NOS slaps injunction on Anacom

The Portuguese telecoms company NOS has applied for a court injunction to stop Anacom changing auction rules proposed by the telecoms supervisor Anacom.

This is according to the company’s administrative executive Filipa Carvalho who informed the news agency Lusa of the decision on the deadline date for operators in the market to respond to the proposed changes.
Anacom was informed of the decision on the 60th day of the main bidding process in the auction when the regulator announced the it would begin a procedure to change the respective regulation to speed up the 5G auction, giving the 15 of April as the deadline to send in their contributions and suggestions.
“We’re going to place an injunction on them,” said Filipa Carvalho, adding that there are “no exceptional circumstances that justify a change in rules” certainly not the pandemic, or the duration of the auction or even the launch of 5G because the obligations of the operators “continue to be the same.”
Anacom wants to change the rules because it wants a greater number of daily rounds in the bidding by slashing the duration of the rounds from 60 minutes to 15 minutes or lengthening the daily period in which bidding can take place.
The whole 5G process in Portugal has been extremely bitter from the start as the telecoms giants seek to keep out smaller players from the market. They have brought legal cases, injunctions and even complaints to Brussels claiming that Anacom’s behaviour has been illegal and discriminatory and which has only encouraged disinvestment.
If necessary, Anacom will restrict the use of minimum increments in bidding that the bidders can choose in a given round (1% and 3%).
Carvalho says that there have been a whole series of mistakes in the way Anacom has behaved which she called “capricious”.
The first mistake was “changing the rules in the middle of the game, violating the principle of confidence.”
“By changing the goal posts, the playing field has been altered,” she says.
For example, in respect of the proposal from the regulator to change the way in which the price is defined, removing increments of 1% and 3% in bidding, this can influence the strategic approach and negotiations which have been established by the bidders up until now and change the dynamic of the game,” she said.
Carvalho stressed that these changes are not unimportant matters and could have an impact on the outcome of the auction.
Last week Anacom stated that flexibility in increments “is a rule that has been used in other auctions of the type, namely in incremental auctions in which there are various rounds and have been done in Germany (2018), Finland (2018), Italy (2018) and Slovakia (2020).
But NOS counters that the minimum increment was not increased in any of the four countries given as examples.
Rival telecoms operator Altice is also looking at legal means to block the alterations, which could also include an injunction.