Ministério do Equipamento, do Planeamento e da Administração do Território (Ministry for the Equipment, Planning and Administration of the Territory)
Decree-Law
Law no. 91/97, from August 1, defined the rules that govern the establishment, management and exploitation of telecommunications networks and the provision of telecommunications services.
The aforementioned law generically establishes the principles of liberty in the establishment of public telecommunications networks and in the provision of the public use telecommunications services, thus following in full the latest developments of this sector s framework at the level of the European Union.
It therefore becomes necessary to develop the principles of the said Telecommunications Act, including the Community rules established in several directives, which concern in particular the forms of access to the market by the entities that intend to provide telecommunications services and that establish the corresponding rights and duties.
Thus, this diploma transposes norms from Directive nr. 96/2/CE of the Commission, which modifies Directive nr. 90/388/CEE concerning the mobile and personal communications, from Directive 96/19/CE of the Commission, which modifies Directive nr. 90/388/CEE concerning the instatement of full competition in the telecommunications markets, and Directive nr. 97/13/CE of the European Parliament and of the Council, concerning a common framework for general authorisations and individual licenses within the telecommunications services domain.
It should also be taken into consideration that this legal measure reflects the results of the negotiation process developed by the Portuguese Government with the European Commission, as foreseen in the Community texts themselves.
In effect, the final establishment of the schedule of the said liberalisation of the telecommunications in Portugal is to a great extent connected to the commitments assumed by the State before the Community institutions.
This liberalisation, being gradual and progressive, has its regime already established in this diploma, thus the economic operators are informed in advance of the rules of the full liberalisation of telecommunications.
The full development of the Act shall further require the publication of other norms, established in specific diplomas, concerning issues that are understood as owing to be treated separately, such as the interconnection of networks and services, the numbering, the universal service and the private telecommunications networks.
Under these terms, this diploma establishes the access regime to the business of public telecommunications networks operator and of public use telecommunications services provider, reorganising the present legal discipline inherent to the market of the telecommunications services operators.
Thus:
Following the legal regime established by Law nr. 91/97 from August 1, and under the terms of article 198, nr. 1, paragraph c) of the Constitution, the Government hereby decrees the following:
CHAPTER I
General provisions
Article 1
Object
This diploma regulates the access regime to the business of operator of public telecommunications networks and of public use telecommunications services provider.
Article 2
Carrying out of business
The business of operator of public telecommunications network operator and of public use telecommunications services provider is subject to a licence or registration, under the terms of this diploma.
Article 3
Responsibility
The registration acts and the granting of licenses are the responsibility of the Portuguese Communications Institute (ICP), unless when involving the granting of frequencies within the scope of tenders, in which case the granting of licenses is the responsibility of the member of the Government responsible for the communications area.
Article 4
Registrations and licenses
1. The provision of telecommunications services is subject to mere registration.
2. Without prejudice of the terms of the previous number, the following require a license:
a. The provision of the fixed telephone service;
b. The establishment and / or the provision of public telecommunications networks;
c. The granting of frequencies for the establishment of networks or for the provision of services;
d. The subjection to duties of provision of the universal service, of interconnection or duties that derive from holding a significant position in the market, in accordance with the terms to be established in a specific diploma.
3. Licenses that are granted and registrations that are made, including the identification and headquarters or address of the respective holders, as well as the activities included, shall be unofficially published by ICP, namely in the Diário da República.
Article 5
Exploitation regulations
It is the responsibility of the member of the Government responsible for the communications area the approval, through administrative rule, of the exploitation regulations of the networks and services foreseen in this diploma.
CHAPTER II
Registrations
Article 6
Registration
1. The individuals or companies that wish to provide public use telecommunications services should register at ICP.
2. The following can be registered:
a. Individuals registered as single businessmen;
b. Legally established commercial partnerships, whose contract of partnership includes the business of providing telecommunications services.
3. Concerning the terms of no. 1, it should be presented a statement accompanied by a certificate from the relevant commercial registration office.
4. It is forbidden the registration in the following circumstances:
a. To individuals or partnerships whose registration or licence is suspended or has been revoked under the terms of article 32;
b. To entities that, either directly or indirectly, participate, control, are participated or controlled by individuals or partnerships referred under paragraph a).
