This text alludes to the framework applicable to radio spectrum, as foreseen in the New Electronic Communications Act, particularly in Articles 31 through 49. The main contrasts will be specifically highlighted by reference to the framework provided for in the previous Electronic Communications Act.
What principles must ANACOM abide by regarding spectrum management?
As in the previous Electronic Communications Act, ANACOM, as the national regulatory authority, is the entity tasked with ensuring the efficient management of the radio spectrum, taking into account its social, cultural, and economic value and the fact that it belongs to the State's public domain (Article 32.1).
The New Electronic Communications Act therefore vests in ANACOM the necessary powers to, among others, (i) ensure high-quality, high-speed wireless broadband coverage of the national territory and population, as well as of the main national transmission axes; (ii) ensure predictability and consistency in the allocation, renewal, amendment, restriction, and withdrawal of rights of use of the radio spectrum, in order to promote long-term investment; (iii) ensure the avoidance of harmful national or transnational interference by adopting appropriate preventive and remedial measures to that effect; and, a new feature of the New Electronic Communications Act; (iv) promote the shared use of the radio spectrum in accordance with Competition Law.
How were ANACOM’s powers concerning spectrum management changed?
Overall, ANACOM retains a significant part of the powers it had under the previous Electronic Communications Act, including to assign, amend, or renew rights of use, and to authorize the transmission and lease of rights of use. However, the New Electronic Communications Act significantly changes some more specific aspects, both expanding and reducing ANACOM's powers. ANACOM has been given some new powers (to promote the shared use of spectrum, including passive and active infrastructures, and to ensure the simultaneous expiry of rights of use granted). On the other hand, the Regulator loses some of the powers it had under the previous framework (under the New Electronic Communications Act, all regulations concerning tenders or comparative selection procedures for the allocation of rights of use of frequencies must be approved by the member of the Government in charge of communications).
Following the EECC very closely, the New Electronic Communications Act expressly foresees the intervention of other appropriate authorities in sector regulation, including in matters of end-user rights, which is also noteworthy.
What are the conditions applicable to the use of radio spectrum?
In general, the use of the radio spectrum for the provision of electronic communications networks or services is subject to the conditions provided for the general authorization (Article 36.1). We refer to our text on the general authorization framework.
What are the frameworks applicable to the allocation of radio spectrum use rights?
The New Electronic Communications Act maintains the two frameworks for granting rights of use of frequencies already provided for in the previous Electronic Communications Act, applicable to the conditional use spectrum, under the National Frequency Allocation Framework.
Rights of use may accordingly be granted (Articles 37.1 and 37.2): (i) as fully accessible, upon an application accompanied with information aimed at evaluating the granting of the right of use; or (ii) through tender or comparative selection procedures. These mechanisms must be open, objective, transparent, proportionate, and non-discriminatory.
What are the conditions associated with rights of use?
The conditions associated with the rights of use are to be defined by ANACOM, which also establishes the criteria for evaluating compliance. These conditions should be proportionate, transparent, and non-discriminatory and could consist, for example, of (i) coverage and service quality requirements; (ii) the establishment of maximum right durations; or (iii) obligations for the experimental use of spectrum.
This framework remains overall like its predecessor’s. However, the novelty of ANACOM being able to impose, as a condition attached to rights of use, obligations to pool or share spectrum or to grant access to spectrum to other users in specific areas or at a national level is worth highlighting.
What is the framework applicable to the renewal of use rights?
The rules regarding the renewal of rights of use have undergone significant changes in the New Electronic Communications Act. While in the previous Electronic Communications Act, renewal depended exclusively on the initiative of the rights holder, the new act affords ANACOM the possibility of evaluating the need for renewal of its own initiative.
The renewal of rights may also come at the initiative of their holder, who must apply to ANACOM at least 18 months and at most five years before the expiry date, which differs from the minimum one-year notice provided in the previous Electronic Communications Act. ANACOM must answer the application submitted within six calendar months as from the date it is received.
