EXHIBIT 4.3
AUTHORIZATION AGREEMENT PVCP/SPV NUMBER 008/2003 - ANATEL
AUTHORIZATION TERM FOR PERSONAL MOBILE SERVICE CELEBRATED BETWEEN THE BRAZILIAN
TELECOMMUNICATIONS AGENCY - ANATEL - AND TELEMS CELULAR S.A.
Using the present Authorization Term on the one side THE BRAZILIAN NATIONAL
TELECOMMUNICATIONS AGENCY - ANATEL - henceforward referred to as ANATEL, which
is an entity of the federal government in compliance with Federal Law 9472 of
July 16, 1997, the "General Telecommunications Law", registered with the
Brazilian Tax Roll under number (CGC/MF) 02.030.715/0001-12 and herein
represented by the President of the Board of Directors of ANATEL Xx. XXXX
XXXXXXXXX XXXXXXXX XX XXXXXXXX, in conjunction with member of the Board of
Directors XXXX XXXXX XXXXXXX FILHO, and on the other side TELEMS CELULAR S.A.,
registered with the Brazilian Tax Roll under number (CGC/MF) 02.260.778/0001-65,
herein represented by its acting Managing Director XX. XXXXXX XXXXXXX XXXXXXX
DOS XXXXXX, a Brazilian engineer, widowed, General Registry number 131.306
SSP/DF and by its Director of Administration and Human Resources Xx. XXXXXXX
XXXX XXXXXXX, a Brazilian engineer, married, General Registry number 290.486
SSP/DF, henceforward referred to as AUTHORIZED, celebrate the present
Authorization Term registered with ANATEL under number 53500.000263/2003 and
agree to abide by the following provisions:
CHAPTER I
OBJECT, AREA, AND PERIOD OF THE AUTHORIZATION
CLAUSE 1.1 - The present Agreement is the issuance of the Authorization to
exploit the Personal Mobile Service - PMS - provided under a private business
system in the geographical area constituted by the State of Mato Xxxxxx do Sul ,
except for the area covered by CBTC Celular S.A., in Region II of the PGA-SMP.
PARAGRAPH ONE. The Object of this Authorization comprises the Personal Mobile
Services provided under a private business regime, in conformity with Anatel
regulatory requirements and particularly compliant with the provisions of the
PMS Regulation and of the General Authorization Plan for the PMS.
PARAGRAPH TWO. The authorization herein is issued based on article 214,
subsection V of the General Telecommunications Law and on the Rule for the
Adaptation of the Authorization and Concession Instruments from Cellular Mobile
Service - CMS to Personal Mobile Service - PMS (Xxxxx de Adaptacao dos
Instrumentos de Concessao e de Autorizacao do Servico Movel Celular - SMC para o
Servico Movel Pessoal - SMP), approved by Anatel Resolution number 318, of
September 27, 2002 and amended by Anatel Resolution number 326, of November 28,
2002, henceforward referred to as ADAPTATION RULE, replacing CONCESSION CONTRACT
No. 005/97-DOTC-SFO-MC, of November 4, 1997, published in Diario Oficial da
Uniao (Brazilian Federal Official Gazette) on November 5 1997, henceforward
referred to as REPLACED INSTRUMENT.
CLAUSE 1.2 - Personal Mobile Service is the terrestrial mobile
telecommunications service of collective interest which allows communication
among mobile stations and from mobile stations to other stations, observing the
terms of the regulations.
CLAUSE 1.3 - The AUTHORIZEE has the right to exploit the means related to the
rendering of the services, observing the terms of the regulations as well as of
articles 154 and 155 of the General Telecommunications Law.
CLAUSE 1.4 - This authorization is in effect for an indeterminate period of
time.
CLAUSE 1.5 - The service shall be exploited with the use, by the AUTHORIZEE, of
the subrange of radiofrequencies set forth in the REPLACED INSTRUMENT,
designated below:
Mobile Station Transmission: 824.0 to 835.0 MHz / 845.0 to 846.5 MHz
Radiobase Station Transmission: 869.0 to 880.0 MHz / 890.0 to 891.5 MHz
CLAUSE 1.6 - The right to use the radiofrequencies mentioned in the previous
clause will be in effect until September 28, 2009, which corresponds to the
remaining period. This period can be extended only one single time for 15
(fifteen) years, and such extension implies payment by the AUTHORIZEE.
