Regulation no. 987-A/2020, of 5 November

Autoridade Nacional de Comunicações

Regulation

Download file Regulation no. 987-A/2020, of 5 November (Full version in PDF)

(This is not an official translation of the law)

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

Preamble

Under the most recent European framework and considering, in particular, the expressions of interest presented under the ambit of the public consultation held by the Autoridade Nacional de Comunicações (ANACOM) in March 2018 concerning the provision of the 700 MHz frequency band and other relevant bands, as well as the contributions submitted under the general consultation procedure concerning the respective draft decision, as approved on 22 October 2019, within the scope of its radio spectrum management powers, on 23 December 2019, this Authority approved the decision on the designation of the 700 MHz band for terrestrial electronic communications services, caps 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.

Under the terms of that decision, ANACOM concluded that a competitive selection process, in this case an auction, appeared to be most appropriate for selecting the entities to which the corresponding rights of use of frequencies may be allocated.

At the same time, by decision of 31 October 2019, ANACOM had approved the start of the procedure for preparing the Auction Regulation for the allocation of rights of use of frequencies in the aforementioned bands, with a view to presenting contributions for its preparation, pursuant to paragraph 1 of Article 98 of the Administrative Proceeding Code.

Taking into account the pronouncements of the interested parties under the general consultation procedure to which the draft that preceded the aforementioned decision of 23 December 2019 was submitted, as well as the contributions submitted for the preparation of the Auction Regulation, on 6 February 2020, ANACOM approved the 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.

This Regulation thus aims to establish 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 that is allocated.

In accordance with the provisions of Article 10 of ANACOM’s Statutes, and Articles 98 et seq. of the Administrative Proceeding Code, ANACOM informed the member of Government in charge of the communications sector of the draft Regulation and published it on its institutional website and in the 2nd series of the Diário da República, for the purpose of due regulatory public consultation, thus securing the intervention of the Government, regulated entities and other entities to which its activity is directed, associations of users and consumers of general or specific interest in the area of communications, as well as users and the general public.

At the end of the public consultation period, ANACOM analysed and considered the 505 submissions received in due form, including the respective assessment of the report, which, for all legal purposes, justifies the options ANACOM has adopted under the present Regulation. This report, as well as the submissions received, have been published on the institutional website of this Authority, at www.anacom.pthttps://www.anacom.pt/render.jsp?categoryId=2958.

As explained in the said report, ANACOM also took into account the national objectives and purposes relating to the provision in Portugal of the new fifth-generation mobile communications (5G) networks set out in Resolution of the Council of Ministers 7-A/2020, of 7 February, which approved the strategy and time frame for the distribution of fifth-generation mobile communications.

In this sense, the set of obligations outlined in the Regulation took maximum account of the strategic goals identified in the aforementioned Resolution of the Council of Ministers, and the assessments and considerations that are incumbent upon ANACOM in the field of spectrum management and in the pursuit of the regulatory principles to which it is bound by law.

The context of the current pandemic was also taken into account by ANACOM in the preparation of the final version of the Regulation. Indeed, the forecasts of various entities point to an economic and financial contraction at national and international level, with an impact on various sectors of the economy, which creates a certain degree of uncertainty regarding future prospects.

However, the national electronic communications sector may not be affected in the same way as other sectors, and may benefit from market conditions that allow it to recover faster than others, in line with that witnessed in other countries. In fact, not only has it been confirmed that electronic communications are absolutely crucial for society and for the functioning of the economy, but, as a result of this importance, which is widely recognised by the population as a whole, by companies and by various institutions (who consider them to be an essential resource), they will continue to play a major role in terms of consumption.

It should be added that the economic impact of the pandemic does not make the need to promote higher levels of competition in the market any less relevant. Nor does it make it less important to reinforce coverage levels where they are deficient, particularly in less densely populated areas.

Considering the context of the pandemic, the objectives and purposes set out in the aforementioned Resolution of the Council of Ministers and the contributions received in the light of the public interest objectives pursued by ANACOM - which consist of the need to promote greater competition in the electronic communications market, to contribute so that users obtain maximum benefit in terms of choice, price and quality of service, to encourage the effective and efficient use of the spectrum, as well as to promote social and territorial cohesion - this Authority decided to make several adjustments to the draft Regulation.

These changes are aimed, in particular, at achieving a better balance between ensuring conditions for the entry of new entities into the market, which may implement new business models and more differentiated offers, and the development of existing operations, also seeking a better balance between the satisfaction of coverage and connectivity needs in most of the country and the investment commitments required of the companies.

Thus, taking into account the objectives of promoting competition that it aims to pursue, ANACOM considers it appropriate and proportional to adopt a set of measures that it considers to be of the greatest relevance to facilitate the emergence and development of new operations, establishing the spectrum reserved for new entrants, in the 900 MHz bands - limited to 2 x 5 MHz - and 1800 MHz, establishing different coverage obligations for those companies associated with the acquisition of spectrum in the 700 MHz band, and ensuring that new entrants benefit from access to networks pertaining to operators that are already installed, regardless of the amount of spectrum they acquire. Simultaneously, network access obligations are established for virtual mobile operations and national roaming, the latter with an established time limit, and in both cases, these are imposed on operators who already have rights of use of frequencies for bands designated for terrestrial electronic communications services that acquire certain amounts of spectrum.

Under the scope of access to the national roaming network, this Authority considers it appropriate to impose on new entrants who benefit from these agreements gradual coverage objectives capable of ensuring a level of investment that, without discouraging new entrants, also contribute more effectively towards strengthening the aggregate capacity of the sector and increasing the benefit of these allocations for end users.

With regard to the projected discount on the final spectrum prices in the 900 MHz and 1800 MHz bands acquired by new entrants, having taken account of the contributions of different interested parties, it has been concluded that this is unnecessary, given that the spectrum reserve is already a suitable and sufficient mechanism for promoting entry.

