LETTER OF AUTHORIZATION - N.Degrees 008/2004/PVCP/SPV N. Degrees - ANATEL
LETTER OF AUTHORIZATION FOR
OPERATION OF PERSONAL COMMUNICATION
SYSTEMS SERVICES, SIGNED BY AND
BETWEEN BRAZIL'S NATIONAL
TELECOMMUNICATIONS AGENCY - ANATEL
AND TELEMIG CELULAR S.A.
Brazil's NATIONAL TELECOMMUNICATIONS AGENCY (AGENCIA NACIONAL DE
TELECOMUNICACOES) - ANATEL, hereinafter "ANATEL", a Federal Government entity
pursuant to Federal Law n. Degrees 9.472, dated July 16th, 1997, the
TELECOMMUNICATIONS ACT [Xxx Xxxxx de Telecomunicacoes - LGT], Corporate Taxpayer
Identification Number 02.030.715/0001-12, represented herein by the Chairman of
the Board of Directors of ANATEL, XXXXX XXXXX XXXXXX XX XXXXXX, jointly with the
member of the Board, XXXXXXX XXXXXX XXXXXXX XX XXXXX, AND TELEMIG CELULAR S.A.,
CNPJ Corporate Taxpayer Identification Number 02.320.739/001-06, represented
herein by its president, XXXX XXX XXXX, Brazilian, married, economist, bearer of
ID n. Degrees 3.944.885 SSP/BA and federal taxpayer identification number
000.000.000-00 and, by his director superintendent, XXXXXXX XXXX, Brazilian,
married, business administrator, bearer of ID n. Degrees 12.147.806 SSP/DF and
federal taxpayer identification number 000.000.000-00, both with offices at Xxx
Xxxxxxx Xxxxx, 000 - 0xx xxxxx - Xxxxxxx XXX 00000-170 - Belo Horizonte/MG,
hereinafter "AUTHORIZED PARTY", hereby sign this LETTER OF AUTHORIZATION, ANATEL
Process n.Degrees 53500 000366/2004, to be governed by the following provisions:
SECTION I
PURPOSE, AREA AND TERM OF AUTHORIZATION
PROVISION 1.1 - The purpose of this Letter is to grant Authorization for the
operation of the Personal Communications System (PCS) [Servico Movel Pessoal -
SMP], on a private basis, in the geographical area of Minas Gerais State, except
in the municipalities of Arapora, Araujos, Campina Verde, Xxxxx Xxxxxxx, Xxxxxx
Altos, Canapolis, Capinopolis, Carmo do Paranaiba, Carneirinhos, Centralina,
Comendador Xxxxx, Xxxxxxxxx das Alagoas, Xxxxxxx Xxxxx, Cruzeiro da Fortaleza,
Frutal, Gurinhata, Ibiraci, Igaratinga, Iguatama, Indianapolis, Ipiacu,
Itapagipe, Ituiutaba, Iturama, Uniao de Minas, Lagamar, Lagoa Formosa, Lagoa
Grande, Limeira X'Xxxxx, Xxx, Maravilhas, Moema, Monte Alegre xx Xxxxx, Xxxxx
Xxxxx xx Xxxxx, Nova Ponte, Nova Serrana, Papagaios, Para de Minas, Patos de
Minas, Pedrinopolis, Pequi, Perdigao, Pirajuba, Pitangui, Planura, Prata,
Presidente Xxxxxxxx, Rio Paranaiba, Santa Xxxxxxx, Santa Vitoria, Xxx Xxxxxxxxx
xx Xxxxx, Sao Xxxx da Varginha, Tupaciguara, Uberaba, Delta, Uberlandia e
Vazante, all in Minas Gerais State in Region I of PGA-SMP.
SECTION 1 - For the purposes of this Authorization, the Personal Communication
System is construed as a service rendered on a private basis, according to
ANATEL regulations, and, especially, under the provisions of the Statute of the
PCS and the General Plan of Authorizations of PCS.
