Lei nº 5/2004 on electronic communications, which transposed the EU directives into Portuguese law earlier this year, contains very unusual stipulations on rights-of-way fees (designated as taxes).

The law entitles municipalities to receive a financial compension, which is capped at maximum 0,25% of the value of the invoices that are sent by operators of public electronic communications networks and services provided at a fixed location, to their customers in a given municipality.

Article 106.3 stipulates that operators and service providers must explicitly include, on the invoices they send to their customers, the amount of the tax to be paid.

Network operators and service providers have been struggling in the past months to understand and deal with the implications of this approach, and complaints have been heard about impracticability relating to billing systems, issues with services where it is not necessarily the service provider who sends the invoice (e.g. for premium-rate telephone services, no-subscription ISPs, etc.), or where there is shared responsibility for billing the customer (e.g. for dial-up Internet access, shared access to the local loop, etc.).

The law also requires ANACOM to publish a regulation defining the modalities of this scheme.

On 10 May 2004, ANACOM published a draft of a short (it consists of just 7 articles) "Regulamento dos Procedimentos de Cobrança e Entrega aos Municípios da TMDP (Taxa Municipal de Direitos de Passagem)".

The deadline for responding to the consultation is 22 June 2004.

The draft regulation (in Portuguese) can be accessed by clicking here.