Moreover, ANACOM considers fundamental the determination of caps on the acquisition of spectrum, which will be applicable to any company in the bands particularly suitable for 5G, for which demand may be more significant, in order to allow all interested parties to access an amount of spectrum that is appropriate for the operations they intend to pursue, preventing situations of hoarding.

Also in the context of the current pandemic, some adjustments have been made in relation to that projected, involving, in particular, the coverage obligations associated with the 700 MHz band, some of which have been re-scheduled and others made more flexible, but with those that apply to low-density areas, the Autonomous Regions of Madeira and the Azores, and now municipalities with low-density parishes, being maintained.

Against this background, the objectives are to mitigate deficiencies in terms of coverage and capacities provided by the existing mobile networks, as well as to guarantee the country’s economic and social cohesion, meeting the expectations of the population and the national economic fabric. The national objectives defined for mobile broadband under the Digital Agenda for Portugal and the National Programme for Spatial Planning Policy (NPSPP) are also taken care of, as well as the European objectives defined for the responsible and resilient development of a “Gigabit Society”.

Mindful of the need to enhance the population’s digital skills, economic growth, social inclusion and the competitiveness of the country and all its regions, without neglecting the levels of investment that may be associated with 5G, ANACOM believes that the obligations associated with the coverage of low-density municipalities, municipalities in the Autonomous Regions of Madeira and the Azores and municipalities with low-density parishes can be ensured, with efficiency gains in these areas, through national roaming agreements.

Also in the context of the pandemic, and to further mitigate the potential impact related to the payment of the final prices of the spectrum made available in the auction, ANACOM deems it appropriate to provide for greater flexibility compared to that envisaged, allowing the payment of half the final price to be deferred for all frequency bands and the deferred payment to be spread over a greater number of years. The term of the guarantee deposit to be presented by the applicants has also been shortened, with a view to reducing their burden.

Moreover, in line with the pronunciations of some interested parties, the envisaged network development obligations associated with the 3.6 GHz band have been revised, namely to offer greater flexibility, establishing obligations for the installation of base stations in low-density municipalities and in municipalities with more than 50 thousand inhabitants, as well as at the request of a group of entities that identify themselves.

All of these options result from the consideration, on the one hand, of the costs to be incurred by the holders of rights of use of frequencies in fulfilling the obligations associated with them and, on the other hand, of the benefits associated with them, not only in favour of users of the electronic communications networks and services, but also of citizens and the country in general, paying attention to the promotion of competition, social and territorial cohesion as well as the development of the internal market through the improvement of networks and services that have proved essential in the current pandemic.

Finally, some procedural deadlines have been revised, including the deadline for submitting applications.

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

Thus, in the performance of its duties and exercise of the powers granted to ANACOM in sub-paragraphs (a) to (c), (e) and (h) of paragraph 1 of Article 8, in sub-paragraph (b) of paragraph 1 and in sub-paragraph (a) of paragraph 2, both of Article 9, in Article 10 and in sub-paragraph (b) of paragraph 1 of Article 26, all of ANACOM’s Statutes, as approved by Decree-Law 39/2015, of 16 March, as well as in the pursuit and observance of the objectives established in sub-paragraphs (a) and (c) of paragraph 1, in sub-paragraphs (a), (b) and (d) of paragraph 2, in sub-paragraphs (c) and (e) of paragraph 4, all from Article 5, in the exercise of the powers conferred by paragraph 8 of Article 30 and under the provisions of Articles 19, paragraphs 3, 27 and 32, all from Law 5/2004, of 10 February, ANACOM’s Management Board approved, by decision of 30 October 2020, the following Regulation:

Regulation

CHAPTER I

General provisions

Article 1

Subject Matter

1 - The purpose of the present 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 for the provision of terrestrial electronic communications services accessible to the public, using any technology, without prejudice to the fulfilment of the obligations identified in the International Telecommunication Union (ITU) Radio Regulations and the National Table of Frequency Allocations (NTFA).

Article 2

Definitions

For the purposes of the present Regulation, the following definitions shall apply:

a) Bidder activity: eligibility points associated with the lots for which the bidder bids in a given round during 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 for 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 range.

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

d) Bidder 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 from the best bids it holds.

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

f) Bidding: commitment to purchase a lot or a set of lots that each bidder makes during a round, for a certain bid amount.

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

h) Lot: a pre-defined amount of radio spectrum that can be bid on.

i) Best offer: bid submitted during the main bidding phase, the bidding amount of which 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 during a round, which cannot be less than the reserve price established for that/those lot(s).

k) New entrant: an entity that, at the date of entry into force of the present Regulation, does not hold rights of use of frequencies in Portugal 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 terrestrial electronic communications services in Portugal, under the terms laid down in paragraphs 3, 4 and 5 of Article 8.

l) Electronic platform: dedicated computer system, accessible remotely, which supports the execution of the auction, namely the submission of bids and the communication of information, under the terms laid down in the present 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 determined for each lot, which in the first round corresponds to the reserve price and, in the following rounds, the value determined by the Management Board of ANACOM.

ii. In the main bidding phase, the amount determined for each lot, which in the first round corresponds to the reserve price and, in the following rounds, the value of the best bid in the previous round, or, if 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 Management Board of ANACOM for a given lot in the last round.

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

p) Aggregate demand: total number of lots subject to bidding 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 may be submitted for the various lots in the different categories.

Article 3

Applicable legislation

1 - The auction shall be 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 the present Regulation.

2 - The rights of use of frequencies allocated under this auction shall be governed by the provisions of the Electronic Communications Law, the present 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

Attributions of ANACOM

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

2 - In addition to the attributions conferred under the terms of the present Regulation, the Management Board of ANACOM shall also be responsible for the following:

a) Deciding on any complaints that may be submitted during the auction, suspending the procedure whenever necessary.

b) Assessing the validity of bids received under the terms provided for in the present Regulation.

c) Determining other dates and deadlines for carrying out the different phases of the auction in the event of exceptional circumstances.

d) Suspending, namely for reasons of force majeure, the auction, or just one current round of bidding, and deciding on the result of the bids submitted up to the time of its suspension.

