ICP-ANACOM considers that the reasoning underlying the coverage obligations of TMN and Vodafone in the context of the respective processes of renewing their rights of use of frequencies, also apply in the case of Optimus, reinforced by the recent process of issuing unified titles of rights of use for terrestrial electronic communications services, whereas no justification is identified as would warrant a dissimilar treatment of Optimus in this matter.
In this context, note is made of the position submitted by Optimus pursuant to the prior hearing held on ICP-ANACOM determination of 3 February 2012, in which, agreeing with the proposal to unify the titles and with the systematization of the respective terms, the company held that this measure "also has the advantage of achieving uniformity in the conditions (all conditions) governing the use of the right of use of frequencies and to be observed by the holder, without distortions or differences in treatment".
However, in view of the terms of the coverage conditions imposed on TMN and Vodafone and considering that, in this case, the title of Optimus specifies values that correspond to those which were binding upon the company in 1997, ICP-ANACOM held that this condition should be revised so that Optimus guarantees the coverage that, on the date of the present renewal, it provides to users, both in terms of population and in terms of geographical area.
As such, ICP-ANACOM maintains its position that the obligation in question, although distinct from that set out in the current right of use of frequencies, is not unreasonable, given that the company shall not be bound to comply with levels of coverage which exceed or which are different from the levels of coverage which it provides currently.
This alteration means that Optimus, in line with the requirements imposed on TMN and Vodafone under the terms of ICP-ANACOM determination of 17 November 2011, will be required to complete and submit an ad-hoc questionnaire to this Authority, equivalent to the questionnaire included in Annex 1 of said determination and shall present an annual declaration confirming that, as on 31 December of the preceding year, levels of coverage were provided for services of voice and data up to 9600 bps in terms of population coverage at least equal to those prevailing as on the renewal date of the rights of use of frequencies now in question. The information compiled will be used by ICP-ANACOM as a reference in determining minimum coverage requirements to be met by Optimus in the provision of services of voice and data up to 9600 bps (coverage prevailing on the date of this renewal) and in monitoring their annual evolution.
It is also the position of ICP-ANACOM that Optimus should be made subject to the conditions as regards additional coverage, given that this has the (exclusive) aim of safeguarding, in the public interest and where necessarily examined and reasoned, assurance of coverage in specific areas or localities.
In light of the above, ICP-ANACOM concluded that there is no impediment to the renewal of rights of use under consideration for a period of 15 years, expiring on 20 November 2027, whereas paragraph 11 of unified title ICP-ANACOM no. 01/2012, as issued to Optimus, establishing coverage obligations for rights of use of frequencies in the 900 and 1800 MHz bands, should be amended and made uniform with the conditions of coverage which, in this respect, have been imposed on TMN and Vodafone.
