Common problems

This is a problem that usually appears with some frequency in urban instruments. It is based on the inclusion of references to specific operators and their internal regulations. It probably stems from the fact that the drafters of the instrument have not taken into account that telecommunications are a liberalised market and that no operator can be given special treatment, let alone citing its technical rules, especially if this may have repercussions on the difficulty of competing with it on the part of another operator.

Therefore, it is recommended that when drafting the urban planning instrument, instead of referring to an operator in a specific way, giving its name or mentioning its regulations, a reference is made to the operators in a general way, and if it is necessary to reference technical standards, use those legally approved or, in the absence of these, those approved by Spanish (UNE) or European standardization bodies (ETSI, CEN/CENELEC, etc. ).

In accordance with the provisions of the General Telecommunications Law (LGTEL), public administrations must ensure respect for the limits imposed on administrative intervention for the protection of the rights of operators and, in particular, the requirement of documentation that operators must provide for the processing of licences or permits must be motivated, have an objective justification, be proportionate to the intended purpose and be limited to what is strictly necessary.

Consequently, the requirement of documentation related to visual impact aspects such as the obligation to draft a specific project, as well as others that have little or nothing to do with the development of the competences entrusted to them (such as technologies used, frequencies and planned signal levels, etc. ), are disproportionate and need to be reviewed.

On the other hand, and in accordance with the provisions of the LGTEL, operators have no obligation to provide documentation or information of any nature that is already in the possession of the Administration. In case of need, such information provided previously must be requested from the depository administration of the same, and not from the operators.

It is usual to find in some urban planning instruments provisions that oblige telecommunication infrastructures (telephony stations, pipelines, etc.) from different operators are shared.

The fact that operators share their infrastructure can, on certain occasions, be very useful for the deployment of electronic communications networks to take place more efficiently and, in certain cases, to have a lower visual or environmental impact. For this reason, the promotion and promotion of voluntary sharing agreements between operators by public administrations can be very useful. However, this promotion cannot and must not be systematically transformed into an obligation, since there are occasions when specific circumstances exist that prevent or discourage such sharing from being carried out. Therefore, the sharing obligation cannot be imposed in an ill-considered manner, but must follow a specific procedure.

In accordance with the provisions of article 46 of the General Law of Telecommunications, the imposition of these obligations corresponds exclusively to the Ministry of Economic Affairs and Digital Transformation, so that urban planning instruments can only impose this type of obligations in those areas for which it has the appropriate resolution of the aforementioned ministerial department.

In the event that a competent public administration considers that for reasons of the environment, public health, public security or urban and territorial planning the imposition of the shared use of the public domain or private property is appropriate, it may request in a reasoned manner the Ministry of Economic Affairs and Digital Transformation to initiate the appropriate procedure for the imposition of such obligations.

The General Telecommunications Law (LGTEL), in its article 49, establishes that the regulations elaborated by public administrations that affect the deployment of public electronic communications networks must include the necessary provisions to promote or facilitate the deployment of electronic communications network infrastructures in their territorial scope, in particular, to guarantee free competition in the installation of networks and in the provision of electronic communications services, as well as the availability of a sufficient offer of places and physical spaces in which operators decide to locate their infrastructures.

In some cases, urban planning instruments aim to establish a series of restrictions on the deployment of infrastructure with the aim of protecting public health or reducing the impact of infrastructure on the landscape as a whole. Some of these restrictions, however, can produce the opposite effect to what is expected of them, since they can cause the exposure to the radio emissions to which people are subjected to to be greater than having not established such restrictions, or they can contribute very little to the aesthetics of the whole that is intended to protect and suppose, instead, the technical or economic unfeasibility of deployments of electronic communications networks and the consequent impossibility for users to access the essential telecommunication services they demand.

Typically, such restrictions relate to:

The ban on installing mobile phone infrastructures in the urban center of the city.

If mobile phone stations in the city centre are banned, they must be moved away from their service area, thus greatly increasing the chances of the following circumstances occurring:

• Since the station is far from the urban center, in order to maintain its coverage area it must emit with more power and, consequently, the levels of exposure to radio emissions increase in the areas surrounding the station.
• Although the station emits with greater power, being the greater distance, the urban center is covered with a weaker radio signal, which forces the mobile phones that connect to the station to emit with more power to enable the connection, so that, inevitably, the user will receive much higher levels of exposure to radio emissions than would have been received when the station was in the urban center.
• Last but not least, the telecommunications services offered from the station will have a poorer quality.

The prohibition of installing antennas on the facades of buildings.