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

f) Excluding bidders, whether or not they have been determined as winners, whenever a breach of the auction rules becomes apparent, or strong evidence of acts, agreements, practices or information that could distort competition rules, 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 the applicants or bidders, as applicable.

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

Article 5

Provision of clarifications

1 - Applicants and bidders shall provide all clarifications related to the auction process that may be requested by the Management Board of ANACOM, within the time frame and in the form required by the Management Board.

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

CHAPTER II

Auction procedure

SECTION I

Format of the auction, lots and reserve prices

Article 6

Auction phases and model

1 - The auction comprises the following sequential phases:

a) Qualification: initial phase of the auction that determines the entities qualified to participate in the subsequent phases of the 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 the present Regulation, and which determines the number of lots in each category allocated to each winning 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 winning bidder, as well as the respective final prices.

d) Assignment: phase of the auction in which the winners of the bidding phase(s) choose the exact location of the lots won, in each frequency band, subject to the condition of maximising spectrum contiguity.

e) Allocation: final phase of the auction that includes the allocation of rights of use of frequencies, the disclosure of the auction results, the deposit of the final amount to be paid by each winning bidder and the issuance of licences.

2 - The auction model is simultaneous, ascending, open and consists of multiple rounds, having a bidding phase for new entrants with a simple timer operation, of the combinatorial type, in which, in each round, a bid is submitted with the quantity lots in each category, at the price of each lot, until there is no excess demand.

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 lot price increases during 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) Consists of multiple rounds, in the sense that there will be a succession of rounds.

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

Article 7

Available lots and reserve prices

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

Categories	Bands	Available lots	Number of lots	Reserve prices per lot (M €)	Eligibility points per lot
A	700 MHz	703-733 MHz/ 758-788 MHz	6 lots of 2 × 5 MHz	19.20	5
B	900 MHz	880-885 MHz/ 925-930 MHz	1 lot of 2 × 5 MHz	30.00	5
C	900 MHz	895.1-898.1 MHz/ 940.1-943.1 MHz	4 lots of 2 × 1 MHz	6.00	1
C	900 MHz	914-915 MHz/ 959-960 MHz	4 lots of 2 × 1 MHz	6.00	1
D	1800 MHz	1770-1785 MHz/ 1865-1880 MHz	3 lots of 2 × 5 MHz	4.00	2
E	2.1 GHz	1954.9-1959.9 MHz/ 2144.9-2149.9 MHz	1 lot of 2 × 5 MHz	2.00	1
F	2.6 GHz	2500-2510 MHz/ 2620-2630 MHz	2 lots of 2 x 5 MHz	3.00	1
G	2.6 GHz	2595-2620 MHz	1 lot of 25 MHz	3.00	1
H	3.6 GHz	3400-3460 MHz (regions 1-8 with restrictions until 5 August 2025)	6 lots of 10 MHz	0.84	1
I	3.6 GHz	3460-3500 MHz (regions 1-2 with restrictions until 5 August 2025)	4 lots of 10 MHz	0.94	1
J	3.6 GHz	3500-3800 MHz	30 lots of 10 MHz	1.23	1

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 Ordinance 1473-B/2008, of 17 December.

Article 8

Caps on spectrum allocation and ownership

1 - Under the present auction, caps on the allocation of spectrum are set 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 sub-paragraph (b) of the preceding paragraph, only spectrum in categories H and I may be allocated to the holder of the right of use of frequencies in the 3.6 GHz band prevailing on the date of entry into force of the present Regulation.

3 - Each cap referred to in paragraph 1 shall apply to the bidders, in the case of sub-paragraph (a), and to the bidders and the holder of the right of use, in the case of sub-paragraph (b), individually considered, or to all the bidders or holders of rights of use, if there are direct or indirect relationships between them of control or significant influence, as determined under the terms of the Securities Code.

4 - The concept of a “relationship of control” referred to in the preceding paragraph shall be verified in accordance with Article 21 of the Securities Code, also taking into account the relationships which, pursuant to Article 20 et seq. of that Code, lead to the apportionment of votes, regardless of whether or not the entities concerned are subject to it.

5 - For the purposes of paragraph 3, a “relationship of significant influence” means the apportionment of at least 20% of the voting rights, the apportionment being carried out in accordance with the criteria established in Articles 20 et seq. of the Securities Code.

SECTION II

Qualifying round

Article 9

Applicant requirements

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

2 - The entities to be incorporated may apply as long as they have a valid business name admissibility certificate. In the event of attribution of a right of use of frequencies, the corresponding licence shall only be issued after the presentation of the access code for the applicant’s online commercial registry certificate.

Article 10

Guarantee deposit

1 - To guarantee the binding commitment assumed with the submission of applications and the obligations inherent to the entire auction procedure, applicants shall provide a guarantee deposit, the amount of which shall vary 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 a guarantee deposit of eight hundred thousand euros.

b) A guarantee deposit of 15 million euros guarantees the maximum number of eligibility points that can be used in both phases of bidding depending on the lots available, notwithstanding the caps on spectrum allocation provided for in Article 8.

2 - The guarantee deposit referred to in the preceding paragraph shall be provided by a bank guarantee or insurance bond in ANACOM’s favour, in both cases on demand, in accordance with the forms set out in Annex 2 of the present Regulation.

3 - For winning bidders, the guarantee deposit shall remain in effect until the final amount is deposited, under the terms of Article 38.

4 - The guarantee deposit 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 determined a winner.

c) Where the winning bidder has made the deposit under the terms of Article 38.

5 - In the event of any delay in releasing the guarantee deposit, the applicant or the bidder that provided it shall be entitled to compensation, namely for the additional costs incurred due to the maintenance of the guarantee deposit provided for longer than necessary.

