Exhibit 4.16
INSTRUMENT OF AUTHORIZATION PVCP/SPV NO. 007/2002 - ANATEL
INSTRUMENT OF AUTHORIZATION OF PERSONAL
MOBILE SERVICE ENTERED BETWEEN AGENCIA
NACIONAL DE TELECOMUNICACOES (ANATEL)
AND TELEPISA CELULAR S.A.
By this instrument, on the one hand AGENCIA NACIONAL DE TELECOMUNICACOES -
ANATEL, hereinafter referred to as ANATEL, entity of the FEDERAL GOVERNMENT,
under the terms of Federal Law no. 9472, of July 16, 1997, General
Telecommunications Law - LGT, Corporate Taxpayer I.D. (CGC/MF) no.
02.030.715/0001-12, herein represented by the Chairman of the Board of ANATEL,
XXXX XXXXXXXXX XXXXXXXX XX XXXXXXXX, jointly with Director XXXXXXX XXXXXX
XXXXXXX XX XXXXX, and on the other hand, TELEPISA CELULAR S.A., Corporate
Taxpayer I.D. (CNPJ) no. 02.368.412/0001-04, herein represented by its Executive
Director for Regulatory and Interconnection Matters, XXXX XXXXXXX XXXXXXX, a
Brazilian citizen, married, economist, bearer of Identity Card no. 886.827-1
SSP/PR and by its Executive Legal Director, XXXXX XXXXXX XXXXXX XXXXXXXXX, a
Portuguese citizen, single, lawyer, bearer of Identity Card no. 4.548.983
SSP/SP, hereinafter referred to as AUTHORIZED COMPANY, enter this INSTRUMENT OF
AUTHORIZATION, Anatel Process No. 53500.006203/2002, which will be governed by
the following clauses:
CHAPTER I
OBJECT, AREA AND AUTHORIZATION PERIOD
Clause 1.1 - The object of this Term is the issuance of an Authorization to
explore the Personal Mobile Service - SMP, provided under the private system, IN
THE GEOGRAPHICAL AREA COMPRISING THE TERRITORIES OF THE STATE OF Pernambuco
IN THE REGION I OF PGA-SMP.
Paragraph 1 - The object of this Authorization includes the Personal Mobile
Service provided under the private system, according to Xxxxxx's regulations,
and particularly, according to the provisions provided in the SMP Regulation and
in the SMP General Authorization Plan.
Paragraph 2 - This Authorization is issued based on the LGT, Article 214, Item
V, and on the Norm of Adaptation of the Concession Instruments and Cellular
Mobile Service Authorization - SMC for the Personal Mobile Service - SMP,
approved by Resolution ANATEL no. 318, of September 27, 2002, and altered by
Resolution ANATEL no. 326, of November 2002, hereinafter referred to as
ADAPTATION NORM, which replaces the CONCESSION CONTRACT NO. 020/97-DOTC/SFO/MC,
OF NOVEMBER 04, 1997, PUBLISHED IN THE OFFICIAL GAZETTE OF THE UNION [D.O.U.] OF
NOVEMBER 05, 1997, hereinafter referred to as the SUBSTITUTED INSTRUMENT.
Clause 1.2 - The Personal Mobile Service is a mobile land telecommunications
service of collective interest that makes possible the communication between
mobile stations and from mobile stations to other stations, taking into
consideration the provisions determined in the regulation.
Clause 1.3 - The AUTHORIZED COMPANY has the right to the industrial exploitation
of the media covered by the service rendering, observing the provisions included
in the regulation, as well as the provisions of LGT, Articles 154 and 155.
Clause 1.4 - The duration of this authorization to exploit the SMP is
indefinite.
Clause 1.5 - The service must be exploited with the use by the AUTHORIZED
COMPANY of the Sub-Band of radio frequencies provided in the SUBSTITUTED
INSTRUMENT, as follows:
Mobile Station Transmission: 824.0 to 835.0 MHz / 845.0 to 846.5 MHz
Cell Site Transmission Station: 869.0 to 880.0 MHz / 890.0 to 891.5 MHz
Clause 1.6 - The right to use the radio frequencies mentioned in the prior
clause will be in force up to MARCH 27, 2009, which corresponds to the remaining
duration, which may be extended one sole time, for fifteen (15) years. This
extension will be remunerated.
Paragraph 1 - Radio frequency usage will be done on a primary basis and
restricted to the respective Rendering Area.
Paragraph 2 - The right to use the radio frequency is conditioned to its
efficient and adequate use.
