Decree-Law no. 237/98, of 5 of August

Official Portuguese version published in D.R. number 179 (Serie I-A) of 5 August 1998

Presidência do Conselho de Ministros (Presidency of the Council of Ministers)

Decree-Law


Act no.31-A/98 of July 14th, which regulates the access to the television activity and its performance, in its article no.19th transfers to a Law the regulatory terms applicable to the licencing and authorization of television channels.

We see such regulation as an indispensable instrument which will give a meaningful effect to the creation of new television channels, foreseen in the forthcoming television law, such as the transmission of programmes by terrestrial broadcast, with digital technology, by cable or by satellite.

Therefore, the purpose of the current law is to determine the specific conditions for the access to the activity, establishing the necessary documentation, the timeframe for presentation of applications, the value of the required security deposit, the coverage phases and the implentation guaranties, the timing for complementary information, delivery and appreciation of the files by the authorised entity, as well as the beginning of transmissions by the licenced operators or, when the terrestrial broadcast spectrum is not used, by the operators authorized to conduct the television activity.

Therefore, to advance the juridical terms established by Act no.31-A/98 of July 14th, and in accordance with the terms of clause c) of nr.1 of article 198th of the Constitution, the Government decrees as following:

CHAPTER I
General terms
 

Article 1.
Access to the activity

1 - The access to the television activity within the national scope, apart from the public service, is subject to a licensing or authorisation process, depending whether the transmissions are using or not terrestrial spectrum, to be granted according to the current law.

2 - Licences held by the television operators which were granted prior to the date Act no.31-A/98 of July 14th (Television Act) is set into force, are considered to be sufficient qualification to conduct this activity by terrestrial digital spectrum.

3 - The use of the terrestrial digital spectrum by the operators referred in the previous number is limited to the unabridged and simultaneous broadcast of programmes available in the analogic net.

4 - The right stemming from the terms established in no.2 must be used by the interested operators within 60 days, otherwise it will prescribe. The Alta Autoridade para a Comunicação Social, for short henceforth referred to as AACS, must be informed within the 30 subsquent days

Article 2.
Competence

It is the duty of AACS to grant and renew the licences and authorizations for access to the television activity.

Article 3.
Licences or authorizations

The licences or authorizations are individualized according to the number of channels held by each operator applying and must contain the corresponding classification, under the terms of article 7th of Act no.31-A/98 of July 14th.

Article 4.
Validity and renewal of licences or authorizations

1 - Licences or authorizations to conduct the television activity with national coverage are valid for 15 years, renewable for identical periods of time.

2 - The renewal of licences or authorizations is not granted only if the conditions and requisites which determined its award have clearly not been fulfilled.

3 - The renewal of licences and authorizations is applied for with a minimum antecedence of one year before expiry date. The corresponding decision will be communicated within 3 months after the application has been made.

4 - In case no decision is received, its approval will be assumed.

Article 5.
Equal access

1 - Television operators have identical access conditions to the public telecommunication nets conducted by licenced operators under the terms of Law no.381-A/97 of December 30th.

2 - The violation of the obligations referred in the previous number is an offence foreseen in clause c) of no.1 of article 33 of Law no.381/97 of December 30th, punished according to the rules established therein.

CHAPTER II
Licencing
 

Article 6.
Public tender

1 - The access to television activity is licenced by public tender.

2 - The regulation which will control the tender will be approved by law issued by the member of the Government responsible for the social communication.

Article 7.
Licences award

1 - Licences will be conditioned by the verification of technical quality and economic viability of the project.

2 - As a guaranty of economic viability of the project a private capital not inferior to 25% of the intended global investment is acceptable.

3 - In case a decision has to be made considering projects applying to the same tender, there will be a selection according to criteria defined in clause no.2 of article 15th of Act no.31-A/98 of July 14th.

4 - Television operators, together with the supporting telecommunications net operator must ensure that, within the limit of 3 years after the date the licence was issued, their emissions will cover 75% of the national territory and within the limit of 5 years, at least 95%.

Article 8.
Presentation of applications

1 - The licence application request is addressed to AACS and handed over to Instituto da Comunicação Social (ICS) for instruction of the file.

2 - Applications will no longer be acceptable 3 months after the publication of the tender requirements book.

