Introducing some of the main key rules regarding fees, contained in Articles 167, 168 and 169 (among others) of the New Electronic Communications Act.

Does the New Electronic Communications Act significantly depart from the fee scheme established by the previous Electronic Communications Act?

The answer is no. The New Electronic Communications Act does not materially depart from its predecessor as regards fees. Organisation-wise, the New Electronic Communications Act dedicates one Article to each main fee:

(i)      The annual fee payable by undertakings providing electronic communications networks and services covered by the general authorisation framework, commonly known as the regulatory fee (Article 167);

(ii)     Fees payable for the use of radio spectrum and numbering resources (Article 168); and

(iii)    The fee for granting rights of way (Article 169).

Who is subject to the regulatory fee and what are its main features?

Undertakings providing electronic communications networks and services covered by the general authorisation framework (we refer to the above text on the general authorisation framework) must pay the regulatory fee, which therefore includes both offers accessible and not accessible to the public. 

The amount of the fee, its periodicity, and any exemptions or reductions, as well as the periods of validity and the upper and lower collection thresholds, are currently set forth in Ordinance 1473-B/2008, of 17 December 2008, as amended from time to time (“Ordinance”).

Pursuant to this Ordinance, the regulatory fee is assessed in September of each calendar year and operators must send ANACOM, by 30 June of each calendar year, a statement indicating the amount of relevant income directly earned from the performance of the activity in the previous calendar year.

The annual fee is calculated based on the administrative costs of regulation, i.e., management, control and enforcement of the general authorisation framework, as well as user rights and specific conditions. These administrative regulatory costs are limited to those already provided for in Article 12 of the Authorisation Directive (now established in Article 16 EECC). In our view, they do not include expenses with provisions for ongoing legal proceedings, provided for in the formula to calculate the regulatory fee applicable to operators who, according to their relevant income and paragraph 1 of Annex II of the Ordinance, are included in bracket 2.

Transposing the provisions of the EECC, the New Electronic Communications Act provides that the regulatory fee will not apply to undertakings whose turnover is below a certain ceiling, whose activities do not reach a minimum market share, or which have a very limited territorial scope. Although this rule is already somewhat materialised in the Ordinance, it still needs to be implemented.

ANACOM remains under an obligation to publish an annual report of its administrative costs and the aggregate regulatory fees collected. Any difference between these amounts will need to be adjusted.

What rules apply to the fees payable for the use of radio spectrum and numbering resources?

Regarding radio spectrum, the assignment and renewal of rights of use, as well as the use of the spectrum itself, are subject to the payment of fees. The allocation, reservation, renewal and use of numbering resources are also subject to payment.

The applicable amounts, periodicity, and any exemptions or reductions of these fees, as well as the periods of validity and the upper and lower collection thresholds, are currently set forth in the Ordinance.

How should the fees payable for the use of radio spectrum be set?

The New Electronic Communications Act updates the fees payable for the use of radio spectrum. Transposing Article 42/2 EECC, it stipulates that the fees applicable to spectrum use rights must be set at a level that ensures the efficient allocation, renewal and use of the spectrum, in particular by: (i) establishing reservation prices as a floor price, considering the value of such rights in their potential alternative use; (ii) taking into account the additional costs arising from the conditions attached to such rights; and (iii) applying, to the extent possible, payment schemes linked to the spectrum's actual availability for use.

The amount of these fees should also consider the values defined by ANACOM for reservation prices, the evaluation of the additional costs of the conditions attached to rights of use and the effective availability of the spectrum.

Which framework applies to fees payable for the granting of rights of way?

The New Electronic Communications Act takes up the principle already enshrined in its predecessor, whereby fees payable for rights of way should reflect the need to ensure optimal use of resources and be objectively justified, proportionate, transparent and non-discriminatory.

A municipal fee for rights of way (“TMDP”) and remuneration for the use of infrastructures capable of housing electronic communications networks belonging to the public or private domain of local authorities, as set forth in Decree-Law 123/2009, of 21 May 2009, may lead to the creation of a municipal fee for rights of way, the rights and charges relating to the implementation, roll-out and crossing of the public and private municipal domains by systems, equipment and other resources of undertakings offering public electronic communications networks and publicly available electronic communications services at a fixed location.

The principles already applicable to the TMDP also remain in place.

The TMDP is thus determined by applying a percentage on the total monthly billing issued by the undertakings that offer publicly accessible electronic communications networks and services, at a fixed location, to all end customers of the municipality in question. This percentage, which cannot exceed 0.25%, is approved annually by each municipality, by the end of December of the year prior to its applicability. In the municipalities where collection of the TMDP is approved, the undertakings offering publicly accessible electronic communications networks and services at a fixed location must pay this tax.

Conversely, in keeping with the framework in place under the previous Electronic Communications Act, no fees or other charges may be levied for the implementation, roll-out or crossing of the public and private domains of the State and the autonomous regions, on the surface or underground, by systems, equipment and other physical resources necessary for their activity.

ANACOM remains tasked with approving the regulation establishing the rules and procedures to ascertain, assess and remit the TMDP, a task it currently performs under ANACOM Regulation 300/2009, of 15 July 2009.

Key takeaways

As expected, the New Electronic Communications Act does not significantly change the applicable fee scheme.

However, the annual fee payable by undertakings offering electronic communications networks and services covered by the general authorisation regime (regulatory fee), the fees payable for the use of radio spectrum and numbering resources, and the fees for the granting of rights of way are set out in separate Articles of the New Electronic Communications Act, making it easier to understand the rules applicable to each.