SECTION 2 - The following Authorization is issued according to article 214, item
V, of LGT and to the Rules for Adjusting Concession Agreements and Mobile
Cellular Telephone Services - SMC for the Personal Communication System - PCS,
approved by ANATEL Resolution n.Degrees 318, of
September 27th, 2002, and amended by ANATEL Resolution n.Degrees 326, of
November 28th, 2002, hereinafter "ADJUSTMENT RULES" superseding the Concession
Agreement of SMC n. Degrees 0010/97- DOTC-SFO-MC, of November 4th, 1997,
Official Gazette of November 5th, 1997, hereinafter "SUPERSEDED AGREEMENT".
PROVISION 1.2 - Personal Communication System is the overland mobile
telecommunication service of collective interest which allows communication
among mobile stations, and between mobile stations and other stations, taking
into consideration the provisions of the regulation.
PROVISION 1.3 - THE AUTHORIZED PARTY has the right to operate the industrial
facilities required for the performance of the services, taking into
consideration the provisions of the regulation, as well as provisions 154 and
155 of LGT.
PROVISION 1.4 - The term of this authorization for PCS operation is open-ended.
PROVISION 1.5 - The service must be operated by the AUTHORIZED PARTY using the
sub-range of radio frequencies provided in the SUPERSEDED AGREEMENT, indicated
below:
Transmission of the Mobile Station: 824,0 a 835,0 MHz / 845,0 a 846,5 MHz
Transmission of the Radiobase Station: 869,0 a 880,0 MHz / 890,0 a 891,5
MHz
PROVISION 1.6 - The right to use the radio frequencies mentioned in the previous
provision will expire on April 29th 2008, corresponding to the outstanding term,
extendable, only once, for 15 (fifteen) years, this extension to be subject to
payment.
SECTION 1 - The use of the radio frequency will take place on a primary basis
and is restricted to the respective Area of Operation.
SECTION 2 - The right to use the radio frequency is conditioned to its efficient
use.
SECTION 3 - ANATEL may authorize sharing of the radio frequency, as long as this
sharing does not imply in prejudicial interference nor impose limitation to the
offering of PCS.
PROVISION 1.7 - THE AUTHORIZED PARTY, to extend its right to use the radio
frequencies hereunder, shall pay, every two years, during the extension period,
fees corresponding to 2% (two percent) of its revenue in the year previous to
the payment, from PCS, free of the applicable taxes and social contributions.
SECTION 1 The calculation of the amount mentioned in the first part of this
Provision will take into account the net income resulting from the offering of
the Service Plans, Basic and Alternative, subject matter of this Authorization.
SECTION 2 The percentage calculated in this Provision will always be related to
the income, free of the applicable taxes and social contributions, calculated
between January and December of the previous year and drawn from the financial
statements prepared according to accepted rules of accounting approved by the
AUTHORIZED PARTY's management and audited by independent auditors, and the
payment is due on April 30th of the year following that for which the fees were
calculated.
SECTION 3 The first installment of the fee is due on April 30th, 2010, the
calculation being based on the net income calculated from January 1st to
December 31st of 2009, and the following installments are due every twenty four
months, their total based on the calculation of the revenue of the previous
year.
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SECTION 4 Any delay in the payment of the fees provided hereunder will lead to
the charging of a late fine of 0.33% (zero point thirty three percent) per day,
up to a limit of 10% (ten percent), plus the SELIC reference rate for Federal
bonds, applied to the amount of debt considering all days in arrears.
PROVISION 1.8 - The request for the extension of the right to use
radiofrequencies must be submitted to ANATEL at least thirty months prior to the
expiration date of the original term.
SOLE PARAGRAPH. Said request will only be denied if the party in question is not
using the radiofrequencies in a rational and correct manner, if it has incurred
in repeated breaches in its activities or if it is necessary to change the type
of use of the radiofrequency.
PROVISION 1.9 - ANATEL is authorized to initiate a new process of granting
authorization for the operation of PCS if the request for extension is not
submitted within at the most twenty four months prior to the expiration of the
original term.
SECTION II
VALUE OF REPLACEMENT
PROVISION 2.1 - The value of the replacement of the SUPERSEDED AGREEMENT by this
LETTER OF AUTHORIZATION is R$ 9,000.00 (nine thousand reais).
SOLE PARAGRAPH. The non-payment of the outstanding portions, related to
previously assumed obligations incurred by the Concession or Authorization of
the Mobile Cellular Service (SMC) will imply in the forfeit of this
Authorization, in addition to the application of other stipulated penalties.
