Transfer of the rights of use for frequencies held by Raimundo Comunicações Independentes, Rádio e Jornais, Lda. to Rede Regional de Radiodifusão RCI, Lda.
1. The request
Further to the request for transfer of the local programme services known as RCI” and “RCS – Rádio Cultura de Seia”, broadcasting respectively at 105.5 MHz, in the municipality of Viseu, and 93.6 in the municipality of Seia, and of the corresponding licenses for pursuit of the radio broadcasting activity, presented by Raimundo Comunicações Independentes – Rádio e Jornais, Lda. (hereinafter Raimundo, Lda.), the Entidade Reguladora para a Comunicação Social (ERC - the Regulatory Authority for the Media), by means of a letter received on 21 October 2013, submitted the respective procedure file to the examination of ICP - ANACOM, so that this Authority, under the combined terms of paragraph 9 of article 4 and paragraph 7 of article 22 of Law No. 54/2010, of 24 December (the Radio Law), rules on the transfer of the rights of use for frequencies allocated to that body for the provision of two publicly available radio broadcasting services, of a local scope, in the municipalities of Viseu and Seia.
According to the corresponding investigation file, Raimundo, Lda., requested ERC’s authorization to transfer its local programme service to the company known as Rede Regional de Radiodifusão RCI, Lda., for financial reasons.
2. Framework
2.1. The Radio Law
Pursuant to paragraph 9 of article 4 of the Radio Law, the transfer of local programme services and respective licenses or authorizations is permitted, according to the procedures laid down for the alteration of operator control, where it can be proved that this promotes the safeguard of the licensed or authorized project and insofar as all the property, rights and obligations, including those which are labour-related, exclusively concerned with the programme service under consideration, are transferred.
In this case, and without prejudice to powers granted to ICP - ANACOM according to the regime applicable to electronic communications networks and services and to radiocommunications, the transfer is dependent on an authorization granted by ERC (cfr. article 4, paragraph 10 of the Radio Law).
Paragraph 7 of article 22 of the Radio Law lays down that files on license transfers must be examined by ERC, which submits them to ICP - ANACOM for a decision on the transfer of the respective rights of use for frequencies, according to the regime applicable to electronic communications networks and services and to radiocommunications.
The Radio Law further specifies, in its article 4, the restrictions on the ownership of radio programme services, namely of a local scope:
- Natural or legal persons may not hold, either directly or indirectly, namely though a relationship of control, a number of licenses for radio programme services of a local scope exceeding 10% of all licenses granted on national territory;
- Natural or legal persons of private or cooperative sectors may not hold, either directly or indirectly, namely though a relationship of control, a number of frequency modulated radio programme services of a national scope equal to or exceeding 50% of programme services qualified for the same coverage area and for the same frequency band;
- Natural or legal persons may not hold in the same district, metropolitan area, municipality, or, in the autonomous regions, in the same island, either directly or indirectly, namely though a relationship of control, a number of licenses for radio programme service of a local scope exceeding 50% of programme services of the same scope qualified for each of the referred territorial areas.
2.2. The Electronic Communications Law (ECL)
ECL (Law No. 5/2004, of 10 February) lays down in its article 341 that the transfer or lease of rights of use for frequencies between undertakings is authorized, in accordance with conditions attached to those rights of use and with procedures established in that article, where the transfer or lease of such rights has not been explicitly prohibited by the National Regulatory Authority (NRA - ICP - ANACOM) and published in the National Frequency Allocation Plan (NFAP).
In this scope, it is incumbent on ICP - ANACOM to ensure that:
a) The intention to transfer or to lease rights to use frequencies, as well as the effective transfer or lease thereof, is made public;
b) The transfer or lease does not distort competition, namely due to the accumulation of rights of use;
c) Frequencies are efficiently and effectively used;
d) The use for which frequencies are intended is complied with where it has been harmonised through the application of Decision No. 676/2002/EC of the European Parliament and of the Council of 7 March (Radio Spectrum Decision) or other Community measures;
e) The restrictions set forth in the law in respect of radio and television broadcasting are safeguarded.
For this purpose, and according to paragraph 6 of the mentioned provision, it is incumbent on ICP - ANACOM to address, within 45 days at the most, the intention to transfer the rights, as well as the conditions to do so, which must be duly communicated to this Authority.
ICP - ANACOM is entitled to oppose the intended transfer of rights of use, as well as to impose the necessary conditions for compliance with requirements listed in the preceding paragraph.
In this scope, ICP - ANACOM must also request the prior opinion of Autoridade da Concorrência (AdC - the Competition Authority), which must be issued within a 10-day period of time from the date of the request, save where the complexity of the matter requires an extension.
