According to article 30 of Law no. 5/2004, of 10 February (Electronic Communications Law), the use of frequencies may depend on the attribution of individual rights of use, if so required by ICP-ANACOM.
If no such requirement is made, the provision of electronic communication networks and services is only subject to the general authorisation regime, which consists in compliance with the rules of said Law and respective regulations, not dependant on any decision or prior act of the Regulator.
In the case of the MSS systems, in addition to the above mentioned conditions applicable to the CGCs, the following conditions - in article 7 of Decision no. 626/208/EC - relating to the satellite component are also foreseen:
a) The operators shall use the assigned radio spectrum for the provision of MSS;
b) The operators shall meet milestones six to nine set out in the annex to Decision no. 626/2008/EC within 24 months of the selection decision;
c) The operators shall honour any commitments assumed in their applications and during the comparative selection procedure;
d) The operators shall provide to the competent authorities an annual report detailing the status of development of the respective mobile satellite system;
e) The rights of use and authorisations are granted for a duration of eighteen years from the date of approval of the selection decision.
The imposition of this type of conditions and the level of associated obligations does not seem compatible with the general authorisation regime, such that the more adequate option for the provision of the MSS system will consist in the attribution of a right of use of frequencies to the respective operator with the imposition, among others, of the following conditions:
a) Conditions resulting from the Community selection procedure;
b) Common conditions established in no.2 of article 7 of Decision no. 626/2008/EC relative to MSS, identified above;
c) Common conditions established in no. 3 of article 8 of Decision no. 626/2008/EC relative to CGCs, identified above in point 3;
d) Conditions as defined in no. 1 of article 27 of the ECL, which, by their nature, are applicable to this service;
e) Conditions as defined in no. 1 of article 32 of the ECL, among which the following are identified:
- Right of use of the assigned radio spectrum for the provision of MSS;
- Effective and efficient use of the frequencies;
- Compliance with the specific conditions of use of frequencies contained in the radio licenses issued according to Decree-Law no. 151-A/2000, of 20 July;
- Compliance with the technical and operational conditions necessary for the avoidance of harmful interference and for the limitation of exposure of the population to electromagnetic fields, according to Decree-Law no. 11/2003, of 18 January and Ordinance no. 1421/2004, of 23 November, and regulations of the ICP-ANACOM which are published in their implementation;
- Maximum duration, in conformity with article 36 of the ECL;
- Payment to the ICP-ANACOM of the fees payable under article 105 of the ECL;
- Compliance with the obligations resulting from applicable international agreements in terms of use of frequencies.
With a view to implementing MSS systems and in view of the evidence, the National Frequency Allocation Plan (QNAF) must be changed in conformity with the present decision, namely stating:
- The need to obtain the right of use of frequencies for this type of systems;
- The respective allocation process is conditioned by the allocation of spectrum, in accordance with Decision 2009/449/CE, to the operators Inmarsat Ventures Limited and Solaris Mobile Limited.
Some of the conditions set out in no. 1 of article 32 of the ECL are detailed below.