3 - The applicants must present, besides other documents foreseen in the regulation:

a) Justification of the application;

b) Economic and financial study of the exploration conditions of the television channel, specially its financing sources and amortization plans and demonstration of the economic viability of the project;

c) Technical project describing the facilities, equipment and systems to use;

d) Description of the human resources involved in the project, various job positions and professional qualifications of the persons responsible for the main management positions;

e) Detailed description of the activity they plan to conduct, including the corresponding editorial statutes, the transmission timetable and the general programation lines. Also the name the channel in question will adopt;

f) Statutes proving that they are registered in Registo Nacional de Pessoas Colectivas;

g) Document stating that they have organized book keeping in conformity with the Oficial Accounts Plan and adequate to the analysis required for the project to be developed;

h) Declaration stating that all taxes, subscriptions or contributions or any other all payments due to the State or Social Security are paid up or their payment is ensured by the fulfilment of conditions established under the terms of the law.

4 - Another condition of admissibility, besides the documents referred in the previous number, is also the deposit of Escudos 200.000.000 in the case of generic channels or Escudos 100.000.000 in the case of thematic channels.

Article 9.
Complementary information

1 - ICS will notify the applicants, within 15 days after the reception, in case something is missing in the files. In the subsequent 20 days whatever is missing must be provided.

2 - Any application which does not fulfil the conditions established in no.3 of the previous article and in the tender regulation referred in no.2 of the same article will not be accepted. The rejection will be formalized by ministerial decision of the member of the Government responsible for the social communication.

Article 10.
Decision

1 - The files accepted under the terms of the previous article are sent to AACS within the 45 days after the dead line for presentation of applications or for providing information which was found missing. Deliberation will occur within the next 45 days.

2 - The applicants must facilitate to AACS, whenever required to do so, any documents or additional clarifications found to be necessary for the decision.

3 - The decision referred in the previous numbers is published in Diário da República.

Article 11.
Beginning of transmissions

Television operators must initiate the emissions within 6 months after the date of the licence.

Article 12.
Pre-requisites

1 - The concession of authorizations to conduct the activity of television by cable or by satellite depends on the conditions referred in no.1 of article 7th. The applicants must complement the application with the elements numbered in no.3 of article 8th and with the document certifying his access to the net.

2 - If the candidates intend to use their own net to carry and distribute the signal, they must state clearly this intention and indicate in a map the areas and the phases they plan to cover, considering the terms in article 16th.

3 - The creation of private nets to carry and distribute the television channel by cable or by satellite has to comply with the terms of Laws no.241/97 of September 18th and no.381-A/97 of December 31st.

Article 13.
Application procedure

1 -The regulations in no.1 and no.4 of article 8th are applicable to the authorization applications.
2 - All applications that comply with the pre-requisites referred in the previous number are sent to AACS, which takes the decision within 15 days.

Article 14.
Proclamation of the applications

ICS will publicate monthly in one of the most read daily newspapers of general information the authorizations granted and applications still waiting for decision .

Article 15.
Beginning of transmissions

Television operators must start with the transmissions within 3 months after the date the authorization was issued.

Article 16.
Coverage phases

Television operators must comply with the foreseen coverage phases determined in no.4 of article 7th. For the purpose they may use either their own nets or third party nets or both.

CHAPTER IV
Final rules
 

Article 17.
Technical rules

1 - The technical rules to which the television transmissions conducted by terrestrial broadcast, by cable or by satellite, have to comply with, are fixed by regulation issued by the member of the Government responsible for the communications area.

2 - The fees due for granting and renewing the licences and authorizations dealt with in this regulation, are fixed by ministerial decision of the member of the Government responsible for the social communication.

Article 18.
Revoking note

Law no.401/90 of December 20th is revoked.

Approved in June 18th, 1998 Read and approved by the Cabinet on June 25th 1998 - António Manuel de Oliveira Guterres - João Cardona Gomes Cravinho - José Socrates Carvalho Pinto de Sousa.

Promulgated in July 24th, 1998.

To be published The President of the Republic, Jorge Sampaio.

Referendum held in July 7th, 1998-07-29.

The Prime-Minister, António Manuel de Oliveira Guterres.