This text seeks to highlight some of the main aspects of the New Electronic Communications Act regarding the general authorization framework, as well as the rights and obligations of undertakings providing electronic communications networks or services, as set forth in its Articles 16 to 30.

What entities are subject to the general authorization framework?

Undertakings providing public and paid electronic communications networks and services are subject to the general authorization framework (Article 16.2), the latter being understood as offers on a self-provision basis.

Excluded from this framework are: (i) undertakings providing number-independent, interpersonal communications services (the so-called over-the-top services, or OTTs); and (ii) undertakings providing access services to a public electronic communications network through a local network via radio, where this is not part of an economic activity or a public utility that does not depend on sending signals on that network (article 16.3).

What entities are subject to the duty of prior start of activity communication?

Undertakings wishing to provide public electronic communications networks and publicly available electronic communications services are subject to the duty of prior start of activity communication (Article 17.1).

Undertakings wishing to provide paid electronic communications services join undertakings not subject to the general authorization framework in their exemption from such duty. ANACOM may also, by regulation, exempt from this duty undertakings providing certain types of public electronic communications networks and publicly available electronic communications services (Article 18).

What information must be included in the start of activity communication to ARN?

The start of activity communication needs to include:

(i) A declaration of the intention to start the activity;

(ii) The undertaking’s identification information and their website address associated with the provision of public electronic communications networks and electronic communications services accessible to the public;

(iii) Contact details for communication and notification purposes, including a mandatory email address;

(iv) A short description of the network or service intended to be provided;

(v) The estimated date for starting the activity.

ANACOM is tasked with regulating the prior communication duty and with approving the templates for such communications, taking into account the guidelines published by the ORECE (document BoR (19) 259, published on 6 December 2019). Until then, the templates approved under ANACOM’s Regulation 6/2016, of 5 January 2016 will remain in force.

What are the rights of undertakings providing electronic communications networks or services?

Undertakings providing electronic communications networks or services (whether publicly accessible or otherwise) are entitled (Article 20.1) to (i) request the establishment of rights of way; (ii) use the radio spectrum for the provision of electronic communications networks and services; (iii) request the use of numbering resources; and (iv) negotiate agreements between themselves on technical and commercial arrangements for access or interconnection.

Undertakings providing public electronic communications networks or publicly available electronic communications services are also entitled (Article 20.2): (i) to negotiate interconnection with and obtain access to or interconnection from other undertakings providing public electronic communications networks and publicly available electronic communications services; and (ii) to provide any of the universal service provisions or to cover different parts of the national territory.

To which general and specific conditions can the activity of undertakings providing electronic communications networks and services be subject?

Basically, undertakings providing electronic communications networks and services may be subject to the general conditions already provided for under the previous Electronic Communications Act, namely (Article 27.1): (i) access obligations (other than as a specific obligation); (ii) obligations of interconnection of networks and interoperability of services; (iii) obligations regarding the processing of personal data and the protection of privacy in the electronic communications sector; (iv) obligations regarding the security and integrity of public electronic communications networks, namely under Decree-Law 31/2017, of 22 March 2017; (v) obligations to install and provide lawful interception systems to national authorities and to supply the means of decryption whenever they provide these facilities; (vi) conditions of use of radio spectrum for electronic communications services; (vii) conditions of use to ensure communications between emergency services, the appropriate authorities, and civil defense agents with the general public; or (viii) obligation to provide information, namely in compliance with the statutory reporting duties.

The above general conditions do not apply to undertakings not subject to the general authorization framework.

In addition to these general conditions, undertakings providing electronic communications networks and services may also be subject to specific conditions regarding access and interconnection, retail market controls and universal service ( Article 28), in line with the previous Electronic Communications Law.

As this is a new feature of the New Electronic Communications Act, it should be noted that undertakings providing number-independent interpersonal communications services may, in certain cases, be subject to access and interconnection obligations, as better detailed in our text on the framework applicable to interpersonal communications services.

