Communications as an essential service during Coronavirus (COVID-19) confinement  

The situation caused by COVID-19 resulted in the declaration by Presidential Decree no.14-A/2020, of 18 March, of a national state of emergency on the grounds of public calamity. This state of emergency, meanwhile regulated by Decree no. 2-A/2020, of 20 March, resulted in the approval of a set of necessary and temporary measures that in certain cases limit Constitutional rights and freedoms of citizens.

Communications as an essential service during Coronavirus (COVID-19) confinement

Electronic communication services, together with water and energy supply services, are considered essential public services and it is the State’s responsibility to ensure adequate coordination of communication networks and services in situations of emergency, crisis or war (article 2-A (1) of Law no. 5/2004, of 10 February, last amended by Decree-Law no. 92/2017, of 31 July).

Accordingly, the Portuguese Government approved the Decree-Law no. 10-A/2020 of 13 March, which establishes a set of exceptional and temporary measures in the telecom sector. There is a clear responsibility to ensure the uninterrupted provision of electronic communications services to all users. These temporary measures seek to identify the electronic communications services that should be considered critical and the clients that should be considered a priority, and to define the exceptional measures that companies offering telecom networks and services should adopt to ensure continuity.

Recognising the importance of ensuring communications services, it should be noted that the measures imposed to this date did not have the primary objective of compressing data protection and privacy rights (cf. Article 34(1) and (4) of the Constitution of the Portuguese Republic).

Commitment to providing telecom services and communications channels

The measures established under Decree-Law no. 10-D/2020, of 23 March, simplify and suspend some of the obligations which may hinder or make it impossible to ensure prioritisation of the continuity of (i) critical services (voice and short messages (SMS), emergency or distribution of linear and digital terrestrial television signals services) with special reference to (ii) priority customers, such as those covered by the health, internal security or civil protection sectors as stated in article 2 of the mentioned Decree-Law.

Companies providing public communications networks or communications services that are publicly available may implement measures of (i) network and traffic management, including capacity reservation on the mobile network; and (ii) prioritisation of troubleshooting procedures and network and electronic communications services disruption. They can also propose the adoption of other exceptional measures, similar or equivalent to the previous ones, to the Government.

We should however consider that the exceptional measures referred to in the previous paragraphs shall be implemented proportionally, transparently, and cannot be based on commercial grounds and be maintained for longer than is necessary to ensure the continuity of services in network congestion and to overcome the resolution of faults.

In order to ensure the compliance with the conditions, companies shall disclose the measures adopted and report their implementation to Portuguese Communications Authority (ANACOM)., by publishing them in a visible place on their websites, within five working days.

In an attempt to maximise the availability of electronic communications networks telecom providers are also obliged to promote campaigns to raise public awareness of the possibility that electronic communications services may suffer, and to promote the sharing of best practice guides for responsible use of electronic communications networks and services.

Revised approach to regulation and workplan

The Government has suspended the following obligations applicable to the electronic communications sector:

1. Quality of service parameters set out on the Electronic Communications Law.
2. Deadlines for responding to complaints submitted by end-users.
3. Deadlines established on the Regulation of the Auction for the Allocation of Rights to Use Frequencies in the 450 MHz, 800 MHz, 900 MHz, 1800 MHz, 2.1 GHz and 2.6 GHz bands (Regulation no. 560-A/2011).
4. Portability obligation, where it involves the displacement of technicians to carry it out, and extend it to five working days, when it can be fulfilled by exclusively non-presential means.
5. Pending consultation deadlines on draft ANACOM regulations.
6. With other deadlines that are objectively and demonstrably incompatible with the implementation of the mentioned obligations, should ANACOM decide positively in such cases.

Police forces are exempt from involvement in the interventions necessary to ensure the replacement of critical services, to ensure response to special customer requests and for the installation of temporary infrastructure to increase capacity or to extension of networks to relevant sites, except when the owners do not dispense with it.

Temporary station or radio network licensing is exempted, to support the mobile network and provide services to priority customers.

Employees or agents who perform management and operation functions of the security and integrity of electronic communications networks and services shall be authorised, to ensure interventions necessary for the continuity of critical services and the needs priority customers, to move freely throughout the national territory, including in areas which will be decreed restricted access.

In view of the above, it should be noted that none of the obligations or terminations imposed by the Decree-Law are intended to restrict the rights, freedoms and guarantees of the users of these services, but rather to restructure the type of services provided and to prioritise critical communications.

The impact of COVID-19 on the launching of 5G Networks

ANACOM has suspended, on grounds of force majeure, the public consultation process for the allocation of rights to use frequencies in the 700 MHz, 900 MHz, 1800 MHz, 2.1 GHz, 2.6 GHz and 3.6 GHz bands. The suspension of this procedure will be maintained until it is lifted, to be decided by ANACOM considering the exceptional and temporary measures in the reaction to the situation caused by COVID-19.

This postponement has also resulted in the suspension of the migration process of the Digital Terrestrial Television network (DTT), which, implying the postponement of the date of release of the 700MHz band, scheduled for 30 June 2020, hinders the availability of this same band in the auction which is under public consultation.

The climate of uncertainty and the suspension of procedures for an indefinite period makes it impossible to meet the deadlines set until June 30 and the utilisation (after that date) of the 700MHz band by the Operators. Since ANACOM has invoked force majeure under the disposition 4 of the Annex to Decision (EU) of 2017/899 of the European Parliament and of the Council of 17 May, and since the reason is justified, the deadline is extended to 30 June 30 2022.

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