Article 7
Conditions and modes of registration
1. The entities that are registered are subject to the following conditions and modes, depending on the case:
a. Defence mechanisms of the users and subscribers;
b. Offer conditions, including non-discriminatory pricing systems;
c. Financial participation concerning the costs of the universal service;
d. Provision of user and subscriber data, bearing in mind their inclusion in a global list;
e. Personal data protection and reserve of the private life;
f. Access to emergency services;
g. Provision of the service to populations with special needs;
h. Defence of the human dignity and of the public order;
i. Legal interception of calls, under the terms of article 27;
j. Secrecy of the communications;
l. Utilisation of public telecommunications networks;
m. Conformity with the national numbering plan and effective utilisation of the numbers granted.
2. The conditions and the modes referred in the previous number may be altered following the publication of norms that come to be approved and that include requirements and conditions unforeseen at the date of registration, in accordance with the principle of pursuit of the public interest and the principle of proportionality.
3. Concerning the terms of the previous number, ICP should notify the registered entity of the alteration that is intended to be instated, conceding to the latter a minimum period of 10 working days for its pronunciation regarding this issue.
Article 8
Utilisation of public networks
The entities registered for the provision of public use telecommunications services which they intend to develop may use the public telecommunications networks of the entities licensed for that purpose, under the terms of this diploma, in accordance with the applicable legislation and under the conditions established in the respective licensing grants.
Article 9
User protection
1. The contracts concluded between the registered entity and the users cannot contain any provision that goes against this diploma.
2. Concerning subscription contracts, they shall be subject to ICP's prior approval.
3. The registered entities are obliged to report and disclose on a regular basis, in a detailed manner, the various components of the applicable prices, owing to provide the users with an invoice duly specifying the amounts stated.
4. The right to require the payment due for the service provided ceases six months after its provision.
5. Concerning the terms of the previous number, the payment is seen as requested after the presentation of the invoice.
6. The registered entities are obliged to inform the users regarding the quality levels of the service provided.
7. The registered entities are obliged to report and disclose any modifications made to the form of provision of the services, namely price changes and modifications of the quality levels, as well as interruptions, suspensions or extinction of the services.
Article 10
Commencement of provision
1. The entities registered under the terms of this diploma should previously inform ICP of the services whose provision they intend to commence.
2. Concerning the terms of the previous number, the entities registered should provide the information that allows the fulfilment of the applicable conditions and modes referred in article 7, namely:
a. Detailed description of the service they propose to provide;
b. Technical project stating the equipment's to be used;
c. Indication of the entity in whose network the service is based.
3. The commencement of the provision of the service may only occur 20 working days after reception of the information stated in the previous numbers at ICP.
CHAPTER III
Licensing
SECTION I
Licenses
Article 11
Conditions, term and modes of the licenses
1. Licenses can establish conditions and modes concerning the following, depending on the case:
a. Security of the network's operation and maintenance of its integrity;
b. Interoperability of services;
c. Data protection and communications secrecy;
d. Effective and efficient use of the frequencies granted;
e. Conformity with the territory arrangement plans and observance of limitations inherent to the protection of the environment and of property and access to the public and private domain;
f. Conformity with the national numbering plan and effective and efficient usage of the numbers granted;
g. Provision of the universal service and financial participation concerning the costs of the universal service;
h. Interconnection with other networks and / or services;
i. Provision of the service with the appropriate levels of quality, as well as of availability and permanence;
j. Provision of open network;
l. Installation of legal communications interception systems;
m. Permission of access to the respective conduits, poles and other installations in the cases foreseen in article 7, no. 2;
n. Provision terms, including non-discriminatory pricing systems;
o. Other conditions established in article 7;
p. Any other conditions deriving from the publication of norms that come to be approved and that include requirements unforeseen at the date of grant of the license, in accordance with the principle of pursuit of the public interest and the principle of proportionality.
2. Licenses are granted for 15 year periods, and its renewal may be authorised by the entity that granted them for equal periods, after request of the licensed entity with an advanced notice of at least 3 years before the term of the respective effectiveness period.
3. The decision regarding the license renewal should be announced within one year after the presentation of the respective request.
