Ministério das Comunicações (Ministry of Communications)
Correios e Telecomunicações de Portugal (Posts and Telecommunications of Portugal)
Decree-Law
The great importance of telecommunications in all modern life relations obliges to afford to certain transmitting or receiving radiocommunications stations the protection that is absolutely necessary for them to achieve the most important public utility and national defence objectives with which they are entrusted.
For this purpose, everything possible must be done to eliminate obstacles that hinder radio propagation, as well as the interferences caused by electrical equipment working closely to such stations.
Essentially, this protection covers radio centres to be installed, or already installed on sites far away from urban areas or not subject to urbanisation plans, but also considers, albeit under exceptional conditions, centres located in such areas but which, as a result of their importance or purpose, are deemed deserving of such protection.
This document is intended, thus, without prejudice to what is legislated in military and aeronautical easements, to review, complete and standardise the legal provisions concerning this matter, in order to define an easement regime and other public utility restrictions which are indispensible to the normal operation of the stations in question, and constitute the best solution to their current needs, taking into account the real interests of the owners of the affected zones.
Under these terms:
By the power conferred by part 1 section 2 of article 109 of the Constitution, the Government decrees and I promulgate the following to take force as law:
Article 1
1. The bordering zones of domestic radio centres which pursue objectives of recognised public utility will be subject to administrative easements, called radioelectrical, in addition to other public utility easements, under the terms of this diploma.
2. Expropriations which must take place to obtain the convenient establishment or the expansion of radio centres considered in this Decree-law are considered to be of public utility.
Article 2
For the effects of this Decree-law, a radio centre is considered to be the of fixed radioelectrical installations, for transmission or reception, including the radition and earthing systems and respective supports which require the use of direccional antennas or which are intended for the radio navigation service, belonging to the State or public telecommunications companies or public radiocommunications service concessionaires.
Article 3
1. This Decree-law is intended to protect:
a) Radio centres to be created and installed in suitable locations, as far away as possible from urbanised areas;
b) Existing radio centres installed outside urbanised areas or in locations which were not subject to urbanisation plans on the date upon which the respective installation began;
c) Radio centres initially installed or to be installed in urbanised areas or areas with authorised urbanisation plans which use microwave links for the public telecommunications service.
2. Beyond the cases covered by the definition in Article 2 or considered in section 1 of this Article, protection can only be afforded to those radio installations, for whose services, as a result of their exceptional importance and public utility, the competent Minister, having been heard the respective official jurisdictions, deems such protection necessary.
Article 4
1. The boundaries of a radio centre are those of the minimum area covering:
a) The part of the building or buildings owned by the exploiting body which are deemed necessary to reserve for that centre's radio installations, taking into consideration its foreseeable expansion ;
b) Radio installations of the same centre, outside that building or buildings.
2. When the outside installations referred to in the previous section are more than 500 m away from the buildings, measured between the respective boundaries, such radio installations shall be considered, for the effects of the protection afforded by this Decree-law, as another radio centre.
Article 5
The protection foreseen in the previous articles shall be established in such a way as to offend as little as possible the real interests of the owners of the affected buildings and shall be limited to the area considered indispensable to the objectives in mind.
Article 6
1. Areas subject to radio easements shall comprise:
a) Clearance zones;
b) De-obstruction zones.
2. Clearance zones are considered to be the strips of land surrounding radio centres, in which the easement is intended to protect them from obstacles likely to jeopardise the radiowave propagation as well as the electromagnetic disturbances that affect the the reception of such waves.
3. De-obstruction zones are considered to be strips of land whose central axis is the trajectory which, on horizontal projection, links the antennas of two radio centres responsible for line of sight microwave links or trans-horizon connections. The easement upon such strips of land is intended to ensure free propagation between the two centres in question.
Article 7
1. Clearance zones are divided into the following categories:
a) Primary zones comprising areas which border immediately upon the boundaries of radio centres;
b) Secondary zones comprising areas surrounding primary zones.
