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GUIDELINES FOR IMPLEMENTATION OF PERSONAL MOBILE SERVICE (SMP/PCS) - Enclosure to Anatel Resolution nº 235, of september 21, 2000
The Object Article 1st. This instrument's purpose is to establish guidelines in order to implement the Personal Mobile Service - SMP, as succedaneum of the Cellular Mobile Service - SMC, comprising the establishment of premises for: I - adaptation of regulations and norms, including destination of radio frequency bands for the exploitation of the service; II - elaboration of notice with invitation to bid for SMP providers; and III - substitution of concession and authorization of SMC providers for SMP authorizations. The References Article 2nd. These guidelines take into account the applicable effective legislation, especially: I - the Law n.º 9.472, of July 16, 1997 - General Telecommunications Law - GTL; II - the Brazilian General Granting Plan - PGO, approved for Decree nº. 2.534, of April 2, 1998; III - the Decree n.º 2.617, of June 5, 1998, that disposes on the composition of telecommunications services providers; IV – the Bidding Regulation for Concession, Permission and License for Telecommunications Services and Radiofrequencies Use , approved by Resolution n.º 65 of Anatel, of October 29, 1998; V - the Regulation of Telecommunications Services, approved by Resolution n.º 73 of Anatel, of November 25, 1998; VI - the Regulation of Corporate Control and Transfer of Control in Companies that render Telecommunications Services, approved by Resolution n.º 101 of Anatel, of February 4, 1999; VII - the Regulation on Procedures of Recruiting of Services and Acquisition of Equipment or Materials for Companies that render Telecommunications Services, approved by Resolution n.º 155 of Anatel, of August 5, 1999; VIII - the Resolution n. 231, of July 19, 2000 that disposes about the non expedition of new grants of Radiofrequencies usage in the band from 1706 MHz to 2301 MHz; IX - Rule n.º 7/99 - Anatel, that disposes about the "Administrative Procedures of investigation and repression of the infractions of the economical order and for the control of acts and contracts in the telecommunications sector, approved by Anatel Resolution n. 195, of December 7, 1999; and X - the Resolution n.º 227, of Anatel, of June 26, 2000, that defines radiofrequency bands for implantation of mobile land telecommunications systems. The Definitions and Characteristics Article 3rd. Personal Mobile Service is the land service of telecommunications mobile of collective interest that makes possible the communication among mobile stations and of mobile stations for other stations, observed the constant dispositions of the regulation. Article 4th. Applies to these guidelines the following definitions: I - Area of Registration: continuous geographical area, defined by Anatel, where SMP is rendered, having the same geographical limit of an Tariff Area, according to regulation; and II – Provisioning Area: geographical area, composed by a group of Registration Areas, delimited in the Term of Authorization, which the Provider of Personal Mobile Service is authorized to explore the service. Article 5th. SMP is characterized by making possible the communication between stations of a same SMP Area of Registration or access to networks of telecommunications of collective interest. §1st. The communication originated in an Area of Registration of SMP and destined to point located out of it is carried by the Fixed Switched Telephone Service provider – STFC, in the National or International Long Distance modes. §2nd. The user of SMP, in the exercise of your choice right, it should select the provider of STFC of your preference for direction calls of Long Distance to each call for him originated. The Adaptation of the Regulations and Norms Article 6th. Anatel, according to the art. 214, I, of General Telecommunications Law - GTL, will edit regulation for SMP in substitution to the regulations and norms that discipline SMC, observed the determination in the art. 34. Article 7th. Is hindered to a same Provider, your controlling one, controlled or affiliate, the exploitation of SMP, SMC or both through more than an authorization or concession, in a same geographical Provisioning Area of the service, or it leaves of her. Article 8th. The alterations in the associate control of SMP provider will be subject to it controls for Anatel for verification ends of the indispensable conditions to the expedition and maintenance of the authorization. §1th They are indispensable conditions to the expedition and the maintenance of the authorization, among other, those foreseen in the art. 7o. of these guidelines, in the art. 10, § 2nd. of PGO and in the art. 133 of GTL. § 2nd The transfer of the Term of Authorization will be subject to Anatel?s approval, observed the demands of the § 2th of the art. 136 of GTL. Article 9th. Shall be admitted simultaneous detention of SMP authorizations in different Provisioning Areas, conditioned to the observance of the restrictions according to the § 1th, of the Art. 8th.. Article 10 Applied to the SMC provider the determination in the incise IV of the articles 34 and 35 of these guidelines, concerning the transfer of associate control and consolidation of concessions and authorizations. Sole paragraph. The measures foreseen in the caput submit, also, to the appreciation of the Administrative