1. By determination of 1 July 2009, the Management Board approved the Regulation governing the settlement and collection of fees due to ICP-ANACOM, approving likewise, and on the same date, the report of the public consultation.
This Regulation was published in Diário da República (Official Journal), 2nd series, no. 135, of 15 July 2009 and entered into force on 20 July 2009.
Subsequent to approval of the Regulation a set of important legislation was published on electronic communications:
- Decree-Law no. 123/2009 of 21 May which governs the regime that applies to the construction of infrastructures suitable for the accommodation of electronic communications networks, to the set up of electronic communications networks and the construction of infrastructures for telecommunications in housing developments, urban settlements and concentrations of buildings and buildings, which repealed Decree-Law no. 59/2000 of 19 April and which has been amended by Decree-Law no. 258/2009 of 25 September.
- Decree-Law no. 264/2009 of 28 September, amending Decree -Law no. 151-A/2000 of 20 July, which enshrines the legal provisions applicable to the licensing of radiocommunications networks and stations, supervision of the installation of said stations and use of the radio spectrum;
- Law no. 99/2009 of 4 September, which establishes the framework scheme of administrative offences within the communications sector;
- Law no. 51/2011 of 12 September, which amended and republished Law no. 5/2004 of 10 February.
- Administrative Rule no. 291-A/2011 of 4 November, amending Administrative Rule no. 1473-B/2008 of 17 December.
The publication of these regulations does not determine any substantive changes to the Regulation governing the settlement and collection of fees due to ICP-ANACOM, requiring only the update of some of the legislative remissions, either in the preamble or in the text of the articles, as well as some changes in terminology.
Accordingly, various adjustments were undertaken stemming, in the first place, from the terminology changes determined by Decree-Law no. 123/2009 and, secondly, from the amendments introduced by Administrative Rule no. 291-A/2011 of 4 November, in particular, regarding the incorporation of fees for use of spectrum related to complementary earth stations inherent to the implementation of the mobile satellite service in the 2 GHz band.
2. Furthermore, two years having elapsed since its entry into force, it has become necessary to make a number of specific changes to the Regulation in the light of experience gained through its practical implementation.
As such, from the outset and taking into account the specificity entailed in the payment of fees due in respect of the issue of temporary licenses, express provision is now made that fees are to be settled before the license is issued.
With regard to the fees stipulated in points a) to f) of paragraph 1 of article 19 of Decree-Law no. 53/2009 of 2 March and with regard to the fees stipulated in articles 56 and 86 of Decree-Law no. 123/2009 of 21 May, reference to the payment of fees being due upon fulfilment of the request is eliminated. These fees are now payable upon submission of the respective request, clearing up any uncertainty pertaining to the interpretation of the legislation, while making provision for cases where the fee is paid making use of the "balcão virtual" (online services).
However, the most significant changes have occurred in respect of payments made in instalments and in respect of the rules governing notifications to be made by ICP-ANACOM.
In fact, since it was found that some of the operators had made use of the facility to make payment of fees due to ICP-ANACOM in instalments, and had applied, likewise, for a waiver of the requirement to provide guarantee, it was deemed necessary to make express provision for the possibility, on an exceptional basis, that exemption may be granted in respect of the requirement to provide guarantee where the applicant cites economic and financial conditions as do not enable presentation of a guarantee, subject to ICP-ANACOM being able to request evidence of such claims.
In parallel, and also with regard to payments made in instalments, provision was made for the possibility, also on an exceptional basis, that the application to make fee payments in instalments may be submitted until such time as the certidão de dívida (liability certificate) is issued, allowing fee-payers to pay in instalments following expiry of the voluntary payment deadline.
These amendments are in accordance with the rules of procedure provided for in the Lei Geral Tributária (General Taxation Law) and the Código do Procedimento e Processo Tributário (Code of Tax Procedure and Process).
At another level, and as regards the system of notifications, express provision has been made that ICP-ANACOM may notify fee-payers by ordinary post, facsimile or electronic transmission of data, where the settlement does not involve a change to the contributory status of the fee-payer, limiting the obligation to make notification using registration and with notice of receipt to those cases where notification involves acts or decisions that may change the contributory status of fee-payers or where fee-payers are called on to attend in order to assist with or participate in investigations.
The lack of distinction between cases where notifications may be performed using registered post or ordinary post means that all notifications of ICP-ANACOM have always been made using registered post with notice of receipt, resulting in financial losses for ICP-ANACOM and the operators themselves, many of whom were forced to travel to CTT offices to collect notifications.