Paragraph 3 - Anatel may authorize the radio frequency sharing, when it does not
imply in any harmful interference nor does it impose limitation to rendering
SMP.
Clause 1.7 - The AUTHORIZED COMPANY, to extend the right to use the
radio-frequencies associated to this Authorization, must pay, every two years,
during the extension period, the burden corresponding to two percent (2%) of its
SMP revenues of the year prior to payment, net of the taxes and social
contributions levied.
Paragraph 1 - In calculating the amount referred to in the main sentence of this
Clause, the net income resulting from applying the Basic and Alternative Service
Plans, object of this Authorization.
Paragraph 2 - The calculation of the percentage referred to in the main sentence
of this Clause will be made always in relation to income net of tax and
contribution taxes deductions levied, determined between January and December of
the prior year and obtained from the financial statements prepared according to
the generally accepted accounting principles approved by the AUTHORIZED
COMPANY's Management and audited by independent auditors. Payment will be due on
April 30 of the year that follows the fee calculations.
Paragraph 3 - The first installment of the fee will be due on the thirtieth
(30th) day of April 2011, calculated considering the net income determined
between January 01 and December 31, 2010, and the subsequent installments will
be due every twenty-four months, based on the income calculations for the prior
year.
Paragraph 4 - Delays in fee payments provided in this Clause will imply in
default fines of zero point thirty three percent (0.33%) a day, up to the limit
of ten percent (10%), plus SELIC reference rate for public securities, to be
applied on the amount of the debt considering all the days in arrears in the
payment.
Clause 1.8 - The application concerning the extension of the right to use the
radio frequencies must be forwarded to Anatel at the latest thirty months before
the date of expiry of the original duration.
Sole Paragraph - The extension will only not be granted if the interested party
is not making rational and adequate use of the radio frequencies, or if it has
committed reiterated violations in its activities or if the destination of use
of the radio frequency must be modified.
Clause 1.9 - Anatel is authorized to commence a new procedure to grant
authorization to exploit SMP, if the application for extension is not made in
due time, at least twenty-four (24) months before the expiry of the original
duration.
CHAPTER II
SUBSTITUTION AMOUNT
Clause 2.1 - The amount of the substitution of the SUBSTITUTED INSTRUMENT by
this INSTRUMENT OF AUTHORIZATION is R$9,000.00 (nine thousand reais).
Sole Paragraph - Lack of payment of installments that are still pending,
resulting from assumed commitments, related to the amounts due because of the
Concession or Authorization of Cellular Mobile Service - SMC, will imply
forfeiture of this Authorization, irrespective of other penalties provided.
CHAPTER III
HOW SERVICES WILL BE RENDERED, FORM AND CONDITIONS
Clause 3.1 - The AUTHORIZED COMPANY undertakes to render the service object of
the Authorization, fully complying with the obligations inherent to the service
provide under the private system, observing the criteria, formulae and
parameters defined in this Instrument of Authorization.
Sole Paragraph - The non-performance of the obligations related to the object of
this Instrument of Authorization will result in the application of the sanctions
provided herein, permitting the temporary suspension by Xxxxxx, and, as the case
may be, the forfeiture of this Authorization will be determined, according to
provisions of LGT, Article 137.
Clause 3.2 - The AUTHORIZED COMPANY will exploit the service object of this
Authorization for its own account and risk, within the system of full and fair
competition established in LGT, and will be remunerated by the prices charged,
according to provisions herein.
Paragraph 1 - The AUTHORIZED COMPANY will not have any rights relating to any
type of exclusivity, any assumption of economic and financial breakeven, nor may
it claim rights regarding the admission/entry of new companies to provide the
same services.
Paragraph 2 - The AUTHORIZED COMPANY will not have acquired rights to maintain
the conditions in force with the issuance of this authorization or with the
beginning of the activities. The AUTHORIZED COMPANY must comply with the new
conditions set forth by law and regulations.
Paragraph 3 - The norms will provide enough time for [the AUTHORIZED COMPANY] to
adapt itself to the new conditions.
Clause 3.3 - The AUTHORIZED COMPANY must maintain free access to emergency
public services as determined in the regulation.
Clause 3.4 - The AUTHORIZED COMPANY must ensure to its users that they are free
to exercise their right to choose of the STFC service carrier to complete their
Long Distance calls, complying with provisions of the SMP regulation,
particularly the ADAPTATION NORM.
Clause 3.5 - The alterations in the AUTHORIZED COMPANY's equity control are
subject to Xxxxxx's control for the purpose of verifying the indispensable
conditions to issue and maintain the authorization, under the provisions of the
regulation.
