Ministério do Equipamento Social (Minister of Social Equipment)
Decree-Law
(This is not an official translation of the law)
The legislation, which makes general provision regarding the use of radiocommunications in Portugal, dates from the end of the 80s, i.e. Decree-Laws 147/87, of the 24th of March, and 320/88, of the 14th of September.
The guiding principles, which govern the use of radiocommunications resources, having been consolidated by this legislation, there is now a need to make the necessary changes to adapt and update the legal framework in force to the many modifications, which have occurred in the meantime. These adaptations and updates are essentially at the level of regulations, which control the use of these resources, which are a consequence of community legislation and of the regulations issued by the European Post and Telecommunications Conference (EPTC). Innovative measures in areas, in which there have hitherto been lacunas in relation to Portuguese radiocommunications, are accordingly introduced, in order to approximate our legislation to the most recent developments in terms of regulations and technology, without losing sight of the particular nature of radiocommunications and the overall coherence of the consolidated legal framework.
Furthermore, the constant technological progress, which characterises the communications sector in general and telecommunications in particular, has given rise to the increased use of stations for the purpose of accessing the electromagnetic spectrum, in addition to the nationally and internationally agreed radiocommunications wave bands, for a wide range of objectives, which explains the inclusion in this decree-law of special legal provision regarding the use of such resources. A fundamental feature of this legislation is the abandonment of the principle, enshrined in Decree-Law no. 147/87, of the preferential use of the resources of public telecommunications services to meet the requirements of private communications, which involve the use of radio resources. Another balanced solution is provided, which is based on the use of radio resources for private communications-private networks, combined with the use of tools associated with the management of the spectrum, i.e. the planning of the spectrum, the associated attribution criteria and the radio fees tariff. This legal framework is based on the simplification and reduction of the radio licensing procedures to which radiocommunications networks are, in principle, subject, with resulting benefits for both the general public and the State.
The current principle according to which radio licensing in respect of the installation of networks and stations, including aerials, obviates neither the licensing procedures inherent in legal title nor the licensing, authorisation and other procedures envisaged in the law, i.e. those which lie within the competence of the local authorities, the objective of which is to protect interests other than those within the remit of the radio spectrum management authority, is retained.
More up to date criteria and methods are adopted in order to calculate licensing and spectrum use fees and the application of standardised provisions to the various services, which use the spectrum, is promoted. This decree-law enshrines the general provisions affecting radio communications. It does not, however affect the applicability of specific legislative measures and regulations, such as those regarding the Amateur Radio Service, the Personal Radio Service -Citizens' Band and sound radio broadcasting. Accordingly:
The Government decrees as follows, pursuant to the provisions of paragraph a) of no. 1 of article 198 of the Constitution:
CHAPTER I
General Provisions
Article 1
Object and scope
1- This decree-law enshrines the legal provisions applicable to the licensing of radiocommunications networks and stations, the supervision of the installation of the said stations and the use of the radio spectrum, together with the establishment of the principles applicable to radio licensing fees, protection from exposure to electromagnetic radiation and the sharing of radiocommunications infrastructures.
2- Given the specific nature of the use involved, the following are excluded from the scope of this decree-law:
a) Military radiocommunications networks and stations, which operate on wave bands, the management of which is delegated, by the Portuguese Communications Institute (ICP), to the National Defence Ministry;
b) Radiocommunications networks and stations, which are the subject matter of specific legislation.
Article 2
Definitions
1 - The following terms shall have the following meanings for the purposes of this decree-law:
a) Radiocommunications: telecommunication by radio waves;
b) Radiocommunications service: a public or private service, which is addressed or broadcast, which involves the transmission, transmission or reception of radio waves for specific telecommunications purposes;
c) Electromagnetic wave: a wave, which is characterised by variations of electric and magnetic fields;
d) Electromagnetic spectrum: the frequencies associated with electromagnetic waves;
e) Radio wave: an electromagnetic wave with a frequency of less than 3000 GHz, which is propagated in space without an artificial guide;
f) Radio spectrum: all those frequencies associated with radio waves;
g) Optical radiation: electromagnetic radiation with a wave band of between the limit, which corresponds to X rays and the upper limit of radio waves;
h) Radiocommunications station: one or more transmitters or receivers or a group of transmitters and receivers, including other ancillary equipment, which is able to provide a radiocommunications service or radioastronomy service, in a specific location;
i) Radiocommunications network: the entity comprised by various radiocommunications stations, which communicate with each other;
j) Radio licence: an administrative authorisation, which confers on the license holder the right to use a radiocommunications station or network, within the scope of a radiocommunications service, in accordance with the terms and subject to the conditions established therein.
