Notice no. 2385/2020, published on 12 February



Autoridade Nacional de Comunicações

Notice


Download file Notice no. 2385/2020, published on 12 February

(This is not an official translation of the law)


Draft Regulation of the Auction for the Allocation of Right of Use of Frequencies in the 700 MHz, 900 MHz, 1800 MHz, 2.1 MHz, 2.6 GHz and 3.6 GHz bands.

Statement of reasons

1. Under the most recent European framework and considering, in particular, the expressions of interest presented in the context of the public consultation, held in March 2018, on the availability of the 700 MHz frequency band and other relevant bands, on 23 December 2019, ANACOM approved the decision on the designation of the 700 MHz band for terrestrial electronic communications services, the limitation on the number of rights of use of frequencies to be allocated in the 700 MHz, 900 MHz, 1800 MHz, 2.1 GHz, 2.6 GHz and 3.6 GHz bands, as well as the definition of the respective allocation procedure.

2. Under the terms of this decision, ANACOM considered that a competitive bidding process, in this case an auction, seemed to be most appropriate for selecting the entities to whom the corresponding rights of use of frequencies may be attributed.

3. At the same time, by decision of 31 October 2019, in the exercise of the regulatory powers provided for in Article 9 (2) (a), in Article 10 and in Article 26 (1) (b), all from its Statutes, as approved by Decree-Law 39/2015, of 16 March, the attributions that fall under its remit, pursuant to Article 15 (1) and (5), Article 19 (3), Article 30 (1), (3), (5), (7) and (8) and in Article 31 of the Electronic Communications Law, and in compliance with the provisions of Article 98 (1) of the Code of Administrative Procedure, ANACOM approved the launch of the procedure for preparing the auction regulations for the allocation of rights of use of frequencies in the aforementioned bands.

4. Considering the representations of the interested parties under the general consultation procedure to which the draft of the abovementioned decision was submitted, as approved on 22 October 2019, as well as the contributions submitted for the preparation of the auction regulations, on 06 February 2020, under the provisions of Article 30 (5), (8) and (9) and Article 32 of the Electronic Communications Law, as well as under Article 9 (1) (b) and (2) (a), Article 10 and of Article 26 (1) (b), all from the ANACOM Statutes, ANACOM approved the present draft auction regulation for the allocation of rights of use of frequencies in the 700 MHz, 900 MHz, 1800 MHz, 2.1 GHz, 2.6 GHz and 3.6 GHz bands.

5. In particular, this regulation lays down the conditions of access to the spectrum that will be made available to the market, the procedural rules of the auction and the conditions that will be associated with the use of the spectrum allocated. Taking into account the public interest objectives pursued by ANACOM, which consist of promoting greater competition in the electronic communications market, contributing towards ensuring that users obtain the maximum benefit in terms of choice, price and quality of service, encouraging the effective and efficient use of the spectrum, as well as promoting social and territorial cohesion, ANACOM considers it essential to incorporate a set of measures into the auction that enable a balance to be reached between guaranteeing conditions for the entry of new entities into the market and developing existing operations.

In this context, in order to generate a positive impact on competition and end-users, ANACOM considers it appropriate to establish a spectrum reserve for new entrants, which, by covering part of the spectrum in the 900 MHz band, the entire spectrum available in the 1800 MHz band and benefiting from a 25% discount on the final price of spectrum acquired by new entrants in the above frequency bands, creates conditions conducive to the emergence of new players in the domestic market. In this context, with a view to establishing conditions that contribute towards the emergence of new, sustainable operations, it is also intended to make room for flexible models of reciprocal use of assets, as well as to impose obligations of access to the network for mobile virtual network operators (MVNO) and/or national roaming to companies that acquire significant amounts of spectrum and that already have rights of use of frequencies in bands designated for terrestrial electronic communications services.

Moreover, it is considered essential to determine limits on the acquisition of spectrum, which will be applicable to all companies in the bands particularly suitable for 5G, in which demand for spectrum may be more significant, in order to allow all interested parties to access an amount of spectrum that is suitable for the operations they intend to develop, preventing situations of hoarding. The use of these bands is also associated with coverage and network development obligations, including in low-density municipalities and in the Autonomous Regions of Madeira and the Azores, bearing in mind the need to mitigate shortcomings in the coverage and capacities made available by existing mobile networks, to guarantee the country’s economic and social cohesion, meeting the expectations of the populations and the domestic economic sector, as well as to safeguard the national objectives established for mobile broadband under the Digital Agenda for Portugal and the National Programme for the Spatial Planning Policy (NPSPP), as well as the European objectives defined for the responsible and resilient development of a “Gigabit Society”.

Bearing in mind the need to boost digital skills, economic growth, social inclusion and the competitiveness of the country and all its regions, but without neglecting the levels of investment that may be associated with 5G, it is established that the obligations associated with the coverage of low-density municipalities and municipalities in the Autonomous Regions of Madeira and the Azores may be ensured by means of national roaming agreements.

Simultaneously, and to mitigate the potential impact related to the payment of the final prices of the spectrum made available in the auction, deferment of payment of one third of the final price of the spectrum in the 700 MHz, 900 MHz and 3.6 GHz bands is permitted.

6. With the adoption of this Regulation, the conditions associated with the 3.6 GHz band may be reflected in a non-discriminatory and proportional manner in the right of use of frequencies already existing in this band.

7. In accordance with the provisions of Article 10 of its Statutes and Articles 98 et seq. of the Code of Administrative Procedure, ANACOM gives notice of this draft regulation to the member of Government in charge of the area of communications and publishes it on its institutional website and in the 2nd series of the Diário da República, thus providing for the intervention of the Government, regulated entities and other entities to which its activity is addressed, user and consumer associations with general or specific interest in the area of communications, as well as users and the general public.

8. In this context, contributions, in writing and in Portuguese, may be sent over a period of 30 working days, preferably by email to reg.leilao@anacom.pt.

Where applicable, information deemed confidential must be identified, explicitly and in a reasoned manner, and a non-confidential version must be sent for publication, as provided for in law and in ANACOM’s decision of 17 November 2011.

9. Once the regulatory consultation has closed, ANACOM shall proceed with the assessment of the representations and contributions submitted and, with the approval of the regulation, shall provide a report containing reference to them, as well as an overall assessment reflecting the understanding of this Authority and the reasons for the decisions made.

Draft Regulation

CHAPTER I
General provisions

Article 1
Subject matter

1 - The purpose of this regulation is to define the procedures applicable to the auction and the conditions to which the rights of use of frequencies allocated under this auction are subject, in the following bands:

a) 700 MHz (FDD): 703-733 MHz / 758-788 MHz.

b) 900 MHz (FDD): 880-885 MHz / 925-930 MHz | 895.1-898.1 MHz / 940.1-943.1 MHz | 914 915 MHz / 959-960 MHz.

c) 1800 MHz (FDD): 1770-1785 MHz / 1865-1880 MHz.

d) 2.1 GHz (FDD): 1954.9-1959.9 MHz / 2144.9-2149.9 MHz.

e) 2.6 GHz (FDD): 2500-2510 MHz / 2620-2630 MHz.

f) 2.6 GHz (TDD): 2595-2620 MHz.

g) 3.6 GHz (TDD): 3400-3800 MHz.

2 - The rights of use of frequencies allocated under this auction are intended to provide terrestrial electronic communications services accessible to the public, using any technology, without prejudice to the fulfilment of the obligations identified in the Radiocommunications Regulation of the International Telecommunications Union (ITU) and the National Table of Frequency Allocations (NTFA).

