This section provides a general overview of relevant legislation that regulates the telecommunications industry. The section also presents the environmental and Occupational Health and Safety (OHS) regulations applicable to the telecommunications sector in particular.
To date, Costa Rica does not have an integrated legal framework to regulate the telecommunications sector or an integrated set of environmental provisions specifically applicable to the telecommunications sector. Most of the current environmental provisions in Costa Rica are applicable to all types of projects and do not consider telecommunications as an independent category.
3.4.1Relevant Regulations for Managing Environmental Impacts
The fundamental environmental rights are stated in the Constitution, which guarantees the right to a healthy environment. Article 50 states that “every person is entitled to a healthy and ecologically balanced environment. Therefore, he/she shall be entitled to file a claim regarding all acts that violate these rights and to request the repair of the damage caused. The State shall guarantee, defend and preserve that right. The Law shall determine the responsibilities and applicable sanctions.” Furthermore, Article 46 states that “the consumers and users have a right to the protection of their health, environment, security and economic interests….”
In addition, the following specific laws contain provisions relevant to the telecommunications sector (see Table 3.3 for a summary of relevant provisions):
-
Environment Law, N° 7554, October 4, 1995
-
National Parks Law, N°6084, August 24,1977
-
Forestry Law, N° 7575, February 5, 1996
-
Biodiversity Law, N° 7788, April 30, 1998
-
Wildlife Conservation Law, N° 7317, October 21, 1992
-
Water Law, Nº 276, August 1942
-
General Health Law, N° 5395, October 30, 19733
Telecommunications Infrastructure in Protected Areas
There is a specific regulation in Costa Rica regarding the siting of telecommunications infrastructure in protected areas. Decree 26187-MINAE, of May 22, 1997 establishes that space shall be granted to telecommunications infrastructure within protected areas administered by MINAE, provided that the project complies with the provisions contained within the above-mentioned decree. Permits in protected areas are granted for a period of five years and may be extended. This decree also includes general provisions for coordination between the builder and the National Radio Control Office and Civil Aviation Direction in order to regulate the height, lighting, and color of the telecommunications tower.
Infrastructure located in protected areas, according to the decree, must be as seamless and environmentally integrated as possible. The construction materials, use and direction of light, treatment of debris, and number of appointed staff are also regulated, as well as any change in a facility’s structure or visual appearance. Although other communications facilities are subject to a fee (e.g., radio, television, and private communications antennae), this fee does not apply to state-owned infrastructure, which includes telecommunications infrastructure.
This decree was constitutionally challenged by environmental organizations who requested its annulment, alleging that protected areas should be free of telecommunications installations4. However, the Constitutional Chamber of the Supreme Court of Justice (Vote 2005-08945, 15:10, July 6, 2006) rendered a decision that requires all parties to take into account an adequate balance between economic, social, and environmental issues and stresses that the applicable fees paid for the telecommunications infrastructure could finance the expenses of the administration, management, and protection of the protected areas. The Constitutional Chamber, acknowledging that continuous progress in telecommunications technology could require an increasing amount of telecommunications infrastructure, urged the authorities of ICE to reduce the number and installation of telecommunications towers in protected areas in the future and to integrate the towers with the environment.
EIA Regulations and Permitting Procedures
Costa Rica’s General Regulation on EIA (31849-MINAE, June 28, 2004) does not include in its classification list mobile telecommunications or antennae infrastructure. Telecommunications projects are thus regulated and dealt with under the closest related category, that of radio lighthouses and radar stations, which are very different in structure, operation, power, and radiation from a mobile telecommunications antenna 5. Required permits for telecommunications infrastructure in Costa Rica have traditionally been subject to informal discussions between ICE and SETENA, resulting in informal ad hoc agreements on how to manage telecommunications infrastructure6.
Annex A of the General Regulation on EIA classifies projects based on size and type of impact and defines the permitting procedure for construction of new infrastructure. The procedure is described in the Investor Manual of the Ministry of Trade7 (Ministerio de Comercio Exterior, or COMEX). The service provider is responsible for following the applicable environmental permit process established by SETENA, as described in Figure 3.1. The service provider must complete a D1 form, which is evaluated by SETENA’s Institutional Management Department (Departamento Gestión Institucional). Depending on the level of environmental risks and impacts of the project, SETENA either requires the environmental commitments to be signed into a “Sworn Statement of Environmental Commitments” (Declaración Jurada de Compromisos Ambientales, or DJCA), an EMP, or an EIA.
