| MOBILE SERVICE - OPENING THE SECTOR Walter Vieira Ceneviva ( attorney ) So far: The Federal Government has established a public commitment to arrange for greater competition in mobile voice communication beginning in year 2000. The General Telecommunications Law grants to the National Telecommunications Agency ("Anatel") power to increase competition, if possible, and it is Anatel's duty to ( i ) decide whether to adapt existing mobile voice service rules already in existence, or create a new service. ( ii ) establish restrictions or objective conditions for the entrance of interested parties, in the process of competition, by the respective organ ( iii ) establish the available frequency bands and the criteria for their use, ( iv ) define the geograhic areas of the new service grants, ( v ) impose minimum requirements ( that could form judgement criteria of proposals presented ) and ( vi ) define the proceedings of the respective bidding process. The Brazilian Government has agreed not to anthorize the beginning of the provision of new mobile voice communication services before Decemberv 31st 1999 1. This agreement is in line with the accords subscribed by Brazil with the World Trade Organization. In parrallel, and resulting from this, Anatel has announced that soon, the beginning of the process for definition of the model for the new grants will occur. The possibilities and the restricions to which Anatel will subject itself to establish the model and proceed with the grants must be studued and understood now, because the process of public consultation that will be followed 2 will require important social interaction, for which professionals of the sector must be prepared. Existing Voice Services There are various mobile voice services already regulated by old rules: Mobile Cellular Service ( regulated in 1996, by the Minimum Law ), the Specialized Mobile Service ( regulated in 1997, by the General Telecommunications Law, in a conflicting way with the same law ), aside from other, more specific services, such as Global Mobile Service by Satellite, the Advanced Message Service and the Aeronautic Mobile Service. Such services, although regulated before the issue of the general Telecommunications Law 3, are substantially accepted in the new legal order and could ( with some adaptations ) protect the new competitors of mobile voice communications. Power of Anatel to Restrict the creation of new services. It is incumbent on Anatel, among many other prerogatives, the duty to ?expedite rules concerning provision of telecommunications services in the private regimen? 4 , under the condition that such authority should be subordinated to legal and regulatory principles that govern the grant, provision and benefits of telecommunications services in the public and private domains 5. The agency could, however, rewrite the existing rules for a given service and adapt the regulations of the service to the multiplcation by the number of providers. But Anatel could as easily ( and it looks desirable that this should be done ) create new, generic regulations, compatible with the General Telecommunications Law, for which they should be able, gradually, to migrate the various existing services; in this case the regulations made based upon service utility for the user and not based upon the technology used 6, which is preferable. Anatel could establish, as well, restrictions in terms of number of authorized operators7, not only in exercising the capabilities bestowed by art. 7 of the General Telecommunications Law, but also by the limitations of radio frequency spectrum. Who will be the ?players? Arising from the application of general rules in the defense of bids 8, as well as restrictions of the General telecommunications Law 9 itself restrictions must be established that impede economic concentrations, or the development, by a single group, of two grants in the same locality. In establishing restrictions for new grants Anatel could exclude the participation of: -who 10 already has a grant of a mobile voice service; -who 11 already has a grant of the same mobile voice service; -who 11 already has a grant of some mobile voice service in the same area. It will be obligatory to exclude whom already provides the same service 12 in the same area or part of area 11. To understand that this restriction is mandatory is important, principally in the case of new grants with national coverage. Frequecy bands Anatel must determine the frequency bands that will be able to be used by the newly authorized operators. This obligation refers as much to the frequency band designation, as to the determination of the size of the band to be granted. However, the Agency will consider available technologies, global regulatory tendencies and already existing spectrum restrictions. It is allowed that ( i ) a new band should be designated, or that ( ii ) bands of the actual and existing services should be shared with the new authorizee, where this is possible or still that ( iii ) bands attributed today to one service could be reallocated 12. The grant of the right of use of radiofrequencies could be given immediately, covering all of the band being auctioned or it could be the object of successive grants according to objective criteria defined in the bidding invitation, to the extent of spectrum occupation by the bid winner. As occurred with the grant of the mirror companies, the bid given for the right to develop the service could, or not, cover the price for the use of the radiofrequencies 13. Geographic Areas The definition of the territories of competition will also be made by the Agency. The Mobile Cellular Sevice will use its General Plan of Grants in NGT 20/96 14. Specialized Mibile Service received a promise that the Planning of Service implantation could be approved prior to April of 1998 15, which never occurred and does not look as if it's close to happening. A new service could have the total national area as its coverage area, or parts of it. Once the areas are defined and the existence of interested parties verified, a new bid could be established under different ( and less onerous ) requirements or still the grants could be made freely to whom should want them. Types of Agreements Anatel could impose, on interested parties, obligations of determined quality standards in the provision of service; that offer service with an agreed coverage; that assure a satisfactory density, that evolves during the term of the Authorization; that carries its channels of granted radio frequency, according to certain minimum parameters that evolve with time; that agree to prices for their services 16. These criteria could be used as judgemental elements for proposals 17 or simply correspond to agreements to which those authorized submit. Grant Proceedings The grant proceedings will be defined, although it appears that a bid process is inevitable. However, Anatel could opt for a public convocation, the purpose of which will be to identify the interest of potential competitors, which may be for a determined quantity of channels, or for a determined region ( or regions ). In the areas, and or the frequencies in which the dispute is possible, a bid process will be necessary; in the others a bid process will not be viable 18. Conclusion Anatel bestows the powers and legal means to regulate and process the admission of new mobile voice service providers. The legal focus of such regulations and the respective process will be the user of the service. Legends: 1 Item 4.9 do edital de CONCORRÊNCIA N.º 001/96 - SFO/MC e cláusula 23a do Contrato de Concessão do Serviço Móvel Celular. |
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