The renewal of the rights of use of Vodafone and TMN

Under the public consultation launched by ICP-ANACOM, in July 2005 ¹, on the process of renewing the rights of use of frequencies as allocated to TMN and Vodafone for provision of the land mobile service in accordance with the GSM digital system, given that both companies had complied with the coverage obligations that were attached during the continuance of the licenses, maintaining similar levels of coverage, ICP-ANACOM took the view that, among other obligations, consideration could be given to the following obligations: (i) that, in terms of population, operators ensure the coverage achieved at the time, explaining the calculation methodology used in the determination thereof and (ii) coverage be expanded to include main roads constructed in the intervening period, and also to include main railway lines. In this context, stakeholders commented on the questions that were specifically put in this regard.

In the respective consultation report ², ICP-ANACOM concluded, as regards the minimum coverage requirements, that:

«Notwithstanding that said operators have already fulfilled the coverage obligations to which they were bound under the terms of the licenses issued to them, they should continue to guarantee that coverage, both in terms of population and in terms of geographical distribution, as is provided to users on the date that the rights of use are renewed. In this context, after hearing the operators, ICP-ANACOM will define a calculation methodology to enable coverage measurement. (...). In conclusion, ICP-ANACOM holds that GSM 900/1800 operators should continue to ensure current geographical and population coverage, while not seeing fit to establish any obligations in terms of quantity and location of infrastructure.»

As regards the imposition of obligations imposed to provide coverage of certain roads and railways lines or other coverage, this Authority decided that:

«In accordance with the provisions of point b) of paragraph 1 of article 32 of the LCE, the holders of rights of use of frequencies may be made subject to coverage obligations in order to guarantee effective and efficient use. (...) Notwithstanding the legal prerogatives granted to GSM operators, nothing prevents these operators, in conjunction with the competent authorities, from developing projects to ensure coverage in specific localities. It is in this context that the contract between Metropolitano de Lisboa (Lisbon Metro) and the three GSM operators was concluded with a view to extending coverage throughout the Lisbon Metro network. Meanwhile, a working group was created, coordinated by ICP-ANACOM and involving operators, Refer, Refer Telecom, CP (Portuguese Railways) and representatives of the Ministry of Public Works, Transport and Communications, to examine possible solutions to minimize the problems of coverage on railway lines. In light of the above, ICP-ANACOM considers that it may order GSM operators to provide coverage in specific localities and areas where warranted, specifically to meet particular communication needs that support the interests of the population and economic and social development. Nevertheless, there are no grounds for imposing deadlines for the accomplishment of coverage provision in specific areas.»

Additionally, under the prior hearing of Vodafone on the draft of the renewal title of the rights of use of frequencies in question (Prior hearing report ³), this Authority made clear that, as regards coverage obligations, that it was important to note that the defence of the interests of citizens constitutes an objective of regulation as pursued by ICP-ANACOM (article 5 of the LCE), stating that:

«Promoting the defence of users of the land mobile service, which service, given its current level of penetration, specifically as compared to penetration of the fixed telephone service, as well as its economic and social relevance, entails the guarantee that these users are able to access the service throughout the national territory, according to equal conditions. As such, the decision to cover a specific geographical area cannot depend solely on a mere economic judgment by operators, but should rather address the real communications needs of the respective users and subscribers.

Accordingly, the condition was established in the title, in line with the final part of point b) of paragraph 1 of article 32 of the LCE, that service coverage be guaranteed, in terms of population and in terms of geographical distribution, as not lower to that prevailing as on the renewal date of the right of use of frequencies, as well as the possibility that said coverage be extended to specific localities and areas.»

Therefore, with the reasoning as set out above, both the title of Vodafone (Right of Use of Frequencies ICP-ANACOM no. 01/2006, issued on 20.07.2006), and subsequently that of TMN (Right of Use of Frequencies ICP-ANACOM no. 01/2007, issued on 28.2.2007), will include, in Annex 2 thereto, the following conditions associated with the right of use of frequencies:

4.1.b) To provide minimum coverage, both in terms of population and in terms of geographical distribution, not inferior to that prevailing as on the renewal date of the right of use of frequencies.

4.2. ICP-ANACOM may determine coverage of specific localities and areas where warranted, specifically to meet communication needs that support the interests of the population and economic and social development.

4.3. For the purposes of the preceding paragraph, any determination of coverage of specific localities is to be preceded by a prior hearing of [Vodafone / TMN].