It must also be borne in mind that the transfer of these rights of use does not suspend nor interrupt the period for which the respective rights were granted, and that after the transfer, conditions attached to rights to use frequencies continue to apply, unless otherwise specified by the NRA (paragraphs 9 and 10 of article 34).
ICP - ANACOM’s silence, after the elapse of the 45-day period referred to in paragraph 6 of article 34, is to be interpreted as a non-opposition to the transfer or lease of the rights of use, however the effective transfer or lease must still be notified.
2.3. Regime applicable to the licensing of radio networks and stations
According to article 14, paragraph 1, of Decree-Law No. 151-A/2000 of 20 July, as amended and republished by Decree-Law No. 264/2009, of 28 September (legal regime applicable to the licensing of radiocommunications networks and stations, the supervision of the installation of such stations and the use of the radio spectrum), network or station licences are transferable.
The body to which a license is transferred undertakes all inherent rights and obligations and, where appropriate, the transfer of a network licence implies the transfer of all licences of stations integrating it.
In this scope also, ICP-ANACOM must rule within 45 days on the content of the notification, being entitled to oppose the transfer of licenses or to impose any conditions required for the optimal management of the spectrum, specifically the effective and efficient use of frequencies and non-existence of competition distortions.
The transfer of network and station licenses does not suspend nor interrupt the term for which licenses were granted.
3. Assessment of the request
Raimundo, Lda. is the holder of two licenses for the pursue of a radio broadcasting activity with a coverage of a local scope, issued by ERC, namely:
(i) For the coverage of the municipality of Viseu, broadcasting at 105.5 MHz, known as “RCI”, valid up to 08-05-2024, further to a renewal by ERC2; and
(ii) For the coverage of the municipality of Seia, broadcasting at 93.6 MHz, known as “RCS - Rádio Cultura de Seia”, valid up to 27-04-20243.
Raimundo, Lda., is shown in the National Frequency Allocation Plan (NFAP), in the chapter that publicizes uses, as having been allocated frequencies (3 channels), in the 87.5 -108 MHz band, for the provision of a radio broadcasting service, of a local coverage, which require rights of use, corresponding to programme services known as “RCI” and “RCS - Rádio Cultura de Seia”, broadcasting at 105.5 MHz (and at 104.8 MHz as micro-coverage frequency) and 93.6 MHz, respectively.
As such, and analysing each situation in separate:
(i) Viseu
Raimundo, Lda., is the holder of the Right of Use for Frequencies ICP - ANACOM No. 252/2009, for the provision of a publicly available radio broadcasting service, of a local scope, for the municipality of Viseu, in the 87.5 -108 MHz band.
In this scope, Raimundo, Lda., is the holder of radio station licenses for the radio broadcasting service No. 194759, valid up to 09-05-2014, according to which the station broadcasts at 105.5 MHz, and No. 506438, also valid up to 09-05-2014 (which aims to provide the transmitter of the “RCI” programme service with additional micro-coverage), with which the station broadcasts at 104.8 MHz, as well as of a fixed service radio network license (studio-to-transmitter links) No. 505337, also valid until 09-05-2014.
It is also noted that Raimundo, Lda., is further the holder of an authorization to operate the Radio Data System (RDS) with the channel name “RCI”, corresponding to the local coverage station for the municipality of Viseu, at 105.5 MHz (main transmitter) and 104.8 MHz (micro-coverage).
(ii) Seia
As referred above, Raimundo, Lda., is shown in the NFAP, in the chapter that publicizes uses, as having been allocated frequencies (3 channels), in the 87.5 -108 MHz band, for the provision of a radio broadcasting service, of a local coverage, and by elimination in relation to point (i) above, one of the channels corresponds to the “RCS – Rádio Cultura de Seia” programme service, broadcasting at 93.6 MHz, which requires a right of use.
It is noted in this scope that Raimundo, Lda., is the holder of the radio station license No. 512186 for the radio broadcasting service, valid up to 08-01-2015, according to which the station broadcasts at 93.6 MHz, as well as of a fixed service radio network license (studio-to-transmitter links) No. 512186, also valid until 08-01-2015.
Raimundo, Lda., is further the holder of an authorization to operate the Radio Data System (RDS) with the channel name “RCS”, corresponding to the local coverage station for the municipality of Seia, at 93.6 MHz.
As far as the transferee, Rede Regional de Radiodifusão RCI, Lda., is concerned, it is verified that it does not hold to date any right of use for frequencies.
The request under consideration was analysed bearing in mind the requirements which, according to paragraph 5 of article 34 of ECL, must be fulfilled so that ICP - ANACOM may assess the planned transfer.