Council of Economical Defense, according to the art. 7th of GTL. Article 11 Radiofrequencies spectrum destined to the provisioning of SMP it is subdivided in the following bands: I - Band "A": (I.1) Transmission of the Mobile Station: 824 MHz to 835 MHz 845 MHz to 846,5 MHz Transmission of the Radiobase Station: 869 MHz to 880 MHz 890 MHz to 891,5 MHz (I.2) Transmission of the Mobile Station: 1900 MHz to 1905 MHz Transmission of the Radiobase Station: 1980 MHz to 1985 MHz II - Band "B": (II.1) Transmission of the Mobile Station: 835 MHz to 845 MHz 846,5 MHz to 849 MHz Transmission of the Radio base Station: 880 MHz to 890 MHz 891,5 MHz to 894 MHz (II.2) Transmission of the Mobile Station: 1905 MHz to 1910 MHz Transmission of the Radio base Station: 1985 MHz to 1990 MHz III - Band "C": Transmission of the Mobile Station: 1725 MHz to 1740 MHz Transmission of the Radio base Station: 1820 MHz to 1835 MHz IV - Band "D": Transmission of the Mobile Station: 1710 MHz to 1725 MHz Transmission of the Radio base Station: 1805 MHz to 1820 MHz V – Band "E": Transmission of the Mobile Station: 1740 MHz to 1755 MHz Transmission of the Radio base Station: 1835 MHz to 1850 MHz Article 12. The right of radiofrequency usage associated to SMP will be granted for the period of 15 (fifteen) years, admitted only one and for equal period postponement, observed the following conditions: I - the use of the radiofrequency will feel in primary and restricted character to the respective Provision Area; II - the right of radiofrequency use will be conditioned to the efficient and appropriate use of the same; and III - the sharing of the radiofrequency can be authorized by Anatel if does not implicate in harmful interference nor it imposes limitation to the provisioning of SMP. Article 13 The prices of the services shall be free, fair, and non discriminatory, could change in function of technical characteristics, of specific costs and of usefulness presented to the users. Sole paragraph. The providers whose concession instruments or authorization have foreseen maximum remunerative values be collected it of the users, as well as the respective criterion of readjustment, will continue forced to obey such limits, in the terms of art.129 of GTL. Article 14. Applied to SMP the prohibitions of arbitrary increase of prices and the repression to the harmful practice to the competition, as well as to the abuse of the economical power, according to the own legislation. Article 15. The remuneration for the use of the networks will be agreed on among the providers, observed the determination in the art. 152 of GTL and in the regulation. Sole paragraph. The sum of the remuneration for the use of the networks involved in a communication should be smaller or equal to public's price collected of the user, being considered the discounts offered by the providers. Article 16. The providers of SMP will be entitled to the industrial exploration of the means affections to the provisioning of the services, observed the constant dispositions of the regulation, as well as the determination in the articles 154 and 155 of GTL. Article 17. The provider will accomplish the quality goals fastened by Anatel for SMP, in the terms of the regulation. Article 18. The telecommunications networks and platforms associated to SMP should make use of technologies and systems whose synchronism structures, signalizing, numbering, commutation and direction, among other, they can provide convergence with network of STFC, observed the determination in the regulation. Sole paragraph. The regulation will dispose about conditions for the introduction of the determination in the caput in relation to the providers of SMC that adapt its concession and authorization instruments, according to the art. 30. Article 19. It is obligatory that the network of the SMP provider makes possible its users' attendance in all the places covered by it, in its Provisioning Area, including in visitors? condition, respected the technology pattern used in the visited area. Article 20. The providers of SMC and SMP that agree on attendance agreements to users visitors of other providers will be forced to extend the conditions of the adjustment in an equivalent way to the others interested, respected the technology pattern used by provider that to assist the user visitor. Sole paragraph. The compulsory nature is not applied to the geographical area common to the Provisioning Area among the involved providers . The Elaboration of SMP Invitation to Bid Article 21 Anatel will promote bidding for expedition of authorizations for SMP, observed the determination in these guidelines. §1st. Will be sent, for each one of the areas I, II and III, foreseen in the Annex I, until three authorizations for provisioning of SMP, whose Provisioning Area will coincide with the respective areas; §2nd. Each company winner bidder will be entitled, still, the: I - an authorization for the provisioning of STFC, in the National Long Distance mode, of any ambit, having as provisioning area all national territory, starting from January 1, 2002; and II - an authorization for the provisioning of STFC, in the International Long Distance mode, having as provisioning area all national territory, starting from January 1, 2002. §3rd. Authorizations won't be grant foreseen in the previous paragraph for company that is already concessionaire or authorized for provisioning of the same