This permitting process has only been applied to new telecommunications infrastructure since 2005 (e.g., for the ‘600,000 lines project’). At the time of this report, 63 telecommunications sites had complied with this requirement and have a DJCA. Ericsson, the company awarded the contract in this latest project, was required to complete a DJCA stating Ericsson’s environmental commitments as well as a management plan for solid and liquid waste during the construction phase8. The Costa Rican regulation on EIA does not require the SETENA to conduct inspections or environmental monitoring of project sites with low impacts (i.e., telecommunication, projects required to complete a DJCA9).
Construction permits from the municipality are also required for the installation of new infrastructure in Costa Rica; this requirement does not apply to state-owned infrastructure and thus does not apply to telecommunications infrastructure. All infrastructure project proponents are required, however, to inform the municipality of new construction within its jurisdiction.
Figure 3.3 summarizes the current environmental evaluation procedure, as set out in the Investor Manual of the Ministry of Trade.
Figure 3.3 Environmental Evaluation Procedure
Source: http://www.tramites.go.cr/manual/english/diagrama3.htm
3.4.2Laws Regulating the Exploitation of Telecommunications Services
To date, ICE is the sole entity entitled to exploit telecommunications services in Costa Rica. The primary applicable laws are Law No. 3226, which allows ICE to establish and operate telecommunications services, and Law No. 3293, which grants ICE the right to supply international telecommunications services (see Table 3.4 for further detail).
3.4.3Environmental, OHS, and Labor Regulations Applicable to Construction Works
The main environmental, OHS, and labor laws and decrees applicable to construction works include the following (see Table 3.5 for an extensive list):
-
Labor Code, Nº 2, August 26, 1943
-
Construction Law, N° 833, November 4, 1949 and its amendments
-
Environment Law, N° 7554, October 4, 1995
-
Occupational National Safety Plan, Executive Decree Nº 16621-PLAN-TSS, November 4, 1985
-
Construction Security Regulations, Executive Decree Nº 25235 – MTSS, February 5, 1996
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Emergency Ladder Regulations, Executive Decree Nº 22088-S, April, 27, 1993
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Regulations for the Control of Noise and Vibrations, Executive Decree Nº 10541 – TSS, September 14, 1979
Table 3.4 Summary of Applicable Legislation to the Telecommunications Sector
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Legislation
|
Enforcement Agency
|
Topics
|
General Description
|
Environment Law
N° 7554, October 4, 1995.
|
MINAE
|
Environment
|
The law states the main principles of the local environmental regulations, including: the solidarity principle; the environment as “public patrimony;” the right to a healthy environment and to protect it; and government duty to ensure the rational use of the environment. It also establishes the legal liability of polluters; the criminalization of environment damages; the respect for life in all its forms; the conditions of all elements of biodiversity as assets; the respect of cultural diversity; and the precautionary principle. The concept of environmental impact assessments was introduced with this legislation.
This law also created SETENA, the Administrative Environmental Tribunal, and the Environmental Comptroller. It also created the Regional Environmental Councils for the local discussion and control of environmental activities and projects.
Finally, this law also reorganized MINAE’s responsibility, including the ability to create protected areas.
|
General Regulations for Environmental Impact Studies
Decree N° 31849-MINAE-S-MOPT-MAG-MEIC, June 28 2004.
|
MINAE through SETENA
|
Environment
|
These Regulations establish the conditions and proceedings to be followed to obtain the necessary permits for projects. The proceedings and instruments to be used shall depend on the nature of the project and on the classification included in the Regulations. The nature of the project also dictates its environmental commitments, frequency of its reports, and environmental guarantees.
|
Forestry Law
Law N° 7575, February 5, 1996.
|
MINAE through SINAC
|
Environment
|
This law states the responsibility of MINAE for the protection and conservation of forests and forest lands. The production, exploitation, and industrialization of forestry resources are based on the principle of adequate and sustainable use of natural renewable resources. It also established the obligation to help rural communities generate employment and increase their quality of life through inclusion in silvicultural activities. The concept of “forest” was also defined here. The law does not allow a change in the use of the soil destined for forests.