2 - Any other definitions regarding radiocommunications, which are not mentioned in the preceding paragraphs, shall be governed by the Radiocommunications Regulations, which are a schedule to the International Telecommunications Convention
Article 3
The use of the electromagnetic spectrum
1 - The use of the radio spectrum shall be subject to the licensing provisions envisaged in chapter II of this decree-law.
2 - The use of the electromagnetic spectrum using optical radiation in non-guided resources shall be subject to registration with the ICP, when such use is in connection with the supply of public telecommunications services.
3 - The resources referred to in the preceding number shall not have the benefit of protection against prejudicial interference.
Article 4
The powers and duties of the ICP
1 - The ICP shall, in the exercise of its powers and the performance of its duties, attribute such frequencies as are necessary for the operation and use of radiocommunications networks and stations, which use the radio spectrum.
2 - In the exercise of its powers and the performance of its duties, the ICP may, at any time, alter, cancel or replace the attribution of frequencies for the operation and use of radiocommunications networks and stations, within the scope of the management of the radio spectrum and in accordance with the principle of proportionality and respect for established rights of citizens.
3 - In the cases envisaged in the preceding number, the ICP shall give notice of its decision to the licence holders and state the reasons therefor.
4 - In the cases envisaged in no. 2, compensation shall be awarded to licence holders to compensate them for all or part of the cost proved to be incurred by them as a consequence of the alteration, cancellation or replacement of frequency attributions. The said compensation shall be awarded in accordance with general criteria to be established in a statutory instrument by the member of the Government responsible for communications.
5 - The ICP may, in the event of the alteration or replacement of a frequency attribution, pursuant to the provisions of no. 2, decide that the compensation referred to in the preceding number shall be paid by the beneficiary of the new attribution.
CHAPTER II
Licensing
Article 5
Licences
1 - The use of radiocommunications networks and stations shall be subject to the possession of a licence, in accordance with the provisions of this decree-law.
2 - The ICP shall be responsible for the granting of the licences referred to in the preceding number.
3 - The ICP shall have the power to authorise the use of the radio spectrum for the conduct of technical trials and scientific studies, on a case-by-case basis, without the need for a licence.
Article 6
Regulations governing radiocommunications operations and access thereto
1 - The radio licensing provisions in this decree-law are without prejudice to compliance with the legal provisions applicable to the operation of public telecommunications networks and services and the creation and use of private telecommunications networks.
2 - Those wishing to obtain a radio licence in accordance with the provisions of this decree-law shall comply with the provisions governing access to public telecommunications business or comply with the provisions applicable to the creation of private networks.
Article 7
Network Licences
1 - A radio licence shall be required for the use of radiocommunications networks.
2 - Such licences shall state:
a) The licence holder's identity;
b) The purpose for which the licence is granted;
c) The issue date;
d) The licence validity period;
e) The technical parameters applicable to the stations, which comprise the network;
f) The number and location of the stations, which comprise the network, when applicable.
Article 8
Station licences
1 - The use of stations, which comprise a licensed radiocommunications network, shall not require a licence, except in the cases envisaged in the following number.
2 - The categories of stations, which although they are part of a radiocommunications network, require a licence, shall be notified in a notice to be published by the ICP, in the 3rd series of the Diário da República.
3) The use of stations, which are not part of a radiocommunications network, shall be subject to a licensing procedure.
4) Station licences shall state:
a) The licence holder's identity;
b) The purpose for which the licence is granted;
c) The issue date;
d) The licence validity period;
e) The specific technical parameters of each station, within the scope of the network or service of which they are part;
f) The location of the station, when applicable.
Article 9
Licence exemption
1 - The ICP shall establish the grounds for exemption:
a) From the network licence referred to in article 7;
b) From the station licence referred to in no. 3 of article 8.