Article 2
Definitions

For the purposes of this regulation, the following definitions shall apply:

a) Bidder activity: eligibility points associated with the lots for which the bidder bids in a given round in the bidding phase for new entrants and sum of the eligibility points associated with the lots for which the bidder bids in a given round and the points associated with the lots in which the bidder holds the best bid resulting from the previous round in the main bidding phase.

b) Category: set of lots with similar characteristics within the same frequency band.

c) Waiver: option given to the bidder not to submit a bid in a round of the main bidding phase, while maintaining eligibility for the next round.

d) Bidder’s eligibility: maximum number of points that the bidder may use to bid for lots in a round, which, in the main bidding phase, includes the eligibility points of the best offers it holds.

e) Excess demand: occurs in the bidding phase for new entrants when the aggregate demand is greater than the number of available lots.

f) Bid: commitment to purchase a lot or a set of lots that each bidder assumes in a round, for a certain bid amount.

g) Maximum spectrum limit: maximum amount of spectrum that may be bid for and obtained by each bidder in certain categories.

h) Lot: pre-defined amount of radio spectrum that may be bid for.

i) Best bid: bid submitted in the main bidding phase whose bidding amount for a given lot is the highest in each round, notwithstanding the tiebreak rule provided for in Article 31.

j) Bid amount: amount that a bidder is willing to pay for the acquisition of a lot or set of lots in a round, which cannot be less than the reserve price established for the lot or lots.

k) New entrant: an entity that, at the date of entry into force of this regulation, does not hold rights of use of frequencies in bands designated for terrestrial electronic communications services and that does not have direct or indirect relationships, of control or significant influence, with entities holding rights of use of frequencies in bands designated for electronic communications services.

l) Electronic platform: dedicated computer system, remotely accessible, which supports the execution of the auction, namely the submission of bids and the communication of information, under the terms provided for in this regulation.

m) Reserve price: minimum amount to be paid for the allocation of rights of use of frequencies corresponding to a given lot.

n) Lot price:

i. In the bidding phase for new entrants, the amount established for each lot, which in the first round corresponds to the reserve price, and in the following rounds, the value determined by the ANACOM Management Board.

ii. In the main bidding phase, the value established for each lot, which in the first round corresponds to the reserve price and in the following rounds, the value of the best offer in the previous round or, where no bids have been submitted, the reserve price.

o) Final lot price:

i. In the bidding phase for new entrants, this corresponds to the value determined by the ANACOM Management Board for a given lot in the last round.

ii. In the main bidding phase, this corresponds to the best offer for a given lot in the last round.

p) Aggregate demand: the total number of lots under bid in each category, in each round of the bidding phase for new entrants.

q) Activity rule: rule that controls the eligibility of a bidder to submit bids in each round.

r) Round: time interval during which bids are submitted for the various lots in the different categories.

Article 3
Applicable legislation

1 - The auction is governed by the provisions of Law 5/2004, of 10 February (Electronic Communications Law) and Decree-Law 151-A/2000, of 20 July, as well as this Regulation.

2 - The rights of use of frequencies allocated under this auction are governed by the provisions of the Electronic Communications Law, this regulation and other applicable legislation.

3 - The holders of the rights of use of frequencies allocated under this auction undertake to comply with the conditions that, in the future, may be determined by law, regulation or administrative act, in accordance with the provisions of Article 20 of the Electronic Communications Law.

Article 4
ANACOM’s remit

1 - The auction is carried out by ANACOM, and its Management Board is responsible for conducting the respective procedure.

2 - In addition to the remit conferred upon it under the terms of this regulation, the Management Board of ANACOM is also responsible for the following:

a) Deciding on complaints presented to it during the auction, suspending the procedure where necessary.

b) Assessing the validity of the bids received under the terms provided for in this regulation.

c) Establishing other dates and deadlines for holding the different phases of the auction, in the event of exceptional circumstances.

d) Suspending, in particular for reasons of force majeure, the current round of bidding and deciding on the outcome of the bids submitted prior to the suspension.

e) Requesting clarification from applicants or bidders at any stage of the auction.

f) Excluding bidders, whether or not they have been deemed successful, whenever there is a breach of the auction rules or strong evidence of acts, agreements, practices or information that could distort rules of competition, which shall be immediately reported to the Competition Authority.

g) Deciding on other matters not provided for in the preceding paragraphs in order to ensure the proper functioning of the auction, these decisions being duly justified and communicated to applicants or bidders, as applicable.

3 - The ANACOM Management Board may decide to delegate its powers to one or more of its members, pursuant to Article 27 of its Statutes, as approved by Decree-Law 39/2015, of 16 March.

Article 5
Clarifications

1 - Applicants and bidders must provide all clarifications related to the auction process as requested by, and within the time frame and in the form required by, the ANACOM Management Board.

2 - Failure to comply with the provisions of the preceding paragraph shall result in the exclusion of these applicants or bidders, except in duly justified cases and, as such, accepted by the ANACOM Management Board.

CHAPTER II
Auction procedure

SECTION I
Auction arrangements, lots and reserve prices

Article 6
Auction phases and model

1 - The auction shall consist of the following sequential phases:

a) Qualification: initial phase of the auction that determines the entities qualified to participate in the subsequent phases of this procedure (bidders).

b) Bidding for new entrants: phase of the auction in which only new entrants may submit their bids for lots in categories B and D, as defined in Article 7 of this regulation, and which determines the number of lots in each category allocated to each successful bidder, as well as the respective final prices.

c) Main bidding: phase of the auction in which all bidders submit their bids for the lots available in each category, including those that were not allocated in the previous bidding phase, and which determines the number of lots in each category allocated to each successful bidder, as well as the respective final prices.

d) Assignment: phase of the auction in which the successful bidders choose the exact location of the lots secured, in each frequency range, subject to the condition of maximising spectrum contiguity.

e) Attribution: final phase of the auction, which includes the allocation of rights of use of frequencies, the publication of the auction results, the deposit of the final amount to be paid by each successful bidder and the issuance of the licences.

2 - The auction follows a simultaneous, ascending, open and multiple-round model, with a bidding phase for new entrants with a simple clock.

3 - For the purposes of the preceding paragraph, it is understood that the auction model:

a) Is simultaneous, in the sense that all lots are available for bidding at the same time.

b) Is ascending, in the sense that the price of the lot increases in each of the bidding phases.

c) Is open, in the sense that, in each round, information is made available to all bidders on the prices of each lot.

d) Is multiple-round, in the sense that successive rounds will take place.

4 - The auction is supported on an electronic platform, which guarantees the application of the rules provided for in this regulation.

Article 7
Available lots and reserve prices

1 - The categories, lots available at the auction, the respective reserve prices and points of eligibility of the lot are those shown in the following table:

(see the Download file document

2 - For the purposes of category H and I of the table in the preceding paragraph, the regions in the 3.6 GHz band are defined in accordance with Administrative Rule 1062/2004, of 25 August.

Article 8
Limits to spectrum allocation and ownership

1 - In this auction, maximum limits for the allocation of spectrum are established in categories A, H, I and J, under the following terms:

a) 2 x 10 MHz, in the 700 MHz band, corresponding to category A.

b) 100 MHz, in the 3.6 GHz band, corresponding to categories H, I and J.

2 - For the purposes of the provisions of subdivision b) of the preceding paragraph, the holder of the right of use of frequencies in the 3.6 GHz band in effect on the date of entry into force of this regulation may only be allocated spectrum in categories H and I.

3 - Each limit referred to in paragraph 1 applies to bidders, in the case of subdivision a), and to the bidders and the holder of the right of use, in the case of subdivision b), considered individually, or to all the bidders or holders of rights of use, where there are direct or indirect relationships between them of control or significant influence, as determined under the terms of the Portuguese Securities Market Code (CVM).

4 - The concept of “control” referred to in the preceding paragraph is that found in Article 21 of the CVM, and also takes into account relationships that, under the terms of Article 20 et seq. of that Code, lead to the apportionment of votes, regardless of whether or not the entities concerned are under its control.

5 - For the purposes of the provisions of paragraph 3, “significant influence” is considered to be the attribution of at least 20% of voting rights, the apportionment being made in accordance with the criteria established in Article 20 et seq. of the CVM.

SECTION II
Qualifying round

Article 9
Applicant requirements

1 - Legal persons, whether incorporated or to be incorporated, may apply for allocation of the rights of use of frequencies that form the subject matter of the auction.

2 - Entities to be incorporated may apply, as long as they have a business name admissibility certificate, and, in the event of allocation of a right of use of frequencies, the corresponding licence will only be issued after the presentation of the access code to the applicant’s online commercial registry certificate.

Article 10
Tender security

1 - To guarantee the binding commitment assumed upon submission of applications and the obligations inherent to the entire auction procedure, applicants must provide tender security, the amount of which varies according to the number of eligibility points they intend to use, taking into account the eligibility points of the lots identified in the table in Article 7, under the following terms:

a) Each eligibility point shall be covered by tender security of eight hundred thousand euros.

b) Tender security of 15 million euros guarantees the maximum number of eligibility points that can be used in both bidding phases according to the available lots, notwithstanding the maximum limits on spectrum allocation provided for in Article 8.

2 - The tender security referred to in the preceding paragraph shall be provided by bank guarantee or insurance bond made out to ANACOM, in both cases payable on demand, as per the forms set out in Annex 2 to this regulation.

