WiFi can be public and free, but only under certain conditions. Spain's justice system has backed the strict restrictions placed on administrations that want to offer their residents free and open wireless internet. Private telecommunications operators say that it is not the role of administrations to provide these services, but municipalities argue that they are offering something useful to their residents. Among other restrictions, providing a competitive wireless access speed has been prohibited.
Last week, Spain's High Court ruled that the public entities offering this service should be subject to the same conditions as private operators. The sentence, from the Chamber for Contentious-Administrative Proceedings, ratifies the 300,000 euro fine imposed by the Telecommunications Market Commission (CMT) on the City of Málaga for not informing the regulatory body about its intention to provide the service over its so-called Biznaga network. The judges have also ordered the city government to register with the regulatory body's registry of operators, as stipulated by the telecommunications law for any internet service provider.
This is not a new battle. Faced with the intentions of several public administrations and entities to offer internet access to their citizens, the CMT issued, in August 2010 - seven months after fining the Andalusian capital - a memo stipulating the conditions that they must meet to provide the service. The main requirement was a considerable reduction in quality. While the big players in the sector (including Telefónica, Orange and ONO) offer basic packs with download speeds of 10 megabytes per second and up, the free, open wireless networks set up by public administrations cannot exceed 256 kilobytes per second, a technologically obsolete speed. What's more, their repeaters and routers can't be aimed at residential buildings, which would facilitate access to private users. In any case, they must notify the regulating body of any installations so that the service can be controlled.
In the case of Málaga, the initial intention was to bring WiFi technology to the entire city center, which has a population of 560,000. At that time, in 2008 (before the memo was issued), the CMT put up hurdles. To overcome them, City Hall argued that its network, called Biznaga, would provide WiFi access as "self-service" - that is, its use would be limited to the operation of city government and the work of its civil servants and workers. This regime, envisaged by the telecommunications law, exempts all those who wish to provide so called "self-service" from notifying the CMT and from registering with this entity's registry of providers.
The CMT, however, concluded that the internet access provided by Biznaga went way beyond self-service. First of all, because its coverage, which aims to be universal, does not just include cultural and educational institutions, as the regulatory body allows. Biznaga is accessible to anyone who requests it in places such as City Hall, the Picasso Foundation, the Center for Contemporary Art, the José María Martín Carpena sporting arena and the Cervantes theater, among other municipal buildings.
That's why, in February 2010, the regulatory body fined the City of Málaga 300,000 euros. The reason: for failing to notify it of its activity, under the same conditions as any other internet service provider. The CMT also ordered the city to pay the general operators tax, and sign up to the registry of internet service providers. The High Court has now ratified that sanction by finding that in effect, Biznaga did not only serve to meet the needs of the city government; that is, the duties of the civil servants who work for it.
The ruling also reproaches the City of Málaga for having a network that allows "free surfing," understood to mean "access to websites unrelated to the claimant municipal government and which therefore have nothing to do with [...] municipal services." In other words, it is not self-service because users can access any website via Biznaga, except for those with pornographic or violent content.
In 2009, faced with the proliferation of city halls looking to set up their own networks, the CMT made an inquiry about the regulation of WiFi service financed by public administrations. Essentially, the goal was to eliminate the temporary limitation on free public WiFi to avoid situations of unfair competition with private entities, while promoting the influx of new users. A year later, the regulatory body established the restrictions contained in the memo, which administrations must meet.
The CMT does, however, allow homeowner associations to provide WiFi access. By this system, a homeowner association can hook up all its residents to the same network. The person who made this possible was a man from Jaén, who designed a project that consisted of contracting a line from an operator, putting a network terminal in the meter room and laying cable to connect all of the neighbors' homes. Before doing so, he wanted to know the opinion of the regulatory body, which didn't raise any objections. As it fell into the category of "self-service" internet access with no profit motive, the CMT gave it the go ahead. But in order for such initiatives to be successful, homeowner's associations must get the operators to collaborate. And not all of them are willing to permit such multiple hook-ups. Logically, they are looking to preserve their business.
