Opinion of Anacom
(issued pursuant to point a) of paragraph 1 of article 6 of the Statutes)
The PTDP - Plataforma de Televisão Digital Portuguesa, S.A., considering that «(…) it is not currently possible to define objectively a time limit for the commencement of the platform commercial operation in Portugal (…)» having regard to «(…) national and international circumstances relating to the deployment of technical equipment and to the platform competitive conditions themselves (…)», has deliberately placed itself in a situation that acknowledges the possibility of expiry of the license currently held, by letter of 28 February, submitted following the working meetings where the conditions and terms regarding the operation of the referred platform were analyzed.
Therefore, the Board of Administration of ICP – National Communications Authority (ICP – ANACOM) hereby issues the following opinion:
1. Legal framework of the request
1.1 Revocation of the administrative act granting the License
On 17 August 2001, the Minister for Social Equipment, member of the Government with responsibilities at the time, granted PDTP a license of national scope for the establishment and operation of a Digital Terrestrial Television Platform.
Thus, the member of Government responsible for the communications area is the author of the administrative act, expressed through the granting of a license to PDTP.
In the absence of a special provision empowering a different entity for the purpose, the competence for the revocation of an administrative act belongs to the author thereof (article 142 of the Code of Administrative Procedure).
The revocation of a valid administrative act, as was the case, aims at making another act cease to apply, on grounds of an understanding whereby it would not be convenient for the public interest to maintain the effects previously produced.
The CAP lays down, in Article 140, the principle of the freedom to revoke valid administrative acts, except for due acts (including the ones which constitute irrenounceable rights or obligations for the Administration) or acts constituting rights or interests protected by law (without prejudice to the revocation thereof with the agreement of interested parties).
The mentioned article makes therefore provision, in point b) of paragraph 2, for the possibility of the revocation of (valid) administrative acts constituting rights or interests protected by law, to the extent that the holders of the legal position agree thereto.
In this case, the revocation of the license granted is a PDTP initiative.
1.2 Assessment of public interest
ICP – ANACOM has defined the licensing conditions for the establishment and operation of a Digital Terrestrial Television Platform, an invitation to tender having been opened for the granting of the corresponding license.
The definition of the tender model aimed at intensifying a strong alternative to the installed digital platforms, by promoting a real competitive offer, for the benefit of consumers and the various market actors, against the background of the Information and Knowledge Society development.
However, as acknowledged by the European Commission itself, during 2001, economy worldwide suffered a recession, from which sectors such as telecommunications and information and communication technologies were not exempt.
It is widely acknowledged that the implementation of digital terrestrial television platforms implies the intervention of several market agents, such as the operators themselves, manufacturers, software and contents suppliers, depending heavily on general trends at economic, technological and service levels.
The availability in the national market, in a mass offer regime, of set-top boxes that comply with the DVB-MHP standard, is not ensured as yet, a pre-requisite necessary also to the launching and entry into operation of the digital terrestrial television platform.
Likewise, the current context has also influenced the operators of digital terrestrial television platforms, having regard, for example, to the unsuccessful operations in the United Kingdom and Spain.
Thus the necessary conditions for achieving the license aims can be considered not to be fulfilled, it being impossible to foresee with a minimum level of security a specific date for the purpose.
This situation objectively renders the platform launching impossible within the settled time limits, a fact which supports PDTP’s viewpoint that it is not within its powers to exercise the rights stemming from the license granted.
In this respect, the Technical Report of 18 February, by the Directorate for Spectrum Management and Engineering, must be taken into account, resulting from the assessment of the stage of implementation of the digital terrestrial television platform, presented in annex hereof.
A new extension of the time limit for the commencement of the commercial operation of the digital terrestrial television platform would only lead to an indefinite postponement to an unsettled date, and thus to an undeterminable delay regarding the launching of the digital terrestrial television in Portugal.
ICP-ANACOM thus takes the view that any measures enabling PDTP to stay in business in the current market are undesirable and inadequate, and furthermore, public interest is not impaired by the license expiry.
On the contrary, the situation arising from the license expiry, with the consequent extinction of rights and obligations conferred and imposed thereupon, is conducive to the definition of a new model within a more appropriate legal framework, a different economic context, as well as a more secure technological environment.
Therefore, having regard to the objectives in question and to the importance attached by the Government to the development of digital platforms, namely the digital terrestrial television platform, ICP-ANACOM shall weigh, at a later stage, the re-launching of the operation of the digital terrestrial television platform, taking into consideration the present market conditions and constraints, as well as a model that has regard to the international experience gathered on this subject in the meanwhile, and in the new regulatory framework of electronic communications, the entry in force of which is expected in the near future.
In light of the above, generally acknowledging the position set out by PDTP, ICP-ANACOM hereby suggests to His Excellency the Minister for the Economy, pursuant to point b) of paragraph 2 of article 140 and paragraph 1 of article 142, both of the Code of Administrative Procedure, the revocation of the granting to PTDP - Plataforma de Televisão Digital Portuguesa, S.A., of a license for the establishment and operation of a digital terrestrial television platform.
Lisbon, 13 March 2003.
Consult:
- Ministerial Order no. 6973/2003, of 9 of April https://www.anacom.pt/render.jsp?contentId=980158