Article 12
Requirements for the granting of licenses
1. The entities wishing to obtain a license should observe the following requirements:
a. Taking the form of commercial partnership in conformity with the legal framework, with a contract of partnership that includes carrying out the businesses of providing telecommunications services and the establishment, management and exploitation of telecommunications networks;
b. Holding a technical capacity that is appropriate to the fulfilment of the specific duties of the license that is intended to be obtained, namely having qualified personnel for the operation at issue;
c. Having an appropriate economic structure, as well as the necessary financial resources to ensure the launching and good management of the company;
d. Having updated accounting, regularly organised according to the Official Accounting Plan and appropriate to the analyses requested for the project that is intended to be developed concerning the business;
e. Making proof of the fact that it is not a debtor of any taxes or other amounts to the State and the Social Security, or that the respective payment is assured through the fulfilment of agreements made with that purpose under the legal terms.
2. Concerning the terms of paragraph c) of the previous number, it is considered as an appropriate economic and financial capacity the coverage of at least 25% of the total investment concerning the business to be developed by company equity.
3. The entities whose partnership contract took place within 90 days before the licensing request shall be exempt from the terms of paragraph d).
4. No licenses can be granted in the following circumstances:
a. To partnerships previously licensed or registered and whose license or registration is suspended or has been revoked under the terms of article 32;
b. To entities that either directly or indirectly participate, control, are participated or controlled by partnerships or individuals that are in the situation referred in paragraph a).
Article 13
Granting of licenses
1. The granting of licenses depends on the fulfilment of the requirements foreseen in article 12, without prejudice of the terms of the following number.
2. It is subject to tender the granting of licenses that involve the utilisation of frequencies identified as such in the frequency plan referred in article 22, and the respective tender regulation shall be approved by an administrative rule from the member of the Government responsible for the communications area.
3. Concerning the granting of license, the interested parties should forward a request with the following information:
a. Documents that show the fulfilment of the requirements referred in article 12;
b. Justification of the request;
c. Detailed description of the business that is intended to be pursued, including the respective technical project, stating the characteristics of the technological system, the planning of the development of the system and following coverage plan, the system's management and exploitation and the quality levels of the service to be provided.
4. In the cases that the entity to be licensed has its headquarters outside the Portuguese territory, the documents necessary for the fulfilment of the requirement established in article 12, no. 1, paragraph a) should be issued and authenticated by the relevant authorities of the respective country of origin.
5. The decision concerning the granting of licenses should be announced within the following maximum periods:
a. Eight months after the date of commencement of tender, in case the license is granted through tender;
b. 30 working days from the date of presentation of the request, in the remaining cases.
6. The period referred in paragraph b) of the previous number can be delayed under exceptional circumstances for equal periods to a total of 90 working days, should the technical project included in the request be highly complex.
Article 14
Issue of licenses
1. The issue of licenses is the responsibility of the Board of Directors of ICP.
2. The license should include namely the following information:
a. Conditions and modes applicable under the terms of article 11;
b. Geographical area of operation;
c. Period until the beginning of operation, under the terms of article 20;
d. Applicable exploitation regulation;
e. License period and term;
f. Applicable fees.
Article 15
Quality, availability and permanence
1. The licensed entities are obliged to pursue their business in a continued manner and with appropriate quality levels, owing to ensure the equity of access to the services provided.
2. The services provided cannot be suspended without an appropriate prior notice, except in case of a fortuitous event or of an Act of God.
3. In case of delay of payment by the user which justifies the suspension of the service, the suspension may only occur after the user has been noticed of the reason for the suspension and informed of the means available to avoid that suspension.
Article 16
Pricing systems
1. The licensed entities are obliged to announce and disclose on a regular basis, and in a detailed manner, the various components of the applicable prices, owing to provide the users with an invoice that specifies duly the amounts stated.
2. The right to require the payment of the service provided ceases six months after its provision.
3. Concerning the terms of the previous number, the payment is seen as requested after the presentation of each invoice.
Article 17
Installation of infrastructures
1. The entities licensed for the establishment and provision of public telecommunications networks are ensured:
a. The right to request, under the terms of the general law, the expropriation and constitution of administrative servitude's indispensable for the installation, protection and maintenance of the respective infrastructures.
b. The right of access to the public domain under equity conditions, for the installation and maintenance of the respective infrastructures.
