In accordance with article 19 of paragraph 3 of Law no. 5/2004 of 10 February, as amended by Law no. 51/2011 of 13 September (LCE - Lei das Comunicações Electrónicas (Electronic Communications Law)), the use of frequencies may, as an exception, be dependent on the allocation of individual rights of use, if so required by ICP-ANACOM.
Otherwise, the provision of electronic communications networks and services remains subject only to the general authorisation regime, which regime entails compliance with the rules set forth in said Law and in the respective regulations, and shall not be dependent on any prior decision or act of the Regulator (see article 3, point h) and article 19, paragraph 2 of the LCE).
In the case of MSS systems, in addition to the above conditions as applicable to the CGCs, under article 7 of Decision No 626/2008/EC, provision is also made for the following conditions with regard to the satellite component:
a) Operators shall use the assigned radio spectrum for the provision of MSS;
b) Operators shall meet milestones six to nine set out in the Annex to Decision 626/2008/EC within 24 months of the adoption of the selection decision;
c) Operators shall honour any commitments they give in their applications or during the comparative selection procedure;
d) Operators shall provide to the competent authorities of all Member States an annual report detailing the status of development of their proposed mobile satellite system;
e) Rights of use and authorisations shall be granted for a duration of eighteen years from the date of the adopted selection decision.
The imposition of such conditions and the level of obligations associated therewith do not appear compatible with the general authorization regime, and therefore the most fitting option for the provision of MSS entails the allocation of a right of use of frequencies to the respective operator with the imposition, inter alia, of the following conditions:
a) Conditions as result from the Community selection procedure;
b) Common conditions as set out in paragraph 2 of article 7 of Decision no. 626/2008/EC regarding the MSS, as identified above;
c) Common conditions as set out in paragraph 3 of article 8 of Decision no. 626/2008/EC regarding CGCs, as identified above in point 3;
d) Conditions as result from paragraph 1 of article 27 of the LCE, which by their nature, are applicable to this service;
e) Conditions as result from paragraph 1 of article 32 of the LCE, among which the following are identified:
- Right of use of radio spectrum assigned to the provision of MSS;
- Effective and efficient use of frequencies;
- Compliance with the specific conditions governing use of radio frequencies as included in the radio licenses issued pursuant to Decree-Law no. 151-A/2000 of 20 July;
- Compliance with the technical and operational conditions necessary for the non-production of harmful interference and for the limitation of public exposure to electromagnetic fields in accordance with Decree-Law no. 11/2003 of 18 January and with Decree-Law no. 1421/2004 of 23 November and with the regulations of ICP-ANACOM as are published in the implementation thereof;
- Maximum duration in accordance with article 33 of the LCE;
- Payment to ICP-ANACOM of such fees as are due under article 105 of the LCE;
- Compliance with the obligations arising from international agreements applying to use of frequencies.
With a view to the deployment of MSS systems and considering the above, the National Table of Frequency Allocations (NTFA) is to be amended in accordance with this decision, in particular setting out that:
- Rights of use of frequencies are required for this type of system;
- The respective allocation process is subject to the allocation of spectrum effected pursuant to Decision 2009/449/EC to Inmarsat Ventures Limited and Solaris Mobile Limited
Details are given below of some of the conditions stemming from paragraph 1 of article 32 of the LCE.