3 - For the successful bidders, the tender security shall remain in effect until the final amount is deposited, in accordance with Article 38.

4 - The tender security shall be released by ANACOM, within 5 days, exclusively in the following cases:

a) Where the application has not been accepted.

b) Where, at the end of the main bidding phase, the bidder has not been successful.

c) Where the successful bidder has made the deposit pursuant to Article 38.

5 - Any delay in releasing the tender security shall result in the applicant or bidder that provided it being entitled to compensation, namely for the additional costs incurred due to maintaining the tender security provided for longer than would have otherwise been the case.

Article 11
Clarifications

1 - Interested parties may request clarification regarding any doubts arising from the interpretation of any documents pertaining to the auction process, within the time frame for submission of applications and up to the sixth day after the beginning of that period.

2 - Requests for clarification shall be addressed to the Chairman of the Management Board of ANACOM and submitted, in writing and in Portuguese, electronically, to the address ...@anacom.pt.

3 - Clarifications shall be provided by the ANACOM Management Board within a maximum period of 2 days, counted from the date of receipt referred to in the preceding paragraph, electronically, to the email address which must be indicated in the requests for this purpose.

4 - The ANACOM Management Board shall publish on the respective website, at www.anacom.pt, the substance of the requests and clarifications provided, concealing information as necessary to ensure, in particular, the confidentiality of the applicants’ identities and potential bidding strategies.

Article 12
Arrangements and deadline for submission of applications

1 - Applications must be formally submitted, under penalty of exclusion, by means of an application, in writing and in Portuguese, addressed to the Chairman of the Management Board of ANACOM that includes the identification of the applicant, the reference to this regulation and the date and signature of the applicant’s legal representative(s) having sufficient powers to enter into binding commitments and capacity recognised under the terms permitted by law.

2 - The application request must be submitted in a closed envelope addressed to the Chairman of the Management Board of ANACOM, on which reference must be made to the application for the auction, but without providing any other information enabling the applicant to be identified.

3 - Applications shall be presented at the reception desk at ANACOM headquarters, and a receipt issued, on working days between 9 am and 4 pm.

4 - The deadline for the submission of applications ends 12 days after the entry into force of this regulation and, at the end of this period, no further applications will be accepted.

5 - The ANACOM Management Board may, of its own motion or upon a reasoned request from the applicants, extend the deadline for the submission of applications provided for in the preceding paragraph.

Article 13
Regulation of application requests

1 - In a closed and separate envelope containing the respective application request referred to in the preceding article, applicants must present the following documents and information, under penalty of exclusion:

a) A declaration signed by the applicant’s legal representative(s), having sufficient powers to enter into binding commitments and capacity recognised under the terms permitted by law, expressly confirming acceptance of the provisions of this regulation, the auction conditions and subjection to the obligations arising from the application and the respective bids, as well as acceptance of the conditions applicable to the rights of use of frequencies in the event of their allocation.

b)Access code to the applicant’s online commercial registry certificate valid for the auction period, including the issuance of the licences.

c) Access code to the online certificate of the respective statutes, valid for the auction period, including the issuance of the licences.

d) Document proving the provision of tender security, under the terms set out in Article 10.

e) Documents proving that all social security contributions and taxes are in order or a declaration of consent, under the legally provided terms, for ANACOM to proceed with a consultation of the status of the applicant’s tax and contributions.

f) Declaration signed by the applicant’s legal representative(s) having sufficient powers to enter into binding commitments and capacity recognised under the terms permitted by law, in which up to four natural persons are designated to bid in the applicant’s name and on the applicant’s behalf, with the respective email and telephone contact details indicated, to which simple copies of the identification documents of the designated persons shall be attached, which are intended exclusively for the verification of the identity of the respective holder, and shall be destroyed following this confirmation.

g) Declaration in which the applicants indicate, specifically, who are the owners, whether natural or legal persons, and in what amount they hold an interest in the share capital of the applicant. In the event of one partner or some of the partners being a legal person, information shall be included that allows the verification of compliance with the provisions of Article 8, taking into account the criteria established in Article 21 of the Securities Code.

h) Declaration by the natural persons who are designated to bid in the name of and on behalf of the applicants, in which they expressly authorise the recording of the content of telephone calls in the event of the need to use this alternative medium to the electronic platform on which the auction is based, in accordance with Article 17 (5) and Article 25 (5) of this regulation.

2 - The entities referred to in Article 9 (2) are exempt from delivering the documents indicated in subdivisions b), c) and e) of the preceding paragraph and must present:

a) A binding cooperation agreement between the parties, with the respective signatures certified under the legally permitted terms, which includes an express declaration of acceptance of this regulation, the auction conditions and subjection to the obligations arising from the bidding process and the respective bids, as well as acceptance of the conditions applicable to the rights of use of frequencies in the event of their allocation.

b) Draft bylaws, to which the parties are bound.

c) A current business name admissibility certificate.

3 - The entities referred to in the preceding paragraphs must expressly indicate the postal and email address to which they wish all communications and notifications under the auction to be sent.

4 - Companies incorporated within the 90 days prior to the date of submission of the application request are exempted from the requirement referred to in subdivision e) of paragraph 1 of this article.

5 - The documents presented by applicants having their registered office outside national territory must be issued and authenticated by the competent authorities of the country of origin or, where there is no document similar to that requested, it may be replaced by a sworn statement made by the applicant before a judicial or administrative authority, notary or other competent authority in the country of origin.

6 - The documents accompanying the application must be written in Portuguese or accompanied by a duly certified translation which the applicant declares, for all purposes, shall take precedence over the respective originals.

7 - The documents presented by the applicants that accompany the application requests shall not be returned and shall remain in the possession of ANACOM, notwithstanding the destruction of the simple copies of the identification documents referred to in subdivision f) of paragraph 1 of this article.

Article 14
Analysis of applications

1 - The ANACOM Management Board shall verify, within 5 days of the end of the time frame for submission of applications, that the requirements set out in Articles 9, 10, 12 and 13 of this regulation have been met.

2 - Within 2 days of the end of the time frame for submission of applications, the ANACOM Management Board may ask applicants to address shortcomings in their application requests, provided that these are remediable and this does not adversely affect the equal treatment of applicants, giving them, for the purpose, a period of 2 days.

3 - The time frame referred to in paragraph 1 may be extended in exceptional circumstances, as justified by the ANACOM Management Board, namely due to the need to request opinions from external entities.

Article 15
Acceptance and exclusion of applications

1 - It is the responsibility of the ANACOM Management Board to decide on the acceptance or exclusion of applications.

2 - Applications that do not ensure compliance with the provisions of Articles 9, 10, 12 or 13 of this regulation shall be excluded.

3 - The decision referred to in paragraph 1 shall be immediately notified to the applicants, either by means of an official memorandum or electronically.

4 - In the case of exclusion, the ANACOM Management Board notifies each excluded applicant of the respective grounds, under the terms and for the purposes of the prior hearing of interested parties provided for in Article 121 et seq. of the Code of Administrative Procedure.

5 - In the case of acceptance, the ANACOM Management Board notifies the accepted applicants of the following information:

a) Date of the start of the bidding phase for new entrants, or where this is not held, the date of the start of the main bidding phase, which shall not take place before the fifth day following notification.

b) Conditions for accessing the electronic platform and using the alternative means, as referred to in Article 17 (3) and (4) and in Article 25 (3) and (4), including the date, time and place for carrying out the training on the use of the electronic platform.

6 - Applicants accepted for the bidding phase for new entrants must, within 24 hours of the notification referred to in paragraph 3 and by means of the email address indicated for that purpose, inform the ANACOM Management Board of their intention to participate in that phase, or if they intend to participate only in the main bidding phase.

7 - In the absence of applicants for the bidding phase for new entrants, the ANACOM Management Board immediately notifies applicants, either by official memorandum or electronically, of the start date of the main bidding phase, which is not before the fifth day following notification.

8 - Notwithstanding the notifications referred to in the preceding paragraphs, the ANACOM Management Board does not disclose, at this stage, their content.

SECTION III
Bidding phase for new entrants

Article 16
Bidders and categories

1 - Only those bidders that are new entrants participate in this bidding phase.

2 - In this bidding phase, lots of categories B and D, as defined in Article 7, are made available.

Article 17
Bidding process

1 - In each round, the bidder submits a bid indicating the desired number of lots per category, taking into account the price of the lots determined by the ANACOM Management Board.

