Exhibit 10.3
STATEMENT OF AUTHORIZATION PVCP/SPV NO. 001/2001 - ANATEL
STATEMENT OF AUTHORIZATION FOR THE PERSONAL MOBILE SERVICE, BY AND BETWEEN
AGENCIA NACIONAL DE TELECOMUNICACOES (NATIONAL TELECOMMUNICATIONS AGENCY) -
ANATEL, AND TNL PCS S.A.
By the present instrument, by and between AGENCIA NACIONAL DE TELECOMUNICACOES
(NATIONAL TELECOMMUNICATIONS AGENCY) - ANATEL, henceforth referred to as ANATEL,
a public entity, pursuant to the terms of Federal Law (0) 9,472, dated July 16,
1997, the General Telecommunications Law - LGT, CGC/MF tax enrollment no.
02.030.715/0001-12, represented herein by the Chairman of the Board of ANATEL,
RENATO NAVARRO GUERREIRO, jointly with Board Member, JOSE LEITE PEREIRA FILHO,
as approved by Act No. 15,440, dated March 1, 2001, published in the Official
Gazette of the Union on March 2, 2001, and TNL PCS S.A., CNPJ tax enrollment no.
04.164.616/0001-59, represented herein by its Chief Executive Officer, MANOEL
HORACIO FRANCISCO DA SILVA, naturalized as a Brazilian, married, a business
administrator, identity card no. 3.089.648/IFP/RJ, CPF taxpayer enrollment no.
066.526.978-15, and Executive Officer, ANTONIO ROBERTO PIRES DE LIMA, a
Brazilian national, lawyer, divorced, OAB/MG (Brazilian Bar Association/Minas
Gerais Branch) no. 22,697, CPF taxpayer enrollment no. 129.290.696-00,
henceforth referred-to as the AUTHORIZED PARTY, hereby sign the following
STATEMENT OF AUTHORIZATION, Anatel Case No. 53500.001359/2201, which shall be
regulated by the norms referred-to herein and by the following clauses:
CHAPTER I
REGARDING THE PURPOSE, SCOPE AND TERM
CLAUSE 1.1 - The purpose of this Statement is the granting of Authorization
to explore the private Personal Mobile Service - SMP in Region I of Attachment I
of the Public Tendering Notice no. 001/2000/SPV-ANATEL.
SINGLE PARAGRAPH - The private Personal Mobile Service, in accordance with
Anatel Regulations, and especially pursuant to the stipulations in the SMP
Regulations and the General SMP Authorizations Plan, is included in the object
of this Authorization.
CLAUSE 1.2 - The Personal Mobile Service is the land mobile
telecommunications service of interest to the public, which enables
communication between mobile stations and from mobile stations to other
stations, pursuant to the stipulations contained in the regulations.
CLAUSE 1.3 - The AUTHORIZED PARTY holds the right to the industrial
exploration of the services providing means, pursuant to the stipulations
contained in the regulations, as well as the stipulations contained in articles
154 and 155 of the LGT.
CLAUSE 1.4 - The SMP exploration authorization shall be valid for an
undetermined period of time.
CLAUSE 1.5 - The AUTHORIZED PARTY must explore the service with the use of
the radio frequency lower bands listed below:
LOWER BAND "D":
Mobile Station Transmission: 1710 MHz to 1725 MHz
Radio Base Stations Transmission: 1805 MHz to 1820 MHz
CLAUSE 1.6 - The right to use the radio frequencies mentioned in the
previous clause shall be valid for a period of 15 (fifteen) years, starting on
the date of the signing of this Statement, with an option to extend, once only,
for an equal period at a charge.
PARAGRAPH ONE - The use of the radio frequency shall be granted on a
primary basis and shall be restricted to the respective Serving Area.
PARAGRAPH TWO - The right to use the radio frequency shall be conditional
to its efficient and adequate use.
PARAGRAPH THREE - Anatel may authorize radio frequency sharing if it does
not entail hindering interference or impose limitations on the providing of the
SMP.
CLAUSE 1.7 - In order to extend the right to use the radio frequencies
associated with this Authorization, the AUTHORIZED PARTY shall pay, every two
years during the extension period, a charge corresponding to 2% (two percent) of
its income from the SMP, net of taxes and social charges, for the previous year.