SECTION III
MANNER, FORM AND CONDITIONS FOR PROVIDING THE SERVICES
PROVISION 3.1 - The AUTHORIZED PARTY undertakes to provide the services
hereunder in a manner allowing the total fulfillment of the obligations inherent
to the services provided on a private basis, in compliance with the criteria,
formulas and parameters defined herein.
SOLE PARAGRAPH. The failure to fulfill the obligations related to the subject
matter hereof will subject the AUTHORIZED PARTY to the sanctions provided
herein, allowing a temporary suspension by XXXXXX and, as the case may be, a
declaration of forfeiture of this Authorization, pursuant to art. 137 of the
LGT.
PROVISION 3.2 - AUTHORIZED PARTY will operate the services hereunder at its own
account and risk, within the system of broad and fair competition established by
LGT, and will be remunerated for the prices charged, as provided herein.
SECTION 1 AUTHORIZED PARTY shall have no right to any type of exclusivity, or
any form of assurance of economic/financial balance, nor can it claim any rights
as to the admission of new providers of the same service.
SECTION 2 AUTHORIZED PARTY shall have no vested right in the permanence of the
conditions which go into effect on the date of issue hereof or the startup of
activities, and should comply with any new conditions imposed by current laws or
regulations.
SECTION 3 The rules shall provide sufficient time to adapt to any new
conditions.
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PROVISION 3.3 - AUTHORIZED PARTY shall maintain free access to public emergency
services, as established in the regulation.
PROVISION 3.4 - AUTHORIZED PARTY shall assure its users of the free exercise of
their right to choose an STFC carrier for the forwarding of long distance calls,
in accordance with the regulation of the PCS, more specifically, the ADJUSTMENT
RULES.
PROVISION 3.5 - Any changes in the shareholding composition of the Authorization
Party are subject to control by ANATEL to verify the continued existence of the
conditions required for the issuance and maintenance of the Authorization,
according to the regulations.
SOLE PARAGRAPH. The mandatory pre-conditions for the issuance and maintenance of
the Authorization, among others, include those provided in the General
Authorization Plan for PCS, art. 10, Section 2 of PGO and art. 133 of LGT.
PROVISION 3.6 - The transfer f the Authorization will be subject to approval by
XXXXXX, in accordance with the requirements of Section 2 of Art. 136 of LGT.
SOLE PARAGRAPH. For the purposes of item I of art. 98 of LGT, the time of
operation of the Mobile Cellular Service during the effective period of the
Superseded Agreement will be taken into account.
PROVISION 3.7 - AUTHORIZED PARTY shall be free to establish the prices to be
charged in the provision of the PCS, defining Service Plans with structures,
forms, criteria and values which must be reasonable and not discriminatory,
subject to variation according to technical characteristics, specific costs and
facilities offered to the users, as defined in the PCS registration, more
specifically the Rule for Adjustment.
SECTION IV
COMMITMENTS REGARDING SCOPE OF SERVICES
PROVISION 4.1 The same commitments regarding scope of services provided in the
Superseded Agreement shall remain in effect, including obligations related to
customer services and coverage.
PROVISION 4.2 - Should AUTHORIZED PARTY fail to meet its commitments hereunder,
it will be subject to the sanctions provided herein and in the regulation, as
well as to potential forfeiture hereof.
SECTION V
QUALITY OF SERVICES
PROVISION 5.1 - A premise of this Authorization is the satisfactory quality of
the services provided by the AUTHORIZED PARTY, understood as services which meet
the conditions of regularity, efficiency, security, up-to-datedness, generality
and courtesy.
SECTION 1 - Regularity is understood as the continued operation of the service
in strict compliance with the provisions of the rules established by ANATEL.
SECTION 2 - Efficiency is understood as the continued compliance with the
parameters outlined herein and customer services provided within the timeframes
established herein.
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SECTION 3 - Security in the operation of the services is understood as the
maintenance of the confidentiality of the data relative to the use of the
services by the customers, as well as the total protection of the
confidentiality of the information transmitted under its responsibility.
SECTION 4 - Up-to-datedness is understood as the modernity of the equipment, the
facilities and the techniques for service operation, with the application of
technological advances which assuredly bring benefits to the users, in
compliance with the provisions hereof.
