Ministério das Obras Públicas, Transportes e Comunicações (Ministry for Public Works, Transports and Communications)
ICP - Autoridade Nacional de Comunicações (ICP - National Communications Authority)
Regulation
Regulation no. 38/2004 - Procedures for the collection and delivery to municipalities of the municipal fee for rights of way.
The Law of Electronic Communications - Law no. 5/2004, of 10 February - has established that the rights and charges as regards implanting, crossing or passing over of systems, equipments and further resources of undertakings providing publicly available electronic communications networks and services, at a fixed location of a public or private municipal domain, may give rise to the establishment of a municipal fee for rights of way (MFRW).
Pursuant to that law, the MFRW is determined on the basis of the application of a percentage on each bill issued by undertakings providing publicly available electronic communications networks and services, at a fixed location, to all end-clients of the corresponding municipality. And this percentage is to be approved annually by each municipality up to the end of December of the year preceding that of its enforcement, and shall not exceed 0,25%.
According to the principle of tariff transparency, in municipalities where the MFRW is collected, undertakings are required to explicitly include the amount due in the bills of end-clients, as provided for in paragraph 3 of article 106 of Law no. 5/2004.
Pursuant to the Law, it is incumbent upon the Autoridade Nacional de Comunicações (ANACOM) to publish a regulation that defines the procedures as regards the monthly collection and delivery, to municipalities, of revenues that result from the application of the MFRW, to be adopted by undertakings providing publicly available electronic communications networks and services at fixed locations.
This set of rules, concerning the collection and delivery procedures, is hereby thus published.
Pursuant to and in compliance with the provision of articles 11 of the Statutes of ANACOM, approved by Decree-Law no. 309/2001, of 7 December, and 8 of Law no. 5/2004, of 10 February, the draft regulation was submitted to the respective consultation procedures, both regulatory and general, the interested parties having been given a time limit of 30 working days to assess the subject-matter.
As provided for in paragraph 5 of article 11 of the Statutes of ANACOM, concerning the regulatory procedure, the preliminary report of a regulation serves as the basis for the decisions, with necessary reference to criticism or suggestions made with regard to the draft.
And pursuant to the procedures adopted by ANACOM, on 12 February 2004, this Authority, within the scope of a general consultation procedure, analyses all the replies and makes available a final document comprising a reference to all replies received as well as a global assessment that evidences its opinion thereon [point d) of paragraph 3].
The final report, with this double subject, has been published at the website of ANACOM.
Therefore:
Pursuant to point a) of article 9 of the Statutes of ICP – Autoridade Nacional de Comunicações (ICP – ANACOM), approved by Decree-Law no. 309/2001 of 7 December, and to paragraph 3 of article 123 of Law no. 5/2004 of 10 February, the Board of Directors of ICP – ANACOM hereby approves the following regulation:
Article 1
Scope
The present regulation establishes the procedures for the collection and delivery to municipalities of the municipal fee for rights of way (MFRW), provided for in Law no. 5/2004, of 10 February.
Article 2
Definitions
For the purposes of the present Regulation, the definitions comprised in Law no. 5/2004 of 10 February, shall apply.
Article 3
Bills issued to end-clients
1. The percentage on the MFRW, approved annually pursuant to the law, by municipalities wherein the referred fee is collected, shall be applied regarding the amount of each issued bill, no VAT included, by undertakings providing publicly available electronic communications networks and services, at a fixed location, to all end-clients of the correspondent municipality, understood as clients who do not provide public communications networks or publicly available electronic communications services, and who have facilities in that municipality.
2. For the purposes of the preceding paragraph, the amounts of services that, though included in the bills, do not constitute electronic communications services, pursuant to the law, such as equipment sale or renting, consultancy, technical assistance, configuration of terminal equipments, website or webpage construction, telephone directory inscription or audio-text services, shall not be taken into account.
3. The public pay phone and virtual phone card services shall not be subject to the MFRW.
4. Wholesale services, understood as electronic communications services provided to other undertakings which provide electronic communications networks and services for the purpose of their offer to end-clients, are not comprised by the present Regulation.
Article 4
Undertaking information system
1. The billing database for undertakings subject to the MFRW shall allow, through an appropriate information system, the production of the necessary information, per municipality, in order to permit the establishment of the incidence base value, the respective percentages and the calculation of the fee amount, in a transparent way, allowing audits to be carried out.
2. For the purpose of the preceding paragraph, the address of the facility site of the end-client shall be considered, pursuant to paragraph 1 of article 3, and not the billing address or the collecting address, as regards single bill clients (large clients) or centralized collection clients.
3. Where it is not possible to assign a billing amount to the different facility sites of end-clients, such as in the case of leased lines, both the billing address and the collecting address may be taken into consideration.
4. The provisions of the preceding paragraphs do not exempt from the explicit inclusion in the bill of the fee amount to be paid, as provided for in paragraph 3 of article 106 of Law no. 5/2004 of 10 February.
5. In order to ensure the enforcement of the provisions of the preceding paragraphs, municipalities shall make
available to undertakings subject to the MFRW a conversion rate between postcodes and areas of the respective municipally, as well as ensure the permanent updating thereof.
Article 5
Delivery to municipalities
1. Undertakings subject to the MFRW shall carry out, based on the establishment of values collected, and up to the end of the month following that of the bill issue, the payment of the MFRW to municipalities, either by cheque or bank transfer.
2. Upon having received the payment referred to in the preceding paragraph, municipalities shall issue the respective discharge receipt and send it to undertakings.
3. The financial settlements, either favourable or unfavourable to municipalities, resulting from adjustments and which generally imply the issue of debit notes and credit notes, may be added or deducted, as appropriate, in the delivery provided for in paragraph 1 in the month following that of the verification of such situations.
Article 6
Audits
1. Undertakings subject to the MFRW shall promote annual audits, to be carried out by independent entities previously accepted by ANACOM, which shall assess compliance with procedures adopted pursuant to Law no. 5/2004 and the present Regulation, and ensure the validation of information provided.
2. The audit results shall be made available by undertakings to municipalities that so require and to ANACOM.
3. All undertakings subject to the MFRW shall notify ANACOM of the date as from which they are under the duty to pay that fee, and shall refer municipalities comprised.
Article 7
Transitory provision
1. For the purpose of implementing the present Regulation, and without prejudice to relationships between municipalities and undertakings in matters of application of building and construction legal regimes, electronic communications undertakings shall supply municipalities with the appropriate information as regards implanting, crossing or passing over of systems, equipments and further resources installed in public or private municipal domain, so that it constitutes the necessary information support, at the moment of the initial application of the MFRW.
2. The consideration of the address of the facility site of the end-client, pursuant to paragraph 2 of article 4, shall be compulsorily implemented up to the end of the year 2005.
15 September 2004. – The President of the Board of Directors, Álvaro Dâmaso.