Article 11

Requests for clarification

1 - Interested parties may request clarification regarding any doubts arising from the interpretation of any documents forming part of the auction process, within the deadline for submitting applications and up to the eighth day after the start 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 email address leilao-esclarecimento@anacom.pt.

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

4 - The Management Board of ANACOM shall publish on its respective website, at www.anacom.pthttps://www.anacom.pt/render.jsp?categoryId=2958, the substance of the requests and clarifications provided, concealing the necessary information to ensure, in particular, the confidentiality of the applicants’ identities and potential bidding strategies.

Article 12

Arrangements and deadline for submitting applications

1 - Applications must be formalised, under penalty of exclusion, by means of a written request, in Portuguese, addressed to the Chairman of the Management Board of ANACOM, containing the applicant’s identification, the reference to the present Regulation, as well as the date and signature of the applicant’s legal representative(s) with sufficient powers to enter into binding commitments, this capacity being recognised under the terms legally permitted.

2 - The application request must be submitted in a closed envelope, addressed to the Chairman of the Management Board of ANACOM, which shall include reference to the application for the auction, but no other information that would allow identification of the applicant.

3 - The application requests should be delivered to the public service desk at ANACOM’s headquarters, against receipt of delivery, on working days between 9:00 and 16:00.

4 - The deadline for the submission of applications shall end 15 days after the entry into force of the present Regulation, and no applications shall be accepted after that date.

5 - The Management Board of ANACOM 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

Filing of the application request

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

a) Declaration signed by the applicant’s legal representative(s) with sufficient powers to enter into binding commitments, this capacity being recognised under the terms legally permitted, expressly declaring the acceptance of the provisions of the present Regulation, the auction conditions and undertaking to fulfil the obligations arising from the application and the respective bids, as well as the 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 commercial registry certificate of the respective by-laws, valid for the auction period, including the issuance of the licences.

d) Document proving the provision of a guarantee deposit under the terms set out in Article 10.

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

f) Declaration signed by the applicant’s legal representative(s) with sufficient powers to enter into binding commitments, this capacity being recognised under the terms legally permitted, in which up to six natural persons shall be designated to bid in its name and on its behalf, and indicating the respective email address and contact telephone numbers, to which shall be attached simple copies of the nominees’ identification documents, which shall be used exclusively to verify the identity of the respective holders, and shall be deleted following this confirmation.

g) Declaration in which the applicants indicate, specifically, who the owners are, whether natural or legal persons, and in what amount they hold an interest in the share capital of the applicant, in the case of any or some of the partners being a legal person, information that will allow 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 and on behalf of the applicants, in which they expressly authorise the recording of the content of telephone communications in the event of the need to use this means of communication as an alternative to the electronic platform on which the auction is supported, in accordance with paragraph 5 of Article 17 and paragraph 5 of Article 25 of the present Regulation.

2 - The entities referred to in paragraph 2 of Article 9 are exempted from delivering the documents indicated in sub-paragraphs (b), (c) and (e) of the preceding paragraph and shall present:

a) A binding cooperation agreement between the nominees, with the respective signatures legalised under the legally permitted terms, expressly stating acceptance of the present Regulation, the auction conditions and undertaking to fulfil 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) Draft statutes to which the nominees are bound.

c) A current business name admissibility certificate.

3 - The entities referred to in the preceding paragraphs shall expressly indicate the postal and email address to which they intend to send all communications and notifications under the ambit of the auction.

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 sub-paragraph (e) of paragraph 1 of the present article.

5 - The documents presented by the applicants having registered offices outside national territory shall be issued and authenticated by the competent authorities of the country of origin. Where there is no document similar to one of those requested, it may be replaced by an affidavit, prepared by the applicant before a judicial or administrative authority, notary or other competent authority in the country of origin.

6 - The documents to be filed with the application shall be written in Portuguese or accompanied by a duly certified translation, in relation to which the applicant declares, for all due purposes, acceptance of its prevalence over the respective originals.

7 - The documents presented by the applicants and filed with the application request shall not be returned, remaining in the possession of ANACOM, notwithstanding the disposal of the simple copies of the identification documents referred to in sub-paragraph (f) of paragraph 1 of the present article.

Article 14

Analysis of applications

1 - The Management Board of ANACOM shall verify, within 6 days of the end of the period for the submission of applications, that the requirements set out in Articles 9, 10, 12 and 13 of the present Regulation have been met.

2 - Within 2 days of the end of the period for the submission of applications, the Management Board of ANACOM may request that applicants address shortcomings in their application requests within a period of 3 days, provided that they are remediable and this does not affect the principle of equal treatment among applicants.

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

Article 15

Acceptance and exclusion of applications

1 - It is the responsibility of the Management Board of ANACOM 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 the present Regulation shall be excluded.

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

4 - In the event of exclusion, the Management Board of ANACOM shall notify each applicant excluded 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 Administrative Proceeding Code.

5 - In the event of acceptance, the Management Board of ANACOM shall notify the accepted applicants of the following information:

a) The date of the start of the bidding phase for new entrants, or if this does not take place, the date of the start of the main bidding phase, which shall take place no earlier than seven days after notification.

b) Conditions for accessing the electronic platform and using the alternative means, as referred to in paragraphs 3 and 4 of Article 17 and in paragraphs 3 and 4 of Article 25, including the date, time and place for carrying out the face-to-face training on the use of the electronic platform or, if it is done remotely, the link to access the training.

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

7 - In the absence of applicants for the bidding phase for new entrants, the Management Board of ANACOM shall immediately notify the applicants, either by official memorandum or electronically, of the start date of the main bidding phase, which shall take place no earlier than seven days after notification.

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

SECTION III

Bidding phase for new entrants

Article 16

Bidders and categories

1 - In this bidding phase, only bidders who are new entrants may participate.

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

Article 17

Bidding process

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

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

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

4 - In the event of a technical problem with the operation of the electronic platform that renders continuation of the bidding process impossible, an alternative means of communication may be used that ensures compliance with the rules set out in the present Regulation.

