5G does trigger litigation. Operators have already advanced with five precautionary measures to lock auction

Opposition from Altice, NOS and Vodafone triggered episodes of litigation against the communications regulator. Historic operators want to hold a 5G auction, at a time when at least 18 European countries already have 5G commercial services, including Spain, Germany and the United Kingdom.

Altice Portugal, NOS and Vodafone Portugal have already advanced together with at least five precautionary measures and three complaints to the European Commission to stop the auction of frequencies for the fifth generation of the mobile network (5G). The gap between incumbent operators and the communications regulator has never been greater and threatens the implementation of 5G in Portugal.

The National Communications Authority (Anacom) launched the final auction regulation on 2 November. Bidding for the auction ends on Friday, November 27, pending the regulator to allocate 5G licenses by the end of March 2021. However, disagreement has never been greater and litigation over 5G has soared.

Since the terms of the auction were announced, the incumbent operators have been opposed to carrying out the procedure, criticizing Anacom's action and admitting reductions in the level of investment in the country.

Vodafone Portugal was the last player to file a precautionary measure at the Lisbon Administrative Court against the 5G auction rules. The objective of the company led by Mário Vaz is “to suspend the effectiveness of the act that approved” the auction regulation.

Cited by Lusa agency, Vodafone Portugal asks for the regulator's decision to be annulled. If the judge does not annul the decision, Vodafone asks that “the suspension of all rules that are part of the auction rules” be determined.

The operator also requests that “the suspension of the rules related to the bidding phase for new entrants, coverage obligations and network access obligations” be determined, in case the regulator's decision and the rules that integrate the 5G auction not be canceled.

This precautionary measure joins another one that Vodafone Portugal had already filed, shortly after the disclosure of the final 5G rules. The first action, still in progress, came against the lawsuit of Dense Air, a wholesale operator that they accuse of having an illegal license. But Anacom has already come authorize the use of this license by Dense Air until 2025.

In the last week, NOS and Altice Portugal also advanced with precautionary measures. NOS filed on November 21, at the Lisbon Administrative Court, with a precautionary measure against the 5G auction regulation. For Miguel Almeida's company, Anacom's rules are “responsible for the bias in the conditions of operation in the market” and, for this reason, the precaution against the “lack of reasoning for the discriminatory measures provided for in the regulation”, as mentioned NOS official source to Jornal Económico on October 12th.

On the same November 12th, NOS had already taken a first precautionary measure, also, like Vodafone, against Anacom's decision on the Dense Air 5G license. NOS had also announced that it would proceed with a lawsuit against Anacom, but to date this process has not started.

The four precautionary measures taken by the companies led by Mário Vaz and Miguel Almeida, respectively, add to the lawsuits that were already taking place in court against the regulator, due to the Dense Air case, and the complaints in Brussels (the European Commission asked for clarification Portuguese Government on possible undue support from the State in the 5G auction).

Altice Portugal announced on the 23rd of November having entered on Friday with a precautionary measure against the regulator Anacom and two participations to the European Commission, in the scope of the 5G auction.

This is a precautionary measure against the communications regulator and two complaints to the Directorate-General for Competition in the European Union and DG CONNECT, the entity responsible for policies in the field of the digital economy and society and the Digital Agenda.

However, the company led by Alexandre Fonseca is still waiting for the decision of the Lisbon Administrative Court on the precautionary measure brought by the owner of Meo against Anacom, in June 2020, because it lifted the suspension of public consultation for the 5G regulation, when - in Altice's opinion - the decree-law that had suspended this consultation was still in force.

5G controversy worries business associations
At a time when there are already 18 European countries with 5G commercial services, including neighboring Spain, Germany and the United Kingdom, operators are facing away from the regulator - Altice already announced the suspension of institutional relations with Anacom.

The controversy surrounding 5G has already sparked reactions from Sonae, a leading shareholder in NOS, and several business associations.

Sonae was the first entity outside the core of electronic communications to react. The executive chairman of Sonae, Cláudia Azevedo, criticized the 5G regulation, considering that it represented “a huge setback for competitiveness”, calling into question the sustainability of the sector and inhibiting investment and innovation, “with potentially irreparable damage to the country and to the Portuguese”.

COTEC Portugal, Apritel, APDC and TICE.PT followed.

COTEC Portugal - Business Association for Innovation manifested fears about the 5G auction, due to the litigant position taken by the telecommunications operators. The association believes that 5G should be developed in an environment of “legal security and stability that fosters investment”, since only in this way will Portugal remain at the “frontline in technological infrastructures and capture and maintain investment with high added value”.

The industry association Apritel also came to light criticize Anacom, since the 5G regulation, according to the entity led by Pedro Mota Soares, the promotion of roaming (infrastructure sharing between operators) harms historic operators. For the association, the roaming defended by Anacom "does not aim to fill the coverage flaws in areas with low population density".

Despite not having participated in the public consultation of the 5G auction regulation, the Association for the Development of Communications (APDC) also came out manifest a "huge concern" with the controversy surrounding 5G, arguing that it is "imperative to change the rules" of the auction of frequencies to make them "more balanced and equitable".

The Information, Communication and Electronic Technologies Pole (TICE.PT), a representative body of the cluster Portuguese TICE, was the last entity to appear publicly with fears about the “noise and conflict” around 5G. TICE.PT called for the intervention of the Government and Parliament.

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