As such, and by letter of 12 November 2013, AdC was requested to issue an opinion for the purpose of paragraph 7 of article 34 of ECL.
On 25 November 2013 the opinion of AdC was received, which concludes that the planned transfer of the referred rights of use for frequencies concerning the radio broadcasting of a local programme service is not likely to give rise to competition distortions, specially as regards the creation of significant barriers to effective competition in the national market or in a substantial part thereof.
In compliance with paragraph 5 a) of article 34 of ECL, ICP-ANACOM announced on its website (/render.jsp?contentId=1182893), on 3 December 2013, that it had received a request from ERC to rule on the intention expressed by Raimundo, Lda. to transfer to Rede Regional de Radiodifusão RCI, Lda., the rights of use of frequencies (RUF) it had been allocated for the pursuit of the radio broadcasting activity.
With regard to other requirements, on whose fulfilment the granting of the authorization for the transfer of the right of use for frequencies depends, set out in paragraph 5 of article 34 of the ECL, as well as in article 14 of Decree-Law No 151-A/2000, ICP - ANACOM takes the view that they have been duly safeguarded, in the light of available information.
Specifically on the safeguard of restrictions provided for in the Radio Law (requirement laid down in paragraph 5 e) of article 34 of ECL), in articulation with article 4 of that same Law, and given that ICP - ANACOM lacks information on capital shares between the several bodies qualified for the pursuit of the radio broadcasting activity, it is deemed that it is incumbent on ERC to assess, at all times, whether restrictions laid down on the ownership of radio programme service operators are not infringed.
4. Decision
Therefore, in the scope of powers provided for in paragraph 1 c) and f) of article 6 of its Statutes, approved by Decree-Law No. 309/2001, of 7 December, and under the combined terms of paragraph 6 of article 34 of Law No. 5/2004, of 10 February, as amended by Law No. 51/2011, of 13 September, paragraph 6 of article 14 of Decree-Law No. 151-A/2000, of 20 July, as amended and republished by Decree-Law No. 264/2009, of 28 September, and paragraph 7 of article 22 of Law No. 54/2010, of 24 December, the Management Board of ICP - ANACOM hereby determines:
1. Not to oppose the transfer to Rede Regional de Radiodifusão RCI, Lda., of the right of use of frequencies in the 87.5-108 MHz frequency band allocated to Raimundo, Lda. for the provision of a local radio programme service, for the municipality of Viseu, under paragraph 6 of article 34 of ECL, as well as of the associated radio licenses, that is, radio station licenses for the radio broadcasting service No. 194759 and No. 506438, according to which the station broadcasts respectively at 105.5 MHz and 104.8 MHz, as well as of a fixed service radio network license (studio-to-transmitter links) No. 505337.
2. Not to oppose the transfer to Rede Regional de Radiodifusão RCI, Lda., of the authorisation to operate the Radio Data System (RDS) with the channel name “RCI”, corresponding to the station broadcasting at 105.5 MHz and 104.8 MHz.
3. Not to oppose the transfer to Rede Regional de Radiodifusão RCI, Lda., of the right of use of frequencies in the 87.5-108 MHz band allocated to Raimundo, Lda. for the provision of a local radio programme service, for the municipality of Seia, under paragraph 6 of article 34 of ECL, as well as of the associated radio licenses, that is, radio station license for the radio broadcasting service No. 512186, according to which the station broadcasts at 93.6 MHz, as well as of a fixed service radio network license (studio-to-transmitter links) No. 512186.
4. Not to oppose the transfer to Rede Regional de Radiodifusão RCI, Lda., of the authorisation to operate the Radio Data System (RDS) with the channel name “RCS”, corresponding to the station broadcasting at 93.6 MHz.
5. To make this decision subject to the condition that the Entidade Reguladora para a Comunicação Social (ERC) grants the request for transfer of the programme services known as “RCI” and “RCS”- Rádio Cultura de Seia" and of the respective licenses for pursuit of the radio broadcasting activity.
6. To notify ERC of decisions in the preceding paragraphs, requesting that Authority to inform ICP - ANACOM on the contents of the transfer decision, so that this Authority, where appropriate, may accordingly issue to Rede Regional de Radiodifusão RCI, Lda. the qualifying documents drawing up the respective rights of use for frequencies.
1 As amended by Law No. 51/2011, of 13 September.
2 Decision on renewal 97/LIC-R/2009, taken by ERC on 18.03.2009, license issued on 23.10.2012.
3 Decision on issue 126/LIC-R/2009, taken by ERC on 28.04.2009, license issued on 23.10.2012.