Wi-Fi is the acronym of “wireless fidelity”; for a better understanding of the legal issues related to this service, it is necessary to outline some of the background technical information.
A R-LAN infrastructure (also named WLAN) uses a short range communication system, characterised by high transmission capacity, comprising of radio frequencies. The R-LAN infrastructure may be created by using different transmission standards: in particular, the acronym Wi-Fi is used for indicating the radio transmission technology based on the IEE 802.11b standard, which is currently the most widely used in both Europe and USA.
Moreover, a R-LAN infrastructure uses short range apparatus in the 2.4 GHz and 5 GHz bands; since these frequencies are subject to shared use, the risk of interference between different users of the frequency bands exists, thus involving a possible compromise in quality of the service supplied. This aspect has been taken into consideration by the legislator, as outlined below.
In summary, the Wi-Fi services permit broadband access to fixed telecommunications networks, by using radio frequencies (shared). The end user may then, through a laptop or palm top, equipped with a proper wireless device, connect to the public electronic communications network at any point in the area covered by the antennas, without requiring connecting cables between the terminal and the public network “arrival point”.
The applicable regulation
The EU regulation
As regards the European regulatory framework concerning the provision of R-LAN services for public use, the European Commission, in line with the recommendation dated 20 March 2003 (relating to the harmonisation of the supply of the R-LAN access of the public to the electronic communications network and services), has invited Member States to permit the public use of such networks. This is subject to the grant of a simple general authorisation, according to the new European regulatory framework for the simplification of the regime for the provision of electronic communication services.
The Italian regulation
Firstly, in relation to the decree dated 20 February 2003, the Ministry of Communications has modified the national frequency plan in order to permit the use of the 2.4 and 5 GHz bands allowing access to the public through R-LAN systems.
Moreover, between 2002 and 2003, the Ministry authorised some telecommunications operators to perform a trial of Wi-Fi services for public use for a six month period and granted the relevant temporary authorisation. Following this, on 28 May 2003, the Ministry of Communications issued a decree aimed at regulating the Wi-Fi systems for public use.
In particular, the decree states that the conditions for obtaining the general authorisation for the supply of the relevant service, though R-LAN application in the 2.4 GHz or 5 GHz bands, was limited to "locations open to the public or to confined areas publicly frequented, such as airports, train and maritime stations and department stores".
The request by an operator for authorisation for the supply of the service entitles the same operator to immediately start up activity. In this respect, the ministerial decree lists a series of requirements to be met if an operator is to be granted with such a general authorisation, including the use of equipment compliant with the applicable regulation, the safety of the network operations and data protection. The operator must also guarantee the adoption of identification codes by the subscriber for access to the network through the access point.
Finally, the decree states that the authorisation has a validity of nine years. Nevertheless, the Ministry’s interpretation states that such validity shall be extended by up to twenty years in compliance with the Electronic Communications Code which was issued in August 2003 (implementing the new EC regulatory framework).
On the same date on which the Ministry issued the decree, the Telecommunications Authority (AGCOM), under Act 249/1997, as amended in 2001, issued the Deliberation no. 183/03/CONS, providing "Measures relating to the public offer of services through the use of Radio-LAN".
In particular, the Deliberation provides guarantees regarding access to sites, providing that "the subjects that grant installation rights in areas being of particular interest for the supply to the public of telecommunication services shall not discriminate among the R-LAN services and the other technologies that permit access to the telecommunications networks and services" (art. 5).
As far as Telecom Italia is concerned, the Deliberation sets out an obligation on the incumbent operator (i) to manage Wi-Fi services under an “accounting separation” regime and (ii) not to discriminate, i.e. to apply the same conditions to its own commercial divisions or affiliated companies as to other authorised operators.
The main issues regarding the provision of Wi-Fi services in Italy are as follows.
The identification of users
First of all, as already pointed out, Wi-Fi services are provided on shared frequency bands, thus involving the risk of interference. In consideration of this, both the Ministerial Decree and the Deliberation issued by AGCOM set out an obligation on the operators to guarantee the identification of the users of the services. The identification mechanism may depend on the structure of the service provided by the operator. For instance, the operator might require the owner of the site to identify the users that purchase pre-paid cards or might use technical means such as radio based protocol (which permits the identification of the user through a user name and password) or SIM based protocol (which is used by mobile operators that use the same identifying codes that permit access to mobile networks).
In consideration of the risks of interference mentioned above, the AGCOM has imposed a requirement on the operator that contracts with users make clear that the services are supplied through the use of frequencies in shared bands and/or without protection from interference, thus ensuring that no guarantees are offered regarding the quality of service.
As pointed out above, Wi-Fi services may be offered by the operators only in "locations open to the public or to confined areas publicly frequented, such as airports, train and maritime stations and department stores". The Wi-Fi operator (so called WISP) shall then put in place agreements for the installation of R-LAN equipment with the owners of the sites.
Obviously, the sites differ considerably in the quantity and type of users. Particularly for a WISP, the appeal of a site mainly depends on whether or not it is frequented by businessmen and women (these being the main target users for Wi-Fi services). In this sense, airports represent the most attractive sites. In addition, other potential sites of interest are business hotels, congress centres and most importantly, train stations. As a consequence, the availability of sites of particular interest represents an essential condition for providing Wi-Fi services.
Securing appropriate sites may occur through the negotiation of agreements with the owners of the sites to put in place a R-LAN infrastructure for the supply of Wi-Fi services; in this respect, most operators require exclusivity. As an alternative, a WISP may offer end users Wi-Fi services in a specific site by means of a roaming agreement with an operator that has authorisation to offer such services within the site. A lack of effective roaming agreements may therefore represent serious hindrance to the development of Wi-Fi services. In this respect, a possible impediment to securing roaming agreements is the different market power of the operators of Wi-Fi services operators.
Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.