Sole Paragraph - Among the indispensable conditions to issue and maintain the
authorization are those provided in the General Plan of Authorizations of SMP,
in PGO - Article 10, Paragraph 2 and in LGT - Article 133.
Clause 3.6 - The Authorization Term transfer will be subject to Xxxxxx's
approval, and must comply with the provisions of LGT, Article 136, Paragraph 2.
Sole Paragraph - For the purposes of LGT, Article 98, Item I, the operating time
of the Cellular Mobile Service will be considered during the duration of the
SUBSTITUTE INSTRUMENT.
Clause 3.7 - The AUTHORIZED COMPANY will freely establish the prices to be
practiced in providing SMP, defining the Service Plans with structures, forms,
criteria and values that must be reasonable and not discriminatory, and which
may vary according to the technical characteristics, specific costs and
utilities offered to users, as determined in the SMP regulation, particularly in
the ADAPTATION NORM.
CHAPTER IV
COVERAGE COMMITMENTS
Clause 4.1 - Coverage commitments set forth in the SUBSTITUTED INSTRUMENT are
maintained, including service and coverage obligations.
Clause 4.2 - The non-performance of the commitments will subject the AUTHORIZED
COMPANY to the sanctions provided herein and in the regulation, and may result
in rescinding the authorization.
CHAPTER V
SERVICE QUALITY
Clause 5.1 - It is a prerequisite of this Authorization the appropriate quality
of the services rendered by the AUTHORIZED COMPANY, considering as such the
service that satisfies the following conditions: regularity, efficiency,
security, highest level of development, generality and courtesy.
Paragraph 1 - Regularity will be characterized by the continuous exploitation of
the services strictly complying with the provisions of the norms issued by
Anatel.
Paragraph 2 - Efficiency will be characterized by the attainment and
preservation of the parameters set forth in this Instrument of Authorization.
Paragraph 3 - Service exploitation security will be characterized by
confidentiality of the data related to service use by the users, absorbing
technological progress, which [definitely] bring benefits to the users, and
respecting the provisions herein.
Paragraph 4 - Highest level of development will be characterized by equipment
and installation
Paragraph 5 - Generality will be characterized by rendering non-discriminatory
services to any and all users. The AUTHORIZED COMPANY undertakes to provide
services to whoever requests them, according to the regulation.
Paragraph 6 - Courtesy will be characterized by answering respectfully and
immediately all calls from authorized service users, as well as by complying
with the obligation of informing and answering promptly and politely all
inquiries, information and action or any type of postulation that the public,
users and non-users, request or submit to the AUTHORIZED COMPANY, according to
provisions herein.
Clause 5.2 - The AUTHORIZED COMPANY must comply with the quality goals
determined in the General Plan of Quality Goals for SMP.
Sole Paragraph - For the purpose of provisions of PGMQ-SMP, Article 1, Paragraph
5, the SMP commercial operation will be considered started in a location in
which SMC services are already rendered, on the date the summary of this
Instruction is published.
Clause 5.3 - The authorized service exploitation may only be suspended provided
SMP Regulation, issued by Anatel, is complied with.
CHAPTER VI
NUMBERING PLAN
Clause 6.1 - The AUTHORIZED COMPANY undertakes to obey the Numbering Regulations
issued by Xxxxxx, and must ensure to service subscribers the portability of the
access codes according to the regulations.
CHAPTER VII
BILLING OF USERS
Clause 7.1 - The amount, the way the service will be measured and the billing
criteria of services rendered, must be established by the AUTHORIZED COMPANY,
based on the provisions of the SMP Regulation, taking into consideration the
provisions of Clause 3.7 herein.
CHAPTER VIII
RIGHTS AND OBLIGATIONS OF USERS
Clause 8.1 - The rights and obligations of the users are those established in
LGT and in the regulation, without limitations to the rights provided in Law no.
8078, of September 11, 1990 in the cases this Law regulates, nor those set forth
in SMP service rendering agreements/contracts.
CHAPTER VIII
RIGHTS AND OBLIGATIONS OF THE AUTHORIZED COMPANY
Clause 9.1 - The rights and obligations of the AUTHORIZED COMPANY are those
established in LGT and in the regulations.
Clause 9.2 - When contracting services and when acquiring equipment and
materials linked to the object herein, the AUTHORIZED PARTY undertakes to
consider the offer of independent suppliers, including domestic suppliers, and
to base its decisions regarding the numerous offers submitted, in the compliance
of objective criteria of price, delivery conditions and technical specifications
established in the relevant regulation.
