Resolution nº 387 of November 3, 2004

Note: This text does not replace the one published in the Official Gazette on  November 9, 2004.

THE BOARD OF DIRECTORS OF THE NATIONAL TELECOMMUNICATIONS AGENCY – ANATEL, pursuant to the powers granted it by article 22 of Law nº  9472, of July 16, 1997, and article 35 of the Regulation of the National Telecommunications Agency, approved by Decree nº 2338, of October 7, 1997;

CONSIDERING the comments received as a result of the Public Consultation nº 455, of January 28, 2003, published in the Federal Official Gazette of May 29, 2003,

CONSIDERING the resolution adopted in its Meeting nº 321, held on October 26, 2004,

DECIDES:

Article 1. To republish, with amendments, the Regulation for Charging of Public Price for the Right to Use Radiofrequencies, pursuant to the Annex to this Resolution.

Article 2. This Resolution becomes effective upon its publication; Resolution nº 68, published in the Federal Official Gazette of November 23, 1998, and Resolution nº 289, published in the Federal Official Gazette of February 1, 2002, are hereby revoked.

PEDRO JAIME ZILLER OF ARAÚJO
 Chairman of the Board

ANNEX TO RESOLUTION Nº 387 OF NOVEMBER 3, 2004

Regulation for Charging of Public Price for the Right to Use Radiofrequencies

CHAPTER I

Miscellaneous

Section I

Subject Matter

Article 1. This Regulation aims to govern the payment for the right to use radiofrequency referred to in article 48 of Law nº 9472, of July 16, 1997, as provided for in article 17, XXXII, of Decree nº 2338, of October 7, 1997, and to establish a calculation method for amounts to be paid.

Section II

Definitions

Article 2. For the purposes of this Regulation, the following definitions shall apply:

I - Point-to-area bidirectional applications: include point-to-multipoint applications, they are those in which the communication can be made by fixed or mobile terminal stations, from any point within a given geographical coverage area, directly with other terminal stations or with a specific nodal basic or spatial station.

II - Point-to-area unidirectional applications: it refers to those in which the reception of a transmitting station at any point within a given geographical coverage area is planned.

III - Point-to-point applications: it refers to those where two fixed stations communicate with each other.

IV - Exclusive use: it refers to the form of use in which, within a given geographical area, a frequency range is the subject of a single authorization.

V - Non-exclusive use: refers to the form of use in which, within a given geographical area, a frequency range can be subject to more than one authorization.

Section III

Application

Article 3. This Regulation applies to all individuals or legal entities that use radiofrequencies, except for the following cases in which the Public Price for the Right to Use Radiofrequency is not levied:

I - use of radiofrequency by means of equipment of restricted radiation defined by the Agency;

II - use of radiofrequencies by the Armed Forces exclusively for military purposes;

III - the temporary use of radiofrequency by Diplomatic Missions, Representations of International Bodies and Consular Offices, including foreign military vessels and aircrafts visiting Brazil; and

IV - authorization granted and issued due to the transfer of right to use radiofrequencies.

Paragraph 1. This Regulation does not apply when it is explicitly established that the amount for the right to use radiofrequencies will be defined according to the provisions of Paragraph 1, II, III and IV, of article 48 of Law nº 9472, of 1997.

Paragraph 2. Unless otherwise provided at the moment of the grant, this Regulation must be used to establish the amount for the right to use radiofrequency, upon time extensions of the respective authorizations.

CHAPTER II

Amount to be paid

Section I

Formula to calculate the reference amount

Article 4. The reference amount for the right to use radiofrequency is obtained by means of the following formula:

P = K x B x A^0.1 x T x F(f),

which parameters have the following meaning:

P = reference amount for the right to use radiofrequencies, in Reais;

K = radiofrequency cost factor;

B = bandwidth to be authorized, in kHz;

A = area in which the frequency will be used, in km²;

T = factor referring to the time of use;

F = frequency factor, according to the expression below;

f = central frequency of the operation frequencies band, in kHz.