5 - The alternative means referred to in the preceding paragraph involves the use of telephone communication, and the bidder must provide the authentication information requested, in accordance with the procedures established in the notification provided for in sub-paragraph (b) of paragraph 3 of Article 15.

6 - ANACOM assumes no liability for technical problems attributable to the bidder’s communications equipment or systems preventing access to the electronic platform, or that cause disruption 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 its 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 as a number of points.

4 - In the first round, the bidder’s eligibility is determined according to the guarantee deposit 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 shall be reduced to the activity level of the previous round.

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

Article 19

Rounds

1 - The rounds shall take place on working days, between 9:00 and 18:00.

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

3 - Each round shall have a duration of 30 minutes, notwithstanding paragraphs 4 and 5 of the present article.

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

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

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

a) The duration of that round.

b) Lot prices by category.

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

d) Respective eligibility.

7 - In each round, the bidder shall submit a bid for the quantity of lots it intends to acquire in each category, according to the activity rule.

8 - The times inherent to the rounds of this bidding phase are measured by the server assigned to the electronic platform and are made available on that server.

9 - ANACOM publishes on its website, www.anacom.pthttps://www.anacom.pt/render.jsp?categoryId=2958, information on the price of lots in the last round of the day.

10 - The information referred to in the preceding paragraph shall be 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 simultaneous provision of lots in categories B and D, at the respective reserve prices.

2 - The bidder must submit its bid specifying the quantity of lots per category that it 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 guarantee deposit provided under the terms of Article 10 and the exclusion of the bidder from the auction.

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

Article 21

Subsequent rounds

1 - In each round, the bidder must submit its bid specifying the quantity of lots per category that it intends to purchase at the price determined by the Management Board of ANACOM, except where communicating its withdrawal from this bidding phase, through the electronic platform.

2 - In each round, the Management Board of ANACOM shall determine the increase in the prices of the lots in the categories in which there was excess demand in the previous round, maintaining the price of the 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 Management Board of ANACOM prior to the beginning of each round, with the decision being communicated to the bidders through the electronic platform.

4 - Lot prices shall be rounded up to a multiple of € 1,000.

Article 22

Final round

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

2 - The Management Board of ANACOM shall inform the bidders of the end of the final round, through the electronic platform.

Article 23

Determination of the winner

1 - Bidders who submitted a bid in the final round shall be deemed the winners.

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

Article 24

Publication of results

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

a) Number of lots won in each category.

b) The final price of each lot.

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

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

4 - The Management Board of ANACOM shall notify each bidder qualified for the main bidding phase, by official memorandum or by 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 eligibility 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 supported on an electronic platform.

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 and the points associated with the lots in which it has the best offer at the start 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 in 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 its eligibility in that round.

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

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

6 - The activity level required for a given bidder in a given round, expressed as a number of points, shall be 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 shall be 70% in the initial round.

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

9 - Whenever the required activity level is changed, the Management Board of ANACOM shall notify bidders of the fact, through the electronic platform, at the latest up to the beginning of the round preceding that to which it applies.

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

11 - If a bidder’s activity in a given round is less than the activity level required in that round, its eligibility points in the following round shall correspond to the product of the eligibility points from 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 shall take place on working days, between 9:00 and 18:00.

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

3 - Each round shall have a duration of 60 minutes, notwithstanding paragraphs 4 and 5 of the present article.

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

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

6 - At the end of each round, the Management Board of ANACOM shall determine 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 Management Board of ANACOM, through the electronic platform and prior to the start of each round, of the following:

a) The duration of that round.

b) Lot prices.

c) Lots for which they hold the best offer.

d) Respective eligibility.

e) Activity level required to maintain the eligibility points.

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

9 - The times inherent to the rounds of the bidding phase are measured by the server assigned to the electronic platform and are made available on that server.

10 - ANACOM shall publish on its website, at www.anacom.pthttps://www.anacom.pt/render.jsp?categoryId=2958, information on the best offer per lot in the last round of the day.

11 - The information referred to in the preceding paragraph shall be 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 that may only be triggered after the initial round.

2 - The waivers shall be considered activated where the bidder does not submit any bid in one round and, for that reason, loses eligibility points for the next round.

3 - The waivers shall not result in any loss of eligibility points.

Article 29

Initial round

1 - The initial round begins with the simultaneous provision of all lots from all categories, including lots in categories B and D that have not been gained in the bidding phase for new entrants, at the respective reserve prices.

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

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

4 - Lot prices shall be rounded up to a multiple of € 1,000.

5 - Failure to comply with the provisions of paragraphs 2 and 3 shall determine the forfeiture in favour of ANACOM of the guarantee deposit, as provided under the terms of Article 10, and the exclusion of the bidder from the auction.

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

Article 30

Subsequent rounds

1 - In the following rounds, the bidder may bid for 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 paragraph 3 of Article 29 shall apply.

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

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

5 - In the event that the withdrawing bidders are the holders of the best offers, the guarantee deposit provided in Article 10 shall be declared forfeited in favour of ANACOM and the lots that were gained in the bidding phase for new entrants shall be forfeited.

6 - The lots subject to the best offers in the main bidding phase referred to in the preceding paragraph shall be made available in the following round at the prices established by the ANACOM Management Board, which may not be lower than the respective reserve prices.

7 - For the purposes of the preceding paragraph, the provisions of paragraph 3 of Article 29 shall apply until such time as the lots concerned are the subject of bidding in a round and, in the following rounds, the provisions of paragraph 1 of the present article shall apply.

Article 31

Tiebreak

In the event of a tie between the highest bids for a single lot, the determination of the best offer shall consist of a random selection procedure implemented by the electronic platform, with the bidders concerned being notified of the result by the Management Board of ANACOM, through the same channel, together with the information provided in paragraph 7 of Article 27.

Article 32

Final round

1 - The final round corresponds to that 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 Management Board of ANACOM shall inform all bidders of the end of the final round.