SECTION 5 - Generality is understood as the provision of non-discriminatory
services to any and all users, and AUTHORIZED PARTY agrees to provide the
services to anyone who requests them, in accordance with the regulations.
SECTION 6 - Courtesy is understood as the prompt and respectful response to all
users of the authorized service, as well as compliance with the obligations to
inform and respond, promptly and politely, to anyone, whether user or not, who
requests AUTHORIZED PARTY for any information, solutions or any other type of
communication, pursuant to the provisions hereof.
PROVISION 5.2 - AUTHORIZED PARTY must meet the quality standards established in
the General Quality Goal Plan (PGMQ) for PCS.
SOLE PARAGRAPH. For the purposes of the provisions of Section 5 of art. 1 of
PGMQ - PCS, the effective date of the startup of commercial PCS operation in a
locality where Mobile Cellular Services were already being provided is the date
of publication of the summary of this Agreement.
PROVISION 5.3 - The operation of the authorized service may only be suspended in
accordance with the regulations of the PCS, issued by ANATEL.
SECTION VI
NUMBERING PLAN
PROVISION 6.1 - AUTHORIZED PARTY agrees to obey the numbering regulations issued
by XXXXXX, and to assure the service users of the portability of the access
codes, pursuant to the regulations.
SECTION VII
CHARGING USERS
PROVISION 7.1 - The amount, the form of measuring, and the criteria for charging
for the services provided will be established by the AUTHORIZED PARTY based on
the PCS regulations, while observing the provisions of clause 3.7 hereof.
SECTION VIII
USER RIGHTS AND OBLIGATIONS
PROVISION 8.1 - The rights and obligations of users are those established in the
LGT and in the regulations, without prejudice to the rights provided in Law n
Degrees 8.078, dated 11 September 1990 in the applicable cases, nor the rights
contained in the PCS service agreements.
SECTION IX
AUTHORIZED PARTY'S RIGHTS AND OBLIGATIONS
PROVISION 9.1 - The AUTHORIZED PARTY's rights and obligations are those
established in the LGT and in the applicable regulations.
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PROVISION 9.2 - Upon signing the service Agreement and purchasing the equipment
and materials related to the services hereunder, AUTHORIZED PARTY undertakes to
consider offers by independent suppliers, including Brazilian ones, and base its
decisions, with regard to the various offers submitted, on the fulfillment of
the objective criteria of price, delivery terms and technical specifications
established in the pertinent regulation.
SOLE PARAGRAPH. In the aforementioned service agreements, the procedures to be
applied are those outlined by the regulation on contracting services and
purchasing equipment or materials by telecommunications service providers, as
approved by Resolution no. Degrees 155 of ANATEL, on August 5th, 1999.
SECTION X
ANATEL'S OBLIGATIONS AND PREROGATIVES
PROVISION 10.1 - In addition to the other privileges inherent to its function as
a regulatory body and the other obligations arising herefrom, ANATEL shall:
I - monitor and inspect the rendering of services, in order to ensure compliance
with the regulations;
II - regulate the operation of the authorized service;
III - apply the penalties provided in the regulation of the service and,
specifically, in this Letter of Authorization;
IV - enforce the good quality of the service, receive, investigate and resolve
complaints and claims by users, informing them, within 90 (ninety) days, of the
measures taken to remedy the breach of their rights;
V - declare the termination of the Authorization in the cases provided in the
LGT;
VI - enforce the guarantee of interconnection, settling any disputes arising
between the AUTHORIZED PARTY and the other providers;
VII - permanently monitor the relationship between the AUTHORIZED PARTY and the
other providers, settling eventual disputes;
VIII - inhibit any behavior of the AUTHORIZED PARTY contrary to the rules of
competition, observing the scope of authority XXXX (Administrative Council of
Economic Defense), the regulations and especially Provisions 10.2. and 10.3. of
this Section;
IX - perform the inspection activities of the service according to the
provisions of this Letter of Authorization; and
X - collect the charges related to FISTEL (Telecomunicacoes Inspection Fund),
applying the procedures provided in law.