2 - The ICP shall publish a notice in the 3rd series of the Diário da República, stating which networks and stations have licence exemption, in accordance with the provisions of the preceding number.
Article 10
Users' duties
Users of radiocommunications networks and stations shall have the following duties, without prejudice to other duties arising from this decree-law and other applicable legislation:
a) To use the networks and stations for the purpose for which they are intended;
b) To keep the networks and stations in good working order and to refrain from causing interference with other radiocommunications networks and stations;
c) To comply, within the scope of radiocommunications networks and stations, with the limitations affecting radio equipment, in accordance with the legislation in force;
d) To pay the applicable fees within the time limits stipulated, in accordance with article 19;
e) To allow the inspection of stations and to afford access to the premises thereof to inspection personnel, whether the same are occupied solely or on a shared basis;
f) To use radiocommunications stations at the frequencies attributed to them;
g) To use radiocommunications stations in accordance with the technical parameters established in accordance with the provisions of paragraph e) of no. 2 of article 7 and paragraph e) of no. 4 of article 8;
h) To affix a plate stating the identity of the user and the contact details of a person who can afford access to the station, in a clearly visible location, on the exterior all fixed stations.
Article 11
Prohibited radiocommunications
Users of radiocommunications stations shall, without prejudice to the provisions of specific legislation, be prohibited from:
a) Making or permitting unlawful radiocommunications;
b) Transmitting false or misleading alarm, emergency or warning signals and rescue calls.
Article 12
Grant of licences
1 - Applicants for radiocommunications network licences in respect of a network, which is, or is part of, a public or private telecommunications network, shall submit an application to the ICP together with the technical project for the radiocommunications network.
2 - Applicants for a radiocommunications station licence shall submit an application to the ICP together with the following documents:
a) A document, which establishes that it is the holder of a network licence in accordance with the provisions of no. 1, if applicable;
b) The technical project for the radiocommunications station.
3 - The ICP shall specify the information and documentation to be submitted in support of applications and the requirements to be complied with by technical projects, according to the services in question.
Article 13
Temporary licences
1 - Temporary radiocommunications station or network licences may be granted for a period not exceeding 60 days and may be renewed once for a like period.
2 - In the cases referred to in the preceding number, the licensing application shall be submitted to the ICP at least 10 days prior to the date on which it is proposed the licence should come into force.
3 - In exceptional cases, the ICP may waive compliance with the time limit referred to in the preceding number.
Article 14
Transfer of licences
1 - Network or station licences shall be transferable, subject to the prior consent of the ICP, which may alter the terms thereof.
2 - The grounds for the rejection of an application for leave to transfer a licence, referred to in the preceding number, shall stated fully, i.e. technical or economic reasons in the light of the protection of the public interest, within the ambit of the management of the radio spectrum.
3 - The entity to which a licence is transferred shall have the same legal authorisations as the transferor, to conduct the public or private telecommunications service in the licence and shall assume all rights and obligations involved in the licence, failing which the transfer shall be null and void.
4 - The transfer of a network licence shall involve the transfer of all the licences of the stations, which comprise the network, if any.
5 - The temporary licences provided in article 13 shall not be transferable.
Article 15
Validity and renewal of licences
1 - Licences shall be valid for 5 years and shall be renewed automatically for a like period, unless written notice is given by the ICP stating grounds, at least 60 days prior to the expiry of the term of the licence.
2 - Whenever a licence holder does not wish to renew its licence, it shall give notice of this fact to the ICP, at least 60 days prior to the expiry thereof.
3 - In the absence of the notice referred to in the preceding number, the ICP shall presume that the licence holder wishes to renew the licence and shall send a new licence certificate to the licence holder prior to the expiry thereof.
Article 16
Alteration of licences
1 - Licences may be altered in the following circumstances:
a) At the instance of the ICP, at any time, in accordance with the principles of the protection of the public interest and proportionality;
b) On application, by the licence holder, subject to the approval of the ICP.
2 - The ICP shall, for the purposes of the provisions of paragraph a) of the preceding number, give reasonable notice to the licence holder, stating the grounds therefor, of the alteration to be made and issue the licence in accordance therewith.