2 - This bidding phase may take place in one or more rounds, with the objective of allocating lots.

3 - The bidding process is based on an electronic platform.

4 - In the event of a technical problem with the operation of the electronic platform that renders it impossible to continue the bidding process by this means, an alternative means of communication may be used that ensures compliance with the rules set out in this regulation.

5 - The alternative means referred to in the preceding paragraph involves the use of a telephone communication, whereby the bidder shall provide such authentication information as may be requested, in accordance with the procedures established in the notification provided for in Article 15 (3) (b).

6 - ANACOM is not responsible for technical problems attributable to the bidder's communications equipment or systems that do not allow access to the electronic platform or cause disruptions to that access.

Article 18
Activity rule

1 - The bidder’s activity in a given round corresponds to the sum of the eligibility points associated with the quantity of lots for which bids are submitted in that round.

2 - A bidder’s activity in any round may not exceed his eligibility in that round.

3 - The activity required for a given bidder in a given round is equivalent to the bidder’s eligibility in that same round, expressed in number of points.

4 - In the first round, the bidder’s eligibility is determined according to the tender security provided.

5 - The bidder’s eligibility cannot increase from round to round.

6 - If the activity of a bidder in a given round is less than the activity required in that round, the eligibility of that bidder in the next round is reduced to the activity level of the previous round.

7 - Each bidder maintains the eligibility points associated with the lots not acquired in that bidding phase, up to the limit of the eligible points usable in the main phase.

Article 19
Rounds

1 - The rounds take place on working days, between 9:00 am and 6:00 pm.

2 - Bidders are notified by the ANACOM Management Board, by means of the electronic platform, of the start of each round at least 15 minutes in advance.

3 - Each round has a duration of 30 minutes, notwithstanding paragraphs 4 and 5 of this article.

4 - The ANACOM Management Board may end a round when bids have been submitted by all bidders, with the bidders being informed of this decision by means of the electronic platform.

5 - The ANACOM Management Board may, for technical reasons related to the operation of the electronic platform, increase the duration of each round, informing bidders of this change.

6 - Each bidder shall be informed by the ANACOM Management Board, by means of the electronic platform and prior to the start of each round, of the following:

a) The duration of that round.

b) The lot prices by category.

c) Excessive demand, by category, resulting from the previous round.

d) Respective eligibility.

7 - In each round, the bidder submits a bid for the quantity of lots he intends to purchase in each category, according to the activity rule.

8 - The countdown of the time inherent to the rounds of this bidding phase is measured by the server assigned to the electronic platform, and is made available on it.

9 - ANACOM publishes on its website, at www.anacom.pt, information regarding the price of lots in the last round of the day.

10 - The information referred to in the preceding paragraph is made available after the end of the last round of the day or during the morning of the following day.

Article 20
Initial round

1 - The initial round begins with the lots in categories B and D being made available simultaneously, at the respective reserve prices.

2 - The bidder must submit his bid by specifying the quantity of lots per category that he intends to purchase at the reserve price, in accordance with the activity rule.

3 - Failure to comply with the provisions of the preceding paragraph shall result in the forfeiture, in favour of ANACOM, of the tender security provided under the terms of Article 10.

4 - During the initial round, should a technical problem occur with the operation of the electronic platform that renders the bidding process unfeasible, the ANACOM Management Board may choose to restart the bidding phase.

Article 21
Following rounds

1 - In each round, the bidder must submit his bid by specifying the quantity of lots by category that he intends to purchase at the price determined by the ANACOM Management Board, except where communicating his withdrawal by means of the electronic platform.

2 - The ANACOM Management Board shall determine, in each round, the increase in the prices of lots in the categories in which there was excess demand in the previous round, maintaining the price of lots in the category in which there was no excess demand.

3 - The increase in the prices of lots will be from 1% to 20%, to be determined by the ANACOM Management Board prior to the beginning of each round, with the decision being communicated to the bidders by means of the electronic platform.

4 - Lot prices are rounded up to multiples of € 1,000.

Article 22
Last round

1 - The last round corresponds to the one in which there is no excess demand in any of the categories.

2 - The ANACOM Management Board shall inform bidders of the end of the last round, by means of the electronic platform.

Article 23
Determination of the successful bidder

1 - Bidders who submitted a bid in the last round shall be deemed the successful bidders.

2 - The final amount to be paid by each successful bidder corresponds to the sum of the final prices of the lots gained.

3 - For the purposes of the preceding paragraph, a 25% reduction is applied to the final prices of the lots made available in this bidding phase.

Article 24
Publication of results

1 - Within 60 minutes of the end of the bidding phase for new entrants, the ANACOM Management Board shall notify each bidder, by means of the electronic platform, of the following information:

a) The number of lots gained in each category.

b) The final price of each lot.

c) The number of eligible points usable in the main bidding phase.

2 - Within 60 minutes of the notification referred to in the preceding paragraph, the bidders must inform the ANACOM Management Board, by means of the electronic platform, if they are participating in the main bidding phase, so that access to the electronic platform may be granted.

3 - Successful bidders who, in the communication referred to in the preceding paragraph, inform the ANACOM Management Board that they do not intend to acquire the lots gained shall be prevented from participating in the main bidding phase, and the tender security provided under the terms of Article 10 shall be declared forfeited to ANACOM.

4 - The ANACOM Management Board shall notify each bidder qualified for the main bidding phase, by official memorandum or email, of the following information:

a) The start date of this phase.

b) The lots that were not acquired in the bidding phase for new entrants.

c) The number of eligible points usable in the main bidding phase.


SECTION IV
Main bidding phase

Article 25
Bidding process

1 - The main bidding phase allows bidders to submit simultaneous bids for lots, divided into the categories defined in Article 7, with the exception of lots in categories B and D that have been acquired in the bidding phase for new entrants.

2 - This bidding phase may take place in one or more rounds, with the objective of allocating lots.

3 - The bidding process is based on an electronic platform.

4 - In the event of a technical problem with the operation of the electronic platform that renders it impossible to continue the bidding process by this means, an alternative means of communication may be used that ensures compliance with the rules set out in this regulation.

5 - The alternative means referred to in the preceding paragraph involves the use of a telephone communication, whereby the bidder shall provide such authentication information as may be requested, in accordance with the procedures established in the notification provided for in Article 15 (3) (b).

6 - ANACOM is not responsible for technical problems attributable to the bidder's communications equipment or systems that do not allow access to the electronic platform or cause disruptions to that access.

Article 26
Activity rule

1 - The bidder’s activity in a given round corresponds to the sum of the eligibility points associated with the lots for which bids are submitted in that round with the points associated with the lots for which it holds the best offer at the beginning of that round, notwithstanding the provisions of the following paragraph.

2 - In the event that a bidder submits, in a given round, a bid for a lot for which it already holds the best offer, the points associated with that lot shall be counted only once.

3 - A bidder's activity in any round may not exceed his eligibility in that round.

4 - In the first round, the bidder’s eligibility shall be determined according to the tender security provided and the lots that are available in this phase.

5 - The bidder’s eligibility cannot increase from round to round, and applies to all categories that the bidder intends to bid for.

6 - The level of activity required for a given bidder in a given round, expressed in number of points, is calculated as a percentage of the bidder’s eligibility in that same round, rounded down to the nearest whole number.

7 - The percentage referred to in the preceding paragraph is 70% in the initial round.

8 - In the following rounds, the percentage is maintained until such time as the ANACOM Management Board determines it should be changed to 85% or 100%.

9 - Whenever the required activity level is changed, the ANACOM Management Board shall notify bidders accordingly, by means of the electronic platform, at the latest by the beginning of the round prior to the round to which it applies.

10 - If the activity of a bidder in a given round is equal to or greater than the level of activity required in that round, that bidder shall maintain his eligibility in the next round.

11 - If a bidder's activity in a given round is less than the required activity level in that round, his eligibility points in the next round shall correspond to the eligibility points of the current round multiplied by the ratio between the bidder’s activity in that round and the required activity level, rounded up to the nearest whole number.

Article 27
Rounds

1 - The rounds take place on working days, between 9:00 am and 6:00 pm.

2 - Bidders are notified by the ANACOM Management Board, by means of the electronic platform, of the start of each round at least 15 minutes in advance.

3 - Each round has a duration of 60 minutes, notwithstanding paragraphs 4 and 5 of this article.