The problem with this restriction is the use of the term “antenna”, since it is very open and generic. Prohibiting the installation of parabolic antennas on the facades of buildings may be reasonable since they have a significant impact on the urban image, and there are usually viable alternatives for their location. However, there are other types of antennas, such as small ones that are absolutely necessary to cover certain services (for example, mobile telephony, Wi-Fi, etc.). In certain urban areas and that have little impact on the image of the whole. It is therefore a question of clarifying this prohibition in the urban planning instrument, in order to avoid a decline in telecommunication services.

The imposition of certain technological solutions.

This type of imposition may violate the principle of technological neutrality that public administrations must necessarily respect in the process of drafting their regulations, especially when they are directed to markets that develop under a system of free competition.

The imposition of specific locations or itineraries.

The LGTEL reserves the right to impose specific locations or routes for the deployment of electronic communications networks to the Council of Ministers (Article 50), since this type of imposition can determinantly condition such deployments.

Consequently, with the above, the regulations or instruments of urban planning:

• They may not impose absolute or disproportionate restrictions on the operators’ right to occupy the public and private domain.
• Nor impose specific technological solutions.
• Nor impose specific routes or locations in which to install electronic communications network infrastructures.

Where a condition could imply the impossibility of carrying out the occupation of the public domain or private property, the establishment of such a condition must be fully justified and accompanied by the necessary alternatives to guarantee the right of occupation of operators and their exercise on equal terms.

The General Telecommunications Law establishes that the regulations prepared by the public administrations that affect the deployment of public electronic communications networks and territorial or urban planning instruments must include the necessary provisions for:

• promoting or facilitating the deployment of electronic communications network infrastructures at territorial level.
• ensuring free competition in the installation of networks and the provision of electronic communications services.
• Ensure the availability of a sufficient supply of physical places and spaces in which operators decide to locate their infrastructures.

Sometimes, urban planning instruments include an offer of places and spaces to locate inadequate or inadequate electronic communications infrastructures, and accompanied by restrictions on the use of other places and areas in which to carry out deployments. Such defects can constitute insurmountable difficulties in carrying out deployments and, consequently, in allowing users to access the telecommunication services they demand.

In accordance with the provisions of the General Telecommunications Law, the regulations prepared by the public administrations in the exercise of their competences that affect the deployment of public electronic communications networks and territorial or urban planning instruments must comply with the provisions of the sectoral telecommunications regulations.

In particular, they must respect the essential parameters and technical requirements necessary to guarantee the operation of the various electronic communications networks and services, and the limits on tolerable radio emission levels set by the State in Royal Decree 1066/2001, of September 28, which approved the regulation that establishes the conditions of protection of the public radio domain, restrictions on radio emissions and measures of health protection against radio emissions.

The imposition of different requirements constitutes a disproportionate restriction on the deployment of telecommunication networks.

Façade wiring or aerial deployments can constitute elements that distort the image of the urban or rural complex. That is why Law 11/2022 establishes that operators must make use of underground pipelines or inside buildings that allow the deployment and exploitation of public electronic communications networks.

However, this statement is subject to a series of exceptions that the Act also provides for. Thus, in cases where such pipelines do not exist or their use is not possible for technical reasons, operators may carry out aerial deployments following the previously existing ones.

It also establishes that, except in justified cases (specifically and with official support, such as cataloguing under a legal regime) of buildings of the historical-artistic heritage or that may affect public security, in cases where such pipelines do not exist or their use is not possible for technical reasons, such operators may carry out facade deployments of cables and equipment that constitute public electronic communications networks and their associated resources.

If such exceptions are not contemplated, there is a risk that the user will not be able to access the service, given that:

• It could be an excess cost for the operator because there is no possibility of carrying out a deployment through underground pipelines and excessive work is needed to carry out them.
• It could be technically unfeasible due to the configuration of the building that needs to be accessed and the layout of the adjoining buildings.

Likewise, it is recalled that the imposition of obligations of a retroactive nature on air or facade deployments (for example, forcing to transform these deployments into underground ones) may be unfeasible and, consequently, may not be required unless prior agreement is reached with the telecommunications operator that owns the infrastructure.

Whenever an urban planning instrument provides for a restriction on air and/or façade deployments, it must be subject to the provisions of sectoral telecommunications legislation. Of course, the exceptions relating to aerial or facade deployments are not incompatible with the promotion of techniques that minimize the impact of the deployment of such deployments.