3 - In the circumstances referred to in paragraph b) of no. 1, the ICP shall, in the event that it approves the alteration, issue the altered licence accordingly.
4 - In the circumstances referred to in this article, the licence holder shall return the licence, subject to alteration, to the ICP, within 10 days of receipt of the altered licence.
Article 17
Cancellation of licences
1 - Licences may be cancelled in the following circumstances:
a) Breach of the restrictions imposed by article 11 of this decree-law;
b) At the licence holders request.
2 - In the event of cancellation, pursuant to the provisions of paragraph a) of the preceding number, the ICP shall not grant the licence holder a new licence prior to the expiry of one year from the date of the decision to cancel the licence.
3 - The cancellation of a licence shall not give rise to an entitlement to the reimbursement of any fees paid prior to the cancellation date.
4 - In the circumstances referred to in this article, the licence holder shall return the cancelled licence to the ICP within 10 days of receipt of notice of cancellation.
Article 18
Technical officers in charge of radiocommunications networks and stations
1 - The ICP may make the grant of a radiocommunications network or station licence subject to the identification by the applicant, of the technical officer responsible for the project, installation and maintenance of the network or station.
2 - The ICP shall, for the purposes of the preceding number, stipulate the following matters in a Notice to be published in the 3rd series of the Diário da República:
a) The radiocommunications services in respect of which a technical officer in charge is required;
b) The technical qualifications required of these technical officers.
CHAPTER III
Fees
Article 19
Fees
1 - The following matters shall be subject to the payment of fees:
a) The issue of radiocommunications network and station licences;
b) The alteration, replacement, in the event of loss, and renewal of licences;
c) The transfer of licences;
d) The registration envisaged in no. 2 of article 3;
e) The use of the radio spectrum.
2 - The function of the service, spectral parameters, coverage and use shall be taken into consideration in the establishment of the fees referred to in paragraph e) of the preceding number, as follows:
a) The number of stations used;
b) The frequencies or channels attributed;
c) The frequency band;
d) The bandwidth;
e) The amount of congestion in the implementation region;
f) Economic and social development in the implementation region;
g) The coverage area;
h) The type of use and user;
i) The exclusive or shared nature of the frequencies or channels attributed.
3 - The fees shall be reduced in the case of the temporary licences envisaged in article 13.
4 - In the circumstances envisaged in no. 3 of article 13, an urgency fee shall be due for the issue of the licence.
5 - The use fees referred to in paragraph e) of no. 1 of this article shall be reduced for the National Civil Defence Service, the Regional Civil Defence Services of the Azores and Madeira, the civil defence agencies referred to in paragraphs a) and e) of no. 1 and no. 2 of article 18 of Law no. 113/91, of the 29th of August, as amended by Law no. 25/96, of the 31st of July, and other entities in Portugal, which are directly involved in fire prevention, detection, watching and fighting and which provide pre-hospital emergency assistance in the Autonomous Regions.
6 - The entities referred to in the final part of the preceding number shall be indicated by resolution of the Council of Ministers.
7 - The amount and payment frequency of the fees envisaged in the preceding numbers and the percentage reductions referred to in nos. 3 and 5, shall be fixed by statutory instrument, by the member of the Government responsible for communications.
8 - In the event of failure to pay the use fee, late payment interest shall be charged at the rate stipulated by tax law, without prejudice, in the event of delay in payment exceeding 90 days, to the levying of a surcharge of 15% of the amount of the fee in question.
9 - The amount of the fees charged in accordance with the preceding numbers, shall be the revenue of the ICP.
10 - The attribution of frequencies may be subject to the payment of a fee, on terms to be defined by statutory instrument, by the member of the Government responsible for communications, which shall fix the amount thereof taking into consideration the economic value of the frequencies attributed and the destination of the revenue.
CHAPTER IV
Establishment and installation of radiocommunications stations and networks
Article 20
Installation of radiocommunications stations
1 - The installation of radiocommunications stations and their accessories, i.e. aerials, on urban or rustic land, shall be subject to the consent of the proprietors, in accordance with the law.
2 - The provisions of the preceding number shall not operate so as to dispense with the need for any other licensing or authorisation procedures required by law, i.e. those within the competence of the local authorities.
