Within the scope of its regulatory functions provided for in the ECL (Law of Electronic Communications - Law no. 5/2004, of 10 February) and in its Statutes, annexed to Decree-Law no. 309/2001, of 7 December, ICP-ANACOM is responsible for managing and planning the radio spectrum according to the criteria of spectrum availability, the guarantee of conditions of effective competition in relevant markets and the effective and efficient use of frequencies (see article 15 of the ECL and article 6, no. 1, sub-paragraph c) of the Statutes).
The publication of the NTFA by ICP-ANACOM is an essential and encompassing instrument of the exercise of these powers. In conformity with article 16 of the ECL, the NTFA must contain: 1) the frequency bands and the number of channels already allocated; 2) the frequency bands reserved and to be provided in the following years, specifying the cases in which the rights of use are exigible, as well as the respective allocation process; and 3) the frequencies whose rights of use are likely to be transmissible.
In addition, the limitation of the number of rights of use of frequencies to be allocated is permissible (see article 31 of the ECL), but only when it is necessary to guarantee the efficient use of the frequencies, regarding which ICP-ANACOM must, in its decision, consider the need to maximise the benefits for users and facilitate the development of competition.
In order to limit the number of rights of use of frequencies to be allocated in the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2.1 GHz and 2.6 GHz frequency bands it must: 1) promote the general consultation procedure set out in article 8 of the ECL, hearing, namely, the users and consumers; 2) publish a decision, based on duly reasoned grounds, to limit the allocation of rights of use, defining simultaneously the allocation procedure, which can be of competitive or comparative selection, namely auction or tender; and 3) initiate the procedure for the presentation of applications for rights of use under the terms defined.
When there is a limitation of the number of rights of use, the selection procedures and criteria must be objective, transparent, non-discriminatory and proportional, taking into account the regulatory objectives set out in article 5 of the ECL.
In those cases in which the allocation of rights of use is subject to competitive or comparative selection procedures, ICP-ANACOM is responsible for approving the regulations of allocation of the rights of use of frequencies, except when the rights of use to be allocated refer to frequencies accessible, for the first time, within the scope of electronic communications or, if not, are destined to be used for new services, in which case the Government is responsible for approving the regulations (see article 35, nos. 4 and 5 of the ECL). In this particular case, ICP-ANACOM is responsible for approving the respective selection regulation.
ICP-ANACOM must in its activity permanently pursue a set of regulatory objectives of which it highlights, in this context, the promotion of competition in the offer of electronic communications networks and services, of resources and connected services and encourage an efficient use and ensure an effective management of the frequencies (see article 5, no. 1, sub-paragraph a) and no. 2, sub-paragraph d) of the ECL), seeking to guarantee the technological neutrality of the regulation.