2. The distances to be considered for establishing clearance zones must not exceed the following values, to be measured from the boundaries of the respective radio centre:
a) Primary clearance zones: 500 m;
b) Secondary clearance zones: 400 m.
3. Clearance zones referred to in the previous section must exclude sectors bordered by defined azimuths, provided that it is recognised that such sectors do not affect the protection of the centre.
Article 8
Unless authorised by the competent official jurisdiction, having heard the exploiting entity of the protected radio centre, in clearance zones it is forbidden to undertake any action which involves:
a) The installation or maintenance, albeit temporary, of any metal structures or obstacles;
b) The construction or maintenance of buildings or any other obstacles whose height exceeds the maximum height for that piece of land fixed in the decree which establishes the protection of the centre;
c) The planting or maintenance of trees, bushes or other obstacles which may jeopardise the radio propagation of the centre;
d) The existence of roads open to public traffic or public parks for motor vehicles;
e) The installation or maintenance of overhead lines.
Article 9
1. The installation and use of any electrical equipment capable of jeopardising the operations of the respective centre's installations, as well as alterations to existing electrical equipment, in primary clearance zones, always requires prior authorisation from the competent official jurisdiction.
2. Regardless of what is stipulated in the previous section, owners of any electrical equipment which causes electromagnetic disturbances harmful to the centre in question shall be obliged to immediately stop the operation of such equipment after the notification from the entity operating that centre. Such notification, at the same time, must be communicated to the official jurisdiction, competent under the terms of Decree nr. 35,447 of the 8th of January 1946, for the inspection of radio interference, accompanied by a document justifying the motives for such a suspension, requesting the measures for eliminating the verified disturbances.
Article 10
The secondary clearance zones are subject to the following conditions to be established by the competent official jurisdiction:
I. Within the 1000 m immediately surrounding the primary zones:
a) Overhead power lines shall only be permitted for compound voltage equal to or less than 5 kV and provided that it does not jeopardise the operations of the respective centre;
b) If deemed necessary, all electrical apparatus must be equipped with the most efficient radio interference filtering or reducing devices, in a way that does not jeopardise the operation of the centre in question;
c) The installation of any fixed or mobile obstacle should only be authorised as long as it does not exceed the respective maximum height for that area of land as fixed in the decree which establishes the protection of the respective centre, in more than a tenth of the distance between that and the outer limit of the primary zone.
II. In the remaining areas of the secondary zones:
Overhead power lines with a compound voltage of more than 5 kV shall only be permitted provided that they do not jeopardise the operation of the respective centre.
Article 11
1. The width of the de-obstruction zone measured perpendicularly to a straight line linking the two centres must not, as a rule, exceed 50 m on each side of this line. In special circumstances, however, it can be increased in certain sections until it covers the horizontal projection of the 1st Fresnel ellipsoid region .
2. In the de-obstruction zone, it is forbidden to install or maintain buildings or other obstacles which are less than 10 m away from the 1st Fresnel ellipsoid region.
Article 12
With regard to satellite telecommunications centres, in the decrees referred to in Article 14, the Government can make the necessary amendments to the conditions foreseen in this document and establish new conditions should it consider them indispensible to the suitable protection of those centres.
Article 13
1. Radio centres wishing to benefit from the protection foreseen in this Decree-law must address their request, which should be based on appropriate grounds and accompanied by all the necessary documents, to the entity which under the terms of Article 14 is competent for establishing such protection.
2. The request referred to in the previous article shall be presented to the administrative body which Article 15 declares competent for directing the respective process, the same body also being able to decide that the interested parties present the complementary documents considered necessary for the complete evaluation of the request.
Article 14
1. The constitution of the radio easements foreseen in this diploma will be made effective on a case by case basis, by means of a decree signed by either the Minister of Communications or the Overseas Minister, depending upon whether it is a domestic or an overseas radio station, respectively. For domestic radio broadcasting centres, the constitutive easement decree must also be countersigned by the Secretary of State for Information and Tourism.
