Providing an overview of the general aspects of the framework for the roll-out and use of wireless network equipment, including access to radio local area networks, and the roll-out and operation of small-area wireless access points (addressed in Articles 25 and 50 of the New Electronic Communications Act, transposing Articles 56 and 57 EECC).

How does the New Electronic Communications Act define small-area wireless access points?

Considering that this is a reality subject to a specific new framework, the New Electronic Communications Act defines small-area wireless access point as “the low-power wireless network access equipment of a small size operating within a small range, using licensed radio spectrum or licence-exempt radio spectrum or a combination thereof, which may be used as part of a public electronic communications network, which may be equipped with one or more low visual impact antennae, and which allows wireless access by users to electronic communications networks regardless of the underlying network topology, be it mobile or fixed” (Article 3(1)(gg)).

Can ANACOM or any other relevant authorities subject the roll-out of small-area wireless access points to licensing, authorisation, or prior notification acts?

The new Act departs from its predecessor and lays down a special framework to streamline the roll-out of small-area wireless access points. Small-area wireless access points abiding by the physical and technical characteristics set forth in the European Commission’s implementing acts cannot be subject to any licensing, authorisation, or prior notification acts (Article 25(1)).

However, this simplified regime does not apply to roll-outs in buildings or places with protected architectural, historical or natural value, or for reasons of public safety, in accordance with the applicable legislation (Article 25(2)).

It should be noted that the above special framework only covers the time of roll-out of small-area wireless access points. The general framework continues to apply to what conflicts, for example, with the use of these access points. This does not therefore impair the application of (i) the key requirements set out in Decree-Law 57/2017 of 9 June 2017, which establishes the framework for the provision to the market, commissioning and use of radio equipment; and (ii) the framework applicable to the use of radio spectrum, namely Chapter II of the New Electronic Communications Act, which regulates, among other things, the assignment of rights of use of frequencies and the obligations associated with their use (in this regard, we refer to the text on the Radio Spectrum Framework) (Article 25 (3)).

Are any administrative costs payable for the roll-out of small-area wireless access points?

Yes. The roll-out of small-area wireless access points can be subject, where applicable, to administrative costs, without prejudice to any commercial agreements in place (Article 25(4)).

How does the New Electronic Communications Act define the concept of radio local area network?

Similarly to small-area wireless access points, the New Electronic Communications Act (basically in line with the EECC) defines radio local area network as “the low-power wireless access system, operating within a small range, with a low risk of interference with other such systems deployed in close proximity by other users, using, on a non-exclusive basis, harmonised radio spectrum on the conditions applicable under the general authorisation” (Article 3(1)(nn)).

What conditions apply to access to public electronic communications networks through radio local area networks?

The New Electronic Communications Act establishes that access to public electronic communications networks can be provided over radio local area networks.

Harmonised radio spectrum can be used for this purpose, subject only to the conditions applicable under the general authorisation (in this respect, we refer to the texts on General Authorisation and Operator Rights and Obligations and Radio Spectrum) (Articles 36(1) and 27).

Is it possible to provide access to public electronic communications networks via radio local area networks located at an end user's facilities?

Yes. In a new development, and in line with what is already happening in other markets, the New Electronic Communications Act allows operators to provide access to their networks through radio local area networks located at an end user's facilities. To do so, the operator will have to (i) collect the end user's duly informed consent to the provision of such access; and (ii) comply with the applicable conditions in accordance with their general authorisation (Article 50(3)).

What guarantees and rights do end users have regarding access to radio local area networks?

In line with Article 3(1) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015, which establishes measures regarding access to the open internet, the New Electronic Communications Act imposes on ANACOM the obligation to ensure that operators do not unilaterally restrict or prevent end users from (i) accessing any radio local area networks of their choice, provided by third parties; and (ii) allowing access, reciprocally or otherwise, to public electronic communications networks by other end users, through radio local area networks, including on the basis of third party initiatives which aggregate and make publicly accessible the radio local area networks of different end users.

End users additionally have the right to allow, reciprocally or otherwise, access to their radio local area networks by other end users, including through third-party initiatives which aggregate and make publicly accessible the radio local area networks of different end users (Article 50(5)).

How is the responsibility of the person granting access to the information conveyed over the radio local area network limited?

The New Electronic Communications Act applies the framework of the transmission service provider (intermediary) to the scenario where an entity grants access to the public network through a radio local area network (Article 14 of Decree-Law 7/2004, of 7 January 2004). To put it simply, anyone granting access to their network, who acts as a mere conveyor of information, is exempt from any liability for the information conveyed, provided that they are neither the source of it nor have any involvement with its content or recipients.

Can ANACOM, or other relevant authorities, restrict the offer of radio local area networks to the public?

The New Electronic Communications Act specifically protects the provision of radio local area networks to the public by certain categories of entities. This provision cannot be unduly restricted when it is made (Article 50(7)):

a)    By public bodies or in public spaces close to facilities occupied by public bodies, where such provision is ancillary to the public services provided in those facilities; or

b)    At the initiative of non-governmental organisations or public bodies to aggregate and make reciprocally or generally accessible the radio local area networks of different end users, including, where applicable, those to which public access is offered in accordance with subparagraph (a).

This framework leaves several points open, namely (i) what is to be understood as an “undue restriction” and therefore prohibited by law; (ii) the terms under which (“due”) restriction may occur; (iii) which public services are relevant for the purposes of subparagraph (a) above; or (iv) under what terms may offers to the public of radio local area networks by entities that do not fulfil any of the above-mentioned subparagraphs be restricted.

Key takeaways

Aware of the relevance of the roll-out and broadcast of small-area wireless access points and radio local area networks for the development of communications, the legislator has established special rules applicable to these realities.

On this basis, the New Electronic Communications Act provides for a licensing exemption for the roll-out of small-area wireless access points, except in the case of buildings or sites with protected architectural, historical or natural value, or for reasons of public safety.

On the other hand, the possibility of radio local area networks allowing access to public electronic communications networks is expressly established, subject to the conditions applicable to the use of radio spectrum. The possibility that operators may allow public access to their networks through radio local area networks located at end user’s facilities, subject to the end user's consent, merits to be highlighted.