For a central frequency lower or equal to 1.5 GHz:

F(f) = 0.05 + 0.011 x 10^{-6 x ( log ( f / 1,500,000 ) )²}

For central frequency higher than 1.5 GHz:

F(f) = 0.001 + 0.06 x 10^{-6 x ( log ( f / 1,500,000 ) )²}

Section II

Values of parameters

Article 5. In the event of exclusive use, the amount of the bandwidth “B” to be used in the formula is the amount of the total authorized range and, in the case of non-exclusive use, the amount to be considered is the amount of the authorized bandwidth as per the issuance designation.

Sole paragraph. For bandwidths lower than 1 kHz, in the formula provided under article 4, the value of 1 kHz will be considered  for parameter “B”.

Article 6. In the case of exclusive use, the amount of the area “A” to be used in the formula is the amount of the region for which the service was granted or the area limited by the protected contour of the station and, in the case of non-exclusive use, the amount of area “A” will be the one indicated in the grant or, if there is no such indication, the amount of the area will be the amount of the surface defined by the circular sector of radius “d” and aperture “α”, i.e.:

A = πd² x α/360

where, in point-to-point systems, "d" is the distance in km between the involved stations and "α" is the half power angle of the radius system in degrees. For the point-to-area systems, the distance "d" to be considered is the longest distance in km covered by the base or nodal station.

Paragraph 1. In any event, the surface to be considered to calculate the area will be limited to the national territory, including the Brazilian territorial sea.

Paragraph 2. The minimum amount of this area will be 1 km².

Article 7. In the case of ground-space feed links for satellite communications systems, the amount of area “A” to be considered is the amount of the coordination area, established in accordance with the procedures described in Appendix 7, of the Radio-communications Regulation of the International Telecommunication Union – ITU.

Article 8. The amount of frequency "f" to be used in the formula is the average between the minimum and maximum authorized frequencies amounts and, in the case of use of a specific channel, such amount will be equal to the amount of the carrier frequency of said channel.

Article 9. Factor "T" considers, in addition to the total daily use time "T₁" in hours, the validity term "T₂" in years from the authorization to use the radiofrequency, which is calculated according to the following formula:

T = (T₁/24) x (T₂/20)

Paragraph 1. For daily use times shorter than one (1) hour, the amount of one (1) hour will considered for "T1".

Paragraph 2. For fractional periods of validity of authorization the next higher whole value for “T2” will be considered.

Paragraph 3. For the authorization to use radiofrequency granted between July 16, 1997 and November 23, 1998, still in force up to the latter date, which price for the right to use radiofrequency was not determined or established by article 48, paragraph 1, II, III or IV of Law nº 9472/1997, the amount of "T2" will be equal to the remaining term of the authorization, in years, for the purposes of the calculations under this Regulation.

Article 10. The cost factor "K" is defined taking into consideration the manner of use of the spectrum, exclusive or not, and the character of interest of the service, collective or restricted, according to table I below:

Table I

Sole paragraph. The amounts referring to cost factor "K" for Radio Broadcasting and its Ancillary Services must be according to table II below:

Table II

Section III

Amounts to pay

Article 11. The amount to be paid for the right to use radiofrequency shall be obtained by applying the formula below:

V = P x C x D x E

Where:

V = the amount to be paid for the right to use radiofrequency;

P = reference amount for the right to use radiofrequencies, calculated on article 4.

C = 0.6, for stations of the Mass Communications Services and Radio Broadcasting Services; and 1.0, for the temporary use of radiofrequencies and for stations of the remaining services.

D = 0.3, for service stations with scientific purpose; and 1.0, for the temporary use of radiofrequencies and for the stations of the remaining services.

E = 1, for point-to-point systems and, pursuant to table III, for point-to-area systems.

Table III

Paragraph 1. For the purposes of applying table III, population is the number of inhabitants, according to the latest estimate by the Brazilian Institute of Geography and Statistics (IBGE), in the municipality of larger population covered by nodal or base station.

Paragraph 2. The amount to be paid for the right to use radiofrequency (V) shall not be lower than (T₂ x R$ 20.00).