service, in same geographical area, according to regulation. §4th. The bidder companies that dispute the authorization in Band ?C? assume an obligation to begin the provisioning of the service until June 30, 2001 or six months after the signature of the Term of Authorization, being worth what to happen last. § 5th. The bidder companies that will dispute the authorization in Bands ?D? and ?E? will only start rendering the service upon December 31, 2001 or six months after the date foreseen in the Term of Authorization for the beginning of commercial operation of the provider of Band ?C? in the same Region, being worth what to happen last. Article 22. The payment of the due public price for the authorization will be executed in the following way: I – The proposed total value or 50% (fifty percent) of that value it should be paid in the date of the signature of the Term of Authorization, being the importance to be paid updated for the variation of IGP-DI (General Index of Price - Readiness Interns) of Fundação Getúlio Vargas, in case it surpasses twelve months, to count of the date of presentation of the proposal. II - In the case of payment in installments, the remaining value of 50% (fifty per cent) should be paid in the period of until twelve months counted of the signature of the Term of Authorization, being the amount to be paid accrued with the variation of IGP-DI (General Index of Price; Readiness Interns) of Fundação Getúlio Vargas, from the date of the delivery of the Price Proposals and the Documentation of Qualification to the date of the payment, in case of the payment happens after 12 (twelve) months from the date of delivery the Price Proposals and the Documentation of Qualification, added of simple interests of 1% (one per cent) per month, over the accrued amount, starting from the date of signature of the Term of Authorization. Sole paragraph. The value paid will include the authorizations foreseen in the §2nd of art.21, when it fits, as well as the authorization of radiofrequency use, in the terms of the art. 12. Article 23 The issuance of authorization for provisioning of SMP to the company that, directly or for your controlling one, controlled or affiliated, be STFC concessionaire, it will only produce effects after the performance of the universalization obligations and expansion in the periods according to the art. 10, §2o. of PGO. §1st. The authorization grant of radiofrequency use will only be issued when of the proof of the execution of the goals referred in the caput. §2nd. To observe the determination in the §4th. of the art. 21 of this Guideline and the art. 10 §2nd. of PGO, the participation in the dispute for Band ?C? it will only be admitted for bidder company or associated that is not directly or for your controlling one, controlled or associated, STFC concessionaire. Article 24 The Auction referred in the previous article will obey the procedure foreseen in the Regulation of Auction for Concession, Permission and Authorization of Service of Telecommunications and Anatel Radiofrequency Use. §1st.It will be considered as judgement factor the largest offer of public price for the authorization, respected the minimum price fastened in the Invitation to Bid. §2nd. Bidding will consider the evaluation of the price proposal and the exam of the documentation of qualification of the winner. §3rd. In the exam of the qualification documentation will be verified the juridical qualification, the technical qualification, the economical-financial qualification and the fiscal regularity, as well as the completion of the subjective conditions for obtaining the authorization. Article 25 Bidder winner should assume commitment of minimum attendance for the authorization expedition for provisioning of SMP, in the terms of the art. 135 of GTL. §1st. The commitment the one that refers the caput it will be defined in the Invitation to Bid that will fasten the indexes and criteria for attendance and covering of the service. §2nd. The commitment will embrace, among other, attendance obligation to the capitals of State, to the municipal districts with more than 500.000 (five hundred thousand) inhabitants and, in the Região II, also to Federal District, up to 24 (twenty-four) months after the signature of the respective Term of Authorization. §3rd. A place will be considered assisted when the covering area contains, at least, 80% of the urban area. §4th. The non execution of the commitments, besides due to mentioned in the §1o of the art. 23, subjects the authorized to the sanctions foreseen in the Invitation to Bid and in the regulation, and could result in the forfeiture of the authorization. Article 26 The authorization issued for bidder company or affiliate that, directly or for your controlling ones, controlled or associated, be already SMP or SMC provider in area contained in the auctioned area it will be conditioned to the: I - assumption of commitment of transfer of your concession instrument or authorization to somebody else or corporate release, in the period of up to six months counted starting from the date of signature of the Term of Authorization; or II - renouncement, in the coincident geographical areas, of new service authorization and of it grants of associated radiofrequency. §1st. Is prohibited the provisioning of the service object of the new authorization before the execution of the commitment foreseen in the incise I or of the