The General Telecommunications Law (LGTEL) includes among its principles the promotion of network deployment and the provision of electronic communications services. That is why some of its provisions provide for a reduction in administrative burdens on the deployment of electronic communications networks. This reduction in administrative burdens has mainly resulted in a possible replacement of the municipal license application by the presentation of a responsible declaration, and must, in any case, satisfy the corresponding tax.

Article 49.9 of Law 11/2022, of June 28, General of Telecommunications, establishes different authorization regimes by the competent Public Administrations:

1. For the installation or operation of radio stations or infrastructures and associated resources in the private domain, it may not be required to obtain a licence or prior authorization for works, installations, operating or activity, of an environmental nature or other of a similar or analogous kind, except in buildings of the historical-artistic heritage with the category of property of cultural interest declared by the competent authorities or when they occupy an area greater than 300 square meters, the entire area included within the fence of the station or installation being computed for this purpose or, in the case of new construction facilities, have an impact on protected natural spaces.
2. For the installation or operation of fixed public electronic communications networks or radio stations or infrastructures and their associated resources in the private domain other than those referred to in the preceding paragraph, the obtaining of a licence or prior authorisation for works, installations, operations or activities, or of an environmental nature, or other licences or approvals of a similar or similar kind subject to prior authorisation for such installation may not be required, provided that the operator has voluntarily submitted to the Public Administration competent for the granting of the licence or authorisation a plan for the deployment or installation of an electronic communications network, which includes such infrastructures or stations, and provided that the said plan has been approved by the said administration.
3. For the installation and deployment of public electronic communications networks and their associated resources to be carried out in the public domain, public administrations may establish, each within the exclusive scope of their competences and for all or some of the cases, that the processing is carried out by means of a responsible declaration or prior communication.

It should also be noted that the elimination of licenses includes all environmental control procedures that oblige the interested parties to obtain an authorization (with the name given in each Autonomous Community: environmental license, classified activity license, environmental impact report, environmental assessment report, etc. ).

The licenses or prior authorizations that, according to the previous paragraphs, cannot be required, will be replaced by responsible statements, in accordance with the provisions of article 69 of Law 39/2015, of October 1, of the Common Administrative Procedure of Public Administrations, relating to compliance with the legal provisions established in the current regulations. In any case, the declarant must be in possession of the proof of payment of the corresponding tax when it is mandatory.

Whenever possible, it is recommended that when various actions related to a network infrastructure or a radio station are to be carried out, there should be the possibility of jointly processing the responsible declarations that are applicable.

With regard specifically to the licenses of works, in addition to what indicated in previous paragraphs, the provisions of Law 38/1999, of November 5, on the Planning of the Building must be taken into account. In this regard, the works of installation of network infrastructures or radio stations in buildings in the private domain will not require the obtaining of a license of works or building or other authorizations, although in any case the promoter of the same will have to present to the competent authority in the matter of buildings a responsible declaration stating that the works will be carried out according to a project or a technical report signed by competent technician, as appropriate, justifying compliance with the applicable requirements of the Technical Code of the Building. Once the works for the installation of the electronic communications network infrastructures have been carried out and completed, the promoter must submit to the competent authority a notification of the completion of the works and that they have been carried out according to the technical project or technical report.

In accordance with the provisions of article 49.10, for the installation or operation of wireless access points for small areas and their associated resources, in the terms defined by European regulations, no new concession, authorization or license or modification of the existing one or responsible declaration or prior communication to the competent public administrations will be required for reasons of regional planning or town planning, except in the cases of buildings or places of architectural, historical or natural value that are protected in accordance with national legislation or, where appropriate, for reasons of public security or national security.

Finally, in accordance with the provisions of Article 49.11, in the event that on a fixed or mobile public electronic communications network infrastructure, including radio electronic communications stations and their associated resources, whether located in the public or private domain, technological innovation or technical adaptation actions are carried out that involve the incorporation of new equipment or the carrying out of radio emissions in new frequency bands or with other technologies, without changing the location of the support elements or changing the elements of civil and mast work, no type of concession, authorization or new license or modification of the existing or responsible declaration or prior communication to the competent public administrations for reasons of environmental planning,

Urban planning instruments should include, where appropriate, correct references to sectoral telecommunications legislation. For this reason, it is recalled that the telecommunications legislation currently in force is:

General regulations

Law 11/2022, of 28 June, General of Telecommunications (BOE 29/06/20022).

Specific regulations

Royal Decree-Law 1/1998, of 27 February, on common infrastructure in buildings for access to telecommunication services (BOE 28/02/1998).

Royal Decree 346/2011, of 11 March, approving the regulation on common telecommunications infrastructures for access to telecommunications services within buildings (BOE 01/04/2011).