4 - The ANACOM Management Board may end a round when bids have been submitted by all bidders, with the bidders being informed of this decision by means of the electronic platform.

5 - The ANACOM Management Board may, for technical reasons related to the operation of the electronic platform, increase the duration of each round, informing bidders of this change.

6 - At the end of each round, the ANACOM Management Board determines the holders of the best offers, taking into account the tiebreak rule provided for in Article 31.

7 - Each bidder shall be informed by the ANACOM Management Board, by means of the electronic platform and prior to the start of each round, of the following:

a) The duration of that round.

b) Lot prices.

c) The lots for which they hold the best offer.

d) Respective eligibility.

e) The activity level required to maintain the eligibility points.

8 - In each round, the bidder submits a bid for the lots he intends to purchase, according to the established activity rule and the maximum spectrum limits.

9 - The countdown of the time inherent to the rounds of the bidding phase is measured by the server assigned to the electronic platform, and is made available on it.

10 - ANACOM publishes on its website, at www.anacom.pt, information regarding the best offer per lot in the last round of the day.

11 - The information referred to in the preceding paragraph is made available after the end of the last round of the day or during the morning of the following day.

Article 28
Waivers

1 - Each bidder has 2 waivers, which may only be triggered after the initial round.

2 - Waivers are considered triggered when the bidder does not submit any bid in a round.

3 - The waivers do not result in the loss of eligibility points.

Article 29
Initial round

1 - The initial round begins with the lots in all categories being made available simultaneously, including the category B and D lots that were not taken up in the bidding phase for new entrants, at the respective reserve prices.

2 - The bidding amount of the initial round for each lot shall correspond, at least, to the reserve price established for that lot.

3 - The bidder must submit his bid specifying the lots he intends to purchase, indicating for each lot the increase in the lot price: 0%, 1%, 3%, 5%, 10%, 15% and 20%.

4 - Lot prices are rounded up to multiples of € 1,000.

5 - Failure to comply with the provisions of paragraphs 2 and 3 shall result in forfeiture of the tender security in favour of ANACOM, as provided under the terms of Article 10.

6 - In the event that, during the initial round, a technical problem occurs concerning the functioning of the electronic platform that renders the continuance of the bidding process unfeasible, the ANACOM Management Board may choose to restart the main bidding phase.

Article 30
Following rounds

1 - In the following rounds, the bidder may bid for the lots that have been the subject of bids, and shall indicate for each lot the increase in the lot price: 1%, 3%, 5%, 10%, 15% and 20%.

2 - For lots that have not been the subject of bids in any round, the provisions of Article 29 (3) shall apply.

3 - Lot prices are rounded up to a multiple of € 1,000.

4 - Bidders who choose to withdraw from the auction shall inform the ANACOM Management Board, by means of the electronic platform.

5 - In the event that the bidders who withdraw hold the best offers, the tender security provided under Article 10 shall be declared forfeited in favour of ANACOM and the lots subject to those offers shall be made available in the next round at prices established by the ANACOM Management Board, which may not be lower than the respective reserve prices.

Article 31
Tiebreak

In the event of a tie between the highest bids for the same lot, the best offer shall be determined by means of a random selection procedure implemented by the electronic platform, with the bidders concerned being notified by the ANACOM Management Board, through the same channel, of the result, together with the information provided under Article 19 (6).

Article 32
Last round

1 - The last round corresponds to the one in which, cumulatively:

a) No bid is submitted for any of the lots.

b) The required activity is 100%.

c) No waivers are triggered.

2 - The ANACOM Management Board shall inform all bidders of the end of the last round.

3 - In addition to the situations referred to in paragraph 1 of this article, the ANACOM Management Board may determine that a round is the last one where there is only one bidder with an eligibility greater than zero, the level of activity 100% applying in this case.

4 - The decision referred to in the preceding paragraph shall be communicated, by means of the electronic platform, to all bidders at the end of the previous round.

Article 33
Determination of the successful bidder

1 - Bidders with the best offers in the last round shall be declared the successful bidders.

2 - The final amount to be paid by each successful bidder corresponds to the sum of the final prices of the lots gained by that bidder.

3 - For the purpose of calculating the final amount, a reduction of 25% shall be applied to the final prices of lots in categories B, C and D that have been acquired by new entrants.

Article 34
Publication of the results of the bidding phases

1 - Within 60 minutes after the end of the main bidding phase, the ANACOM Management Board shall notify the bidders, by means of the electronic platform, of the following information:

a) The identity of the winners and an indication of the number of lots acquired in each category;

b) The final price of each lot;

c) The final amount, calculated in accordance with the provisions of Articles 23 and 33.

2 - ANACOM publishes on its website, at www.anacom.pt, the final results of the bidding phases.

SECTION V
Assignment phase

Article 35
Assignment phase

1 - The assignment phase allows the successful bidders for lots in the 700 MHz, 1800 MHz, 2.6 GHz (FDD) and 3.6 GHz bands to choose the exact location of the lots acquired within the respective frequency band.

2 - The lots in the 900 MHz band are subject to the assignment procedure provided for in Article 39.

3 - For the purposes of paragraph 1, the ANACOM Management Board ranks the successful bidders, in each category, according to the following successive criteria:

a) The highest final amount in the category concerned.

b) The highest number of lots acquired in that category.

c) The highest number of lots acquired in all categories.

4 - In the event of a tie, a random ordering procedure for bidders shall apply, supported on the electronic platform, which shall be carried out within a maximum period of 24 hours, counted from the end of the main bidding phase, at a time to be established by the ANACOM Management Board and notified to the successful bidders, either by means of an official memorandum or electronically.

5 - Within a maximum period of 48 hours after the ordering of the bidders, a face-to-face session, chaired by the ANACOM Management Board, shall be held to choose the lots acquired, in the order determined as per paragraph 3 or 4 of this article.

6 - For the purposes of the preceding paragraph, the representatives of the bidders must be accompanied by a representation document, with sufficient powers to enter into binding commitments, as provided by law.

7 - The date and time of the face-to-face session referred to in the preceding paragraph shall be notified to the successful bidders, either by means of an official memorandum or electronically.

8 - The choices referred to in this article shall be validated, lot by lot, by the ANACOM Management Board in order to maximise spectrum contiguity.

SECTION VI
Allocation phase

Article 36
Hearing of interested parties

After the end of the assignment phase, with the exception of lots acquired in the 900 MHz band whose assignment procedure follows the provisions of Article 39, the ANACOM Management Board shall approve the draft auction report, containing the draft decision on the allocation of rights of use of frequencies, which shall be submitted to the prior hearing of applicants and bidders, for a period of 10 days, under the terms of Articles 121 et seq. of the Code of Administrative Procedure.

Article 37
Final decision

1 - Within 5 days of the end of the period referred to in the preceding article, it is incumbent upon the ANACOM Management Board to approve the final report of the auction and to decide on the allocation of the rights of use of frequencies to the successful bidders.

2 - The decision regarding the allocation of rights of use of frequencies shall be immediately notified, by the ANACOM Management Board, to the bidders, either by means of an official memorandum or electronically, and the auction results shall be published on its website, at www. anacom.pt.

3 - The notification referred to in the preceding paragraph shall contain the following information:

a) The identification of the successful bidders.

b) The number of lots allocated to each successful bidder.

c) Frequencies assigned to each successful bidder, notwithstanding the provisions of Article 39 for the 900 MHz band.

d) The final amount to be paid by each successful bidder.

e) Any forfeitures of tender security determined in accordance with this regulation.

f) The deadline for making the deposit corresponding to the final amount, established in accordance with Article 38.

g) Copies of the final auction report and the prior hearing report referred to in the preceding article.

4 - The act allocating the rights of use of frequencies shall be revoked where the entities to which they were allocated fail to comply with the provisions of Article 38 (1), except for duly justified reasons of force majeure, recognised as such by the ANACOM Management Board.

5 - In the situation referred to in the preceding paragraph, the tender security provided under Article 10 shall be forfeited in favour of ANACOM.

Article 38
Deposit

1 - Within 5 days of receiving the communication referred to in paragraph 3 of the preceding article, the entities to which rights of use of frequencies are allocated are obliged to deposit the final amount in a bank account to be indicated by the ANACOM Management Board, notwithstanding the provisions of paragraphs 3 and 4 of this article.

2 - Where the deposit has been made, within the 5 subsequent days, the ANACOM Management Board must order the necessary steps to be taken to release the tender security referred to in Article 10.

