5G regulation and law in Portugal

Portugal started implementing 5G after many other European countries, but operators are beginning to make it available in some areas.

The Lisbon area and a bit of the northern coast already have coverage, but the interior of the country has very little.

According to data reported to ANACOM, the sector regulator, by the end of the first half of 2022, there were 2,918 5G stations in Portugal spread across 198 municipalities (64% of municipalities) and 859 parishes (28% of parishes). NOS is the operator that, to date, has installed the most 5G stations: 1,937 stations (66% of the total). Vodafone has 534 stations (18%), while MEO has 447 stations (15%). Some 90% of 5G stations are in urban areas (79% in predominantly urban areas). However, the existence of 5G stations in municipalities or parishes is not the same as "coverage". 

The technology still has limited coverage at the national level.

In this transition phase, none of the three main companies is charging consumers directly for access to the technology.

Since launching the first tariff plan, Meo, Nos and Vodafone have repeatedly delayed the start of paid 5G tariffs. The three leading operators have announced that after 31 March, they will begin charging 5G tariffs.

Yes. Operators have been investing in infrastructure and service development, with industrial applications in sectors such as health, ports and industry.

Thus, until the end of the year, MEO and Vodafone must provide mobile broadband at a minimum speed of at least 100 Mbps (megabits per second), to 75% of the population in low-density parishes as well as the parishes of Madeira and Azores.

We do not yet have any specific guidance on how 5G will be allocated and used in stadiums, airports and other special premises.

Thus, until the end of the year, MEO and Vodafone must provide mobile broadband at a minimum speed of at least 100 Mbps (megabits per second), to 75% of the population in low-density parishes as well as the parishes of Madeira and Azores.

We do not yet have any specific guidance on how 5G will be allocated and used in stadiums, airports and other special premises.

In November 2011, bidding bidding took place for licences in the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2.1 GHz and 2.6 GHz bands, following the rules set out in ANACOM Regulation No. 560-A/2011 of 19 October, rectified by Declaration of Rectification No. 1606/2011 of 26 October.

As to specific ANACOM deliberations in which RUFs were allocated, these will have an impact on the current 5G auction:

• In 2010, ANACOM allocated under the terms of Title No. 04/2010, last amended by Declaration No. 3 of 24 April 2019, the RUF to DENSE AIR in the 3.4-3.8 GHz bands; 
• On 23 December 2019, following the Draft Decision of 22 October 2019, on the "Amendment of the right of use of frequencies held by DENSE AIR Portugal and future use of the 3.4-3.8 GHz frequency band", ANACOM decided to auction the whole 3.4-3.8 GHz band. However, this decision is only effective until the end of the term of the RUF allocated to DENSE AIR under Title No 04/2010, meaning that the rights will end on 5 August 2025;
• On 23 December 2019, following the draft Decision of October 2019 on "Requests from NOS for frequencies in the 900 MHz and 2100 MHz bands", ANACOM decided (i) to grant the request for 2x200 kHz in the 900 MHz band, subject to the condition that it takes effect only after the allocation of the RUF under the 2020/2021 tender, and (ii) to reject the request for the immediate allocation of 2x5 MHz in the 2100 MHz band (FDD), corresponding to the 1955-1960/2145-2150 MHz frequency block. 

The 2020/2021 auction for RUF allocation in the 700 MHz, 900 MHz, 1800 MHz, 2.1 GHz, 2.6 GHz and 3.6 GHz bands. The Regulation establishes the auction process and licence conditions.

For the 2020/2021 auction, the winner was the highest bidder in the final round.

• In the Consignment phase, successful bidders in the 700 MHz, 1800 MHz, 2.6 GHz (FDD) and 3.6 GHz bands will be able to choose the exact location of the winning lots within their frequency band. The ANACOM Board shall rank the successful bidders in each category according to the following successive criteria:

1. higher final amount in the relevant category;
2. highest number of lots won in that category; and,
3. the higher number of lots won in all categories.

• For the Assignment of the 900 MHz band, ANACOM defines the exact location of the spectrum, taking into account the number of assigned lots under specific categories as well as the spectrum already assigned RUF on the date the Auction Regulation goes into effect. The definition of the exact location of the spectrum was based on the following principles:

1. ensure the pursuit of the public interest in the management of radio spectrum, according to criteria of proportionality and respect for acquired rights;
2. optimise efficient use of spectrum in the 900 MHz bands; and,
3. maximise the contiguity of allocated spectrum and spectrum held by each entity, as well as unallocated spectrum.

As regards the 2020/2021 auction (the most relevant to date), under the general conditions in the Law 5/2004 of 10 February (Electronic Communications Law), ANACOM has defined in the Auction Regulations:

• Requirements for coverage, network development and strength of the fixed voice signal;
• Network access obligations;
• Obligations to use assigned frequencies effectively and efficiently 
• Specific technical and operational conditions, particular regarding the security and integrity of electronic communication networks and services
• The maximum duration of the rights of use (20 years) may be renewed;

• reporting obligations to ANACOM, particularly the intention to transmit or lease the rights of use of frequencies, as well as the conditions under which they intend to do so, two years from the date of commencement of provision of publicly available electronic communications services using the assigned frequencies.

As regards the 2020/2021 auction, the reserve prices in the Auction Regulation totalled EUR 237.9m, adjusted for the economic value of the national spectrum as well as for reserve prices set in other European countries, which have on average proven to be significantly lower than the respective final prices.

ANACOM defines the reserve prices as the minimum value to be paid for the allocation of RUF for a given lot, specifically with reference to the prices defined in the Auction Regulation.