PARAGRAPH ONE. The radiofrequency will be used on a primary basis and such use
will be restricted to the respective Service Area.
PARAGRAPH TWO. The right to use the radiofrequency is conditional upon it's
efficient and appropriate use.
PARAGRAPH THREE. The sharing of the radiofrequency may be authorized by Anatel,
provided that such sharing does not imply harmful interference or impose
limitations to the rendering of PMS.
CLAUSE 1.7 - The AUTHORIZEE shall, for the extension of the right to use
radiofrequencies associated to this Authorization, pay a biennial fee during the
extension period, corresponding to 2% (two percent) of its PMS revenues in the
year previous to the payment, net of applicable taxes and social contributions.
PARAGRAPH ONE. When calculating the amount referred to in the head of this
Clause, the net revenue considered will be that resulting from the application
of the Service, the Basic, and the Alternative plans, object of the
authorization herein.
PARAGRAPH TWO. The percentage referred to in the head of this clause will be
calculated relative to the revenues, net of tax deductions and applicable
contributions, attained between January and December of the previous year and
obtained from the financial statements prepared according to basic accounting
principles approved by the AUTHORIZEE's Administration and audited by
independent auditors, and the payment will be due on April 30 of the year
following the calculation of the fee.
PARAGRAPH THREE. The first installment of the fee will be due on April 30, 2011
and will be computed considering the net income calculated from January 1 to
December 31, 2010. The subsequent installments will be due every 24 (twenty
four) months, and will be calculated based on the previous year's revenues.
PARAGRAPH FOUR. Any delay in paying this fee will imply in payment of a fine of
0.33% (point thirty-three percent) per day of delay, until a maximum limit of
10% (ten percent), added to the SELIC reference fee for federal bonds, which
shall be applied to the amount of the debt considering the total number of days
in which the payment was overdue.
CLAUSE 1.8 - Requirement to extend the right to use radiofrequencies should be
forwarded to Anatel within thirty months prior to the original maturity date.
SOLE PARAGRAPH. The requirement will be refused only if the interested party is
not making rational and appropriate use of the radiofrequencies, if the
interested party has committed repeated infractions in its activities, or if it
is necessary to alter the destination of the use of the radiofrequency.
CHAPTER II
VALUE OF THE REPLACEMENT
CLAUSE 2.1 - The value of the replacement of the REPLACED INSTRUMENT by the
AUTHORIZATION TERM herein is R$ 9,000.00 (nine thousand Brazilian reais).
SOLE PARAGRAPH. Failure to pay any pending installments resulting from
commitments assumed regarding the amounts owed for the Concession or
Authorization of Cellular Mobile Service - CMS, will imply in the forfeiture of
the Authorization herein, regardless of the application of other penalties
established.
CHAPTER III
MODE, FORM, AND CONDITIONS OF THE SERVICE
CLAUSE 3.1 - The AUTHORIZEE is obliged to render the services which are object
of the Authorization in such a way as to fully meet the obligations inherent to
the service rendered under a private regime, observing the criteria, formulas,
and parameters defined in this Authorization Term.
PARAGRAPH ONE. Default in meeting the obligations related to the object of this
Authorization Term will ensue the application of the sanctions set forth herein
and allow temporary suspension by Anatel. Additionally, according to the case,
the forfeiture of this Authorization will be declared, as provided by article
number 137 of the General Telecommunications Law.
CLAUSE 3.2 - The AUTHORIZEE will exploit the service object of this
Authorization at its own account and risk, under the regime of broad and fair
competition established in the General Telecommunications Law, and will be paid
by means of prices changed, as determined by this Authorization Term.
PARAGRAPH ONE. The AUTHORIZEE will not be entitled to any type of exclusivity,
or to any assumption of guarantee of financial or economic balance, neither will
it be entitled to claim any right as to the admission of new providers of the
same service.