renouncement foreseen in the incise II. §2nd. In case the transfer is not rendered foreseen in the incise I, the renouncement referred in the incise II will be considered executed. Article 27. The beginning of the operations of SMP providers in the area corresponding to the states of Amazonas, Roraima, Amapá, Pará and Maranhão will only feel after December 31, 2001. Article 28 Bidding will be subdivided in three stages, in the following order: I - authorizations for provisioning of SMP in the Band "C"; II - authorizations for provisioning of SMP in the Band "D"; and III - authorizations for provisioning of SMP in the Band "E". §1st. The proposals and relative qualification documents the all the low bands will be presented simultaneously. §2nd. The beginning of the stages foreseen in the incises II and III will only happen after the end of the precedent stage, with the approval of the result, signature of the Term of Authorization and devolution of the envelopes of the relative winner to the other bands of the same Area. §3rd. The delay of the relative stages to an Area won't harm the pursuit of the bidding, in the subsequent stages, for the other areas. Article 29 In the recruiting of services and in the acquisition of equipments and materials linked to the service object of the authorization, the Authorized forces to consider offers of independent suppliers, besides the national ones, and to base your decisions, with regard to the several presented offers, in the execution of objective criteria of price, delivery conditions and technical specifications established in the pertinent regulation. Sole paragraph. In the recruiting, the procedures of the regulation are applied mentioned in the art. 2o., incise VII. The Substitution of the Instruments of Concession and Authorization of SMC Providers Article 30 The concession instruments and authorization of SMC can be adapted to the new regulatory system, according to the art. 214, V and VI of GTL. §1st. Are considered adapted the concession instruments or authorization when signed the Term of Authorization of SMP. §2nd. The authorization terms adapted will include the rights of use of the respective radiofrequencies foreseen band in the art. 11, incises I.2 and II.2, for the remaining period of the original concession instrument or authorization, maintained the extension possibility. §3rd. The adaptation of the concessions and authorization instruments foreseen in the caput will give to the provider the right to obtain the authorizations for providing of STFC, in the form foreseen in Art. 21, observed the determination in Art. 23. §4th. The determination in the art. 10, §2nd. of PGO don't constitute impediment to the adaptation foreseen in this article. Article 31 The authorization and consequent use of the radiofrequency band due to the expansion that treat the incises I.2 and II.2 of the art. 11 are conditioned to the signature of the Term of Authorization of SMP in the terms of the previous article. Sole paragraph. The issuance of relative radiofrequencies to the expansion will be done to onerous title, in the terms of the art. 48 §1.º incise IV of GTL. Article 32 The use of the current radiofrequencies of the expansion foreseen in the previous article cannot happen before: I - of six counted months of the adaptation foreseen in the art. 30; and II - of the beginning of the operation of the first provider of authorized SMP in the terms of the art. 21, in the same Area. Sole paragraph. It won't happen the limitation foreseen in the incise II, if the beginning of the operation gives in superior period to twelve months, counted of the adaptation foreseen in the art. 30. Article 33 The right of use of relative radiofrequencies to the incises I and II of the art. 11 will observe the use conditions established for the new SMP providers, besides with relation to the determination in the incises I to III of the art. 12. Article 34 While it doesn't happen the adaptation, providers will stay governed by the effective norms when of the legalization of the respective concession instruments or authorization, and your respective updating, especially General Norma of Telecommunications NGT 20/96 - Cellular Mobile Service, besides in what it refers: I - to the direction of traffic; II - to the selection of STFC long distance provider; III - to the bands A and B radiofrequencies; and IV - to the restrictions foreseen in the regulation of SMC, especially with relation to the transfer of the concession or of associate control and to the accumulation of grants. §1st. The companies that, according to the art. 30, adapt their instruments, can maintain the relative system to the incises I and II until December 31, 2001. §2nd. The companies that adapt their instruments after December 31, 2001 will have to turn available immediately the easiness of selection of STFC provider for carriage of Long Distance calls. Article 35 Providers that adapt their concession instruments and authorization shall make authorization transfer or partnership control, besides through merger or incorporation of companies, that contribute to the compatibilization of the Provisioning Areas according to the areas fastened in the Annex I of these guidelines and for the unification of the partnership control of providers in each one of the areas, observed the determination in Art. 8º. Annex I – Regions
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