Infrastructures and Housing - Office of the Secretary of State for Infrastructure
In the scope of the auction generally known as Multiband Auction (auction for the assignment of rights of use for frequencies in the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2.1 GHz and 2.6 GHz bands), Autoridade Nacional de Comunicações (ANACOM), by determination of 6 January 2012, allocated rights of use for frequencies, namely in the 1800 MHz band, under the terms and conditions set out in Regulation No 560-A/2011 of 19 October (Auction Regulation), to Optimus - Comunicações, S. A., and TMN - Telecomunicações Móveis Nacionais, S. A., as well as to Vodafone Portugal - Comunicações Pessoais, S. A.
Following this allocation of frequencies, the specific assignment process for the 1800 MHz band, i.e. the exact location of spectrum to be assigned in that band, took place, as provided for in article 31 of the Auction Regulation, taking into account the number of lots allocated in the auction, as well as spectrum already assigned in that same band under previously allocated rights of use for frequencies. This process involved the redistribution of spectrum in the 1800 MHz band, through an agreement reached between the three mobile network operators, which was subsequently approved by ANACOM by decision of 9 March 2012.
The referred agreement implied an amendment to the assignment of frequencies in the 1800 MHz band in force on the date the Auction Regulation came into force. In this respect, paragraph 6 of article 31 thereof provides that compensation may be awarded to cover, in whole or in part, any costs associated with the said changes, pursuant to article 4 of Decree-Law No 151-A/2000, of 20 July, as amended.
In fact, paragraph 2 of article 4 of the aforementioned statutory instrument provides that ANACOM, in the exercise of powers legally conferred upon it, may at any time amend the assignment of frequencies for the operation and use of radiocommunications networks and stations, to the extent that this is required to pursue the public interest, in the context of the management of the radio spectrum, in accordance with criteria of proportionality and in respect of acquired rights. And, under the terms of paragraph 4 of the same article 4, in these cases compensation will be awarded to licence holders to cover, in whole or in part, any costs which are proven to occur with the amendment of the assignment of frequencies, under the conditions and according to the general criteria to be defined by order of the member of the Government responsible for the area of communications.
In this context, whereas:
i) Pursuant to article 31 of the Auction Regulation and the agreement approved by ANACOM, the then Optimus, TMN and Vodafone carried out the redistribution of frequencies, and ANACOM issued the respective radio licences on 10 May 2012, 1 August 2012 and 29 October 2012, amending the spectrum assigned in the 1800 MHz band;
ii) During the prior hearing procedure to which the draft administrative order was subject, the three operators presented costs related to the said process, having been determined the average value of compensation to be awarded for each base station that was effectively reconfigured to ensure the redistribution of spectrum in the 1800 MHz band;
the general conditions and criteria for awarding compensation for costs incurred with the amendment of the assignment of spectrum in the 1800 MHz frequency band must now be defined.
Therefore, under paragraph 4 of article 4 of Decree-Law No 151-A/2000 of 20 July, as amended, and of paragraph 4 of article 35 of ANACOM’s Statutes, approved by Decree-Law No 39/2015 of 16 March, the Government, through the Secretary of State for Infrastructure, hereby orders as follows:
Subject matter and scope
This Administrative Rule lays down the general conditions and criteria for compensation due to holders of rights of use for frequencies in the 1800 MHz band for costs with the amendment of the radio spectrum assignment in that frequency band, following the auction for allocation of rights of use for frequencies in the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2.1 GHz and 2.6 GHz bands, as well as the respective allocation procedure.
General criteria for compensation
1 – The compensation due to holders of the rights of use for frequencies in the 1800 MHz band for costs incurred with the amendment of the assignment of radio spectrum in that frequency band, following the auction for allocation of rights of use for frequencies in the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2.1 GHz and 2.6 GHz bands consists of the amount proven to result exclusively from the reconfiguration of base stations required to make the referred amendment effective.
2 – Reconfiguration of base stations means the required changes made to stations that, at the time, were part of radiocommunication networks licensed in the 1800 MHz band, namely the installation or alteration of filters, including installation costs and corresponding accessories (cables and connectors).
Conditions for awarding compensation
1 – The average amount of compensation to be awarded for each reconfigured base station, according to paragraph 2 of the previous article, shall be (EUR) 1966.
2 – The values calculated under the previous paragraph shall be updated by applying the currency devaluation coefficient approved by the Administrative Rule provided for under article 47 of the Corporate Income Tax Code (IRC Code) and article 50 of the Personal Income Tax Code (CIRS), most recently in force on the date of the application for the respective award, submitted by holders of the rights of use for frequencies in the 1800 MHz band, under article 4 of this Administrative Rule.
1 – For the purpose of payment of the compensation due, holders of rights of use for frequencies in the 1800 MHz band, covered by the amended assignment, shall request the respective award and provide ANACOM with proof of the costs incurred, as follows:
a) For costs associated with the provision of external services, by sending copies of invoices, with a breakdown of the work performed and the corresponding amounts, and
b) For costs incurred with internal workforce, by sending a copy of the time report and cost sheet of workers involved in the reconfiguration of base stations, under paragraph 2 of article 2 of this Administrative Rule, or in the absence of this information, any other that supports and allows validation of the respective values.
2 – For the purpose of the previous paragraph, only invoices with dates falling within the period for implementing the redistribution of frequencies and which, as such, have been issued between 9 January 2012 - 60 days prior to the date of ANACOM’s decision approving the agreement as to the location of the spectrum in the 1800 MHz band - and up to 120 days after the date of the effective redistribution of frequencies communicated to ANACOM by each of the holders of rights of use of frequencies, will be taken into consideration.
Implementation of the Administrative Rule
The costs resulting from the implementation of this Administrative Rule shall be borne by ANACOM’s budget.
Entry into force
This Administrative Rule shall enter into force on the day following its publication.
3 October 2022. - The Secretary of State for Infrastructure, Hugo Santos Mendes.