PARAGRAPH TWO. The AUTHORIZEE will not have any vested right to the maintenance
of the conditions in force after the issuance of the present Authorization or
the start of activities, and shall abide by the new conditions provided by law
and by the applicable regulations.
PARAGRAPH THREE. The rules shall grant a sufficient amount of time for
compliance with the new conditions.
CLAUSE 3.3 - The AUTHORIZEE shall grant free access to public emergency
services, as defined in the regulations.
CLAUSE 3.4 - The Authorizee shall guarantee to its users the free exercise of
their choice of Switched Fixed Telephone Services provider for forwarding the
long-distance messages, in compliance with the provisions under the PMS
regulation, particularly under the Adaptation Rule.
CLAUSE 3.5 - Any alteration in the control of the AUTHORIZEE will be subject to
control by Anatel for purposes of verification of the obligatory conditions for
the issuance and maintenance of the Authorization, in compliance with the
regulations.
SOLE PARAGRAPH. The conditions provided under Paragraph Two of Article 10 of the
General Concession Plan (Plano Geral de Outorgas - PGO), as well as those
established by the General Authorization Plan (Plano Geral de Autorizacoes) of
the PMS, and under Article 133 in the General Telecommunications Law are
obligatory conditions for issuance and maintenance of the Authorization.
CLAUSE 3.6 - The transfer of the Authorization Term will be subject to approval
by Anatel, as provided by Paragraph Two under Article 136 of the General
Telecommunications Law.
SOLE PARAGRAPH. For purposes of subsection I under Article 98 of the General
Telecommunications Law, the operating time of the Cellular Mobile Services
during the term of the REPLACED INSTRUMENT will be considered.
CLAUSE 3.7 - The AUTHORIZEE shall freely establish the rates to be practiced for
the rendering of PMS and define the Service Plans with structures, forms,
criteria, and values that should be reasonable and non-discriminatory, but may
vary as to their technical characteristics, their specific costs, and other
facilities offered to users, as defined in PMS regulations, particularly in the
ADAPTATION RULE.
CHAPTER IV
THE SCOPE COMMITMENTS
CLAUSE 4.1 - The scope commitments established in the REPLACED INSTRUMENT shall
be maintained, including obligations regarding service and coverage.
CLAUSE 4.2 - Default in meeting the commitments will subject the AUTHORIZEE to
the sanctions set forth in this Term and in the regulations, and may result in
the extinction of the authorization.
CHAPTER V
QUALITY OF THE SERVICE
CLAUSE 5.1 - The present Authorization is subject to the assumption that the
service provided by the AUTHORIZEE is of adequate quality, considering as such
the service which fully meets the reliability, efficiency, security, currency,
generality, and courtesy conditions.
PARAGRAPH ONE. Reliability is characterized by the continual exploitation of the
service with strict adherence to the regulatory requirements provided by Anatel.
PARAGRAPH TWO. Efficiency is characterized by the fulfillment and preservation
of the parameters provided in this Authorization Term and by the rendering of
assistance and service to users within the time periods set herein.
PARAGRAPH THREE. Security in the exploitation of the service is characterized by
rigorous confidentiality of the data relative to the use of the service by
users, as well as by the strict preservation of secrecy as to the information
transmitted in the scope of its exploitation.
PARAGRAPH FOUR. Currency is characterized by the use of up-to-date equipment,
installations, and techniques used in the exploit of the service, including the
incorporation of technological advances which will definitely bring benefits to
users, in accordance with the provisions set forth herein.
PARAGRAPH FIVE. Generality is characterized by the non-discriminatory provision
of the service to each and every user, and the AUTHORIZEE is obliged to render
the service to whomever requests it, in compliance with the regulations.
PARAGRAPH SIX. Courtesy is characterized by the respectful and immediate service
provided to all users of the authorized service, as well as by the strict
observance of the obligations to promptly inform and meet the needs of all
those, users and non-users, who ask for information from the Authorizee, as well
as any action or any type of request as provided herein.