3 - Entities to which rights of use of frequencies in the 700 MHz, 900 MHz and/or 3.6 GHz bands have been allocated may choose to deposit an amount corresponding to two thirds of the price to be paid for the spectrum purchased in those bands, deferring one third of the payment under the terms of the following paragraph.

4 - The amount corresponding to the last one third of the payment shall be distributed over a maximum period of 5 years from the date of the allocation, and the holders of the rights of use shall make annual payments corresponding to one fifth of the outstanding amount, until such time as full payment has been made.

5 - The first of the payments referred to in the preceding paragraph must be made one year after the date of the allocation and the subsequent payments, annually, from that date.

6 - For entities that are granted rights to use frequencies in the 3.6 GHz bands subject to restrictions, the first payment referred to in paragraph 4 for this spectrum must be made one year after notification of the end of the restrictions, and subsequent payments, annually thereafter.

7 - Failure to pay any of the instalments shall result in all remaining instalments falling due immediately.

8 - The entities referred to in paragraphs 3 and 6 that do not exercise the option right provided for therein may pay the annual instalments falling due corresponding to one third of the price to be paid for the spectrum in the 700 MHz, 900 MHz and/or 3.6 GHz bands, updated at an annual discount rate of 4.786%.

9 - Entities that exercise the option right provided for in paragraphs 3 and 6 may, during the period referred to in paragraph 4 and on the date of each of the annual payments referred to in paragraphs 5 and 6, make full payment of the outstanding instalments, updated at the annual discount rate of 4.786%.

10 - Notwithstanding the release of the tender security provided for in paragraph 2 and within the period established in Article 10 (4), the entities to which rights of use of frequencies in the 700 MHz, 900 MHz and/or 3.6 GHz bands have been allocated shall provide further tender security, by bank guarantee or insurance bond, made out to ANACOM, in both cases payable on demand, to ensure payment of the total amounts referred to in paragraphs 4 and 6, in accordance with the forms set out in Annex 3 to this regulation.

11 - The tender security referred to in the preceding paragraph shall be valid for a period of 5 years, being partially released each year by ANACOM according to the payments made pursuant to paragraphs 4, 5, 6 and 9, upon presentation of proof of completion of the deposit.

Article 39
Assignment process for the 900 MHz band

1 - In the course of the allocation phase, after the deposit provided for in Article 38 has been made and prior to the issuance of the respective licenses, the ANACOM Management Board shall establish the exact location of the spectrum to be assigned in the 900 MHz band, having taking into account the number of lots allocated in categories B and C, as well as the spectrum already assigned in this band under the rights of use of frequencies in force on the date of entry into force of this regulation.

2 - The exact location of the spectrum referred to in the preceding paragraph shall be defined taking into account the following principles:

a) Ensuring the pursuit of the public interest in relation to radio spectrum management, according to proportionality criteria and respecting the rights acquired.

b) Optimising the efficient use of the spectrum in the 900 MHz band.

c) Maximising the contiguity of the allocated spectrum and the spectrum held by each entity, as well as the unallocated spectrum.

3 - For the purposes of paragraph 1 of this article, entities that, at the end of the auction, have successfully bid for lots in the 900 MHz band, as well as holders of rights of use of frequencies in the 900 MHz band that do not appear at auction or, having appeared, are not declared to have successfully bid for lots in this band, shall be granted a period of 30 days, with effect from the date of notification of the allocation referred to in paragraph 2 of Article 37 of this regulation, to agree among themselves the exact location of the spectrum in this frequency band.

4 - It is incumbent upon the ANACOM Management Board to approve the result of the agreement reached under the terms of the preceding paragraph or, in the absence of agreement, decide on the redistribution of the spectrum within the 900 MHz frequency band.

5 - The decision taken by the ANACOM Management Board in the absence of an agreement shall be preceded by a prior hearing of interested parties under the terms of Articles 121 et seq. of the Code of Administrative Procedure.

6 - In the event that the decision referred to in paragraph 1 results in the alteration of the frequency assignment in force on the date of entry into force of this regulation, compensation may be awarded to cover, in whole or in part, any costs associated with the above alterations, pursuant to the regime provided for in Article 4 of Decree-Law 151-A/2000, of 20 July.

7 - The provisions of the preceding paragraphs do not release the beneficiaries of the allocation of rights of use of frequencies in the 900 MHz band under the auction procedure from proceeding with the deposit, under the terms and within the time frame provided for in Article 38 of the present regulation, under penalty of revocation of the allocation of the rights of use pursuant to Article 37 (4).

8 - The holders of rights of use of frequencies in the 900 MHz band shall, within 90 days of the date of issue of the licences provided for in Article 40 of the present regulation, effect the redistribution of the frequencies determined under the terms of the paragraph 4 of this article.

9 - Notwithstanding other applicable penalty systems, whenever a holder of rights of use does not redistribute frequencies under the precise terms as has been determined, in accordance with paragraph 4 of this article, the ANACOM Management Board may, under the terms of the law:

a) Impose a periodic penalty payment;

b) Suspend up to a maximum of 2 years, or revoke, in whole or in part, the respective right of use.

Article 40
Issuance of licences

1 - Notwithstanding the provisions of the following paragraph, licences for the allocation of rights of use of frequencies are issued by the ANACOM Management Board, within 20 days of compliance with the provisions of Article 38 (1) or Article 38 (3) or (6), if applicable.

2 - Licences for the allocation of rights of use of frequencies in the 900 MHz band are issued by the ANACOM Management Board within 20 days of approval of the agreement provided for in Article 39 (4), or after the decision referred to in paragraph 5 of the same article has been made.

3 - The licence that substantiates the rights of use must contain the conditions associated with the respective exercise as referred to in the following articles.

4 - In the case of holders of rights of use of frequencies in force at the date of entry into force of this regulation, licences for rights of use of frequencies allocated under the auction are incorporated into the respective exclusive licence by adding endorsements relating the bands of frequencies in which they hold rights of use following the auction.

5 - For the purposes of the preceding paragraphs, the ANACOM Management Board organises a prior hearing of the holders of the rights of use of frequencies under the terms of Articles 121 et seq. of the Code of Administrative Procedure, which, accordingly, suspends the counting of the period provided for in paragraph 1 of this article.

CHAPTER III
Conditions associated with rights of use of frequencies

Article 41
Conditions associated with rights of use of frequencies

1 - The holders of rights of use of frequencies are subject to compliance with the conditions set out in Article 27 (1) and in Article 32 (1) (a), (b), (c), (d), (e), (f) and (h) of the Electronic Communications Law.

2 - For the purposes of the preceding paragraph, and specifically the conditions provided for in Article 27 (1) (b) and in Article 32 (1) (a), (b), (c), (d), (e), (f) and (h) of the Electronic Communications Law, the holders of rights of use of frequencies are, under the terms provided for in this regulation, bound to:

a) Coverage, network development and voice signal enhancement requirements, as set out in Articles 42, 43 and 44.

b) Network access obligations under the terms of Article 45, notwithstanding the obligations arising from the regime of access to infrastructures suitable for the accommodation of electronic communications networks, as provided for in Decree-Law 123/2009, of 21 May.

c) Use the assigned frequencies effectively and efficiently, in accordance with Article 15 of the Electronic Communications Law, including terms of effective operation, under the terms set out in Article 46.

d) Technical and operational conditions, as provided for in Annex 1, which forms an integral part of this regulation.

e) Maximum duration of the rights of use, in accordance with Article 33 of the Electronic Communications Law and pursuant to Article 48.

f) Inform ANACOM in advance of the intention to transmit or lease the rights of use of frequencies, as well as the conditions under which they intend to do so, under the terms of Article 34 of the Electronic Communications Law, Article 47 of this regulation and that established at any given time in the NTFA.

g) Pay ANACOM the fees due:

i. For exercising the activity of supplier of electronic communications networks and services, pursuant to Article 105 (1) (b) of the Electronic Communications Law and in accordance with the rules set out in Administrative Rule 1473-B/2008, of 17 December, in its current wording.

ii. For the allocation of rights of use of frequencies, under the terms of Article 105 (1) (c) of the Electronic Communications Law and in the amount to be established under Administrative Rule 1473-B/2008, of 17 December, in its current wording.

iii. For the use of the radio spectrum, pursuant to Article 105 (1) (f) of the Electronic Communications Law, Article 19 of Decree-Law 151-A/2000, of 20 July, and in the amounts established in Administrative Rule 1473-B/2008, of 17 December, in its current wording.

h) For obligations arising from the international agreements applicable to the use of frequencies, namely the coordination agreements entered into with Spain and Morocco.