2. Whenever it is not allowed, in a concrete situation, the installation of new infrastructures, for reasons dealing with the protection of the environment, the arrangement of the territory and the defence of the urban and rural landscape, access to the conduits, poles and existing other facilities shall be ensured under the terms and payment conditions to be agreed between the parties.
3. In the event that the entities involved do not reach an agreement, they can forward the matter to ICP, which shall decide, namely whenever payment conditions are at issue, based on cost-oriented criteria.
4. Licenses to be granted under the terms of this diploma, namely concerning the establishment of public telecommunications networks, do not constitute exemption from the remaining licensing acts foreseen in the law, namely those that are the responsibility of the municipal bodies.
Article 18
Alteration of license
1. Licenses may be altered in the following circumstances:
a. By initiative from ICP, following the publication of norms that come to be approved and that include requirements and conditions unforeseen at the date of grant of the license, in accordance with the principle of pursuit of the public interest and the principle of proportionality;
b. After request by the licensed entity, which should be duly justified and subject to ICP's authorisation.
2. Concerning the terms of paragraph a) of the previous number, ICP should notify the licensed entity of the alteration that is intended to be introduced in the license, granting it a minimum period of 20 working days for its pronunciation regarding this issue.
Article 19
Transferability of licenses
1. Licenses granted under the terms of this diploma are transferable after prior authorisation by ICP.
2. In case the license has been granted within the scope of a tender, it is the responsibility of the member of the Government responsible for the communications area
3. The entity to which the license has been transferred should fulfil the requirements established in article 12, assuming all the rights and duties inherent to the license, under penalty of annulment of the transfer.
Article 20
Commencement of operation
The licensed entities should commence operating within a reasonable period established in the license, which should not be of more than 18 months from the date of its issue, safe in case of force majeure duly justified and acknowledged as such by ICP
SECTION II
Frequencies
Article 21
Frequency planning
The frequency planning is the responsibility of ICP and should observe namely the following criteria:
a. Availability of the radio spectrum;
b. Insurance of effective competitive conditions in the relevant markets;
c. Effective and efficient utilisation of the frequencies.
Article 22
Disclosure of frequencies
1. It is the responsibility of ICP to disclose within the first quarter of each year the frequency planning, indicating:
a. The frequency bands and the number of channels already granted to each licensed entity under the terms of this diploma, as well as to each holder of private telecommunications networks, including the date of revision of the grant;
b. The frequency bands that are reserved and those to be made available in the following year within the scope of the public use telecommunications, as well as the frequencies planned and the respective granting criteria for the private telecommunications;
c. A summary of the granting criteria of the frequencies referred in paragraph b), indicating those that are reserved for public use telecommunications or private networks to be created and those that are reserved for the public use telecommunications services operators already licensed or private networks already created.
2. Concerning the terms of paragraph c) of the previous number, the frequencies that shall be granted within the scope of the tender should be specifically indicated, as well as those whose grant is governed by the principle of full accessibility.
3. In case of extreme scarcity of radio spectrum, the granting of the frequencies may be decided according to the criterion of the respective economic value.
4. The decision referred in the previous number is the responsibility of the member of the Government responsible for the communications area, after proposal by ICP.
Article 23
Armed Forces and security forces and services frequencies
The frequencies granted to the Armed Forces and to the security forces and services are excluded from the disclosure referred in the previous article.
Article 24
Additional frequencies for public use telecommunications services
1. The additional granting of frequencies within the scope of the alteration of a license already issued is dependent from a justified request from the licensed entity, which should include the following:
a. Justification of the request;
b. Detailed description of the business that is intended to be pursued, including the respective technical project, stating the characteristics of the technological system, the planning of the development of the system and following coverage plan, the system's management and exploitation and the quality levels of the service to be provided.
2. It is the responsibility of ICP to decide on the granting of additional frequencies bearing in mind the most appropriate technological criteria to the effective and efficient utilisation of the radio spectrum.
3. It is the responsibility of the member of the Government responsible for the communications area to decide on the granting of additional licenses to licensed operators following a tender.
Article 25
Effective and efficient utilisation of the frequencies
1. Frequencies granted should be effectively and efficiently used, according to the conditions established in the granting act and which have determined their fulfilment.
