Clarifications provided by ICP-ANACOM during the auction process should not, in the view of VODAFONE, be subject to commentary under the present procedure, in the most part because:
a) Since it is impossible for a regulation to authorise its own authentic interpretation, integration, amendment, suspension or revocation by another act that does not hold equal value, the clarifications issued by ICP-ANACOM, in particular in the period subsequent to the beginning of the qualification stage, lose their effectiveness in the context of the internal sphere of Public Administration;
b) As VODAFONE has already had occasion to express in appropriate context, particularly during the two conducted public consultations, with regard to the limits inherent to certain stipulations of the Auction Regulation, owing to the requirement that it be compliant and compatible with the Lei das Comunicações Eletrónicas (Electronic Communications Law) and also by force of various general legal principles such as equality, proportionality and (full) reasoning, any violation of such goals would stem from the practice of the Administration and not from the Regulation itself or from the interpretation thereof.
Despite such considerations, VODAFONE did not omit to express its position insofar as the administrative action specifically inherent to the provision of clarifications to interested parties will have suffered from a number of irregularities, particularly in terms of guarantees of impartiality, equality, legal certainty and regulatory visibility. VODAFONE considers that such irregularities result exclusively from the initial option of ICP-ANACOM not to adopt a fully transparent procedure in this respect, as the company had repeatedly requested.
VODAFONE presents what it considers to be several examples of such situations, namely:
a) On occasions ICP-ANACOM notified all operators and, on other occasions, notified only a limited number of interested parties e.g., with regard to the issue of the national roaming obligation with respect to the 900MHz or 800MHz band or with regard to the issue of the minimum incrimination on previously cancelled lots; Such differential treatment had no evident justification, whereas it is at least questionable whether such treatment has had a decisive influence on the options taken by each interested party;
b) In the same context, ICP-ANACOM submitted an initial line of argument which it later revoked (for example, with regard to the potential beneficiaries of national roaming agreements), whereas the initial position was not notified to all interested parties, and the reasons for this shift of position remain unclear;
c) There were aspects of these requests for clarification which were not notified to the "other undertakings" - in particular, Grupo ZAPP.pt was alone in being notified by ICP-ANACOM that the national roaming obligations included all services that could be provided through these frequency bands, regardless of whether or not they are already provided by beneficiaries.
VODAFONE considers that, given the widespread and transversal nature of the examples detailed above, ICP-ANACOM could have issued general clarifications on the questions raised, as it had done with regard to other matters, while safeguarding confidentiality in terms of the identity of the parties making the request and without undermining the non-discriminatory treatment of all interested parties.
The company further considers that, in order to prevent serious harm arising from said irregularities, ICP-ANACOM is called upon to take action in respect of the issues covered by these clarifications, with careful attention and consideration given to the potential inequality created among the various interested parties, especially given the importance of such information to the key investment decision in question.
Position of ICP-ANACOM
It was ICP-ANACOM's objective, throughout the auction process, as reflected in the Auction Regulation and as widely explained, specifically in the public consultations reports, to balance the need for transparency, ensuring that applicants and bidders have access to information, and the need to keep back certain information which is essential to the prosecution of the procedure.
ICP-ANACOM's main goal was to prevent applicants/bidders from engaging concentration strategies which might undermine the auction's genuine competitive mechanisms.
With specific regard to requests for clarification, in the context of the public consultation procedure on the Regulation, certain respondents expressed their views in support of the provision of clarifications to the market (as formulated by the interested parties and provided by ICP-ANACOM), provided that no revelation is made with regard to potential bidding strategies.
Having considered these comments, ICP-ANACOM added paragraph 5 of article 11 to the Auction Regulation, which in its view addressed the concerns raised without jeopardising the stipulated objectives.
ICP-ANACOM also takes the view that auction participants were able to ascertain the fairness and transparency of the entire process upon the publication of the final auction report, which fulfilled the requirement that all necessary information be released.
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Analysis of the examples cited by VODAFONE
Regarding the issues with regard to point b) of paragraph 4 and paragraph 5 of article 35 of the Auction Regulation - network access obligations in the 800 MHz or 900 MHz band - ICP-ANACOM scrupulously fulfilled the principles of equality and non-discrimination in the treatment of all applicants, within the limits imposed by article 11 of the Auction Regulation.
As such, after it was determined that clarifications had been provided which did not reflect a correct interpretation of the regulation, pursuant to article 137 of the CPA - Código do Procedimento Administrativo (Administrative Proceeding Code) these were partially substituted (where inconsistency was found). This substitution was addressed to the recipients of the clarification in question.
On the same day, and under the terms of paragraph 5 of article 11 of the Auction Regulation, ICP-ANACOM issued a general clarification on the question.
The rules governing the provision of clarifications, as laid down in article 11 of the Auction Regulation stipulate (in paragraph 1 thereof) that individualised clarification be provided to any interested party, upon request, on any uncertainties arising with regard to the interpretation of documents governing the auction process, while determining the non-disclosure such clarifications. As such, depending on the questions put, these rules legitimize responses which individually address the queries raised.
However, it cannot be claimed, as is claimed by VODAFONE, that any action of ICP-ANACOM constitutes differential treatment of interested parties, much less that such treatment may have in any way influenced the courses of action chosen by each interested party.
Indeed, despite the existence of this specific rule regarding the provision of clarifications, as laid down in the Regulation, ICP-ANACOM used its powers under paragraph 5 of the same article 11 to issue general clarifications in exceptional situations whenever this was deemed justified; such claim is therefore without basis. In this consideration, particular account was taken as to whether the aspects related to the questions raised could reasonably be considered unclear or equivocal, which would support the premise that the question may also be raised by other interested parties. In judging which issues were to be included in general clarifications, ICP-ANACOM also considered their relevance in terms of substantive issues, especially where the opposing interests of various undertakings could be impacted.
Accordingly, whenever the matter warranted, ICP-ANACOM exercised its powers under paragraph 5 of article 11 of the Auction Regulation in order to maintain a level playing field between all applicants, as occurred in the specific case of clarifications in respect of article 35 of the Auction Regulation. As such, all undertaking which submitted an application had access to, and were in effective possession of, the same level of information.
With regard to the question of the request for clarification on the minimum increment applying to previously cancelled lots, this request was put by VODAFONE referring to an uncertainty as to the interpretation of the Auction Regulation. ICP-ANACOM did not provide clarification on the issue due to the fact that the respective request was untimely (it was received by ICP-ANACOM on 25 November 2011, following the expiry of the deadline for the provision of clarification, as stipulated in paragraph 1 of article 11 of the Auction Regulation). Therefore, this example cannot, as was the intention of VODAFONE, serve to support an allegation that ICP-ANACOM gave "differential treatment" to interested parties.
Meanwhile and also in the context of roaming obligations, a question was raised by Grupo ZAPP.pt with respect to services that might benefit, which question, in the view of ICP-ANACOM, clearly resulted from the wording of the Auction Regulation, given the fact that the obligation is expressed explicitly in terms of non-discrimination; as such no general clarification was deemed warranted.
In light of the above, ICP-ANACOM rejects the claim that the way in which clarifications were provided, provided as they were in full compliance with the rules laid down in the Regulation, might, in any way, have placed interested parties or applicants in a situation of inequality likely to cause harm as would warrant special caution in the future.