PARAGRAPH ONE - The net income resulting from the application of the Basic
and Alternative Service Plans, the object of the present Authorization, shall be
considered when calculating the amount mentioned in the header of this Clause.
PARAGRAPH TWO - The percentage referred-to in the header of this Clause
shall always be calculated in relation to the net income after taxes and
applicable charges, determined between January and December of the previous year
and obtained from the financial statement produced according to the basic
accounting standards approved by the AUTHORIZED PARTY's Administration, and
audited by independent auditors, and the payment shall be due on the 30th
(thirtieth) of April of the year subsequent to the year of determination for the
charge.
PARAGRAPH THREE - The first installment of the charge shall be due on the
30th (thirtieth) of April of 2018, calculated based on the net income determined
for the period of January 1st to December 31st, 2017, and the subsequent
installments shall be due every twenty-four months, based on the income of the
previous year.
PARAGRAPH FOUR - Any delay in the payment of the charge contemplated in
this Clause shall entail the charging of a delay fine of 0.33% (zero point
three, three percent) per day, up to a limit of 10% (ten percent), with the
added SELIC rate (Special System for Settlement and Custody) for Federal Bonds,
to be applied on the debt amount considering the number of days the payment is
past due.
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CLAUSE 1.8 - The request to extend the right to use the radio frequency
shall be sent to Anatel a maximum of four years and a minimum of three years
before the expiry of the original term.
SINGLE PARAGRAPH - The above request shall only be denied if the requesting
party is not making rational and adequate use of the radio frequencies, if it
has committed repeat violations in its activities or if the intended use of the
radio frequency must be modified.
CLAUSE 1.9 - Anatel is hereby authorized to begin a new SMP exploration
authorization granting process in the event that the aforementioned request for
an extension is not submitted at least 24 (twenty-four) months prior to the
expiry of the original term.
CHAPTER II
REGARDING THE AUTHORIZATION FEE
CLAUSE 2.1 - The Authorization Fee for the exploration of the SMP in Region
I is R$ 1,102,007,000.00 (one billion, one hundred and two million, seven
thousand Reals), basic for February 1, 2001, to be paid as follows:
I - 50% (fifty percent) of this amount, corresponding to R$ 551,003,500.00
(five hundred and fifty-one million, three thousand, five hundred Reals), shall
be paid on the date of the signing of the Statement of Authorization, and the
amount to be paid shall be indexed according to the IGP-DI (General Price Index
- - Interval Availability) published by the Getulio Vargas Foundation, from the
date of the delivery of the Identification Documents, Price Proposals and the
Certification Documentation to the actual payment date if the payment is made 12
(twelve) months after the delivery of the Identification Documents, Price
Proposals and the Certification Documentation.
II - The 50% (fifty percent) balance corresponding to R$ 551,003,500.00
(five hundred and fifty-one million, three thousand, five hundred Reals), shall
be paid within 12 months of the signing of the Statement of Authorization, and
the amount to be paid shall be indexed according to the IGP-DI (General Price
Index - Interval Availability) published by the Getulio Vargas Foundation, from
the date of the delivery of the Identification Documents, Price Proposals and
the Certification Documentation to the actual payment date if the payment is
made 12 (twelve) months after the delivery of the Identification Documents,
Price Proposals and the Certification Documentation, plus 1% (one percent)
interest per month, on the indexed value, from the date of the signing of the
Statement of Authorization.
PARAGRAPH ONE - The delayed payment of the amount contemplated in his
clause will entail the charging of a delay fine of 0.33% (zero point three,
three percent) per day, up to a limit of 10% (ten percent), with the added SELIC
rate (Special System for Settlement and Custody) for Federal Bonds, to be
applied on the debt amount considering the number of days the payment is past
due.
PARAGRAPH TWO - The non-payment of the amount stipulated in this clause
will entail the forfeiture of the Authorization, regardless of the application
of the other contemplated sanctions.
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CLAUSE 2.2 - (Impaired).
CLAUSE 2.3 - (Impaired).