CLAUSE 5.2 - The AUTHORIZEE shall meet the quality targets established in the
General Plan for Quality Goals (Plano Xxxxx xx Xxxxx de Qualidade - PGMQ) for
the PMS.
SOLE PARAGRAPH. For purposes of the provisions under Paragraph Five of Article 1
of the PGMQ-PMS, commercial activities of the PMS in locations where Cellular
Mobile Services already exists are considered to have started at the date of
publication of the summary of this Term.
CLAUSE 5.3 - The exploitation of the authorized service can only be suspended in
conformity of the PMS regulations, issued by Anatel.
CHAPTER VI
NUMBERING PLAN
CLAUSE 6.1 - The AUTHORIZEE agrees to abide by the Numbering Regulations issued
by Anatel and shall guarantee to the user the portability of access codes, in
conformity with the regulations.
CHAPTER VII
BILLING THE USERS
CLAUSE 7.1 - The rates, as well as the form of measurement and the criteria for
billing the services rendered shall be established by the AUTHORIZEE based on
the PMS regulations, in conformity with the provisions under Clause 3.7 of the
present Authorization Term.
CHAPTER VIII
RIGHTS AND OBLIGATIONS OF THE USERS
CLAUSE 8.1 - The rights and obligations if the users are those established in
the General Telecommunications Law and in the regulations, with no harm to the
rights provided for in Law 8078 of September 11, 1990 in the cases ruled by it,
nor to the rights provided for in the PMS contracts.
CHAPTER IX
RIGHTS AND OBLIGATIONS OF THE AUTHORIZEE
CLAUSE 9.1 - The rights and obligations of the AUTHORIZEE are those provided for
in the General Telecommunications Law and in the regulations.
CLAUSE 9.2 - When obtaining services and when acquiring equipment or supplies
associated to the object of the present Authorization Term, the Authorizee
agrees to consider offers placed by independent suppliers, including the
Brazilian ones, and to base their decisions as to the different offers presented
on the observance of objective criteria regarding cost, delivery conditions, and
technical specifications provided for in the applicable regulations.
SOLE PARAGRAPH. When obtaining the above-mentioned services or supplies, the
procedures set forth in the Standard Procedures for Acquisition of Services,
Equipment and Supplies by Providers of Telecommunications Services (Regulamento
sobre Procedimentos de Contratacao de Servicos e Aquisicao de Equipamentos ou
Materiais pelas Prestadoras de Servicos de Telecomunicacoes), approved by Anatel
Resolution 155, of August 5, 1999.
CHAPTER X
OBLIGATIONS AND PREROGATIVES OF ANATEL
CLAUSE 10.1 - In addition to the other prerogatives intrinsic to its role of
regulatory body, and to the other obligations resulting from this Authorization
Term, the following shall constitute responsibilities of Anatel:
I. to follow and to inspect the exploitation of the service with the purpose
of meeting the regulations;
II. to regulate the exploitation of the authorized service;
III. to apply the penalties established in the regulations of the service,
particularly in this Authorization Term;
IV. to provide for the good quality of the service, as well as to receive, to
address, and to find solutions for complaints placed by the users, giving
them notice, in no longer than 90 (ninety) consecutive days, of the
actions taken in order to prevent any violation of its rights;
V. to pronounce the Authorization terminated in the cases set forth in the
General Telecommunications Law;
VI. to provide for guaranteed interconnection, settling any claims arising
between the Authorizee and the remaining carriers;
VII. to continuously monitor the relationship between the Authorizee and the
remaining carriers in order to settle any occasional conflict;
VIII. to repress any conduct by the Authorizee which is contrary to the
competition regime, in accordance with the provisions of the Brazilian
Administrative Council on Economic Defense (Conselho Administrativo de
Defesa Economica - XXXX), the regulations, and particularly the provisions
under Clause 10.2 and Clause 10.3 of this Chapter;
IX. to perform the inspection of the service in the form established in this
Authorization Term; and
X. to collect the fees relative to FISTEL, adopting the procedures provided
for in the applicable legislation.
