The Electronic Communications Law lays down in its article 34 that the transfer of rights of use for frequencies between companies is allowed in accordance with conditions attached to those rights of use and with procedures established in the referred article, where the transfer of such rights is not explicitly prohibited by the National Regulatory Authority (NRA - ICP-ANACOM) and published in the National Frequency Allocation Plan (NFAP).
In this scope, it is incumbent on ICP-ANACOM to ensure that:
a) The intention to transfer rights to use frequencies, as well as the effective transfer or lease thereof is made public;
b) The transfer does not distort competition, namely due to the accumulation of rights of use;
c) Frequencies are efficiently and effectively used;
d) The frequency use is complied with where it has been harmonised through the application of Decision No. 676/2002/EC of the European Parliament and of the Council of 7 March (Radio Spectrum Decision) or other Community measures;
e) The restrictions set forth in the law in respect of radio and television broadcasting are safeguarded.
For this purpose and under paragraph 6 of the mentioned provision, it is incumbent on ICP-ANACOM to address, within 45 days at the most, the intention and conditions for the transfer which must be notified in advance, being entitled to oppose the intended transfer of rights of use, as well as to impose any conditions required for compliance with the provision in the preceding paragraph. Silence on the part of ICP-ANACOM, after the elapse of the 45-day period, should be interpreted as non-opposition to the transfer of rights of use, however this does not affect the obligation to notify the effective transfer.
In this scope, ICP-ANACOM must request the prior opinion of Autoridade da Concorrência (the Competition Authority - AdC), which must be issued within a 10-day period of time from the date of the request, save where the complexity of the matter requires an extension.
On the other hand, license ICP-ANACOM No. 02/2012, granting rights of use for frequencies for the provision of terrestrial electronic communications services lays down, in the chapter concerning rights of use for frequencies allocated prior to the multiband auction, that MEO is required to notify ICP-ANACOM in advance of its intention to transfer its rights of use for frequencies as well as conditions for doing so, under article 34 of the Electronic Communications Law and provisions in force at any given time in the NFAP (clause 12 of the RUF).
In the scope of conditions associated to rights of use for frequencies in the 800 MHz, 1800 MHz and 2.6 GHz bands, allocated subsequently to the multiband auction, points 22, 28 and 34 establish that rights of use for frequencies may only be transferred, in compliance with article 34 of the Electronic Communications Law, following a two-year period from the date of commencement of commercial operation of services, on the basis of an effective use of frequencies assigned, except for demonstrated good cause, acknowledged as such by ICP-ANACOM.
For this purpose, MEO is required to notify ICP-ANACOM of its intention to transfer the respective rights of use for frequencies, as well as the conditions to do so, under article 34 of the Electronic Communications Law and provisions in force at any given time in the NFAP.