"We share the interest of the public administrations, on all levels, to promote the development of the information society. But if public administrations want to compete in a free market, using public funds to provide telecommunications services that are also being offered by private companies, in our opinion the use of that money should be subject to special controls," says Redtel, the company that groups together the leading telecom operators (Telefónica, Orange, Vodafone and Ono). The main thing, they say, is that all players in the market must "follow the same rules" - in this case, the ones stipulated in the CMT memo, but also those required to receive aid from the European Union.
Aside from the main operators, however, there are others with a totally different financial approach. Guifi.net is a wireless telecommunications network that is free, neutral and open. It connects 14,000 homes on a 20,000-kilometer network all over Spain, which its participants (citizens, companies and institutions) have been constructing since 2003. Its founder, Ramón Roca, defines it as a "self-service that provides open telecommunications networks to everyone," where some members of the network share their internet connection, including libraries and centers of over 100 city governments. According to their calculations, the network reaches 50,000 people. The most important aspect of the ruling is not, according to Roca, "whether or not Málaga provides internet service for free, or about public WiFi. The heart of the matter lies in the concept of self-service," which would exempt the city hall from registering in the CMT's operator registry, as the telecommunications law stipulates. In any case, says Roca, "Guifi.net goes way beyond self-service."
Guifi.net is registered with the CMT's operator registry. "Registration is free," says Roca. The tax on economic activities that operators must pay the CMT is a percentage of their turnover. "Since Gufi.net doesn't charge anyone anything, it doesn't pay the regulator a cent." The CMT claims that they've never prohibited administrations from providing wireless internet services, before or after the memo. In fact, they say, more than 200 city halls have already registered with them as operators.
At any rate, the matter has not always been so clear. In 2004, Sensefils BCN was shut down, even though this network had just a dozen hotspots in Barcelona and only provided free service to the city website and other government sites. The reason: the CMT found that it was not a network of "public interest" and that it also competed with private operators. Four years later, however, Avilés obtained the authorization to set up a free wireless network. They key? It pays for itself with advertising. That is, "it doesn't use public funds to finance a service that others offer under conditions of free competition," according to the CMT.
The main operators continue to keep a close watch on administrations to make sure that they're not engaged in activity that could be viewed as unfair competition. "They can do a great deal, and a lot of good; in fact, no one can if they don't," they say at Redtel. "We're talking about developing services to handle administrative procedures online, so people don't have to go anywhere or wait in line; facilitating and reducing the cost of installing telecommunication network infrastructures throughout their territory, expediting procedures, offering digital literacy programs to disadvantaged groups and public teleservice to people who need it." They agree that public institutions should support the information society... as long as it doesn't affect their business.
The Biznaga network is one of the main initiatives by which the city's mayor, Francisco de la Torre of the conservative Popular Party, aims to provide universal access to new information technologies.
The original idea was to make Málaga the first city in Europe to offer free internet access via a wireless network. But in April 2008, after consulting the Telecommunications Market Commission (CMT), De la Torre was forced to give up his dream, since this regulatory body found that a universal WiFi network violated the principle of free competition among operators.
The city government had to settle for limiting free access to the network to municipal buildings. To this end, it installed 45 wireless antennas in places such as City Hall itself, district councils, the Picasso Foundation, municipal libraries, the Martín Carpena sporting arena and the bus station.
Going against the CMT's criteria and now the criteria of the High Court, the city government argued that the network met the conditions of "self-service" - in other words, that its purpose is "to meet the needs of the municipal service." What's more, it only offers internet access in public buildings, never in streets, parks or squares, although sometimes, the signal can be picked up outside, since the antennas have a range of 30 to 100 meters.
In theory, users can only access municipal websites and the sites of its public corporations, and they must register with their national ID card in order to use the service.
Yet the High Court has detected that the access actually extends to all kinds of websites, except for those hosting pornographic or violent content. The network, which cost ¤
100,000 to set up, also prevents users from visiting downloading sites.
In January 2010, the Biznaga network had 1,416 registered users. One month later, the CMT fined the city government ¤300,000 - the largest fine it has ever imposed on a municipality - for implementing Biznaga without having registered with its operator registry.