Sole Paragraph - In the above-mentioned contracting/hiring processes, the
Regulation on the Service Contracting Procedures and Equipment and Material
Acquisition by Telecommunication Service Providers, approved by Xxxxxx's
Resolution no. 155, of August 05, 1999.
CHAPTER X
ANATEL'S OBLIGATIONS AND PREROGATIVES
Clause 10.1 - In addition to any prerogatives inherent in its function as
regulatory body and other obligations resulting from this Authorization
Instrument, Anatel will be responsible for:
I - following up and inspecting the service exploitation, aimed at meeting the
provisions of the regulation;
II - regulating the exploitation of the authorized services;
III - applying the penalties provided in the service regulation and,
specifically those provided herein;
IV - ensure the good quality of the service rendered, receiving, determining and
solving complaints and claims of the users, informing them in up to ninety (90)
days, the measures taken to curb the violations to their rights.
V - declaring the Authorization dissolved in the cases provided in LGT;
VI - ensuring the interconnection guarantee, solving any pending matters arising
from the AUTHORIZED COMPANY and other carriers;
VII - permanently following up the relationship between the AUTHORIZED COMPANY
and the other carriers, solving any conflicts resulting therefrom;
VIII - preventing the AUTHORIZED COMPANY's behavior against the competitive
system, fulfilling XXXX'x competencies, the regulation and particularly the
provisions of Clauses 10.2 and 10.3 herein;
IX - exercising inspection activities on the services performed according to
provisions of this Instrument of Authorization; and
X - collecting the fees/taxes related to FISTEL, adopting the measures provided
in the law.
Clause 10.2 - Anatel may commence a Procedure to Determine the Non-Compliance of
Obligations (XXXX), to determine that the conditions stated by the AUTHORIZED
COMPANY are untrue or lack sustenance, in relation to the non-participation in
the control of other companies or other impeditive prohibitions of economic
concentration, whenever there is evidence of relevant influence of the
AUTHORIZED COMPANY, its affiliated, controlled or controlling companies on the
legal entity rendering SMP, under the terms of the Regulation to Determine
Control and Control Transfer in Companies Rendering Telecommunication Services,
approved by Resolution no. 101 of Anatel, of February 04, 1999.
Sole Paragraph - Proof of the existence of any situation that characterizes
untruth or lack of sustenance of the stated conditions by the AUTHORIZED
COMPANY, after the procedure provided in this Clause, will result in the
annulment of this Authorization, under the provisions of LGT, Article 139.
Clause 10.3 - Furthermore, Anatel may commence administrative procedure to
determine the violation against the economic order, according to Law no.
8884/94.
CHAPTER XI
INSPECTION SYSTEM
Clause 11.1 - Anatel will inspect the services in order to ensure the
performance of the commitments provided herein.
Paragraph 1 - Inspection to be performed by Anatel will comprise inspection and
follow up of the activities, equipment and facilities of the AUTHORIZED COMPANY,
therefore implying in ample access to all data and information of the AUTHORIZED
COMPANY or of third parties.
Paragraph 2 - The information collected during the carrying out of the
inspection activities, will be published in the Library, except those that,
according to the AUTHORIZED COMPANY's request, are considered confidential by
Xxxxxx.
Paragraph 3 - The information that are considered confidential under the
conditions of the prior paragraph, may only be used in the procedures co-related
to this Instrument of Authorization. Anatel and those indicated by Xxxxxx, will
be responsible for any full or restrict disclosure of such information beyond
the scope of utilization.
Clause 11.2 - The AUTHORIZED COMPANY, through its appointed representative, may
follow up any inspection activity of Anatel, however, it/he may not oppose or
prevent any action of the inspectors, under the penalty of incurring in the
penalties provided in the regulation.
CLAUSE XII
TELECOMMUNICATION NETWORKS AND ACCESS TO VISITING USERS
Clause 12.1 - In relation to the implementation and operation of the
Telecommunication Networks intended for providing support to SMP rendering must
comply with the provisions of the regulation, particularly in the Regulation of
Telecommunication Services, published in Resolution no. 73, of November 25,
1998; in the General Interconnection Regulation, approved by Resolution no. 40,
of July 23, 1998; and in the SMP regulations.
Sole Paragraph - Changes in technology standards promoted by the AUTHORIZED
COMPANY may unilaterally and arbitrarily burden the user, including in relation
to the existing service conditions for visiting users.
Clause 12.2 - The remuneration for use of networks between the AUTHORIZED
COMPANY and the other telecommunication service providers, will obey the
provisions of LGT, Article 152 and of SMP regulation, particularly of the
ADAPTATION NORM.
