By Jose´ Vida Fernandez, Gallego, Martos & Quadra-Salcedo, Spain; E-mail: firstname.lastname@example.org
High among the priorities set by the European Unionfor this decade is the extension of ultra-fast communications networks, and to this end significant support has been given both to public and, above all, to private initiatives in this area, resulting in a dramatic increase in the economic activity being generated in this sector.
The origin of this priority can be found in the Europe 2020 strategy, which aims to bring about a transformation in the EU through smart, sustainable and innovative growth. The first of these (smart growth) initiatives involves the development of a knowledge- and innovation-based economy through more effective investments in education, research and innovation and with decisive support for the information society. One of the seven flagship initiatives to promote the advances necessary for this smart growth is the Digital Agenda for Europe (‘‘Digital Agenda’’), which aims to speed up the deployment of high-speed internet and reap the benefits of a digital single market for households and businesses.
The Digital Agenda has established some specific objectives for the year 2020 (which are included in Spain’s Digital Agenda for 2013): specifically, that all Europeans should be able to access broadband connections at aspeed of at least 30 Mbps, and that at least 50 percent of European households should be subscribers to broadband connections above 100 Mbps. To achieve this objective, according to European Commission estimates, an amount between 180 and 270 billion euros ($203 and $305 billion) needs to be invested by that date. It is estimated that 23 million euros ($26 million) in private sector investments will be needed in Spain.
As can be seen, the European Commission is firmly determined to improve telecommunications networks throughout the EU, for which the deployment of new networks is required, as well as the updating of existing ones and the use of new sites for their installation.
Law on General Telecommunications — LGTel
At the national level in Spain these requirements have led to the introduction of a new framework that especially favors the deployment of telecommunications networks in Law 9/2014, of May 9, on General Telecommunications (Ley 9/2014, de 9 de mayo, General de Telecomunicaciones— ‘‘LGTel’’).
The main changes that the LGTel introduces to the development of telecommunications networks can be structured into four main areas.
Firstly, it establishes a general framework so that regulatory intervention by public administrations at regional and local levels do not preclude the deployment of telecommunications networks. Indeed, numerous regional Autonomous Community governments and, especially, municipal governments have enacted laws or planning instruments related to land use, the environment and urban planning that placed extraordinary demands upon operators, thereby hindering the deployment of their networks. Article 34 of the LGTel brings together the case law of both the Constitutional Court and the Supreme Court on competition in telecommunications with others that may have affected the deployment of networks and thus stipulates that any land use and urban planning instruments and regulations which may affect networks must promote and facilitate their deployment, and may not establish restrictions that are absolute or disproportionate to the right of occupation or that impose specific technological solutions, routes or locations. LGTel also stipulates that these regulations and instruments which could affect the deployment of networks must respect the essential technical parameters and requirements necessary to guarantee their operability, which will be approved by Royal Decree, and which will constitute an objective framework that will prevent technical disputes between operators and regional or local governments which for environmental, health, urban planning or other reasons were restricting the installation of new networks.
Secondly, it establishes specific measures to ensure that telecommunications networks receive priority treatment in land use and urban planning by being classified as basic equipment, structural determinations and works in the public interest (Article 34.2 of the LGTel) and by requiring that technical urban planning projects include the installation of civil works infrastructure to facilitate the deployment of such networks (Article 36 of the LGTel). Added to this are other measures aimed at simplifying access for operators by removing permit requirements in certain cases where it will be possible to proceed with the installation of networks by making a simple declaration of responsibility to the relevant municipal council (Article 34.6 of the LGTel).
Thirdly, it establishes measures that aim to prevent regional governments, municipal councils and other local agencies from blocking the installation of new telecommunications networks. Specifically, to ensure that any land use or urban planning projects approved by regional or local administrations respect the requirements of the telecommunications laws, it imposes the obligation upon them to obtain a mandatory, binding report from the Ministry of Industry, Energy and Tourism, which will be required to rule on compliance with these laws (Article 35.2 of the LGtel). Moreover, the ministry is required to issue a report of the same nature in cases where public administrations plan to adopt precautionary measures that would prevent or suspend the installa-tion of network infrastructure, or resolutions that would prohibit it (Article 35.5 of the LGTel).
Fourth, it recognizes the operators’ right of access to existing infrastructures that could be used for the installation of electronic communications networks. This is a change introduced by Directive 2014/61/EU of the European Parliament and of the Council, of May 15, 2014, on measures to reduce the cost of deploying high-speed electronic communications networks, which allows access to all types of infrastructures (roadways, railways, ports, airports, water supply, sanitation, and gas and electric transmission and distribution lines) provided that such access does not affect the provision of the service for which those infrastructures were created. In this way, new possibilities are being opened up for the deployment of telecommunications networks without huge investments or delays, since such deployment would involve adapting existing infrastructures.
All the measures analyzed so far aim to promote the deployment of telecommunications networks by private operators. However, the achievement of the objectives set forth in the Digital Agenda for Europe also requires positive action by public authorities, which need to make significant investments. In our country, there is a plan to improve a National Ultra-Fast Network Strategy (18th Additional Provision, LGTel), which will be implemented in various measures including public grants and tax incentives aimed at promoting the expansion of next-generation networks in general and, in particular, in certain regions which might otherwise fall outside their scope. Among other initiatives, in 2015 a nextgeneration broadband expansion program was launched, with a budget of 63 million euros ($71 million) (Resolution of April 6, 2015).
As can be seen, the opportunities for the installation of telecommunications networks and infrastructures are growing rapidly in this new environment, which, as noted in the Explanatory Statement of the LGTel, aims to establish a clear and stable regulatory framework that will promote investment, provide legal security andeliminate the barriers that have hindered the deploymentof networks, while increasing market competition. It is important to remember that this activity is being undertaken not only by the traditional major operators which themselves provide telecommunications services, but also by companies engaged in the civil works projects necessary to build telecommunications infrastructures, as well as companies that add to this activity the installation of other types of communications networks (mainly fiber optics and mobile phone stations).