3 - With respect to the security and integrity of electronic communications networks and services, the holders of rights of use of frequencies are also subject to measures that, at national or European level, are adopted by the competent entities taking into account, namely:

a) Commission Recommendation (EU) 2019/534, of 26 March 2019 on Cybersecurity of 5G networks.

b) The transposition of the European Electronic Communications Code, as approved by Directive (EU) 2018/1972 of the European Parliament and of the Council, of 11 December 2018.

c) The implementation of the toolbox contained in publication 01/2020 of the Network Information Security Cooperation Group “Cybersecurity of 5G networks - EU Toolbox of risk mitigating measures”, in accordance with the provisions of Communication COM (2020) 50 final, of the European Commission, on “Secure 5G deployment in the EU – Implementing the EU toolbox”, both dated 29 January 2020.

4 - Notwithstanding other applicable penalty systems, non-compliance with the conditions associated with the exercise of the activity and the rights of use of frequencies may determine the total or partial revocation, by ANACOM, of the respective right of use of frequencies, under the terms of Article 110 of the Electronic Communications Law.

Article 42
Coverage obligations

1 - For the purposes of Article 41 (2) (a) of the present regulation, the holders of rights of use of frequencies that, at the end of the auction, end up holding 2 x 10 MHz in the 700 MHz band and that, at the date of entry into force of this regulation, hold rights of use of frequencies in bands designated for terrestrial electronic communications services, shall be subject to coverage obligations under the following terms:

a) By the end of 2023:

i. Coverage of 85% of the total population of the country.ii. Coverage of 95% of each of the country’s highways.

iii. Coverage of 85% of each of the main road routes in the country.

iv. Coverage of 95% of each of the rail routes included in the Atlantic Corridor, in the part relating to national territory, on all double-track routes and on the Lisbon-Faro railway line.

v. Coverage of 85% of each of the remaining rail routes.

vi. Coverage of 95% of the Lisbon, Porto and Sul do Tejo metro networks.

vii. Coverage of 75% of the population in each of the parishes considered low-density, and in all parishes in the Autonomous Regions of Madeira and the Azores.

b) By the end of 2025:

i. Coverage of 95% of the total population of the country.

ii. Coverage of 95% of each of the rail routes in the country.

iii. Coverage of 95% of each of the main road routes in the country.

iv. Coverage of 90% of the population in each of the parishes considered low-density, and in all parishes in the Autonomous Regions of Madeira and the Azores.

2 - The holders of rights of use of frequencies that, at the end of the auction, end up holding 2 x 10 MHz in the 700 MHz band and that, at the date of entry into force of this regulation, do not hold rights of use of frequencies in bands designated for terrestrial electronic communications services, shall be subject to coverage obligations under the following terms:

a) By the end of 2023:

i. Coverage of 25% of each of the country’s highways.

ii. Coverage of 25% of each of the main road routes in the country.

iii. Coverage of 25% of each of the rail routes included in the Atlantic Corridor, in the part relating to national territory, on all double-track routes and on the Lisbon-Faro railway line.

b) By the end of 2025, coverage of 25% of each of the rail routes in the country.

3 - The coverage obligations set out in this article shall be considered fulfilled where there is provision of a mobile broadband service with a minimum throughput of 100 Mbps.

4 - The rate referred to in the preceding paragraph corresponds to the maximum theoretical download rate possible for a user, including signal/encoding traffic.

5 - For the purposes of complying with the provisions of point vii. of subdivision a) and point iv. of subdivision b), both of paragraph 1 of this article, low-density parishes are those identified by the Interministerial Commission for the Coordination of the Partnership Agreement, designated CIC Portugal 2020, by determination of 26 March 2015, as amended on 1 July 2015 and on 12 September 2018, and correspond to all the parishes that comprise the low-density municipalities and the low-density parishes that form part of other municipalities, as detailed in the list in Annex 4, which forms an integral part of this regulation.

6 - For the purposes of complying with the provisions of points ii., iii., iv. and v. of subdivision a) and points ii. and iii. of subdivision b) of paragraph 1, as well as paragraph 2 of this article, the identification of the highways, main routes and rail routes corresponds to that contained on the IP – Infraestruturas de Portugal website, at www.infraestruturasdeportugal.pt/.

7 - The coverage obligations identified in point vii. of subdivision a) and point iv. of subdivision b) of paragraph 1 of this article may be complied with using national roaming, in accordance with competition rules.

8 - For the purpose of complying with the coverage obligations identified in this article, at locations or buildings where only the installation of infrastructures of one of the holders of rights of use of 2 x 10 MHz in the 700 MHz band is permitted, and it is not possible to access infrastructures suitable for the accommodation of electronic communications networks under the terms provided for in Decree-Law 123/2009, of 21 May, that first holder of the right of use of frequencies shall be obliged to enter into national roaming agreements, under non-discriminatory conditions, in order to allow other holders of rights of use of frequencies in the 700 MHz band to provide services at those locations.

9 - The coverage obligations provided for in this article may be fulfilled using any frequency band assigned under this auction or assigned up to the date of entry into force of this regulation.

10 - The procedure for verifying compliance with this obligation is established in an autonomous decision by ANACOM, which may be included under a process of reviewing the annual information reporting questionnaires currently in force.

Article 43
Network development obligations

1 - For the purposes of Article 41 (2) (a) of the present regulation, the holders of rights of use of frequencies that, at the end of the auction, end up holding spectrum in the 3.6 GHz band are subject to network development obligations under the following terms:

a) Holders that end up holding 50 MHz are required to install, across the country, 917 macro base stations, or 9,170 outdoor small cell base stations, of which at least one macro base station, or 10 outdoor small cell base stations, or a combination of the two types of station that ensures the maintenance of the ratio between them of 1 to 10, must be installed in each of the low-density municipalities, and in all the municipalities of the Autonomous Regions of Madeira and the Azores.

b) Holders that end up holding between 60 and 90 MHz are required to install, across the country, 183 macro base stations, or 1,830 outdoor small cell base stations for each 10 MHz above the 50 MHz they have acquired, of which at least one macro base station, or 10 outdoor small cell base stations, or a combination of the two types of station that ensures the maintenance of the ratio between them of 1 to 10, must be installed in each of the low-density municipalities, and in all the municipalities of the Autonomous Regions of Madeira and the Azores.

c) Holders that end up holding 100 MHz are required to install, across the country, 1,832 macro base stations, or 18,320 outdoor small cell base stations, of which at least two macro base stations, or 20 outdoor small cell base stations, or a combination of the two types of station that ensures the maintenance of the ratio between them of 1 to 10, must be installed in each of the low-density municipalities, and in all the municipalities of the Autonomous Regions of Madeira and the Azores.

2 - In any of the cases contemplated in the preceding paragraph, where they are asked to install macro base stations or outdoor small cell base stations by small and medium-sized enterprises (SME), large companies, universities and other higher education institutions, entities pertaining to the national scientific and technological system, hospitals, health centres, ports and airports, the respective holders of the rights of use of frequencies shall be required to submit a proposal that responds to these requests.

3 - For the purposes of the preceding paragraphs, the following definitions shall apply:

a) Macro base stations are those that emit an equivalent isotropic radiated power (EIRP) equal to or greater than 61 dBm, as defined in ITU-R report M.2292-0 (12/2013).

b) Outdoor small cell base stations are those that emit an equivalent isotropic radiated power (EIRP) equal to or greater than 29 dBm, as defined in ITU-R report M.2292-0 (12/2013).

c) Low-density municipalities are municipalities on the Mainland identified by the Interministerial Commission for the Coordination of the Partnership Agreement, designated CIC Portugal 2020, by determination of 26 March 2015, as amended on 1 July 2015 and 12 September 2018, as detailed in the list in Annex 5, which forms an integral part of this regulation.

4 - For the purposes of fulfilling the obligations identified in the preceding paragraphs, the base stations to be installed shall allow the provision of services compatible with 5G, namely enhanced mobile broadband (eMBB) services with a view to Gigabit connectivity, ultra-reliable low latency communication (URLLC) or massive machine-type communication (mMTC) services.