2. The decree referred to in the previous section must fix the heights to be observed in the conditions referred to in Article 8, paragraph b) and Article 10, paragraph c) section 1; include a topographical chart of the area in question, using a 1: 25,000 scale, indicating in detail the nature and extent of the respective easement; and also indicate:
a) The competent bodies for authorising and ordering demolition, removal, felling or destroying interfering obstacles, referred to in this diploma, and for imposing fines for any offences committed;
b) The entities to which can uphold or overrule decision made under the terms of the previous paragraph;
c) The entities specially charged with the control of the legal provisions regarding the easements in question have been complied with, namely those mentioned in paragraph a).
3. A decree constituting a radio easement can generically establish the standards or conditions to be observed when certain works or activities are carried out.
4. What is provisioned in this article is also applicable to decrees amending easements.
Article 15
Studies for the constitution, amendments or abolition of radio easements and drawing up the plans for the respective decrees are the responsibility of:
a) Emissora Nacional de Radiodifusão with regard to centres under its command;
b) CTT administrative bodies of the various overseas provinces, jointly with the respective exploiting entities, with regard to civil centres located in those provinces;
c) The domestic CTT, in conjunction with the respective exploiting entities, for civil centres not covered by the preceeding paragraphs.
Article 16
1. The entities responsible for urbanisation plans and the competent administrative bodies will always be heard when radio centres to be protected are located less than 5,000 m away from urbanised places, or places which are legally earmarked for urbanisation.
2. In order to the establishment of a uniform criterion, the official jurisdiction which processes the constitution or amendment of the easement, before submitting its proposal for ministerial executive order, must inform the remaining State Departments, referred to in the previous article, of the terms of the easement, so as to enable them to make any observations, as quickly as possible.
Article 17
Before the proposal is submitted for ministerial executive order, the interested parties must give public notice and a hearing, under the terms of Decree-law 181/70, of the 28th of April.
Article 18
1. Whenever a radio centre is protected under the terms of this diploma, the respective plans must include radio easement studies to which the bordering zone will be subject, indicating the area covered by, and nature of the easement.
2. What is stipulated in this article is equally applicable to alterations of existing centres, especially for the purposes of amendments made to easements already in force.
Article 19
1. Should it be necessary, radio easements foreseen in this diploma may temporarily take the form of a joint executive order from the Chairman of the Cabinet and the competent Minister(s), whether it concerns an existing centre or one to be installed, the plans for which have been authorised.
2. Such executive orders shall be published in the Diário do Governo or the Boletim Oficial of the respective overseas province and take legal effect until such time as the constitutional decree of the easement comes into force.
Article 20
1. Legal and other public utility easements upon the property rights, constituted with the aim of ensuring appropriate radio propagation, do not give any idemnification rights, unless the law itself stipulates the contrary.
2. According to the individual case, the demolition, alteration, removal, felling or destruction of buildings, metal structures, trees, bushes or other obstacles which interfere, already in existence or under construction on the date upon which the easement is laid down or amended, in the areas which are subject to it, may be ordered, provided that such action is necessary for ensuring the protection foreseen in this Decree-law.
3. The measures ordered under the terms of the previous section, relating to already existing rights on the date of publication of the decree referred to in Article 14, section 1, give a idemnification right, which the entity exploiting the centre benefitting from the protection shall pay. Such indemnification shall be limited to the losses actually suffered by the prejudiced parties. Should an agreement under the legal terms governing compulsory purchases not be reached, idemnification shall be decided by public utility.
4. In order to fulfil what is stipulated in the previous section, the competent official jurisdiction shall notify the interested party that he must declare, within the established period, if he wishes to carry out the works in question or if he would rather the same jurisdiction took the necessary measures for such works to be carried out.
Should the interested party declare himself willing to carry out the works, deadlines will be fixed for the start and conclusion of the aforementioned works; should he not reply, declare that he does not wish to carry out the works or not start or conclude the said works within the limits laid down, the compulsory purchasing required by public utility will be undertaken.