The prices of the lots are defined as follows:

1. New Entrants Bidding phase corresponds to the reserve price in the first round and in the following rounds to the value determined by the Board of Directors of ANACOM; and,
2. Main Bidding phase corresponds in the first round to the reserve price, and in the following rounds to the value of the best bid in the previous round or, if no bids have been submitted, to the reserve price. 

In each of the two processes, the final amount payable by each winning bidder corresponds to the sum of the final prices of the lots won by that bidder.

The RCM 7-A/2020 approves the strategy and timing for the distribution of 5G mobile communications. These are the main objectives:

• To award continuous spectrum in the 3.6 GHz band (from 80 to 100 MHz) to ensure an unconditional access experience in accordance with the European guidelines set out in the Commission's implementing Decision EU 2019/235 of 24 January 2019;
• To implement these strategic milestones:
  • By the end of 2023, 5G networks should be available to municipalities with more than 75,000 inhabitants, certain public health bodies, all universities and polytechnics, specific business location areas or industrial parks, international airports and military facilities;
  • By the end of 2024, 5G networks should be in place in municipalities with more than 50,000 inhabitants, most of the national highways and main motorways, railways, suburban railways and underground railway lines, as well as the main national ports; and
  • By the end of 2025, 90% of the population should be covered by 5G networks, with access to mobile broadband services with a typical usage experience of at least 100 Mbp, and other national commercial ports, roads, railway lines and military facilities;
• Ensure that the revenue from the 5G auction be used to support projects that stimulate digital transition and inclusion;
• Ensure that procedures are compatible with strategic and technical security measures resulting from work carried out at national and European levels, in particular the "EU Toolbox of risk mitigating measures" for 5G network security;
• Identify specific actions to be undertaken by ANACOM including (i) regulating the terms of spectrum allocation; (ii) creating proposals for legislative drafts aimed at, among others, considering the interests of the relevant stakeholders; (iii) encouraging a public consultation aimed at a new (reduced) annual spectrum fee; (iv) creating annual spectrum fee mechanisms that benefit operators ensuring 4G coverage in certain premises/regions; (v) setting up a digital platform for monitoring and following the 5G adoption process, under an “open data” format.

This strategy is almost fully reflected in the Auction Regulation which imposes, for example, specific coverage milestones and obligations as well as technical security measures.

ANACOM is expected to hold a new auction by 2025 for the 26GHz UHF bands, which are excluded from the 2020/2021 auction.

The specific rules (apart from the referred Electronic Communications Law), are the Portuguese RCM 7-A/2020, which approves the strategy and timetable for the distribution of 5G, and the Auction Regulation, which defines the conditions for allocating RUF in the 700 MHz, 900 MHz, 1800 MHz, 2.1 GHz, 2.6 GHz and 3.6 GHz bands.

In the first stage, the auction took longer than expected. It started later than expected, and during the auction, ANACOM unexpectedly changed the rules, leading NOS to file an injunction against ANACOM.

However, regarding the implementation phase, we are not aware of any non-compliance in this matter.

Currently, there is no 5G-focused regulation on network sharing and spectrum sharing.  Nevertheless, ANACOM has been emphasising the importance of infrastructure sharing and co-investment to ensure better coverage, particularly in the countryside.

5G network and spectrum sharing rules are the general ones in the Electronic Communication Law.

NOS and Vodafone signed a "Letter of Intent" to share mobile assets to ensure faster national coverage and cost sharing, while maintaining strategic independence of their networks, which may include 5G infrastructure.

The Electronic Communications Law provides general rules on competition.

Under the Auction Regulation, licence holders which win 2 x 10 MHz in the 700 MHz band or at least 50 MHz in the 3.6 GHz band and hold RUF in bands designated for terrestrial electronic communications services, must allow access to their networks under non-discriminatory conditions. The network access obligations shall apply from the date of issue of the relevant enabling licences, in particular:

• when so requested, negotiate good-faith agreements with third parties, respecting the commercial autonomy, particularly regarding distribution networks and market segments, and allowing effective competition;
• accept the negotiation of:

1. agreements that allow networks to be used by third-party virtual mobile operations (full MVNOs and light MVNOs) to offer equivalent services to their own customers; or
2. national roaming agreements with third parties that that are not licenced holders;

• fixing terms for the obligations set out in (a) and (b), for the duration of the RUF of ten years and eight years respectively. ;

reporting obligations and transparency with ANACOM, eg. reporting all requests for agreements received, providing fortnightly and detailed information on how negotiations are progressing and providing copies of final agreements.

ANACOM has recently issued a consultation on 26 GHz, so more developments are expected.

The Auction Regulation requires that the holders of RUF be subject to security rules at the national or European level, considering:

1. Commission Recommendation (EU) 2019/534 of 26 March 2019 on Cybersecurity of 5G networks;
2. the transposition of the European Electronic Communications Code adopted by Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018; and,
3. The implementation of the toolbox in the publication 01/2020 of the Cooperation Group on Network and Information Security "Cybersecurity of 5G network - EU Toolbox of risk mitigating measures", in line with the European Commission Communication COM(2020) 50 final on "Secure 5G deployment in the EU - Implementing the EU toolbox".

Other sanction mechanisms, such as non-compliance with relevant licence conditions, may lead to ANACOM removing the right to use frequencies, in whole or in part, in accordance with the Electronic Communications Law.

The government has not issued an official statement, but NOS, Altice Portugal and Vodafone have already stated that they do not intend to use Huawei technology in their new core 5G networks.