B - Defence

On claims made by DST, AMTQT refers that:

- It is responsible for the management of CBNTQT telecommunication infrastructures that serve the Municipalities of Terra Quente Transmontana (Alfândega da Fé, Carrazeda de Ansiães, Macedo de Cavaleiros, Bragança and Vila Flor) and Bragança, being associated to the Instituto Politécnico;

- This network is made up of a central ring that connects all seats of local government (backbone), five Local Networks, one in each seat of local government, five centers of POP transmission and an inter-municipal Data-Centre established in AMTQT, in Mirandela;

- Implemented infrastructures consist of underground  three-pipe pipelines with a mixed-fibre-optic cable made up of 48 fibres between POPs;

- CBNTQT, owned by the Municipality Association, was constructed in the scope of the application to the Programa Operacional Sociedade de Conhecimento (POSC - the Knowledge Society Operational Programme), axis IV, «Massifying access to the information society», measure 4.1 - Reinforcing broadband infrastructures, a project which on 04.04.2007 was approved by the Minister for Science, Technology and Higher Education, the respective certificate of acceptance being dated 21 May 2007.

- The built infrastructure had an eligible value of 7,697,463.06€ and a FEDER grant rate by 45%, AMTQT undertaking to ensure the rest;

- The provisional acceptance of CBNTQT by Ad MTQT is dated 26.01.2012;

- By order of the Secretary-General of AMTQT of 16.05.2012, DST was granted access to the infrastructure suitable for the accommodation of fibre optic in compliance with article 22 of ECL and article 13, paragraph 1, of Decree-Law No. 258/2009;

- DST was informed of the approval of the request for access against payment of €3.10/m in the backbone and  €3.76/m in local networks, by letter AMTQT of 16.05.2012 (reference 291);

- Unit costs indicated were calculated on the cost component borne by AMTQT, under paragraph 1 of article 19 of DL No. 123/2009, according to the calculation map that is attached.

AMTQT refers also that documents presented by DST show that, as from the date on which the cost for the use of pipelines was defined, the company claimed all sorts of arguments with the purpose of minimizing unit costs of use of pipelines, to the point of questioning the legality of conditions of payment of the remuneration due for access. It refers that, among arguments presented, DST mentions that «in the scope of the implementation of the contract with the Portuguese State, the company needs to have access to pipelines held by the association to deploy fibre optic» given that, according to paragraph 2 of clause 5, it must give preference to the use of network accommodation infrastructures that already exist, where this is feasible at technical and economic level.

As far as this argument is concerned, AMTQT claims that, if DST does not consider the use of pipelines held by AMTQT, with advance payment of the full contractual price, to be feasible, it is not required to abide by the preference, and is entitled to build new pipelines and other infrastructures deemed to be required.

In AMTQT's view, DST mistakes lease of pipelines with lease contract, which is not considered to be correct, as the lease of pipelines is governed by DL No. 123/2009, while the lease contract is governed by the Civil Code.

AMTQT believes also that the advance payment of values due for the use of pipelines is not illegal.

As regards the provision of guarantees, AMTQT does not agree with the terms requested by DST, as it does not accept to incur in charges for a 20-year period in order to lease an infrastructure that it owns, and, in addition, it considers that the terms of the contract to be concluded guarantee DST the use of pipelines for a minimum period of 20 years, as well as levels of service for the fibre optic deployment and operation stages.

As regards the advance payment of the contractual price, with the lodging of a bank guarantee by DST, AMTQT declares that this issue had been dealt with, and regrets that the applicant failed to refer to the contract proposal of 30.01.2013, which is attached, where this issue was withdrawn from the negotiation.

The document attached by AMTQT, which was approved at a meeting of the Board of Directors of this association on 31.01.2013, provides in clause 5 the following payment conditions: 50% upon signature of the contract; remaining 50% after deployment of fibre optic and verification of proper state of pipelines, not later than 3 months.

The list of clauses does not present any reference to the lodging of bank guarantees between the parties.

AMTQT does not present any document attesting that this minute proposal was sent to DST, however documents attached by DST itself to the initial application to this procedure refer to a minute that was sent to DST on 30.01.2013 and which was approved by the Board of Directors of the association¹.

Finally, AMTQT declares that it has allowed access to its infrastructures under conditions of equality, transparency and non-discrimination, under cost-oriented remuneration conditions, in full compliance with provisions laid down in DL No. 123/2009, as attested by the contract concluded with REFER Telecom, which is attached.