverage of the TETRA network, conducted by services of ICP - ANACOM, led to the conclusion that, according to the criterion established for the purposes of existence of coverage and level of received power (higher than -130 dBm and -90 dBm), the percentage of covered national population points towards values consistent with the one indicated by the company (26%).
Taking into account the switch-off of the analogue network held by Repart, and specifically:
- The tendency for a progressive decrease of Repart’s clients since 2008, as well as the reduction of associated traffic; and
- That several applications related to the mobile trunking service may be potentially provided in the scope of the Terrestrial Mobile Service;
ICP - ANACOM considers that there is nothing to prevent the commercial operation of the mobile trunking service from being supported only on the use of the TETRA system in the 410-430 MHz band, with the corresponding reduction of the coverage scope, Repart being obliged to maintain a population coverage by 26%.
According to Administrative Rule number 1473-B/2008, of 17 December, the amendment requested by Repart will also be considered in the scope of the settlement of the fee due to ICP - ANACOM for use of frequencies for the provision of the mobile trunking service (provided for in point 1.2.1 of annex IV).
4. Decision
In the light of the above, the Management Board of ICP - ANACOM, in the scope of powers provided for in article 6, paragraph 1 c) of its Statutes, published in annex to Decree-Law number 309/2001, of 7 December, and in the pursue of regulatory objectives set out in article 5, paragraph 1 a) and paragraph 2 d), and under articles 15 and 20, all of ECL 5, in the exercise of competencies assigned under article 26 l) of the referred Statutes, as well as article 140, 142 and 143, which apply ex vi article 147, all of the Administrative Procedure Code, hereby determines:
1. To amend the right of use of frequencies granted to REPART – Sistemas de Comunicações de Recursos Partilhados, S.A., for operation of mobile trunking service as regards (i) the switch-off of the analogue system (MPT 1327) in the 450-470 MHz band, as well as (ii) the reduction of the scope of coverage obligations, pursuant to endorsement No 2 to be integrated in the qualifying document, attached to his determination.
2. To determine that the decision to amend the right of use for frequencies in the part that concerns the use of the analogue system (MPT 1327) is enforced in stages, as follows:
a) Switch-off of the analogue system (MPT 1327) in the 450-470 MHz band, except for 3 BTS in the Lisbon metropolitan area, and return of the corresponding spectrum allocated in that band, except for the spectrum required for the use of the mentioned 4 BTS (4 channels), with effect from 14 October 2011;
b) Full switch-off of the analogue system (MPT 1327) in the 450-470 MHz band on 31 January 2012, including the 3 BTS mentioned above, and consequent return of the concerned spectrum.
3. To amend, further to the provision in point b) of the preceding paragraph, radio license No 504445 held by Repart, reducing its scope, with effects as from 14 October 2011, for the use of 3 BTS in the Lisbon metropolitan area, under paragraph 1b) of article 16 of Decree-Law number 151-A/2000 of 20 July.
RIGHT OF USE FOR FREQUENCIES
ICP - ANACOM NO 132/2009
ENDORSEMENT NO 2
1. Article 1 of annex 2, on conditions associated to the right of use for frequencies, is hereby amended to read as follows:
1. REPART – Sistemas de Comunicações de Recursos Partilhados, S.A. (REPART) maintains the right to use, on national territory, the following frequencies:
a) Radio channels in the 450-470 MHz band, with 12,5 KHz separation between consecutive channels, to be used until 31 January 2012, by 3 BTS of the analogue system, located in the metropolitan area f Lisbon, which must comply with the MPT 1327 signalling protocol, established by the UK Department of Trade and Industry;
b) Radio channels in the 410-430 MHz frequency band, to be used by the TETRA (TErrestrial Trunked Radio System) digital system, which must comply with the relevant standards laid down by ETSI (European Telecommunications Standard Institute).
2. Article 4, paragraph 1 b) of annex 2, on conditions associated to the right of use for frequencies, is hereby amended to read as follows:
b) To ensure compliance with the obligation to cover the national population by 26%.
3. Article 5 of annex 2, on conditions associated to the right of use for frequencies, is hereby amended to read as follows:
5. In the exercise of the right of use for frequencies assigned for the use of the TETRA system, identified in clause 1, REPART is subject to the condition of ensuring compliance with the following minimum values of quality of the mobile trunking system:
a) Time of admission to the service, understood as the maximum time to use the service once it has been requested:
i. For a new client: 120 minutes;
ii. For a new mobile device of an existing fleet: 30 minutes.
b) Service degree, defined as the likelihood of the call being made within less than 20 seconds: above 90%;
c) Annual maximum level of the system’s unavailability, understood as the total number of annual minutes in which the system is not available: up to 100 minutes per year.
1 Law number 5/2004, of 10 February, as amended and republished by Law number 51/2011, of 13 September.
2 Provided for in article 8 of ECL.
3 Statutory instrument which lays down the regime that applies to the licensing of radiocommunications networks and stations and to the inspection of the installation of such stations and of the use of the spectrum, as well as to the sharing of the radiocommunications infrastructure.
4 As amended by Administrative Rule number 291-A/2011, of 4 November.
5 As amended by Law number 51/2011, of 13 September.
Consult:
- Consultation on the draft decision to amend the right of use of frequencies granted to REPART to operate the mobile trunking service https://www.anacom.pt/render.jsp?contentId=1104608
