On Wednesday, March 8, 2023, Ministerial Resolution Nº 237-2023-MTC/01 was published in the Official Gazette “El Peruano”, which provides for the publication of the draft Ministerial Resolution approving the update of the National Frequency Allocation Plan – PNAF and its Annex in the Ministry’s digital headquarters, in order to receive suggestions and comments from the public within 10 working days. For this purpose, the MTC took into account -among others- Reports Nos. 0001-2023-MTC/26.03 and 0003-2023-MTC/26.03 of the General Directorate of Communications Policy and Regulation.
The draft NFAP specifies the allocations for each frequency band, as shown in the table in Section IV of the draft standard. Accordingly, some notes and observations to the frequency allocation table in Section V have also been modified, in addition to consolidating a series of previous changes that had been made through ministerial resolutions subsequent to the publication of the PNAF[1].
For example, General Application Note 1 currently states that the public tender mechanism for the allocation of the radio spectrum for certain bands established in the PNAF “shall not apply to holders of concessions and/or authorizations that migrate in accordance with Article 224 of the TUO of the General Regulations of the Telecommunications Law”. This note refers to Article 224 of the repealed TUO of the Regulation[2], which established the grounds for ex officio modification of an allocated frequency. In view of this, the proposed text corrects the normative reference by citing Article 217 of the TUO of the current Regulation[3], according to the following detail:
“Ex officio modifications of allocated frequencies, in application of the provisions of Article 217 of the TUO of the General Regulations of the Telecommunications Law or other provisions set forth in the regulations for the rearrangement of allocated bands or frequencies, are not subject to the public tender mechanism”.
In addition, the proposed legislation adds that “in the case of frequency bands outside the Province of Lima and the Constitutional Province of Callao, the allocation of the radio electric spectrum required for the provision of public telecommunications services and allocated on a primary basis, is made by public tender, unless otherwise established by law, and in the case of digital radio links for the provision of public telecommunications services in the bands allocated as such in the PNAF”.
Thus, the proposal of general application note 1 not only includes the regulatory change on the grounds for ex officio modification of an allocated frequency, but also incorporates cases in which the spectrum allocation will be made through public tender.
In the following link we present the main proposals to modify certain specific notes related to the provision of public telecommunications services, comparing them with the current text:
[1] Indeed, the PNAF was approved by Ministerial Resolution Nº 187-2005-MTC/03, published on April 3, 2005, and since then it has undergone a series of modifications that had not been included in any official version of the PNAF.
[2] Approved by Supreme Decree Nº 027-2004-MTC, published on July 15, 2004.
[3] Approved by Supreme Decree Nº 020-2007-MTC, published on July 4, 2007.
For further information, please contact Maria del Rosario Quiroga (rquiroga@estudiorodrigo.com) and/or Andrea Morelli (amorelli@estudiorodrigo.com).