Article 21
1. When radio centre exploiting entities and their agents do not enjoy direct and easy communication with the public way, they will have right of access to the installations of the aforementioned centre across adjacent land.
2. The right of access established in the previous section comprehends passage of people and vehicular circulation which, in any way whatsoever, concern the installation and exploitation of the respective radio centres. In such cases, the owners or tenants of the lands affected will have the right to idemnification for resulting damages.
Article 22
When circumstances so justify, the competent official entities may authorise protected radio centres to install equipment necessary for the efficient work of those centres on adjacent lands; for this purpose, what is stipulated in articles 124, 125, 126 and 128 of Decree nr. 5786 of the 10th of May, 1919, and in articles 1 and 2 of Decree nr. 14,881 of the 30th of December, 1927 must be observed with the necessary adaptations.
Article 23
In order to inspect and carry out the stipulations of this Decree-law, officers of the competent official jurisdiction, by their own initiative or at the request of the protected radio centre, shall have access to the buildings subject to the corresponding easement.
Article 24
1. Following publication of the decree or executive order which, under the terms of Articles 14 and 19 respectively, establishes the protection of the radio centre, offences against what is stipulated in this diploma will lead to the following procedure:
a) The installation, construction or establishment, in clearance or de-obstruction zones, of the interfering obstacles and elements referred to in Articles 8 and 10 section 1, paragraphs a) and c) and section II, and in article 11, section 2, will lead to a fine of between 100$00 and 20,000$00 Escudos being imposed on the offender, pursuant to the nature of the offence and damage caused. They also constitute the offender's obligation to remove the said obstacles or elements, at his own expense and within the period laid down, the operating entity having been heard;
b) Should the removal determined in the previous paragraph not be completed within the period laid down, a deed of notice shall be drawn up, on the basis of which, a fine of between 200$00 and 5,000$00 Escudos per day in arrears up to the new deadline established shall be imposed upon the offender. This period having lapsed, the competent entity may decide at the affected entity's request, to allow the latter to undertake the aforementioned removal, at the offender's expense.
c) Keeping interfering electrical apparatus in operation, after notice foreseen in Article 9, section 2 has been served, shall lead the official jurisdiction indicated therein to impose a fine of between 100$00 and 5,000$00 Escudos upon the offender, and may also order the immediate sealing of such apparatus if the entity operating the centre so requests;
d) The installation, use or unauthorised modification of electrical apparatus referred to in Article 9, section 1, and failure to observe what is stipulated in Article 10, section 1, paragraph b), will lead to the immediate sealing of such apparatus by the body which is competent to do so by law;
e) If, in spite of the procedure determined in the preceeding paragraphs c) and d), the interfering apparatus is unjustifiably used again, the aforementioned body will draw up a deed of notice which it shall submit for executive order by the competent entity, for the purpose of punishing the offender with a fine of between 1,000$00 and 10,000$00 Escudos, and the arrest of the apparatus, in State favour, without prejudice to the application of other sanctions comminated by law.
2. Fines imposed under the terms of this decree shall await voluntary payment within ten days, in accordance with the conditions of the respective notification. Should payment have not been made, coercive collection of the debt shall be undertaken through the competent courts.
3. The proceeds of fines established in this article will revert, in their entirety, to the State.
Article 25
1. In order that the stipulations of this Decree-law be observed, the competent official entities or their agents may request the intervention of the administrative, police or judicial authorities, in the latter case by means of the agent of the Public Ministry.
2. Notifications or other diligences which become necessary in order to fulfil the stipulations of this Decree-law may be undertaken by administrative or police authorities.
Seen and approved in Cabinet. Marcello Caetano - Mário Júlio Brito de Almeida Costa - Rui Alves da Silva Sanches - Joaquim Moreira da Silva Cunha.
Enacted on the 24th October, 1973.
It is hereby issued.
The President of the Portuguese Republic. AMÉRICO DEUS RODRIGUES THOMAZ.
To be published in the Boletins Oficiais of all overseas provinces. - J. da Silva Cunha.