2. The non-fulfilment of the terms of the previous number determines the possibility of full or partial revocation of the frequency granting act, the without prejudice of sanctions foreseen for the non-fulfilment of the license.
3. In the case foreseen in the previous number, it is applicable the terms of nos. 2 to 5 of article 32, duly adapted.
CHAPTER IV
Common provisions to the registered and licensed entities
Article 26
Rights and duties
1. The following are rights of the registered and licensed entities:
a. To pursue business under the terms established in the respective registration or license;
b. To interconnect to public telecommunications networks or public use telecommunications services through the basic telecommunications network or through networks of operators with a significant position in the markets;
c. To establish freely the price of the services provided.
2. The following are duties of the registered and licensed entities:
a. To observe the conditions and limitations inherent to the registration or established in the license;
b. To abide by the legal provisions applicable to telecommunications;
c. To abide by the applicable exploitation regulations;
d. To use equipment duly approved by the relevant entity;
e. To allow the verification of the equipment, to provide the necessary information for the verification and inspection of the duties and conditions deriving from the registration or the license, as well as provide information destined to statistical processing, allow access to the respective facilities and documents;
f. To make the necessary corrections, bearing in mind the normal functioning of the facilities and the appropriate pursuit of business;
g. To ensure, under equity terms, access to the services provided through the payment of the applicable prices.
Article 27
Legal interception of communications
1. The entities that establish and provide public telecommunications networks or that provide public use telecommunications services are obliged to install systems appropriate to the legal interception of communications, at their own expense, and to provide them to the legally responsible authorities.
2. Concerning the terms of the previous number, the entities referred therein are also obliged to provide the unencryption or deciphering means, in case those facilities are provided.
Article 28
Account separation
The entities that provide public telecommunications networks and / or public use telecommunications services should have an analytical accounting system and present separate accounting for the telecommunications business or create legally distinct entities for the corresponding businesses, whenever:
a. They pursue a business under exclusivity in other sectors different from the telecommunications; or
b. They are participated by the public telecommunications service operator; or
c. They hold a significant position in the markets.
Article 29
Fees
1. The following are subject to fees:
a. Registration acts and license issuing;
b. Appendixes added to registrations and licenses, in case of alteration;
c. Substitution of the registrations and licenses, in case of loss;
d. License renewals;
2. The pursuit of the businesses foreseen in this diploma by registered and licensed entities is subject to the payment of an annual fee.
3. The amounts of the fees referred in the previous numbers are established by a dispatch from the member of the Government responsible for the communications area and are based on the costs associated to the corresponding administrative, technical, operational and inspecting tasks, and constitute a revenue of ICP.
CHAPTER V
Inspection and sanctions
Article 30
Inspection
1. It is the responsibility of ICP the inspection of the fulfilment of the terms of this diploma through its workers mandated for that purpose or through other authorised agents duly accredited by the Board of Directors of ICP.
2. The workers and authorised agents referred in the previous number remain obliged not to disclose the information and data that they become aware of while fulfilling their duties and that constitute a commercial or industrial secret.
Article 31
Company concentration control
The decision concerning registered or licensed company concentration operations under the terms of this diploma, to be announced under the terms of the applicable legislation, requires a prior advice from ICP.
Article 32
Non fulfilment
1. In the event that the licensed or registered entities do not fulfil any of the applicable conditions or modes, it is the responsibility of ICP to suspend, up to a maximum of two years, or revoke fully or partially the registration or licensing acts, without prejudice of the applicable fines.
2. Prior to the suspension or revocation, ICP should inform of the necessary measures for the correction of the situation, in the cases that the non fulfilment can be corrected, establishing a period of at least 10 working days for the entity to make its pronunciation regarding the issue.
3. Those situations where repeated non-fulfilment of conditions or modes of the license or registration was perpetrated by licensed or registered entities are excluded from the terms of the previous number.
4. The measures imposed by ICP concerning the correction of the situation should be fulfilled within 30 working days.
5. In case the entity does not fulfil the measures imposed by ICP within the established period, the registration or license shall be suspended or revoked.