Sole Paragraph - The document provided in item 7 of the ADAPTATION NORM becomes
Annex I hereof.
CHAPTER XIII
SANCTIONS
Clause 13.1 - The AUTHORIZED COMPANY is subject to Anatel's inspection, which
will comply with the relevant legal and regulatory provisions, and must whenever
demanded, account to Anatel, according to the SMP regulation, providing free
access to its technical resources and accounting records.
Clause 13.2 - The non-compliance to the conditions and commitments assumed
associated to the authorization, will subject the AUTHORIZED COMPANY to the
warning, fine, temporary suspension or forfeiture sanctions, according to
provisions of the SMP regulations.
CHAPTER XIV
RESCISSION OF AUTHORIZATION
Clause 14.1 - The Authorization will be considered rescinded by cancellation,
reversion, forfeiture, deterioration, waiver or annulment, according to LGT,
Articles 138 to 144, and according to the procedures provided in the regulation.
Sole Paragraph - The statement of rescission will not suppress the enforcement
of the applicable penalties, according to provisions herein, for the violations
practiced by the AUTHORIZED COMPANY.
CHAPTER XV
APPLICABLE LAW AND DOCUMENTS
Clause 15.1 - This Authorization is governed by the LGT and the regulations
resulting from it, without limitation to other rules [and regulations] of the
Brazilian system of laws.
Clause 15.2 - Anatel's regulations must be complied with in exploiting the
services authorized herein, as an integral part of this Instrument of
Authorization, particularly the documents mentioned in the SMP Regulation.
Clause 15.4 [SIC] - When interpreting rules and provisions included in this
Instrument of Authorization, in addition to the documents referred to in this
Chapter, the general rules of hermeneutics and the rules and principles
contained in LGT must be taken into consideration.
CHAPTER XVI
TEMPORARY PROVISIONS
Clause 16.1 - Until the VU-M ratification or agreement, according to the option
of the SMP provider, the criteria to process the amounts related to network
remuneration as well as the processing and transfer of the amounts between the
entities rendering Cellular Mobile Services and Switched Fixed Telephone
Services must be maintained.
CHAPTER XVII
VENUE
Clause 17.1 - The Courts of the Federal Justice Judicial Section Courts of
Brasilia, Federal District are elected to solve any issues resulting from this
Instrument of Authorization.
CHAPTER XVIII
FINAL PROVISIONS
Clause 18.1 - This Instrument of Authorization will become effective on the date
of the publication of its summary in the Federal Official Gazette.
Clause 18.2 - Except for the provisions expressly documented herein, the other
provisions of the SUBSTITUTED INSTRUMENT, referred to in Clause 1.1, Paragraph 2
become ineffective.
IN WITNESS WHEREOF, the parties sign this Instrument of Authorization in three
(03) counterparts of equal contents and form, in the presence of the witnesses
who also sign below, for it to become legally and judicially effective.
Brasilia, December 10, 2002
ANATEL:
XXXX XXXXXXXXX XXXXXXXX XX XXXXXXXX
Chairman of the Board of Directors
XXXXXXX XXXXXX XXXXXXX XX XXXXX
Director
AUTHORIZED COMPANY:
XXXX XXXXXXX XXXXXXX
Director for Regulatory and Interconnection Matters
XXXXX XXXXXX XXXXXX XXXXXXXXX
Director and Legal Counsel
Witnesses:
XXXXXX XXXX XXXXXXX
I.D. no. 4346/D CREA - XX
XXXXX XX XXXXXXXX XXXXX
I.D. no. 5060107391/D CREA-SP
ANNEX I
OPTION STATEMENT
According to provisions of ADAPTATION NORM, item 7, TELERN Celular S.A.,
Corporate Taxpayer I.D. (CNPJ) no. 02.332.973/0001-53, herein represented by its
Director for Regulatory and Interconnection Matters, XXXX XXXXXXX XXXXXXX, a
Brazilian citizen, married, economist, bearer of Identity Card no. 886.827-1
SSP/PR, opts to be submitted to the Rule of Criteria of Remuneration for the Use
of Networks of Personal Mobile Service Providers - SMP, item 5 and its
sub-items, approved by Resolution no. 319, dated September 27, 2002, and
requests the ratification of the TU-M, the maximum value of which will be the
maximum value of the initial VU-M of its Rendering Area.
Brasilia, December 10, 2002
XXXX XXXXXXX XXXXXXX
Director for Regulatory and Interconnection Matters