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

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

Article 33

Determination of the winner

1 - Bidders with the best offers in the final round shall be determined the winners.

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

Article 34

Publication of the results of the bidding phases

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

a) Identity of the winners and indication of the number of lots won 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, www.anacom.pthttps://www.anacom.pt/render.jsp?categoryId=2958, the final results of the bidding phases.

SECTION V

Assignment phase

Article 35

Assignment phase

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

2 - 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 Management Board of ANACOM ranks the winning bidders, in each category, according to the following successive criteria:

a) Highest final amount in the category concerned.

b) Higher number of lots won in that category.

c) Higher number of lots won in all categories.

4 - In the event of a tie, a random ordering procedure for bidders takes place, 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 Management Board of ANACOM and notified to the winning bidders, either by official memorandum or electronically.

5 - At the latest within 48 hours of the ordering of bidders, a face-to-face session shall be held, chaired by the Management Board of ANACOM, aimed at choosing the lots won, in the order determined in paragraph 3 or 4 of the present 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, in the legally prescribed terms.

7 - The date and time for the face-to-face session referred to in the preceding paragraph, as well as the information regarding the ordering of the winning bidders resulting from the application of paragraph 3, shall be notified to the winning bidders, either by official memorandum or electronically.

8 - The choices referred to in the present article shall be validated, lot by lot, by the Management Board of ANACOM 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 the lots won in the 900 MHz band, the assignment procedure for which complies with the provisions of Article 39, the Management Board of ANACOM shall approve the draft auction report, containing the draft decision to allocate 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 Administrative Proceeding Code.

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 Management Board of ANACOM to approve the final report of the auction and to decide on the allocation of the rights of use of frequencies to the winning bidders.

2 - The decision regarding the allocation of rights of use of frequencies shall be notified immediately, by the Management Board of ANACOM, to the bidders, either by official memorandum or electronically, and the auction results shall be published on its website, at www. anacom.pthttps://www.anacom.pt/render.jsp?categoryId=2958.

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

a) Identification of the winning bidders.

b) Number of lots allocated to each winning bidder.

c) Frequencies assigned to each winning bidder, without prejudice to the provisions of Article 39 for the 900 MHz band.

d) Final amount to be paid by each winning bidder.

e) Possible forfeitures of the guarantee deposit as determined under the terms of the present Regulation.

f) Deadline for making the deposit corresponding to the final amount, as 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 allocation of the rights of use of frequencies shall be revoked where the entities to which they are allocated fail to comply with the provisions of paragraph 1 of Article 38, except for duly justified reasons of force majeure recognised as such by the Management Board of ANACOM.

5 - In the situation referred to in the preceding paragraph, the guarantee deposit provided in Article 10 shall be forfeited to ANACOM.

Article 38

Deposit

1 - Within 10 days of receiving the notification referred to in paragraph 3 of the preceding article, the entities to which the rights of use of frequencies are allocated shall be obliged to deposit the final amount in a bank account to be indicated by the Management Board of ANACOM, without prejudice to the provisions of paragraphs 3 and 4 of the present article.

2 - Within 5 days of the deposit being made, the Management Board of ANACOM shall order the necessary steps to be taken to release the guarantee deposit referred to in Article 10.

3 - The entities to which rights of use of frequencies are allocated may choose to deposit an amount corresponding to 50% of the price to be paid for the spectrum purchased, with the remaining 50% of the payment being deferred under the terms of the following paragraph.

4 - An amount corresponding to half of the payment shall be divided over a maximum period of 7 years from the date of allocation, and the holders of the rights of use shall make annual payments corresponding to one seventh 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 allocation, and the subsequent payments annually from that date.

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

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

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 half the price to be paid for the spectrum, 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, proceed with the full payment of the outstanding instalments, updated at an annual discount rate of 4.786%.

10 - Notwithstanding the release of the guarantee deposit provided for in paragraph 2 and within the period established in paragraph 4 of Article 10, the entities to which the rights of use of frequencies are allocated shall provide a further guarantee deposit, by means of a bank guarantee or insurance bond, in ANACOM’s favour, in both cases on demand, to ensure the payment of the total value of the amounts referred to in paragraphs 4 and 6, in accordance with the forms set out in Annex 3 to the present Regulation.

11 - The guarantee deposit referred to in the preceding paragraph shall be valid for a period of 7 years, being partially released and each year by ANACOM according to the payments made under the terms of 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 - During the allocation phase, after the deposit provided for in Article 38 has been made and prior to the issuance of the respective licences, the Management Board of ANACOM shall determine 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 right of use of frequencies in force on the date of entry into force of the present Regulation.

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

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

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 the present article, entities that, at the end of the auction, are declared the winners of lots in the 900 MHz band, as well as holders of rights of use of frequencies in the 900 MHz band that do not participate in the auction or, having participated, are not declared the winners of lots in that band, shall be granted a period of 30 days from the date of notification of the allocation referred to in paragraph 2 of Article 37 of the present Regulation to agree among themselves the exact location of the spectrum in this frequency band.

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

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

6 - In the event that the decision referred to in paragraph 1 determines the alteration of the assignment of frequencies in force on the date of entry into force of the present Regulation, compensation may be granted to cover, in whole or in part, any costs associated with those alterations, under the arrangements 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 ambit of the auction procedure from the obligation to proceed with the deposit, under the terms and within the period provided for in Article 38 of the present Regulation, under penalty of revocation of the allocation of rights of use under the terms of paragraph 4 of Article 37.

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

9 - Notwithstanding other applicable penalty systems, whenever a holder of rights of use fails to redistribute the frequencies in the precise terms in which this has been determined, in accordance with paragraph 4 of the present article, the Management Board of ANACOM may, pursuant to the law:

a) Impose a recurring fine.

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

Article 40

Issuance of licences

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

2 - The licences for the allocation of rights of use of frequencies in the 900 MHz band shall be issued by the Management Board of ANACOM within 20 days of approval of the agreement provided for in paragraph 4 of Article 39, or after taking of the decision referred to in paragraph 5 of the same article.