CLAUSE 10.2 - Anatel may install a Procedure to Investigate Breaches of
Obligations (Procedimento para Apuracao de Descumprimento de Obrigacoes - XXXX),
so as to look into any falsehood or inconsistency of conditions declared by the
AUTHORIZEE relative to its non-participation in the control of other companies
or to any other regulatory impediment regarding economic concentration whenever
there should be any indication of relevant influence on its part or on the part
of any affiliated company, controlled company, or controlling company on the
legal entity providing PMS, as provided for in the Regulation for Investigation
of Control and of Transference of Control in Providers of Telecommunications
Services (Regulamento para Apuracao de Controle e de Transferencia de Controle
em Empresas Prestadoras de Servicos de Telecomunicacao), approved by Anatel
Resolution 101, issued February 04, 1999.
SOLE PARAGRAPH. The presentation of proof, following procedures established
under this Clause, of the existence of any situation which characterizes the
untruthfulness or the inconsistency of the conditions declared by the Authorizee
shall imply the annulment of the present Authorization, as set forth in Article
139 of the General Telecommunications Law.
CLAUSE 10.3 - Anatel may additionally set up administrative proceedings aimed to
investigate any violation of the economic order, in accordance with the
provisions under Law 8884/94.
CHAPTER XI
THE INSPECTION REGIME
CLAUSE 11.1 - Anatel shall perform the inspection of the services in order to
assure full observance of the responsibilities agreed to in this Authorization
Term.
PARAGRAPH ONE. The inspection to be performed by Anatel shall include the
inspection and monitoring of the activities, the equipment, and the
installations of the Authorizee, which implies in free access to all data and
information concerning the Authorizee and third parties.
PARAGRAPH TWO. The information collected during the activities related to the
inspection shall be made public in the Library, with the exception of the
information which, as a result of express request by the Authorizee, is regarded
as confidential by Anatel.
PARAGRAPH THREE. All information considered confidential in the form described
by in Paragraph Two above shall be used exclusively in the procedures correlated
with the present Authorization Term, and it will be the responsibility of Anatel
and of those appointed by Anatel, to account for any form of full or limited
disclosure of the referred to information outside the scope of use specified
above.
CLAUSE 11.2 - The AUTHORIZEE is granted the right to follow each and every
inspection activity performed by Anatel, through its appointed representative;
it cannot however hinder or impede inspection actions, in which case it will be
subject to the penalties provided for in the regulations.
CHAPTER XII
TELECOMMUNICATIONS NETWORKS AND ACCESS TO VISITING USERS
CLAUSE 12.1 - The Authorizee shall observe the regulatory provisions as to the
implementation and operations of the telecommunications networks supporting the
rendering of PMS, particularly the provisions in the Telecommunications Services
Regulation issued by Resolution 73 of November 25, 1998, in the General
Interconnection Regulations (Regulamento Geral de Interconexao), approved by
Resolution 40 of July 23, 1998 and in the PMS regulations.
SOLE PARAGRAPH. Changes in technology standards promoted by the AUTHORIZEE shall
not represent any burden placed unilaterally and arbitrarily on the user. This
is also valid regarding the existing conditions of the service provided to users
and visitors.
CLAUSE 12.2 - The remuneration for the use of the network between the Authorizee
and the remaining carriers of telecommunications services shall abide by the
provisions under Article 152 of the General Telecommunications Law and by the
provisions under the PMS regulations, particularly in the ADAPTATION RULE.
SOLE PARAGRAPH. The document provided for under Item 7 of the Adaptation Rule
shall henceforward constitute Annex I of the present AUTHORIZATION TERM.
CHAPTER XIII
SANCTIONS
CLAUSE 13.1 - The AUTHORIZEE is subject to inspection by Anatel, in conformity
with the applicable legal and regulatory provisions, and shall, whenever
requested, provide statements in the form established in the PMS regulations,
granting free access to its technical resources and accounting records.
CLAUSE 13.2 - Default in fulfilling conditions or meeting the responsibilities
agreed to in respect to the Authorization will subject the Authorizee to
notification, fines, temporary suspension, or forfeiture, as set forth in the
PMS regulation.