Paragraph 3. The formula stated in the main section and Paragraph 2 of this article does not apply to the following cases:

I - For Amateur Radio Service and Citizens Radio Service, the payable amount is ten Reais (R$ 10.00), for the authorization to use radiofrequency, for each period of up to ten (10) years;

II - For coastal stations, stations aboard ships, and port stations of the Maritime Mobile Service, and for stations on board of aircrafts and aeronautical stations of the Aeronautical Mobile Service, the amount to be paid is one hundred Reais (R$ 100.00) per authorization of use of radiofrequency, for each period of up to ten (10) years;

III - For stations of Community Radio Broadcasting Service, the amount to be paid is one hundred Reais (R$ 100.00) per authorization of use of radiofrequency, for each period of ten (10) years.

Paragraph 4. The National Telecommunications Agency and other bodies of the federal, state and municipal Direct Administration are granted a discount in the amount of ninety percent (90%) on the amount obtained by means of the formula contained in the main section of this article, subject to the provisions of Paragraph 2, and the minimum amount of ten Reais (R$ 10,00) is payable when such discount results in an amount lower than this.

Paragraph 5. After payment of the right to use radiofrequency, in case of alterations to the characteristics that grounded this right, which may affect the parameters of the formula appearing in the main section of this article, the Public Price for the Right to use Radio-frequency will be due and shall be equal to the positive balance between the new amount calculated and the amount previously paid.

Paragraph 6. For the purposes of the previous paragraph, in the event of alteration of the radiofrequency the full amount for the right to use the radiofrequency will be due.

Paragraph 7. The effects of any waiver of the Right to use Radiofrequency will be provided for in the Bid Regulation for Grant, Permission and Authorization of Telecommunications Service and Authorization to Use Radiofrequency of this Agency.

CHAPTER III

Final Provisions

Article 12. The administrative costs arising from the issuance of authorization to use radiofrequencies are included in the amounts calculated as described in this Regulation.

Sole paragraph. Prices referring to the grant, permission or authorization of the service are not included.

Article 13. Subject to the provisions of the Regulation and other instruments, the charging will be payable for the systems:

I - Point-the-point – upon assignment of each radiofrequency of transmission.

II - Point-to-area – upon assignment of each radiofrequency, whether of transmission or reception, to the base or spatial nodal station or, in the case of direct communication between terminal stations, upon the assignment of each radiofrequency of common use by the terminal stations. In unidirectional point-to-area applications, upon the assignment of each radiofrequency to the transmitting station.

Sole paragraph. Upon the use of one same frequency both for transmission and reception, the amount due will correspond to the amount of use of one radiofrequency.

Article 14. The charging referred to in this Regulation shall be carried out, whenever applicable, upon the issuance or extension of the period of validity of the authorization of use of radiofrequency and may be paid in up to three (3) equal half-yearly installments, provided that the amount of the installments is equal or higher than five hundred Reais (R$ 500.00) and the authorization term is longer than the period granted for the payment of the last installment.

Paragraph 1. The deadlines for payment of the installments will be counted as of the date of receipt, by the Provider, of the relevant communication, issued by Anatel, according to the following terms:

I - Up to one (1) month for the payment of the first installment;

II - Up to 6 (six) months for the payment of the second installment;

III - Up to 12 (twelve) months for the payment of the third installment.

Paragraph  2. The authorization of use of radiofrequency will become effective upon the payment of the amount payable for the right to use radiofrequency, or, when in installments, upon the payment of the first installment.

Paragraph 3. The delay to pay any installment, in relation to the deadlines established in paragraph 1 of this article, for a period longer than the one that may be established by the Agency, may imply the extinction of the authorization to use radiofrequency, by means of cancellation.

Paragraph 4. The delay to pay any installment will imply the charging of a fine in arrears of zero point thirty-three percent (0.33%) per day, up to the limit of ten percent (10%), plus interest equivalent to the Basic Interbank Rate (Selic), monthly accrued, from the month following the month of maturity and one percent (1%) in the month of payment.

Paragraph 5. In the case of payment of the amount in three installments, the lack of payment of the second installment will imply the acceleration of maturity of the third installment, and both payments must be made at the same moment.