5 - The holders of rights of use of frequencies referred to in paragraph 1 are obliged to inform ANACOM, within 10 days, of all requests and respective responses relating to the installation of macro base stations or outdoor small cell base stations, under the regime provided for in this article, as well as to provide ANACOM with detailed information, fortnightly, on the evolution of the negotiations related to these requests, notwithstanding additionally providing all the information related to them that ANACOM requests.

6 - The obligations provided for in this article must be fulfilled within a maximum period of 3 years from the date of issue of the respective licences.

7 - In the case of holders of rights of use of frequencies in the 3.6 GHz band subject to restrictions, the period referred to in the preceding paragraph shall be counted from the date of notification, by ANACOM, of the end of those restrictions.

Article 44
Obligation to enhance the voice service signal

1 - For the purposes of Article 41 (2) (a) of the present regulation, the holders of rights of use of frequencies that, at the end of the auction, end up holding 2 x 10 MHz in the 700 MHz band and that, at the date of entry into force of this regulation, hold rights of use of frequencies in bands designated for terrestrial electronic communications services, shall be subject to an obligation to enhance the voice service signal, and must reach a level of signal that allows coverage considered “Good” across 95% of national territory, by 2025.

2 - For the purposes of the preceding paragraph, a “Good” level of coverage corresponds to that established in the ANACOM decision dated 16 June 2017 regarding the “Methodology for assessing the Performance of Mobile Services and GSM, UMTS and LTE Coverage”.

3 - Compliance with this obligation is verified on the basis of the information that the holders of the rights of use of frequencies referred to in paragraph 1 submit to ANACOM under the annual questionnaire on coverage, quality of service and site sharing, as set out in of Annex 2 to the ANACOM decision dated 15 September 2017.

4 - The obligation to enhance the voice service signal provided for in this article may be fulfilled using any frequency band assigned under this auction or until the date of entry into force of this regulation, and using any technology.

 


Article 45

Network access obligations

1 - For the purposes of Article 41 (2) (b) of the present regulation, the holders of rights of use of frequencies that, at the end of the auction, end up holding 2 x 10 MHz in the 700 MHz band, or at least 50 MHz in the 3.6 GHz band, and that, at the date of entry into force of this regulation, hold rights of use of frequencies in bands designated for terrestrial electronic communications services, shall be obliged to permit access to their networks under non-discriminatory conditions, in all those bands, under the terms of the present article.

2 - The network access obligations provided for in the preceding paragraph shall be effective as of the date of issue of the respective licences.

3 - In the case of holders of rights of use of frequencies in the 3.6 GHz band subject to restrictions, the obligations provided for in paragraph 1 shall come into force on the date of notification, by ANACOM, of the expiry of those restrictions.

4 - For the purposes of the preceding paragraphs, the holders of the rights of use must, when requested, negotiate in good faith agreements with third parties respecting the commercial autonomy of the entities involved, namely regarding the distribution networks and market segments addressed, and allowing conditions of effective competition, namely with regard to the provision of services under appropriate technical conditions and the availability of reasonable remuneration conditions.

5 - The holders of rights of use referred to in paragraph 1 of this article must, under the network access obligation to which they are bound, accept the negotiation of:

a) Agreements that allow their networks to be used for third-party virtual mobile operations, under the different arrangements known as full MVNO and light MVNO, for the provision of electronic communications services to end-users, equivalent to those they offer to their own customers.

b) National roaming agreements with third parties that, at the date of entry into force of this regulation, do not have rights of use for frequencies in the bands designated for terrestrial electronic communications services and that, at the end of the auction, end up holding, individually or jointly, up to 2 x 5 MHz in the 700 MHz band, 2 x 5 MHz in the 900 MHz band, 2 x 15 MHz in the 1800 MHz band and 50 MHz in the 3.6 GHz band.

6 - The obligation to allow network access provided for in paragraph a) of the preceding paragraph benefits entities that do not have rights of use of frequencies in the bands designated for terrestrial electronic communications services.

7 - The obligations provided for in paragraph 5 shall apply for the following time periods:

a) In the case of subdivision a), during the period of validity of the rights of use of frequencies with which they are associated.

b) In the case of subdivision b), for 10 years.

8 - After 8 years of validity of the obligation provided for in subdivision b) of paragraph 5 and up to one year before its expiry, ANACOM shall assess the need to maintain the obligation beyond the initially established term and the respective terms, determining the changes resulting from that assessment.

9 - ANACOM’s assessment and determination referred to in the preceding paragraph shall be subject to the legally applicable consultation procedures.

10 - Unless otherwise agreed between the parties, the agreements referred to in paragraph 5 must have a minimum duration of 5 years, with the possibility of renewal for equal periods.

11 - Unless otherwise agreed between the parties, the time period for effective provision of access may not exceed 6 months from the date of conclusion of the contracts or the provision of the relevant retail services by the holders of rights of use of frequencies with access obligations, to their own customers, where this occurs at a later time.

12 - If, during the periods referred to in paragraph 7, the amount of spectrum held by the holders of the rights of use of frequencies or by the beneficiaries of the access obligations changes and, consequently, the assumptions of being subject to or benefiting from any of the obligations cease to apply, ANACOM may, on its own initiative or at the request of the holders of rights of use referred to in paragraph 1, reasonably determine the abolition thereof.

13 - The holders of rights of use of frequencies referred to in paragraph 1 are obliged to inform ANACOM of all requests for agreements they receive under the arrangements provided in this article, within 10 days of their receipt, as well as to provide ANACOM with detailed information, fortnightly, on the evolution of the negotiations related to the agreements referred to in paragraph 5, notwithstanding additionally providing all the information related to them that ANACOM requests.

14 - Under no circumstances may holders of rights of use of frequencies bound by access obligations under the terms of this article claim the confidentiality of agreements or the respective negotiation process as a basis for refusing to provide information to ANACOM under the terms of the preceding paragraph.

15 - Where no agreement is reached within a maximum period of 45 days from receipt of the agreement request by the holder of the right of use of frequencies bound by access obligations under the terms of paragraph 5, and where ANACOM is asked to intervene by one of the parties, the dispute shall be subject to the administrative dispute resolution mechanism provided for in Article 10 of the Electronic Communications Law, under which ANACOM shall issue a decision within a maximum period of four months.

16 - The holders of rights of use of frequencies referred to in paragraph 1 must submit to ANACOM a copy of the agreements concluded under the terms and for the purposes of paragraph 5 of this article.

17 - Notwithstanding other applicable penalty systems, whenever a holder of rights of use of frequencies breaches any of the obligations to which he is bound under the terms of paragraph 5, ANACOM may apply a periodic penalty payment to him, pursuant to the law, after a decision that requires compliance with the obligation.

18 - The provisions of this article in no way undermine ANACOM’s regulatory powers to impose, maintain, amend or remove obligations in relation to access or interconnection.

Article 46
Obligation regarding the effective and efficient use of frequencies

1 - For the purposes of Article 41 (2) (c) of the present regulation, the holders of the rights of use attributed under this auction must start offering electronic communications services accessible to the public through the use of the frequencies assigned to them within a maximum period of 3 years from the date of issue of the respective licences.

2 - In the case of holders of rights of use of frequencies in the 3.6 GHz band subject to restrictions, the period referred to in the preceding paragraph shall be 1 year from the date of notification, by ANACOM, of the expiry of those restrictions.

Article 47
Transfer and leasing

1 - For the purposes of Article 41 (2) (f) of the present regulation, the rights of use of frequencies allocated may only be transferred or leased by the respective holders, under the terms of Article 34 of the Electronic Communications Law, 2 years after the start date of the offer of electronic communications services accessible to the public through the use of the frequencies assigned to them, as provided for in the preceding article, unless duly justified and recognised as such by ANACOM.

2 - The exercise by ANACOM of the powers provided for in Article 34 of the Electronic Communications Law shall not be affected by the establishment of maximum spectrum limits under the terms of this regulation.

Article 48
Time period for the right of use of frequencies

For the purposes of Article 41 (2) (e), the rights of use of frequencies covered by this regulation are granted for a period of 20 years and may be renewed under the terms of the Electronic Communications Law.

CHAPTER IV
Final provisions

Article 49
Counting of time periods

The rules of Article 87 of the Code of Administrative Procedure shall apply for counting of the time periods provided for in this regulation.

Article 50
Entry into force

This regulation shall enter into force on the working day following that of its publication.


Annex 1 - Technical conditions associated with the frequencies
(see the Download file document)

Annex 2 - Bank Guarantee Template 1
(see the Download file document)

Annex 3 - Bank Guarantee Template
(see the Download file document)