CHAPTER III
REGARDING THE SERVICE PROVIDING MODE, FORM AND CONDITIONS
CLAUSE 3.1 - The AUTHORIZED PARTY commits itself to provide the service,
the object of this Authorization, in order to completely fulfill the obligations
inherent to the service rendered under the private regime, according to the
criteria, formulae and parameters defined in this Statement of Authorization.
SINGLE PARAGRAPH - The non-fulfillment of the obligations regarding the
object of this Statement of Authorization will entail the application of the
sanctions contemplated herein and allow for the temporary suspension by Anatel,
and, if necessary, the forfeiture of the Authorization shall be decreed,
pursuant to art. 137 of the LGT.
CLAUSE 3.2 - The AUTHORIZED PARTY shall explore the service, the object of
this Authorization, at its own expense and risk, within the system of wide and
fair competition established in the LGT, and it will be remunerated by the
charged prices, pursuant to the stipulations in this Statement of Authorization.
PARAGRAPH ONE - The AUTHORIZED PARTY will have no right to any kind of
exclusivity or any type of guarantee of economic and financial balance, and it
may not claim rights regarding the admission of new carriers.
PARAGRAPH TWO - The AUTHORIZED PARTY shall not have the acquired right to
uphold the conditions in effect because of this Authorization or the beginning
of the activities, and it must comply with any new conditions established by law
and the regulations.
PARAGRAPH THREE - The norms shall allow enough time to adapt to the new
conditions.
CLAUSE 3.3 - The AUTHORIZED PARTY may only start the commercial service
operations after December 31, 2001.
PARAGRAPH ONE - The stipulation contained in item 1.3.1 of Public Tendering
Notice No. 001/2000/SPV-ANATEL, in the part regarding Lower Band "C", is hereby
impaired, and the Special Public Tendering Commission declared its public
tendering process in the Regions I, II and III, specified in the relevant
Attachment I, as unsatisfactory, and it was ratified by Anatel's Board of
Directors, pursuant to the terms of Instruction no. 19/2001-CD, dated February
8, 2001, an integral part of this instrument.
PARAGRAPH TWO - It will be considered that the providing of the SMP has
begun when there is the regular offer of services to users and the existence of
a Subscription Agreement.
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CLAUSE 3.4 - The AUTHORIZED PARTY may only begin the operations regarding
the providing of the SMP in the area corresponding to the states of Amazonas,
Roraima, Amapa, Para and Maranhao after December 31, 2001.
CLAUSE 3.5 - The AUTHORIZED PARTY must maintain free access for public
emergency services as established in the regulations.
CLAUSE 3.6 - The AUTHORIZED PARTY must ensure its users' freedom to choose
their STFC carriers for their Long Distance calls, pursuant to the stipulations
in the SMP regulations.
CLAUSE 3.7 - Any alterations in the control of the AUTHORIZED PARTY shall
be subject to control by Anatel for the purpose of verifying the essential
conditions needed for the granting and maintenance of the authorization,
pursuant to the regulations.
PARAGRAPH ONE - The conditions contemplated in art. 7 of the General SMP
Authorizations Plan, in art. 10, paragraph two of the PGO and in art. 133 of the
LGT are essential to the granting and maintenance of the authorization.
PARAGRAPH TWO - The transfer of the Statement of Authorization shall be
subject to approval by Anatel, pursuant to the stipulations contained in
paragraph two of art. 136 of the LGT.
CLAUSE 3.8 - The AUTHORIZED PARTY shall freely establish the prices to be
charged in the providing of the SMP, and shall define Service Plans with
structures, forms, criteria and fees that must be reasonable and
undiscriminating, and may vary depending on the technical characteristics,
specific costs and the utilities offered to the users, as defined in the SMP
regulations.
CHAPTER IV
REGARDING COVERAGE COMMITMENTS
CLAUSE 4.1 - The AUTHORIZED PARTY commits itself to:
I - hold an area of coverage equal to 50% (fifty percent) of the urban area
in 50 % (fifty percent) of the State capitals, municipalities with more than
500,000 (five hundred thousand) residents, and in Region I, as well as in the
Federal District, by 12 (twelve) months after signing the present Statement
Authorization;
II - serve the State capitals, municipalities with more than 500,000 (five
hundred thousand) residents, and in Region I, as well as the Federal District,
by 24 (twenty-four) months after the signing of the present Statement of
Authorization;
III - hold an area of coverage equal to at least 50% (fifty percent) of the
urban area in 50% (fifty percent) of the municipalities with more than 200,000
(two hundred thousand residents, by 36 (thirty-six) months after the signing the
present Statement of Authorization;
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IV - serve the municipalities with more than 200,000 (two hundred thousand
residents, by 48 (forty-eight) months after the signing the present Statement of
Authorization; and
V - serve the municipalities with more than 100,000 (one hundred thousand
residents, by 60 (sixty) months after the signing the present Statement of
Authorization.
