ANATEL Introduces Radio Frequency Spectrum Regulation

Definitions
Authorization
Coordination
Characteristics of Radio Frequency Use

Recently the Brazilian Telecommunications Agency (ANATEL) published the Regulation of Radio Frequency Spectrum Use (Resolution 259 of April 19 2001). The new resolution does not represent a major innovation in the regulatory framework of the telecommunications sector, since the radio frequency spectrum was widely used prior to its enactment. However, the resolution does clarify and facilitate the operational aspects of radio frequency use.

The basic principles for spectrum use for the provision of telecommunications services are set forth in the General Telecommunications Law as follows:

• It is incumbent on ANATEL to manage the spectrum and to draw up the radio frequency assignment and designation plan.

• The use of radio frequencies for the provision of telecommunications services depends on prior authorization from ANATEL.

• The granting of authorization for radio frequency use will be preceded by an invitation to bid procedure, except if it is technically possible to attend to all those parties interested in its use.

• Authorizations will always be issued for a specific term and on an onerous basis.

• Authorizations shall necessarily be associated to a specific telecommunications service.

• Non-authorized use of the spectrum constitutes a crime and administrative infringement.

These aspects (with the exception of criminal sanctions) are consolidated in the new regulation.

Definitions

The new regulation clarifies certain important concepts.

According to the resolution's definitions, 'use on a primary basis' means "the use of radio frequency characterized by the right of protection against prejudicial interference". This signifies that authorizations on a primary basis will always have preference in the case of interference with a non-primary authorization. As a result, the use of radio frequency on a secondary basis must be ceased or adapted if it causes interference in any frequency granted on a primary basis.

Radio frequency authorizations may also be assigned on an 'exclusive' or 'non-exclusive' basis. Use of the former in a determinate area will be exclusive and always on a primary basis. Thus, the holder of an authorization on an exclusive basis need not be concerned with coordination or sharing, and may request that any radio frequency use which causes interference be immediately suspended. Radio frequencies assigned on a non-exclusive basis require that the authorized entities share the radio frequency use. The resolution defines 'sharing' as "the use of radio frequency by more than one telecommunications service operating entity in the same geographical area, at the same time or otherwise, without prejudicial interference between them".

Authorization

Radio frequency use for the provision of telecommunications services is carried out by means of a specific authorization granted by ANATEL. Authorizations are issued for a limited term, even if the associated telecommunications service is for an indeterminate period.

For telecommunications services provided under the public regime, radio frequencies are assigned for the remaining length of the concession contract. For holders of authorizations, the authorization term for radio frequency use is that established in the specific regulation of the telecommunications service associated to the radio frequency or, if there is no specific provision, for a maximum period of 20 years. This period may be extended only once for a further 20 years. As for satellite services, related radio frequencies shall be granted for a maximum period of 15 years, extendable once.

The new regulation outlines a specific procedure for the assignment of radio frequencies. If there is interest in a certain radio frequency, the interested party should forward an application for radio frequency use to ANATEL, with the following:

• a technical project and a detailed explanation of its use;

• proof of prior coordination, if necessary;

• the service area; and

• other technical information as detailed in the resolution.

The radio frequencies applied for must comply with the specific regulations of the telecommunications service to which they are associated. Hence, channel frequencies, power and amplitude of emissions must comply with the requirements of the service to be rendered. For example, a company authorized to render MMDS (Multichannel Multipoint Signal Distribution Service) should apply for radio frequency use in a specific band (2.5 gigahertz up to 2.58 gigahertz), as detailed in the service regulations. On the other hand, when implemented, third generation mobile services must necessarily use frequencies in the 1.9 gigahertz range.

Once the application has been submitted, the agency will analyze the request and may assign the frequencies requested (regardless of any invitation to bid procedure) in cases of (i) non-exclusive use on a secondary basis, with sharing of time and space, with the possibility of use by all interested parties, or (ii) non-exclusive use on a primary basis, in the areas in which the density of radio frequency use permits use by all parties.

In all other cases there will be prior analysis of the need for an invitation to bid procedure for granting the radio frequency, which takes the form of a public tender. All interested parties have the opportunity to express their interest in a frequency. If frequencies are not available for all the interested parties, then an invitation to bid procedure will be conducted.

The invitation to bid for the assignment of radio frequencies may adopt one of the following three criteria for the judgment of proposals:

• greatest public price offer for the right of use of radio frequency;

• greatest service offer; and

• best quality of use, considering the best use and economy of the spectrum and preference for community interest services over restricted interest services.

Coordination

The new regulation details the coordination of radio frequency use, permitting efficient use of the spectrum by the greatest number of users possible. Thus, if there is prejudicial interference between two users that hold authorizations for use on a primary or secondary basis, a coordination process shall be instituted, which involves the following stages:

• verification;

• communication;

• conciliation;

• decision; and

• registration.

ANATEL will only be called to intervene if no consensus is reached. ANATEL will then act as arbitrator and render a decision pursuant to the criteria established in the regulation.

Characteristics of Radio Frequency Use

The resolution further determines that the authorization for frequency use is non-transferable, exceptions being the transfer or assignment of authorizations that are associated with a determinate radio frequency. Thus, the radio frequency use will always be linked to the service and the authorization for radio frequency use will be extinguished if the related telecommunications service licence is extinguished. Similarly, if the authorization for radio frequency use is extinguished, and this authorization is essential for the exploitation of a telecommunications service under the private regime, the associated authorization will be cancelled.

The extinguishing of authorization for radio frequency use may also occur in the following circumstances:

• in the advent of its expiration;

• when the interested party fails to pay the amounts due for its use pursuant to the regulation;

• if its stations are not adequately licensed; or

• by a discretionary act of the agency, for reasons concerning public interest.

In the event of the identification of any prejudicial interference or the verification of a situation that may cause risk to human life, the agency may interrupt the operation of the relevant station.

The resolution also mentions the exposure of workers and the public to electromagnetic fields that may be harmful to health. The agency is implementing a comprehensive regulation aimed at establishing safety indices for exposure to electromagnetic waves.

For further information on this topic please contact Ricardo Barretto or José Leça at Barretto Ferreira, Kujawski, Brancher e Gonçalves – Sociedade de Advogados by telephone (+55 11 3066 5999) or by fax (+55 11 3167 4735) or by e-mail ([email protected] or [email protected]).