Order ITC/1644/2011, of 10 June, implementing the Regulation on common telecommunications infrastructures for access to telecommunications services within buildings, approved by Royal Decree 346/2011 of 11 March (BOE 16/06/2011).

Royal Decree 1066/2001, of 28 September, approving the regulation establishing the conditions for the protection of the public radio domain, restrictions on radio emissions and health protection measures against radio emissions (BOE 29/09/2001).

Order CTE/23/2002, of 11 January, laying down conditions for the submission of certain studies and certifications by telecommunications service operators (BOE 12/01/2002).

Royal Decree 123/2017, of 24 February, approving the Regulation on the use of the public radio domain (BOE 08/03/2017).

Royal Decree 330/2016, of 9 September, on measures to reduce the cost of deploying high-speed electronic communications networks (BOE 15/09/2016).

The quality of the radiocommunication services appreciated by the end users depends to a large extent on the level of coverage with which they arrive, for which it is necessary that both the emitting and receiving antennas are in the right place and have the appropriate size to fulfill their purpose.

To facilitate these objectives, public administrations cannot impose a priori, and generally, location and size limitations. To determine the location, height and other elements, the characteristics of the environment and the area of coverage in which they are located must be taken into account. For example, for television antennas they must have a mast of the appropriate height to be able to have coverage of the broadcast center, so limiting their height in a general way for all cases can result in a deterioration or impossibility of service.

Therefore, local administrations must comply with two premises in their urban planning instruments:

• The limitations of this type that you want to include, must be relative and always subject to the coverage and quality of the service you attend.
• Account must be taken of the elements of the radio communication networks that already exist, and the measures of servitude necessary to avoid areas of shadow, and therefore failures of coverage and quality of services that previously did not occur (for example, the construction of a new building of greater height than a previous one and that ends up preventing the receiving antennas of the lowest one from receiving the signal properly).

The General Telecommunications Law (LGTEL) considers that public electronic communications networks constitute basic equipment and their installation and deployment constitute works of general interest.

That is why, when drafting urban planning instruments and, in particular, urbanization projects, provision must be made for the installation of civil works infrastructure to facilitate the deployment of public electronic communications networks, which may also include passive network elements and equipment in the terms determined by the telecommunications technical regulations.

The infrastructure installed in these urbanization projects, once this project is completed, will be part of the whole resulting from the urbanization works and will be integrated into the municipal public domain, making such infrastructure available to the operators of public electronic communications networks interested in deploying their networks in the area, under conditions of equality, transparency and non-discrimination.

In addition, in the wording of the aforementioned urban planning instruments, references must be made to the telecommunications legislation in force that affects the urbanization projects. Currently, this is only the LGTEL. In the future, this particular case will be developed by regulation, and reference should be made, when the time comes, to such development. Until the moment of its publication, it is suggested to refer to the series of 5 standards UNE 133100:2021, on infrastructures for telecommunications networks, approved by the Technical Committee of Standardization 133 (Telecommunications) of the Spanish Association of Standardization (UNE), which can be obtained at the headquarters of the Association: c/ Genoa, n. º 6 – 28004 Madrid or on its website: https://www.une.org

For more information on how LGTEL affects urbanization conditions.

In urban planning instruments, it is necessary to take into account regulations that affect the applicable building conditions. Likewise, the measures that are established in relation to building in this instrument must respect a varied legislative range.

In the case of the General Telecommunications Law (LGTEL), it is important to remember that it is an essential requirement to include in the construction works the necessary infrastructures to facilitate access to telecommunication services to the inhabitants and users of such buildings. This element must be reflected in the urban planning instrument, accompanied by appropriate references to the sectoral implementing regulations on urban planning. Telecommunications infrastructure in buildings. In addition, if this is not the case, there could be a disassociation between the deployments that the operators carry out and the real needs according to the demand for services of the users.

In addition, and in line with the provisions of the LGTEL, the urban planning instrument must include the fact that no authorization can be granted for the construction or integral rehabilitation of any building included in its scope, if the corresponding architectural project is not accompanied by the one that foresees the installation of a common telecommunications infrastructure of its own. The execution of this infrastructure is guaranteed by the obligation to present the corresponding end-of-work certificate and/or bulletin of the installation, accompanied by the mandatory protocol of tests of the installation and all this sealed by the corresponding Provincial Telecommunications Inspection Headquarters, requirement without which the corresponding license of first occupation cannot be granted. Likewise, the aforementioned regulations include the provisions relating to the installation of this infrastructure in buildings already built.

For more information: Telecommunications infrastructures in buildings