CLAUSE 4.2 - It will be considered that a location is being served when the
area of coverage includes at least 80% (eighty percent) of the urban area.
CLAUSE 4.3 - The non-fulfillment of the commitments will subject the
AUTHORIZED PARTY to the sanctions contemplated in this Statement of
Authorization and in the regulations, and may result in the termination of the
authorization.
CLAUSE 4.4 - The locations that are the object of the commitments
contemplated in 4.1 shall be defined taking into consideration the Population
estimates for States and Municipalities, dated July 1, 2000, published by the
IBGE by means of Resolution No. 09, dated August 8, 2000.
CHAPTER V
REGARDING THE QUALITY OF THE SERVICE
CLAUSE 5.1 - The adequate quality of the service provided by the AUTHORIZED
PARTY is a presupposition of this Authorization, and is considered to be the
service that satisfies the conditions of regularity, efficiency, security,
generality and courtesy, as well as being up-to-date.
PARAGRAPH ONE - The regularity will be characterized by the continuous
exploration of the service in strict compliance with the stipulations in the
norms established by Anatel.
PARAGRAPH TWO - The efficiency shall be characterized by the achievement
and upholding of the parameters described in this Statement of Authorization and
by the serving of the user within the deadlines contemplated in this Statement
of Authorization.
PARAGRAPH THREE - The security in the exploration of the service will be
characterized by the confidentiality of the data regarding the users' use of the
service, as well as the full preservation of the secrecy of the information
transmitted within the scope of its exploration.
PARAGRAPH FOUR - The currentness shall be characterized by the modernity of
the equipment, the facilities and the service exploration techniques, with the
absorption of the technological advances that definitively benefit the users,
pursuant to the stipulations contained in this Statement of Authorization.
PARAGRAPH FIVE - The generality will be characterized by the indiscriminate
providing of the service to any and all users, and the AUTHORIZED PARTY commits
itself to provide the service to whomever requests it, according to the
regulations.
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PARAGRAPH SIX - The courtesy shall be characterized by the respectful and
immediate serving of all the authorized service users, as well as the compliance
with the obligations to readily and politely inform and serve all, users or not,
who request information, action or any other type of petition, from the
AUTHORIZED PARTY, pursuant to the stipulations of the present Statement of
Authorization.
CLAUSE 5.2 - The AUTHORIZED PARTY must meet all the quality goals set in
the General SMP Quality Target Plan - PGMQ-SMP.
CLAUSE 5.3 - The exploration of the authorized service may only be
suspended in compliance with the SMP Regulations, established by Anatel.
CHAPTER VI
REGARDING THE NUMBERING PLAN
CLAUSE 6.1 - The AUTHORIZED PARTY commits itself to obey the Numbering
Regulations established by Anatel, and it must ensure the subscribing member the
portability of the access codes in accordance with the regulations.
CHAPTER VII
REGARDING THE BILLING OF USERS
CLAUSE 7.1 - The AUTHORIZED PARTY must establish the amount, form of
measurement and the billing criteria for the provided services based on the
stipulations contained in the SMP Regulations.
CHAPTER VIII
REGARDING THE RIGHTS AND LIABILITIES OF THE USERS
CLAUSE 8.1 - The rights and liabilities of the users are those established
in the LGT and the regulations, with no prejudice to the rights contemplated in
Law no. 8,078, dated September 11, 1990, in the cases that this law regulates,
or to those described in the SMP providing agreements.
CHAPTER IX
REGARDING THE RIGHTS AND LIABILITIES OF THE AUTHORIZED PARTY
CLAUSE 9.1 - The rights and obligations of the AUTHORIZED PARTY are those
established in the LGT and in the regulations.