PROVISION 10.2 - ANATEL may initiate an inquiry to check on non fulfillment of
obligations (XXXX), including any false statements or non-substantiation of the
conditions declared by the AUTHORIZED PARTY, related to its stated absence of
stockholding interest in other companies or other prohibited activities of
economic concentration, whenever there is any evidence of relevant influence of
the AUTHORIZED PARTY, or any of its subsidiaries, affiliates or parent
companies, over a legal entity providing PCS, in accordance with the regulations
for determination of control and transfer of control in telecommunications
service providers, as approved by Resolution no. Degrees 101 of ANATEL, dated
February 4th, 1999.
SOLE PARAGRAPH. Should it be confirmed, after the execution of the procedure
outlined above, that there is any situation which represents a false statement
or non-substantiation of the conditions declared by the AUTHORIZED PARTY, this
fact shall result in the cancellation of this Authorization, pursuant to art.
139 of LGT.
PROVISION 10.3 - ANATEL may also initiate an administrative proceeding with the
objective of determining any breach of economic policy as provided in Law n.
Degrees 8.884/94.
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SECTION XI
INSPECTION SYSTEM
PROVISION 11.1 - ANATEL will perform an inspection of the services rendered in
order to ensure compliance with the commitments established herein.
Section 1 - The inspection performed by ANATEL shall comprise the inspection and
follow-up of the activities, equipment and facilities of the AUTHORIZED PARTY,
implying in full access to all data and information of the AUTHORIZED PARTY or
third parties.
Section 2 - The information gathered during the inspection activities will be
published in the Library [Biblioteca], except for the data which, upon request
from the AUTHORIZED PARTY, are considered confidential material by XXXXXX.
Section 3 - Any information classified as confidential according to the previous
item will only be used in the proceedings related to this Letter of
Authorization, and XXXXXX and those appointed by XXXXXX will be accountable for
any disclosure, broad or restricted, of such information for other purposes.
PROVISION 11.2 - The AUTHORIZED PARTY, through its appointed representative,
will be authorized to monitor any and all inspection activity by ANATEL, but
cannot prevent or obstruct the inspection, under penalty of being subject to the
sanctions of the regulation.
SECTION XII
TELECOMMUNICATION NETWORKS AND ACCESS TO VISITING USERS
PROVISION 12.1 - The AUTHORIZED PARTY, with respect to the installation and
operation of the Telecommunication Networks intended for giving support to the
rendering of PCS services, should take into consideration the provisions in the
regulation, especially in the Telecommunication Services Regulation, amended by
Resolution n.Degrees 73, of November 25th, 1998; the General Interconnection
Regulation, approved by Resolution no Degrees 40, of July 23rd, 1998; and the
PCS regulation.
SOLE PARAGRAPH. Any change in technology standards undertaken by the AUTHORIZED
PARTY cannot result in a unilateral and arbitrary burden to the user, including
with regard to the conditions in effect for service to visiting users.
PROVISION 12.2 - The remuneration for the use of networks between the AUTHORIZED
PARTY and the rest of the telecommunication service providers will take into
consideration the provision No. 152 of LGT and the PCS regulation, especially
regarding the ADJUSTMENT RULES.
SOLE PARAGRAPH. The document provided in item 7 of the ADJUSTMENT RULES is found
as Attachment I hereto.
SECTION XIII
SANCTIONS
PROVISION 13.1 - The AUTHORIZED PARTY is subject to inspection by XXXXXX, taking
into consideration the relevant legal and regulatory provisions, and should,
when requested,
7
render account according to PCS regulations, allowing free access to its
technical resources and accounting records.
PROVISION 13.2 - The non-compliance with conditions or commitments related to
the Authorization will render the AUTHORIZED PARTY subject to the sanctions of
admonition, fine, temporary suspension or forfeiture, according to the
provisions of the PCS regulations.
SECTION XIV
TERMINATION OF THE AUTHORIZATION
PROVISION 14.1 - The Authorization will be terminated through cancellation,
forfeiture, lapse, renunciation or annulment according to provisions 138 through
144 of LGT and the proceedings established in the regulation.
SOLE PARAGRAPH. The declaration of termination will not prevent the enforcement
of the applicable remedies, according to the provisions of this Letter of
Authorization, against the breaches perpetrated by the AUTHORIZED.