3 - The licence that substantiates the rights of use shall contain the conditions associated with the respective exercise 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 the present Regulation, the licences for rights of use of frequencies allocated under the ambit of the auction shall be incorporated into the respective exclusive licences, by means of the addition of items relating to the frequency bands in which they hold rights of use following the auction.

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

CHAPTER III

Conditions associated with the rights of use of frequencies

Article 41

Conditions associated with the rights of use of frequencies

1 - The holders of rights of use of frequencies shall be subject to compliance with the conditions laid down in paragraph 1 of Article 27 and in sub-paragraphs (a), (b), (c), (d), (e), (f) and (h) of paragraph 1 of Article 32 of the Electronic Communications Law.

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

a) Coverage, network development and voice signal reinforcement 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 arrangements for access to infrastructure suitable for the accommodation of electronic communications networks, as provided for in Decree-Law 123/2009, of 21 May.

c) The effective and efficient use of the assigned frequencies, 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 the present 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 transfer or lease the rights of use of frequencies, as well as the conditions under which they intend to do so, pursuant to Article 34 of the Electronic Communications Law, Article 47 of the present Regulation and that established at any given time under the NFTA.

g) Pay ANACOM the fees due:

i. For the exercise of the activity of supplier of electronic communications networks and services, pursuant to Article 105, paragraph 1, sub-paragraph (b) of the Electronic Communications Law and in accordance with the rules set out in Ordinance 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, paragraph 1, sub-paragraph (c) of the Electronic Communications Law and in an amount to be established under Ordinance 1473-B/2008, of 17 December, in its current wording.

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

h) Obligations arising from international agreements applicable to the use of frequencies, namely the coordination agreements concluded with Spain and Morocco.

3 - In matters of the security and integrity of the electronic communications networks and services, the holders of rights of use of frequencies shall also be subject to measures that, at national or European level, may be 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 means of 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 of 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 sub-paragraph (a) of paragraph 2 of Article 41 of the present Regulation, the holders of rights of use of frequencies that, at the end of the auction, have spectrum in the 700 MHz band and that, at the date of entry into force of the present 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:

Coverage of 75% of the population of each of the parishes considered to be of low density and of each of the parishes of the Autonomous Regions of Madeira and the Azores.

b) By the end of 2024:

Coverage of 70% of the population of each of the parishes that are not considered to be of low density, but that are located in municipalities with low-density parishes.

c) By the end of 2025:

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

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 85% of the Estrada Nacional 1 and Estrada Nacional 2 trunk roads.

v. Coverage of 95% of each of the rail routes included in the Atlantic Corridor, in the part relating to national territory, the Braga-Lisbon connection, the Lisbon-Faro connection and the urban and suburban connections of Lisbon and Porto.

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

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

viii. Coverage of 90% of the population of each of the parishes considered to be of low density, of each of the parishes of the Autonomous Regions of Madeira and the Azores and of each of the parishes located in municipalities with low-density parishes.

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

By the end of 2025:

a) Coverage of 25% of each of the country’s highways.

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

c) Coverage of 25% of each of the rail routes included in the Atlantic Corridor, in the part relating to national territory, the Braga-Lisbon connection, the Lisbon-Faro connection and the urban and suburban connections of Lisbon and Porto.

3 - The coverage obligations set out in the present article shall be considered fulfilled with the provision of a mobile broadband service with a minimum speed of:

a) 100 Mbps, in the case of holders of rights of use that, at the end of the auction, hold 2 x 10 MHz.

b) 50 Mbps, in the case of the holders of rights of use referred to in paragraphs 1 and 2 that, at the end of the auction, hold 2 x 5 MHz.

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

5 - For the purposes of complying with the provisions of sub-paragraph (a), sub-paragraph (b) and point (viii) of sub-paragraph (c), all of paragraph 1 of the present article:

a) 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 12 September 2018, and correspond to all parishes located in low-density municipalities and low-density parishes located in other municipalities, as listed in Annex 4, which forms an integral part of the present Regulation.

b) the parishes of the Autonomous Regions of Madeira and the Azores are those identified in the list in Annex 5, which forms an integral part of the present Regulation.

c) parishes which are not considered to be of low density, but which are located in municipalities with low-density parishes, are those identified in the list contained in Annex 6, which forms an integral part of the present Regulation.

6 - For the purposes of complying with the provisions of points (ii), (iii), (v) and (vi) of sub-paragraph (c) of paragraph 1, as well as of sub-paragraphs (a) to (c) of paragraph 2, both of the present article, the identification of highways, main routes and rail routes corresponds to that contained in Annex 7, which forms an integral part of the present Regulation.

7 - The coverage obligations identified in sub-paragraph (a), sub-paragraph (b) and point (viii) of sub-paragraph (c) of paragraph 1 of the present article may be fulfilled using national roaming, in accordance with competition rules.

8 - For the purposes of fulfilling the coverage obligations identified in the present article, in places or buildings where only the installation of infrastructures of one of the holders of rights of use of frequencies in the 700 MHz band is allowed, and it is not possible to access infrastructure suitable for accommodating electronic communications networks under the terms provided under 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, 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 the present article may be fulfilled using any frequency band assigned under this auction, or assigned up to the date of entry into force of the present Regulation.

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

Article 43

Network development obligations

a) Holders that hold 50 MHz shall be required to install 917 macro base stations of their own, or 9,170 outdoor small cell base stations of their own, across the entire country.

b) Holders that hold between 60 and 100 MHz shall be required to install a further 183 macro base stations of their own, or a further 1,830 outdoor small cell base stations of their own, across the entire country, for every 10 MHz above 50 MHz they have acquired.

2 - For the purposes of the preceding paragraph, the holders of rights of use of frequencies shall be obliged to install 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 a ratio of 1 to 10 between them:

a) In each low-density municipality and in each municipality in the Autonomous Regions of Madeira and the Azores.

b) In each municipality with more than 50 thousand inhabitants, except for the municipalities subject to the preceding sub-paragraph.