CLAUSE 9.2 - The AUTHORIZED PARTY commits itself to consider offers from
independent suppliers, including domestic suppliers, in the engaging of services
and the acquisition of equipment and materials connected to the object of this
Statement of Authorization, and it shall base its decisions regarding said
offers, on the meeting of the objective criteria regarding price, delivery
conditions and technical specifications, established in the applicable
regulations.
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SINGLE PARAGRAPH - The procedures stipulated in the Regulations regarding
the Procedures for Material and Equipment Acquisition and Service Engagement by
Telecommunications Carriers, approved by Anatel Resolution No. 155, dated August
5, 1999.
CHAPTER X
REGARDING THE LIABILITIES AND PREROGATIVES OF ANATEL
CLAUSE 10.1 - In addition to the other prerogatives inherent to its
functions as a regulatory agency and the other liabilities resulting from this
Statement of Authorization, it shall be Anatel's responsibility to:
I - oversee and control the exploration of the service in the aim of
complying with the regulations;
II - regulate the exploration of the authorized service;
III - apply the sanctions contemplated in service regulations and
specifically in this Statement of Authorization;
IV - work to ensure the good quality of the service, and to receive, verify
and solve the users' claims and complaints, informing them within 90 (ninety)
days of the measures taken to repress any violations of their rights;
V - declare the authorization to be extinct in those cases contemplated in
the LGT;
VI - work to guarantee interconnection, solving any pending issues that may
arise between the AUTHORIZED PARTY and other carriers;
VII - permanently follow the relationship between the AUTHORIZED PARTY and
the other carriers, settling any conflicts that may arise;
VIII - restrain any conduct by the AUTHORIZED PARTY that is contrary to the
system of competition, respecting the jurisdiction of the CADE, the regulations
and especially the stipulations in Clauses 10.2 and 10.3 of this Chapter;
IX - exercise the service control and inspection activities pursuant to the
stipulations in this Statement of Authorization; and
X - collect the fees regarding FISTEL (Telecommunications Control Fund),
adopting the measures contemplated in the legislation.
CLAUSE 10.2 - Anatel may establish an Administrative Procedure for Default
on Obligation (PADO) for the purpose of determining whether there are untruths
or unfounded allegations in the conditions the AUTHORIZED PARTY has declared
with regards to not holding controlling interest in other companies, or
regarding other prohibitions that prevent economic concentration, whenever there
is evidence that a legal entity that is a SMP carrier is being influenced by the
AUTHORIZED PARTY, its affiliates, controlled companies or parent companies,
pursuant to the terms of the Regulations Regarding the Determination of Control
and
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the Transfer of Control in Telecommunications Carrier Companies, approved by
Anatel Resolution No. 101, dated February 4, 1999.
PARAGRAPH ONE - Following the procedure contemplated in this Clause, any
proof of the existence of any situation that characterizes untruth or unfounded
allegations in the conditions the AUTHORIZED PARTY has declared will entail the
cancellation of this Authorization, pursuant to the terms of art, 139 of the
LGT.
CLAUSE 10.3 - Anatel may also establish an administrative procedure for the
purpose of determining a violation against economic order as contemplated in Law
no. 8,884/94.
CHAPTER XI
REGARDING ENFORCEMENT
CLAUSE 11.1 - Anatel will oversee and inspect the services in order to
ensure the fulfillment of the commitments made in this Statement of
Authorization.
PARAGRAPH ONE - Anatel's enforcement will include inspecting and overseeing
the AUTHORIZED PARTY's activities, equipment and facilities, requiring full
access to all the AUTHORIZED PARTY's data and information, or to that of third
parties.
PARAGRAPH TWO - The information collected during the enforcement activities
will be published in the Library, with the exception of those that, by request
of the AUTHORIZED PARTY, are considered by Anatel to be confidential in nature.
PARAGRAPH THREE - The information considered confidential according to the
terms of the previous paragraph, shall only be used in procedures correlated to
the present Statement of Authorization, and Anatel, or any party appointed by
it, will answer for any wide or restricted publicizing of said information
outside the scope of this use.
