In the light of the described facts and in the framework of articles 20 and 33, paragraph 1, of ECL, Vodafone supports that is finds itself in a situation where objective justification exists for changing the date of expiry of its right of use for frequencies in the 2100 MHz band, given that, through no fault of its own, by the current date of expiry of rights of use for the referred frequencies - 11 January 2016 -, it will not have had the opportunity to commercially operate services provided over the referred frequencies for the period initially established, that is, 14 years.
The company alleges also that the duration of the UMTS license is intrinsically linked to the investment it made, both in the scope of the purchase of the license - for 100 million Euro -, and at the level of commitments undertaken in the scope of the public tender to obtain it (such as contributions to the Information Society, investment for complying with the various obligations underlying the license, as such as coverage levels, etc.).
According to Vodafone, the postponement of the expiry of its rights of use for frequencies will not be disproportionate given that the company shall not benefit from a period of time longer than the 15 years initially stipulated, as during part of those 15 years the commercial operation did in fact not take place.
In the light of the above and bearing in mind the circumstances of the UMTS specific case - the series of postponements of the maximum deadline for effective operation of services supported on frequencies concerned (due to the delay in the availability of commercial versions of UMTS equipment and in the stabilization of technology), having ANACOM admitted at the time the possibility of reviewing periods of validity of licenses - this Authority believes that it must be acknowledged that companies holding UMTS licenses, by the expiry of the period of time currently set in the RUFs, will not have had the opportunity to effectively use frequencies for a 15-year period (one year being spent in starting the commercial operation of services, as initially established) as would have been the case where economic and technological conditions had been met by the date initially established for the start of the commercial operation of UMTS systems.
It should be noted that no fees for use of spectrum were paid until the commercial operation of UMTS systems started. In fact, further to ANACOM’s proposals on the postponement of the date of start of operation, the Government determined that a fee of null amount for use of radio spectrum was applied both in 2002 - as a way to encourage licensed operators to start the commercial operation of UMTS services in the course of that year - and in 2003, for operators that would start the commercial operation of UMTS services in the course of that year, which failed to occur.
It is also considered that the reduction, for reasons beyond the company’s control as acknowledged at the time, of the maximum period of time of effective use of frequencies (initially set for 15 years, one year being dedicated to starting the commercial operation of services) constitutes an objective alteration of a relevant assumption, which was at the basis of the definition, by the operator, of its initial business plan and, in particular, of the level of investment that - as regards the amount invested with the purchase of the license and the investment associated to several commitments undertaken - it undertook to make and to which it was bound.
In this sense, the amendment of the duration of the RUF will allow the period of effective use of frequencies to be in line with the date of effective start of the commercial operation of UMTS systems, bearing also in mind that the deadlines for compliance with coverage obligations were pushed forward due to the extension of that deadline.
Moreover, given that this amendment entails an extension by around two years and four months of the expiry of rights of use for frequencies in a band that is harmonized at European level, in particular by means of Commission Implementing Decision 2012/688/EU, of 05.11.2012 (on the harmonisation of the frequency bands 1 920-1 980 MHz and 2 110-2 170 MHz for terrestrial systems capable of providing electronic communications services), not being likely to affect on its own the harmonized use of frequencies under consideration, it is deemed that there is nothing to object in terms of spectrum management.