3 - The proprietor or holder of a radiocommunications station and its accessories, i.e. aerials, shall be liable for loss and damage caused thereby to third parties.
4 - For the purposes of this decree-law, the use of radiocommunications resources shall be presumed whenever there are outdoor aerials.
Article 21
Restrictions on the installation of radiocommunications stations
1 - The installation of radiocommunications stations and their accessories, i.e. aerials shall not, in addition to other legal restrictions:
a) Obstruct access to chimneys or works to repair the roofs of buildings;
b) Give rise to harmful interference, which affects stations entitled to protection or radio broadcasts;
c) Infringe existing radio easements.
2 - Warning signs regarding the risk of fixed radiocommunications stations and their accessories, i.e. aerials, shall be affixed at the locations thereof.
Article 22
Electromagnetic exposure and radiation
1 - The ICP shall procure the publication of a notice in the 3rd series of the Diário da República, which identifies reference levels of exposure to electromagnetic fields or European or Portuguese norms, based on recognised and scientifically proved measurement and calculation methods, for the evaluation of compliance with the basic limitations regarding the exposure of the general public to electromagnetic fields, to be approved by the proper authorities.
2 - The ICP may, in appropriate cases, introduce measures to control the installation and operation of radiocommunications stations or aerials, in accordance with the matters referred to in the preceding number.
Article 23
Sharing of infrastructures
1 - Holders of licences, issued pursuant to this decree-law, shall, whenever technically possible, make agreements with a view to the sharing of existing or planned radiocommunications infrastructures. The said agreements may include the sharing of support, cables, filters, aerials and buildings.
2 - A plate identifying the users and the contact of whosoever can grant access to the installation, shall be affixed to the outside of shared installations, in a visible location.
3 - When an agreement pursuant to the provisions of no. 1 is not made, unjustifiably, the ICP may determine on the sharing of existing infrastructures in a specific geographic area.
CHAPTER V
Supervision and penalties
Article 24
Supervision
1 - The ICP shall supervise compliance with the provisions of this decree-law, by way of its inspectors or agents, duly appointed by the Board of Directors of the ICP.
2 - The ICP may inspect radiocommunications networks and stations, in order to ascertain whether the installation and operation thereof complies with the applicable conditions.
3 - The measurements taken by the ICP shall, when duly recorded and identified, be evidence of the manner in which the radio spectrum is used by radiocommunications networks and stations.
Article 25
Offences
1. The following shall be offences, without prejudice to other applicable sanctions:
a) Use of the electromagnetic spectrum without being registered with the ICP, contrary to the provisions of no. 2 of article 3;
b) Use of the radio spectrum without the authorisation of the ICP, contrary to the provisions of no. 3 of article 5;
c) Use of a radiocommunications network, contrary to the provisions of no. 1 of article 7;
d) Use of unlicensed stations, contrary to the provisions of nos. 2 and 3 of article 8;
e) Breach of the duties envisaged in paragraphs a), e), f) and g) of article 10;
f) Breach of the duties envisaged in paragraphs b) and c) of article 10 and paragraph b) of article 11;
g) Failure to affix an identification plate, contrary to the provisions of paragraph h) of article 10 and no. 2 of article 23;
h) Transfer of the licence by the licence holder, contrary to the provisions of no. 1 of article 14;
i) Failure to return a licence, contrary to the provisions of no. 4 of article 16 and no. 4 of article 16 and no. 4 of article 17;
j) Installation of stations and aerials contrary to the provisions of nos. 1 and 2 of article 21;
k) Failure to comply with the published reference levels or norms and restrictive measures, if any, contrary to the provisions of nos. 1 and 2, respectively, of article 22;
l) Failure to comply with a decision of the ICP, contrary to the provisions of no. 3 of article 23;
2. The offences envisaged in paragraphs a), b), g), i), j) and l) of no. 1, shall be punished by the imposition of a fine of between Pte 20 000 and Pte 500 000, when the offender is a private individual, or between Pte 30 000 and Pte 1 000 000, when the offender is a corporation.
3. The offences envisaged in paragraphs c), d), e), f), h) and k) of no. 1 shall be punished by the imposition of a fine of between Pte 50 000 and Pte 750 000, when the offender is a private individual, and of between Pte 100 000 and Pte 9 000 000, when the offender is a corporation.