CLAUSE 11.2 - The AUTHORIZED PARTY, through its appointed representative,
may follow any and all Anatel enforcement activities but it may not obstruct or
prevent said enforcement, under penalty of the sanctions contemplated in the
regulations.
CHAPTER XII
REGARDING THE TELECOMMUNICATIONS NETWORKS AND
VISITING CARRIER ACCESS
CLAUSE 12.1 - With regards to the implantation and operation of the
Telecommunications Networks intended to support the providing of the SMP, the
AUTHORIZED PARTY must comply with the regulations, especially with the
Telecommunications Service Regulations, edited by Resolution No. 73, dated
November 25, 1998; with the General Interconnection Regulations, approved by
Resolution No. 40, dated July 23, 1998; and with the SMP regulations.
CLAUSE 12.2 - Remuneration for the use of the networks shall be agreed upon
between the AUTHORIZED PARTY and the other telecommunications carriers, pursuant
o art. 152 of the LGT and the SMP regulations.
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CHAPTER XIII
REGARDING THE SANCTIONS
CLAUSE 13.1 - The AUTHORIZED PARTY is hereby subject to enforcement by
Anatel, pursuant to the applicable legal provisions and regulations, and must
render account pursuant to the SMP regulations, allowing Anatel free access to
its technical resources and accounting records upon request.
CLAUSE 13.2 - The default on conditions or commitments made regarding the
authorization shall subject the AUTHORIZED PARTY to warning, fine, temporary
suspension or forfeiture sanctions pursuant to the SMP regulations.
CHAPTER XIV
REGARDING THE TERMINATION OF THE AUTHORIZATION
CLAUSE 14.1 - The authorization will be considered terminated by
revocation, failure, waiver or cancellation, pursuant to articles 138 to 144 of
the LGT, and in accordance with the procedures contained in the regulations.
SINGLE PARAGRAPH - The declaration of extinction shall not annul the
application of the suitable sanctions, according to the stipulations in this
Statement of Authorization as a result of violations committed by the AUTHORIZED
PARTY.
CHAPTER XV
REGARDING THE LEGAL SYSTEM AND THE APPLICABLE DOCUMENTS
CLAUSE 15.1 - The LGT and the regulations deriving therefrom regulate the
present Authorization, with no prejudice to the remaining norms in the Brazilian
legal system.
CLAUSE 15.2 - In exploring the service authorized herein, Anatel's
regulations, an integral part of this Statement of Authorization, especially the
documents regarding the SMP Regulations, must be followed.
CLAUSE 15.3 - The Public Tendering Notice No. 001/2000/SPV-ANATEL, its
attachments, and the consultations and replies to the public notice, are part of
this Statement of Authorization, as if they were transcribed herein.
CLAUSE 15.4 - The general rules of hermeneutics and the norms and
principles contained in the LGT, in addition to the documents referred-to in
this chapter, must be taken into account when interpreting the norms and
provisions contained in this Statement of Authorization.
CHAPTER XVI
REGARDING THE JURISDICTION
CLAUSE 16.1 - Any issues deriving from the present Statement of
Authorization shall be settled in the court of the jurisdiction of the Judiciary
Section of the Brasilia Federal Court System in the Federal District.
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CHAPTER XVII
REGARDING THE FINAL PROVISIONS
CLAUSE 17.1 - This Statement of Authorization shall become effective on the
date of the publication of its excerpt in the Official Gazette of the Union.
The parties hereby acknowledge their understanding of the provisions and
conditions contained in this Statement of Authorization, and sign it in 03
(three), equal in content and form, in the presence of the undersigned witnesses
in order for it to produce the desired legal effects.
Brasilia, March 12, 2001.
For Anatel:
- ------------------------------------- ----------------------------------------
RENATO NAVARRO GUEIRREIRO JOSE LEITE PEREIRA FILHO
Chairman of the Board Board Member
For the AUTHORIZED PARTY:
- ------------------------------------- ----------------------------------------
MANOEL HORACIO F. DA SILVA ANTONIO ROBERTO P. DE LIMA
Chief Executive Officer Executive Officer
Witnesses:
- ------------------------------------- ----------------------------------------
Luis Roberto Luz Andre Gustavo R. Rosa
CREA/RJ No. 81-1-02929-D OAB/DF-15733
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