5G: Opportunities and Legal Challenges - Part 3. The deployment of SAWAPs access points for 5G networks in light of the European Electronic Communications Code

Part 3. The deployment of SAWAPs access points for 5G networks in light of the European Electronic Communications Code

This article is the third of a series of publications, which focuses on specific 5G topics.

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In our previous publications we presented an overview of the 5G opportunities for the society and its deployment in Luxembourg describing how the frequency bands of 700MHz and 3.6GHz were allocated to 4 telecom operators. This chapter focuses on how the European Electronic Communications Code and the Luxembourg implementation measures govern the installation of small-area wireless access points (“SAWAPs”).

The current situation of the EECC

Draft Law No. 7632 (the “Draft Law”) aiming at implementing Directive (EU) 2018/1972 of 11 December 2018 establishing the European Electronic Communications Code (the “EECC Directive”) into Luxembourg law is currently still being discussed before the Chamber of Deputies (although the EECC Directive should have been transposed already). In its opinion dated 25 January 2021, the Syndicat des Villes et des Communes luxembourgeoises (“Syvicol”) notes in particular that the exemption of an authorisation to deploy SAWAPs jeopardises the competences of the municipalities. The Syvicol also opposes the telecom operators' right to access public buildings and street furniture without prior authorisation.

What is the objective?

The Draft Law reflects a strong (European) political intention to facilitate the deployment of very high-capacity networks by reducing administrative obstacles and costs. It also intends to provide for more legal certainty and create incentives for co-investments in these networks. The Draft Law is thus in line with the Digital Single Market Strategy for Europe published by the European Commission back in 2015¹ .

What are SAWAPs?

More particularly, the Draft Law includes measures facilitating the installation of SAWAPs in public spaces. SAWAPs are radio transceiver equipment of small size, equipped with a low visual impact antenna. SAWAPs may be used for a dense cellular network such as 5G or for a non-cellular technology such as Wi-Fi, both operating within a small range (e.g. 100m). The equipment is supposed to use the 26GHz frequency band and thus be installed relatively close to people to provide good connectivity, e.g. on street furniture. Because they operate in a small range, SAWAPs also need dense deployment in cities.

Further to the results of the public consultation on the band of 26GHz² , the Minister for Communications and Media decided on 1 March 2021 not to grant a right of use on that band at this stage as the public consultation showed that there is no immediate need for using it.

How SAWAPs deployment is facilitated?

The facilitating measures provided by the Draft Law notably grant rights to the authorised telecom operators, including:

• a right of way over the public domains of the state and municipalities to allow access to and installation of infrastructures and equipment; and
• a right to access all public infrastructures and street furniture such as light poles, street signs, traffic lights, billboards, bus and tramway stops and metro stations, which are technically adapted to host SAWAPs.

Public authorities are expressly prohibited to unduly limit the deployment of SAWAPs, which cannot be subject to any prior individual authorisation (e.g. a building permit) to the extent that it complies with technical and physical characteristics provided by the European Commission in the Implementing Regulation (EU) 2020/1070³

What is the origin of these characteristics?

The requirements included in the Implementing Regulation result from a study prepared for the European Commission on a Light Deployment Regime for SAWAPs dated 3 December 2019. The study analyses the impact of the deployment of SAWAPs in urbanistic zones taking into account considerations such as the environment, public health, potential public resistance, aesthetics, etc., including comparison with developments in other countries. The objective was to determine the criteria SAWAPs should comply with to be deployed without any prior authorisation.

What are the main requirements for compliance?

The requirements laid down in the Commission Implementing Regulation include a power limit of 10 Watts, the necessity to comply with specific standards⁴  e.g. a height of at least 2.2m (or 4m in interiors) and compliance with the limits set in the Council Recommendation 1999/519/EC⁵ . In addition, SAWAPs must either be safely integrated in their support and invisible to the general public or, if visible, they must:

• have a total volume of a maximum of 30 litres;
• have a weight and shape that do not require reinforcement of the support; and
• have a low visual impact (visual consistency, proportionate size, coherent shape, neutral colour, etc.).

SAWAPs that do not comply with the requirements above (e.g. SAWAPS with a power of more than 10 Watts) are not exempt from obtaining a building permit. In addition, SAWAPs of a total maximum power of 50 Watts or more require a prior operating permit as per the Law of 10 June 1999 on classified establishments (after a so-called commodo/incommodo public enquiry).

This may also interest you:

• 5G: Opportunities and Legal Challenges
• 5G: Opportunities and Legal Challenges - Part 2. Deployment of 5G in Luxembourg
• Focus on European Commission’s proposal for a Digital Services Act