In any case, the framework applicable to the renewal of rights is not entirely clear, and ANACOM may now seek to renew the rights in such a way as to ensure simultaneous expiry of the rights of different or the same holders.
Moreover, it should also be noted that, in the case of rights of use whose number has been limited, interested parties should have the opportunity to state their opinion on their renewal, within the scope of a public consultation procedure ( Article 41).
How is the transfer and lease of rights of use treated?
The framework for the transfer and lease of rights of use of frequencies remains identical to that provided for in the previous Electronic Communications Act.
As a rule, the holder of a right to use frequencies, wishing to transfer or lease this right, may do so by means of a request submitted to ANACOM. This possibility will only be prohibited when such rights have been granted (i) free of charge or (ii) for the provision of radio program services and distribution of television and radio program services, in the scope of specific procedures, for the fulfillment of general interest goals and ANACOM has established their non-transferability on these grounds.
The request must be submitted to the least onerous procedure possible, and ANACOM must state its position on it within 45 business days. In this evaluation, it is ANACOM's responsibility to ensure that the transfer or lease does not cause distortions of competition (Article 44).
What are ANACOM’s powers in terms of protecting competition in the use of spectrum?
The New Electronic Communications Act establishes ANACOM's obligation to promote effective competition and avoid distortions of competition in the internal market, under Article 44, which accurately reflects a point of emphasis of the spectrum framework under the European Electronic Communications Code.
In this regard, ANACOM's powers in terms of spectrum management have been strengthened and it may adopt or propose to other appropriate authorities suitable measures to prevent such distortions, such as (i) limiting the number of spectrum bands for which rights of use are granted or attaching conditions to such rights; (ii) reserving part of a spectrum band or group of bands for allocation to new market entrants; (iii) refuse to grant new rights of use or to allow new uses of spectrum in certain bands, and attach conditions to the granting of new rights of use or to new uses of radio spectrum, including transfer or lease, to avoid distortion of competition caused by the grant, transfer, or accumulation of rights of use; (iv) prohibit or impose conditions on the transfer of rights of use where such transfer would significantly harm competition and is not subject to the national or Union merger control regime; or (v) amend rights of use where this is necessary to remedy a distortion of competition caused by the transfer or accumulation of rights of use.
These measures should be based on an objective and forward-looking assessment of the competitive conditions in the market and the need for measures to be taken to maintain or achieve effective competition, and their likely effect on current and future investments by market players, in particular in network roll-out.
What is the framework applicable to the shared use of spectrum?
Another novelty in the New Electronic Communications Act relates to the promotion of the shared use of the radio spectrum, defined by the New Electronic Communications Act as "the access by two or more users to the same bands of the radio spectrum, in the scope of the general authorisation or of rights of use of the radio spectrum, or in a combination thereof, in accordance with the sharing conditions associated with such rights, including under a sharing agreement". ANACOM is tasked with "ensuring the maximisation of the sharing of the radio spectrum" (Article 34.2(d)). This sharing regime applies not only to the spectrum itself, but also to the passive or active infrastructures that enable or support its use.
Although the New Electronic Communications Act does not expressly say so, it seems that the shared use of the spectrum can result from the initiative of the holders themselves, who, within the bounds of Competition Law and in compliance with the conditions associated with the rights of use, may promote sharing agreements among themselves. On the other hand, such configuration of spectrum use may also be determined by ANACOM, namely to ensure effective and efficient use of the radio spectrum, or to promote coverage (Article 39.5).
Key Takeaways
Although the cornerstone of the radio spectrum framework remains in place, the New Electronic Communications Act introduces significant changes to these rules, albeit only regarding a few specific matters.
The main innovations are related to ANACOM's powers and remit, whose role is reinforced in some matters (particularly regarding protection of the competitive use of spectrum) and curtailed in others.
Also of note is the introduction of the shared use of spectrum and the active and passive infrastructures that enable or support its use. The New Electronic Communications Act vests in ANACOM exclusive powers to impose it.
It will be interesting to follow ANACOM's performance in these matters, to understand whether this expansion of its powers will result in greater control over the activities of operators.