How can the rights and obligations of undertakings providing electronic communications networks and services be changed?

This framework was not significantly changed by the New Electronic Communications Act. The rights and obligations of undertakings providing electronic communications networks and services, including with regard to the use of radio spectrum and numbering resources, may therefore be amended in objectively justified cases, in keeping with the proportionality principle, by law, regulation, or administrative act (article 21.1).

As a rule, these changes are subject to the public consultation framework, except if they are minor changes that do not affect the substantial nature of the use rights, namely by not creating comparative advantages, and provided that the respective holders agree.

How can radio spectrum and numbering resources use rights be restricted or cancelled?

The holders of these rights are afforded a general guarantee that they cannot be restricted nor cancelled before their expiry (Article 22.1). In certain circumstances, however, the law allows their restriction or cancellation before that time: (i) with the consent of the relevant holder; (ii) in justified cases, in accordance with the conditions attached to their titles; (iii) to ensure the effective and efficient use of numbering resources or the radio spectrum; and (iv) to ensure the technical implementation measures adopted under Article 4 of Decision No. 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Article 22.2).

In the last two instances, the restriction or cancellation of rights of use is predicated on the existence of a previously established and clearly defined non-discriminatory procedure that abides by the proportionality principle. Moreover, in the absence of the right holder's consent, the public consultation procedure must be applied (Article 22.3).

The restriction or cancellation of rights of use entitles the holder to full or partial compensation (to be determined by ANACOM) for special and abnormal charges or damages they incur, and the framework of compensation for sacrifice in the context of tort of the State and other public entities applies (Article 22.4). Basically, the framework that already resulted from Decree-Law 151-A/2000, of 20 July 2000, to a certain extent is resumed here, although it has been specifically amended on this point, to make the framework clearer.

How can the right of way be exercised?

As a rule, undertakings providing public networks and publicly available electronic communications services have the right (Article 23.1) (i) to request expropriation and the creation of administrative easements necessary for the installation, protection, and conservation of their systems, equipment, and other resources, and (ii) to use the public domain, on equal terms, for the roll-out, right of way, or crossing necessary for the installation of their systems, equipment, and other resources.

Undertakings providing paid electronic communications networks and electronic communications services are only entitled to request the use of the public domain to install systems, equipment, and other resources (Article 23.2).

As in the previous Electronic Communications Act, the rule remains that rights of way cannot be restricted or withdrawn before their expiry, except with the consent of the holder or in justified cases. In these circumstances, the holder is entitled to receive compensation under the terms provided for the cancellation and restriction of rights of use, as mentioned above.

What are the general siting and sharing terms?

Where undertakings providing public networks and publicly available electronic communications services have exercised rights of way, they must promote the execution of agreements among themselves for the siting and sharing of network elements and related resources installed or to be installed, whose terms and subsequent changes must be communicated to ANACOM (Article 24).

ANACOM retains the authority to determine, including cost sharing rules, the siting and sharing of elements for reasons connected with environmental protection, public health, or public safety, or to meet spatial planning and protection of the urban and rural landscape targets.

These powers complement ANACOM's other powers to impose access to infrastructure and localized roaming which we have analyzed in other specific texts on the New Electronic Communications Act.

Key Takeaways

The New Electronic Communications Act does not significantly change the general authorization framework, the duty of prior communication, and the general rights and conditions applicable to undertakings providing electronic communications networks or services.

However, the new framework clarifies how it will apply to OTTs and undertakings wishing to provide paid electronic communications services, although it remains to be seen how ANACOM will supervise and regulate these entities.

As for the rest, and particularly with regard to the general and specific conditions applicable to the activity of undertakings providing electronic communications networks and services, as well as their rights and obligations and the framework for their modification, restriction or cancellation, there are no significant material changes to be noted in this New Electronic Communications Act, but rather an effort to flesh out and clarify the applicable rules.