SECTION XV
LEGAL SYSTEM AND APPLICABLE DOCUMENTS
PROVISION 15.1 - The Letter of Authorization is governed, without prejudice to
the further rules of the Brazilian Legal System, by the LGT, and its
consequential regulations.
PROVISION 15.2 - The operation of the services authorized hereunder must comply
with ANATEL regulations, considered an integral part hereof, especially the
documents listed in the PCS Regulation.
PROVISION 15.3 - The interpretation of the rules and provisions of this Letter
of Authorization must take into consideration, besides the documents referred to
in this Provision, the general rules of interpretation and the rules and
principles of the LGT.
SECTION XVI
TRANSITORY PROVISIONS
PROVISION 16.1 - Until the confirmation or the agreement of the VU-M, according
to the choice of the PCS provider, both the amounts for the remuneration of the
network as well as the criteria for processing and transfer of amounts among the
Mobile Cellular Service and Commuted Fixed Telephony Service operators shall
remain in effect.
SECTION XVII
JURISDICTION
PROVISION 17.1 - Any disputes arising from this Letter of Authorization will be
judged by the Judicial Section of the Federal Justice District in Brasilia,
Distrito Federal.
SECTION XVIII
FINAL PROVISIONS
PROVISION 18.1 - This Letter of Authorization goes into effect when its summary
is published in the Executive Federal Gazette.
PROVISION 18.2 - Except for the provisions expressly contained herein, all other
provisions of the SUPERSEDED AGREEMENT, mentioned in Section 2 of Provision 1.1,
become null and void.
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In witness whereof, the parties hereto sign this Agreement in three
counterparts, in the presence of the undersigned witnesses, in order to produce
the desired legal effect.
Brasilia, February _________ 2004.
BY ANATEL:
________________________________________
XXXXX XXXXX XXXXXX XX XXXXXX
CHAIRMAN OF THE BOARD OF DIRECTORS
________________________________________
XXXXXXX XXXXXX XXXXXXX XX XXXXX
MEMBER OF THE BOARD
ON BEHALF OF THE AUTHORIZED PARTY:
________________________________________
XXXX XXX XXXX
PRESIDENT
________________________________________
XXXXXXX XXXX
DIRECTOR SUPERINTENDENT
Witnesses:
________________________________________
XXXXXX XXXX XXXXXXX
4.346/D CREA-DF
________________________________________
XXXXXX XXXXXX XXXXXXXXXX
ID 435025 SSP/DF
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ATTACHMENT I
STATEMENT OF OPTION
According to provision 7 of the ADJUSTMENT RULES, TELEMIG CELULAR S.A., CNPJ N.
Degrees 02.320.739/001-06, represented herein by its director superintendent,
XXXXXXX XXXX, Brazilian, married, business administrator, bearer of ID n.
Degrees 12.147.806 SSP/DF and federal taxpayer identification number
000.000.000-00, with offices at Xxx Xxxxxxx Xxxxx, 000 - 0xx xxxxx - Xxxxxxx
00000-000 - Xxxx Horizonte, opts to comply with item 5 and its sub-items of the
Standard on Remuneration for the use of the Network of Personal Communication
System - PCS operators, approved by Resolution n Degrees 319, of September 27th,
2002, requesting the confirmation of the TU-M of which the maximum amount should
be the maximum amount of the initial VU-M in its Area of Operation.
Brasilia, February _______ 2004.
___________________
XXXXXXX XXXX
SUPERINTENDENT
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ATTACHMENT I
STATEMENT OF OPTION
According to provision 7 of the ADJUSTMENT RULES, TELEMIG CELULAR S.A., CNPJ
N.Degrees 02.320.739/001-06, represented herein by its director superintendent,
XXXXXXX XXXX, Brazilian, married, business administrator, bearer of ID n.
Degrees 12.147.806 SSP/DF and federal taxpayer identification number
000.000.000-00, with offices at Xxx Xxxxxxx Xxxxx, 000 - 0xx xxxxx - Xxxxxxx
00000-000 - Xxxx Xxxxxxxxx, opts to adopt VU-M with other telecommunications
services provider(s).
Brasilia, February _______ 2004.
________________________________________
XXXXXXX XXXX
SUPERINTENDENT
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