This determination follows from the draft decision of 15 November 2004, which was based on the request submitted by REPART, received at ANACOM on 30 September, wherein it was solicited that the spectrum allocated to RADIOMÓVEL - Telecomunicações, S.A. for the provision of Mobile Service with Shared Resources (SMRP) in accordance with the analogue (MPT 1327) and digital (TETRA) systems, was assigned to REPART, and likewise that to REPART was allocated the "System Identity Code" 00 for the MPT 1327 network and MNC=1 for the TETRA network.
The Board of Directors of ANACOM based its reasoning on the following facts and grounds:
The request submitted by REPART concerns the allocation of radio channels, which are not available at present, as soon as they are given back to ICP – ANACOM by RADIOMÓVEL.
RADIOMÓVEL undertakes to give such radio channels back to ICP – ANACOM provided that the latter assigns them to REPART.
The recovery of the spectrum under consideration on the part of ICP – ANACOM is one of the conditions which RADIOMÓVEL undertook when, on 4 February 2002, it requested that the respective license nº ICP-012/SMRP was amended, so as to qualify it to use the Code Division Multiple Access (CDMA) technology, soliciting also that new radio electric frequencies, necessary to the implementation of such technology, were allocated thereto.
Therefore, the respective license – following an order of the Secretary of State Assistant to the Minister and for Transports, granting the request, on 14 March 2002 – reads as follows:
8º In providing the SMRP according to the CDMA technology system, RADIOMÓVEL is bound to comply with the obligations resulting from the submitted proposal, which constituted grounds for the amendment authorized by order of the Secretary of State Assistant to the Minister and for Transports, on 14 March 2002.
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10º
1. The provision of the SMRP according to the CDMA technology system shall begin no later than 9 May 2003, save in duly substantiated cases, acknowledged as such by ICP – ANACOM.
2. RADIOMÓVEL is bound to conclude the process of migration from the use of the MPT 1327 and TETRA technologies to the CDMA technology by 9 November 2003, under penalty of expiry of the right to use the frequencies reserved for the CDMA technology system.
3. Having concluded the migration process referred to in the preceding paragraph, ICP – ANACOM shall recover the frequencies assigned to RADIOMÓVEL for the operation of the SMRP according to the MPT 1327 and TETRA technologies.
4. When the referred migration process comes to an end, the number of telecommunications infrastructures shall ensure the compliance with the coverage obligations undertaken by RADIOMÓVEL in the proposal submitted for tender.
11º For the provision of the SMRP according to the CDMA technology, RADIOMÓVEL is bound to install a set of telecommunications infrastructures, which shall comply with the following evolution and accumulated quantification:
- 120 Base Stations by the end of 2002;
- 210 Base Stations by the end of 2003;
- 250 Base Stations by the end of 2004.
The time limit established in paragraph 10, point 3, elapsed on 9 November, having regard to the fact that, by Determination of 26 March 2004, and at the request of RADIOMÓVEL, the time limit established in paragraphs 10 and 11 were extended (to 9 May 2004, the time limit for the beginning of the provision of the SMRP according to the CDMA technology system; to 9 November 2004, the time limit for the conclusion of the process of migration from the use of the MPT 1327 and TETRA technologies to the CDMA technology; to 9 March 2004, the time limit for the installation of 120 Base Stations; to 9 May 2004, the time limit for the installation of 210 Base Stations; and to 30 September 2005, the time limit for the installation of 250 Base Stations).
In the meantime, RADIOMÓVEL has not reported the conclusion of the migration process, and thus the frequencies assigned to RADIOMÓVEL for the operation of the SMRP according to the MPT 1327 and TETRA technologies have not been recovered.
In the light of the provisions established in the concession of the right to use the frequencies assigned to RADIOMÓVEL on 14 March 2002, the recovery of such frequencies by this Authority is not available to that entity, but rather depends on the conclusion of the migration process on the settled date.
For this reason, the commitment undertaken by RADIOMÓVEL, of giving back the spectrum allocated thereto for the MPT1327 and TETRA networks, as well as the "System Identity Code" 00 (MPT 1327 network) and the MCN=1 of the TETRA network, provided that this Authority authorizes the subsequent allocation thereof, as soon as such networks are available, to REPART – aiming thus at making the “devolution” subject to a fact with no effect on conditions to which the recovery of such spectrum must comply with - cannot be accepted.
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In fact, this matter is not about the will of RADIOMÓVEL to give the spectrum back, but rather a recovery on the part of ICP – ANACOM, which is to take place if specific circumstances occur – none of which concerns the commitment to allocate the spectrum to REPART.
ICP – ANACOM has taken due regard to the letter of RADIOMÓVEL dated 25 November 2004, which concerns a number of questions on the matter of migration to the CDMA technology system, as well as the license held and the obligations incumbent thereupon. However, a position on that presentation has not been taken as yet.
At present, it can only be stated that it is not certain whether ICP – ANACOM may recover such spectrum, due to the fact that the compliance on the part of RADIOMÓVEL with the provision of paragraph 10, point 2. of the respective license has not taken place, and that situation presents the conditions based on which specific frequencies were assigned thereto, for the provision of the SRMP according to the CDMA technology system.
RADIOMÓVEL and REPART, acting jointly, intend to associate the spectrum request of the latter and the decision on that request, to the compliance on the part of the former with the respective obligations or to the consequences of the non-compliance, which is unacceptable.
The request for frequencies submitted by RADIOMÓVEL on 4 February 2002 and the conditions undertaken at the time, which were comprised in the spectrum assignment decided by order of the Secretary of State Assistant to the Minister and for Transports on 14 March 2002, did not presuppose the transfer of the respective clients, or of some of them, to REPART, together with the allegedly inherent “transfer” of the assignment of MPT1327 and TETRA frequencies from one of the entities to the other.
Thus, prior to the decision on the request now presented by REPART, the matter of the spectrum assignment (not only MPT1327 and TETRA, but also CDMA) to RADIOMÓVEL should be defined.
Therefore, the minimum conditions on which depends the approval of the request submitted by REPART have not been met, such request concerning a spectrum that is not available; moreover, it is also not certain if and when it shall be available. Without prejudice, if the spectrum turns out to be available, the fact that on 30 September 2004 REPART manifested its interest in the allocation of the right of use of the MPT1327 and TETRA frequencies shall be taken into consideration.