6. Whenever the entities fulfil the necessary measures for the adjustment of the situation during the suspension period of a registration or license, it is the responsibility of ICP to withdraw that suspension within 10 working days, except in the cases where the verification is highly complex in technical terms.
7. In case of interference between one public telecommunications network and other technical systems, it is the responsibility of ICP to take the appropriate measures immediately, without prejudice of providing information to and later consulting of the licensed entity.
Article 33
Penalties and fines
1. Without prejudice of other applicable sanctions, the following constitute penalties:
a. The non fulfilment by the registered entities of the applicable conditions and modes established in article 10;
b. The commencement of provision of the services by the entities registered in violation of article 10
c. The non fulfilment by the licensed entities of the applicable conditions and modes foreseen in article 11, no. 1, and included as such in the respective licenses, under the terms of article 14, no. 2;
d. The commencement of operation by the licensed entities in violation of article 20;
e. The violation of the duties foreseen in article 26, no. 2 by the registered or licensed entities;
f. The lack of payment of the fees foreseen in article 29, no. 1.
2. The penalties foreseen in this diploma are punishable with fines from PTE 100,000 to PTE 750,000 and from PTE 1,000,000 to 9,000,000, depending on whether performed by individuals or partnerships, respectively.
3. Attempts and negligence are punishable in the penalties foreseen in this diploma.
Article 34
Fine processing and application
1. The application of the fines foreseen in this diploma is the responsibility of the Chairman of the Board of ICP.
2. The institution and preparation of the process is the responsibility of ICP.
3. The amount of the fines reverts to the State in 60% and to ICP in 40%.
CHAPTER VI
Interim and final provisions
Article 35
Direct international interconnection
1. Until January 1, 1999, it is forbidden to any entity the installation and the provision of transmission means for the direct international interconnection between mobile telecommunications services operators and mobile and fixed services and networks.
2. The international interconnection referred in the previous number is ensured by the public service telecommunications operator, through the fixed telephone service.
Article 36
Fixed telephone service
Until January 1, 2000, no licenses shall be granted under this diploma for the provision of the fixed telephone service, as well as for the installation, establishment and exploitation of the supporting telecommunications networks.
Article 37
Public network operators
Until January 1, 2000, licenses of operator of public telecommunications networks may only be granted to the following entities:
a. Operators of mobile public use telecommunications services and satellite network services operators;
b. Cable distribution networks operators;
c. Radio and television operators;
d. Franchising entities of public services holding private telecommunications networks.
Article 38
Acquired rights
1. The rights and duties of the entities that hold licenses and authorisations issued under Decree-Laws nos. 346/90 from November 3, 329/90 from October 23, and 120/96 from August 7, remain applicable, and the exploitation regulations of the various services remain effective until the issue of new exploitation regulations.
2. It is the responsibility of ICP to make the necessary alterations to the licenses and authorisations already issued, with exemption from the corresponding fee, within 120 days from the date of effectiveness of this diploma.
3. Concerning the terms of the previous number, the licensed and authorised entities should provide any and all information and documents requested by ICP.
4. It is allowed at all times to the entities referred in no. 1, as well as to the cable distribution networks operators, the fulfilment of the possibilities foreseen in this diploma, through alteration of the respective certificates or the granting of a new certificate.
Article 39
Revocation
1. Decree-Laws nos. 346/90 from November 3, 147/91 from April 12, and 329/90 from October 23 are hereby revoked.
2. Decree-Law no. 120/96 from August 7 remains in force until the issue of an exploitation regulation of satellite networks operators and of via satellite service providers.
3. Article 4, no. 1 of the Bases for the Concession of the Public Telecommunications Service, which were approved in annex to Decree-Law no. 40/95 from February 15, is hereby derogated, concerning the exclusivity regime granted to the franchiser within the scope of provision of the telex, leased circuits and telegraph services, and in conformity, the corresponding terms established in no. 1 of clause 4 of the lease contract of the public telecommunications services.
Seen and approved in the Cabinet Meeting of November 13, 1997. - António Manuel de Oliveira Guterres - Fernando Teixeira dos Santos - João Cardona Gomes Cravinho.
Enacted on December 23, 1997.
Let this be published.
The President of the Republic, Jorge Sampaio.
Countersigned on December 29, 1997.
The Prime Minister, António Manuel de Oliveira Guterres.