CHAPTER XIV
TERMINATION OF THE AUTHORIZATION
CLAUSE 14.1 - The Authorization shall be considered terminated as a result of
discharge, forfeiture, lapse, resignation, or annulment, as established in
Articles 138 to Article 144 of the General Telecommunications Law and according
to the procedures described in the regulation.
SOLE PARAGRAPH. The declaration of termination shall not preclude the
application of the corresponding penalties, as provided for herein, for
violations performed by the AUTHORIZEE.
CHAPTER XV
LEGAL REGIME AND APPLICABLE DOCUMENTS
CLAUSE 15.1 - The present Authorization is ruled by the General
Telecommunications Law and the resulting regulations, without prejudice to the
Brazilian legal order, the General Telecommunications Law, or the regulations
resulting from it.
CLAUSE 15.2 - The exploitation of the service herein authorized shall observe,
as part of this Authorization Term, the regulations established by Anatel
particularly the documents specified in the PMS regulations.
CLAUSE 15.4 - The interpretation of rules and provisions in this Authorization
Term shall take into consideration, in addition to the documents specified in
this Chapter, the general rules of hermeneutics and the rules and principles
contained in the General Telecommunications Law.
CHAPTER XVI
TRANSITORY PROVISIONS
CLAUSE 16.1 - Until the ratification or the agreement on the VU-M rate,
according to the option made by the PMS carrier, both the value for network
compensation and the criteria for processing and transferring values among
entities rendering Cellular Mobile services and Switched Fixed Telephone
Services shall be maintained.
CHAPTER XVII
COURT
CLAUSE 17.1 - Any disputes arising from this Authorization Term shall be settled
by the Forum of the District Court of the Federal Justice of Brasilia, Federal
District of Brazil.
CHAPTER XVIII
FINAL PROVISIONS
CLAUSE 18.1 - This Authorization Term shall be effective upon the publication of
its summary in the Diario Oficial da Uniao (Brazilian Federal Official Gazette).
CLAUSE 18.2 - Barring the provisions expressly set forth in this Authorization
Term, all other provisions in the REPLACED INSTRUMENT, referred to in Paragraph
2 of Clause 1.1, are no longer in effect. The parties are aware of the
provisions and conditions in this Authorization Term, and sign it in 3 copies,
of equal meaning and form, in the presence of the witnesses, who also sign the 3
copies, thus rendering it legally and officially effective.
Brasilia, February 03, 2003
PP. ANATEL
--------------------------------
Luiz Xxxxxxxxx Xxxxxxxx xx Xxxxxxxx
President of the Board of Directors
--------------------------------
XXXX XXXXX XXXXXXX FILHO
Member of the Board of Directors
PP. AUTHORIZEE
--------------------------------
XXXXXX XXXXXXX XXXXXXX DOS XXXXXX
Acting Chairman and President
--------------------------------
XXXXXXX XXXX XXXXXXX
Director of Administration and Human Resources
WITNESSES
--------------------------------
JARBAS XXXX XXXXXXX
CREA-DF 4346
--------------------------------
Xxxxxx Xxxxxx Takayanagi
SSP-DF 435023
ATTACHMENT I
DECLARATION OF OPTION
In conformity with the provisions under Item 7 of the Adaptation Rule, TELEMS
CELULAR S.A., registered with the Brazilian Tax Roll under number (CNPJ/MF)
02.331.492/0001-23, herein represented by its acting Chief Executive Officer XX.
XXXXXX XXXXXXX XXXXXXX DOS XXXXXX, a Brazilian engineer, widowed, General
Registry number 131.306 SSP/DF, opts for submission to Item 5 and its subitems
in the Remuneration Criteria Rule for Use of personal Mobile Service Provider
Networks (Xxxxx Criterios de Remuneracao pelo Uso de Redes de Prestadoras do
Servico Movel Pessoal - SMP), approved by Resolution 319 of September 27, 2002,
requesting the ratification of the TU-M rate, whose maximum value should be the
maximum value if the initial VU-M rate in its Area of Coverage.
Brasilia, February 03, 2003
Xxxxxx Xxxxxxx Xxxxxxx dos Xxxxxx
Acting Chief Executive Officer