4. The additional penalty of suspension of the licence may be imposed in the case of the offences envisaged in paragraphs e) and f) of no. 1.
5. The additional penalty of the forfeiture of stations to the State may be imposed in the case of the offences envisaged in paragraphs b), c), d) and f) of no. 1, when application is not made for the restitution of sealed or dismantled stations, within 60 days of receipt of notice of the decision.
6. Attempted and negligent commission of the offences envisaged in this decree-law shall be offences.
Article 26
Seizure and restitution of stations
1 - All or part of stations, which served or were intended to serve for the commission of an offence, or which are the result of an offence, may be seized provisionally, as may any stations or parts of stations, which are likely to be evidence.
2 - Stations seized shall, whenever possible, be included in the proceedings or placed in the custody of a bailor. The said matters shall be recorded in the seizure order. Stations seized shall, whenever possible, be wholly or partially sealed.
3 - Stations seized shall be returned as soon as the continued retention thereof for evidential purposes, is no longer necessary, unless the proper authorities intend to declare them forfeit.
4 - Stations shall, in any event, be returned, as soon as the decision regarding the offence is final, unless the same are declared forfeit.
5 - Whenever possible, the same persons, who were present at the affixing of seals shall be present at the removal thereof, when they shall check whether the seals have been tampered with and whether stations seized have been altered in any way.
Article 27
Offence procedures
1 - The imposition of the fines and additional penalties envisaged in this decree-law shall be a matter for the Chairman of the Board of Directors of the ICP.
2 - The commencement of proceedings regarding offences shall be a matter for the Board of Directors of the ICP. The said proceedings shall be prosecuted by the proper departments of the ICP.
3 - 60% of the fine revenue shall revert to the State and 40% thereof shall revert to the ICP.
4 - The ICP may publicise the punishment of offences and the additional penalties imposed, pursuant to the provisions hereof, as appropriate.
CHAPTER VI
Transitional and final provisions
Article 28
Alteration of licences
1 - The ICP shall make such alterations of radio licences already issued or issue new licence certificates and waiving the corresponding fee, during the first year following the coming into force of this decree-law.
2 - Licence holders shall provide the ICP with all information and documents requested of them, for the purposes of the provisions of the preceding number.
Article 29
Repeals
1 - The following legislation is hereby repealed:
a) Decree-Law no. 147/87, of the 24th of March, as amended by Decree-Law no. 149/91, of the 12th of April, without prejudice to the provisions of nos. 5 and 6 of this article;
b) Decree-Law no. 320/88, of the 14th of September, as amended by Decree-Law no. 146/91, of the 12th of April, without prejudice to the provisions of nos. 5 and 6 of this article;
c) Decree-Law no. 144/97, of the 7th of July;
d) MOPTC Order 16/94-XII, of the 27th of April.
2 - Statutory Instrument no. 859/94, of the 23rd of September, as amended subsequently, shall remain in force pending the publication of the notice envisaged in no. 2 of article 9.
3 - Council of Ministers Resolution no. 23/98, of the 12th of February.
4 - The current fee levels and the reductions in the published tariff, shall remain in force pending the publication of the statutory instrument envisaged in no. 7 of article 19.
5 - The norms for the approval of radiocommunications equipment in Decree-Law no. 147/87, of the 24th of March, as amended by Decree-Law no. 149/91, of the 12th of April, and Decree-Law no. 320/88, of the 14th of September, as amended by Decree-Law no. 146/91, of the 12th of April, shall remain in force until the legal provisions applicable to telecommunications terminals and radio equipment come into force, without prejudice to the adaptations necessary as a consequence of the radiocommunications networks and stations licensing provisions in this decree-law.
6 - The technical specifications issued pursuant to the legal framework previously applicable to radiocommunications, shall remain in force until new technical specifications are issued.
Checked and approved in Council of Ministers on the 21st of June 2000. - António Manuel de Oliveira Guterres - Jorge Paulo Sacadura Almeida Coelho - António Luís Santos Costa. Promulgated on the 12th of July 2000. To be published. The President of the Republic, JORGE SAMPAIO. Approved on the 19th of July 2000. The Prime Minister, António Manuel de Oliveira Guterres.