3 - The holders of rights of use of frequencies referred to in paragraph 1 shall also be obliged to install macro base stations or outdoor small cell base stations when requested, up to 2 years after the issuance of rights of use of frequencies, by the following entities:

a) Hospitals and health centres.

b) Universities, other higher education establishments and other entities pertaining to the national scientific and technological system.

c) Ports and airports.

d) Military Institutions.

e) Entities managing or promoting business parks, industrial parks or business location areas.

4 - The obligations to install stations referred to in paragraphs 2 and 3 may be fulfilled through the entity’s own stations, shared stations, or third-party stations using wholesale offers.

5 - For the purposes of complying with the provisions of paragraph 1 of the present article, only own base stations installed by holders of rights of use of frequencies shall be counted, including those installed under the provisions of paragraph 3.

6 - For the purposes of the preceding paragraphs, the following shall be considered:

a) Macro base stations, 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, 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, municipalities of 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 on 12 September 2018, as listed in Annex 8, which forms an integral part of the present Regulation.

d) Municipalities with more than 50 thousand inhabitants, as listed in Annex 9, which forms an integral part of the present Regulation.

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

8 - The holders of rights of use of frequencies are obliged to communicate to ANACOM, on a quarterly basis, detailed information on the requests referred to in paragraph 3 that are pending or that have been dealt with, and the respective responses, notwithstanding additionally providing such information as ANACOM may ask for concerning those requests.

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

10 - 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 termination of those restrictions.

Article 44

Obligation to boost the voice service signal

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

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

3 - Compliance with this obligation shall be 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 within the scope of the annual questionnaire on coverage, quality of service and site sharing, as set out in Annex 2 to ANACOM’s decision of 15 September 2017.

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

Article 45

Network access obligations

1 - For the purposes of sub-paragraph (b) of paragraph 2 of Article 41 of the present Regulation, the holders of rights of use of frequencies that, at the end of the auction, hold 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 the present Regulation, hold rights of use of frequencies in bands designated for terrestrial electronic communications services, shall be obliged to allow 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 termination 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 with regard to 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 the present article shall, under the ambit of 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, in the different formats denoted full MVNO and light MVNO, for the provision of electronic communications services to end users, equivalent to those offered to their own customers.

b) National roaming agreements with third parties that, at the date of entry into force of the present Regulation, do not have rights of use of frequencies in the bands designated for terrestrial electronic communications services and that, at the end of the auction, shall have rights of use of frequencies.

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

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

a) In the case of sub-paragraph (a), during the period of validity of the rights of use of frequencies to which they are associated.

b) In the case of sub-paragraph (b), for 10 years, in geographic areas where the beneficiary does not have mobile coverage using the frequencies that it has been assigned.

8 - Entities benefiting from the access obligation provided for in sub-paragraph (b) of paragraph 5 that enter into a roaming agreement shall be subject to a mobile coverage obligation of 25% and 50% of the national population, through use of the frequencies they have been assigned, respectively within 3 and 6 years of conclusion of the aforementioned agreement.

9 - The coverage obligation established in the preceding paragraph shall be considered fulfilled with the provision of a broadband service with a minimum speed of 30 Mbps.

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

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

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

13 - Unless otherwise agreed between the parties, the effective access period may not exceed 6 months, counted from the date of conclusion of the contracts or the availability 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.

14 - If, during the validity of 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, as a result, the assumptions of being subject to or benefiting from any of the obligations no longer 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 of those obligations.

15 - The holders of rights of use of frequencies referred to in paragraph 1 shall be obliged to communicate to ANACOM all requests for agreements received under the arrangements provided for in the present article, within 10 days of receipt, as well as to provide ANACOM, on a fortnightly basis, with detailed information on the progress of negotiations regarding the agreements referred to in paragraph 5, notwithstanding additionally providing such information related to them as ANACOM may request.

16 - Holders of rights of use of frequencies bound to access obligations under the terms of the present article may not, under any circumstances, claim the confidentiality of the agreements or the respective negotiation process as a basis for refusing to provide information to ANACOM under the terms of preceding paragraph.

17 - Where no agreement is reached within a maximum period of 45 days of receipt of the agreement request by the holder of the right of use of frequencies bound by the access obligation under the terms of paragraph 5, and if ANACOM’s intervention is requested by one of the parties, the dispute shall 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.

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

19 - The procedure for verifying compliance with the obligation contained in paragraph 8 shall be established in a separate decision by ANACOM.

20 - Notwithstanding other applicable penalty systems, whenever a holder of rights of use of frequencies breaches any of the obligations to which it is bound under the terms of paragraph 5, ANACOM may impose a recurring fine, pursuant to the law, after a decision imposing compliance with the obligation.

21 - The provisions of the present article are without prejudice to ANACOM’s regulatory powers to impose, maintain, alter or remove obligations in matters of access or interconnection.

Article 46

Obligation to use frequencies effectively and efficiently

1 - For the purposes of sub-paragraph (c) of paragraph 2 of Article 41 of the present Regulation, the holders of the rights of use allocated under the present auction shall 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 termination of those restrictions.

Article 47

Transfer and leasing

1 - For the purposes of sub-paragraph (f) of paragraph 2 of Article 41 of the present Regulation, the rights of use of frequencies allocated may only be transferred or leased by the respective holders, pursuant to the provisions 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, except for demonstrated good cause 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 the present Regulation.

Article 48

Period of the right of use of frequencies

For the purposes of sub-paragraph (e) of paragraph 2 of Article 41, the rights of use of frequencies that form the subject matter of this Regulation shall be 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

Calculation of time limits

The calculation of the time limits foreseen in the present Regulation shall be subject to the rules of Article 87 of the Administrative Proceeding Code.

Article 50

Legal effect

The present Regulation shall come into force on the business day following that of its publication.

ANNEX 1 to 9 ( Download file see PDF document)