This law allows the Government to impose limitations to property rights of those owners of lands with forest resources as well as the procedures for the permits of administration and use of this resource.
|
Biodiversity Law
Law N° 7788, April 30, 1998.
|
MINAE-SINAC
|
Environment
|
In general terms, this law states the organization of the natural conservation areas, establishing responsibilities and competence over them. These areas are controlled by the National Area Conservation System (SINAC), formally created by this legislation. SINAC formulates national strategies and policies for the national system of conservation areas.
It also established the categories applicable to conservation areas, which include:
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National park
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Biological reserve
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National monument
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Wildlife refuge
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National reserve
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Government-owned property
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Forestry reserve
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Protected zone
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Wetland
-
Biological corridor
|
Wildlife Conservation Law
Law N° 7317, October 21, 1992.
|
MINAE
|
Environment
|
This provision protects and regulates the sustainable use of wild flora and fauna species, even on private lands. It is complemented by the CITES agreement (Convention on International Trade in Endangered Species).
This law prohibits the possession, hunting, fishing, and extraction of wild flora and fauna, their products, and sub-products, notwithstanding the purpose, when said species have been declared as reduced populations or in risk of extinction. Its exceptions are based on situations that favor the species or scientific studies, both subject to permits issued by SINAC.
|
National Parks Law
Law N° 6084, August 24, 1977.
|
MINAE through the National Park Service
|
Environment
|
This law includes two provisions of interest. It impedes the construction of electrical or telephone lines in national parks, as well as any type of commercial, agricultural, or industrial activity within a national park.
It also states that no permits shall be granted to locate infrastructure within the park other than the infrastructure required by the National Park Service.
|
Regulations for the location of telecommunications positions in protected areas
Decree N° 26187-MINAE, May 22, 1997.
|
MINAE-ICE
|
Environment / Telecom.
|
This decree establishes that the necessary space shall be granted to telecommunications’ infrastructure within protected areas administered by MINAE.
The permits are granted for periods of five years, which can be extended. This decree also includes general provisions for coordination with the National Radio Control Office and the Civil Aviation Direction in order to regulate the height, lighting, and color of telecommunications towers.
Infrastructure located in protected areas must be as environmentally integrated as possible. Construction materials and their use, direction of light, treatment of debris, and number of appointed staff are also regulated, as well as changes to the structure or appearance of any facilities. Although other communications facilities are subject to a fee (radio, television, and private communications antennae), this fee does not apply to state-owned infrastructure.
|
Law that allows ICE to establish and operate telecommunications services
Law N° 3226, October 28, 1963.
|
ICE
|
Telecom.
|
This law was issued as an amendment to the law that originally created ICE. It grants ICE a permanent concession to supply telephone communication services as well as telegraphic, radio telegraphic, and radiotelephonic communications.
It establishes that the services shall be supplied as public services at cost and outlines how the price shall be determined. It also grants ICE the necessary authorizations and rights of use to establish and use the necessary network.
|
Law that allows ICE to operate international telecommunications and to form a mixed corporation with the Compañía Radiográfica Internacional de Costa Rica
Law N° 3293, June 18, 1964.
|
ICE
|
Telecom.
|
This law grants ICE the right of exploitation of international communications. It also authorizes ICE to create a subsidiary company (RACSA) in order to carry out and supply those services. RACSA initially had a short term of 13 years which was extended by a subsequent law.
|
Strengthening of ICE and its companies
Decree N°33619, February 2007.
|
ICE
|
Telecom.
|
This decree recognizes that ICE and its related companies, due to their government-owned nature, have been limited in their operation, investment, and growth. Also, considering the imminence of the liberalization of the market and eventual entry of other providers, the decree gives flexibility to public controls and orders other Administration agencies to give ICE priority treatment The decree eliminates limits on financing, investment, debt, expenditure, human resources, and organization. ICE expansion plans in both electricity and telecommunications are declared of national convenience and public interest.
|
General Health Law
Law N° 5395, October 30, 1973.
|
Ministry of Heath
|
Health
|
This law aims for the preservation of the best possible public health conditions. It establishes the responsibility of the Ministry of Health to grant location permits, classify activities, permit construction, approve certain types of blueprints for construction, and approve sanitary and health permits for commercial operations.
The Ministry of Health is entitled to confiscate products; retire products from commerce or circulation; destroy products; destroy or demolish houses; close commercial establishments; cancel permits; or suspend or destroy works.
|
Radio Control Law
Law N°1758, June 19, 1953.
|
Radio Control Office
|
Telecom.
|
Despite some legal debate, the prevalent opinion is that this law is only applicable to radio and television diffusion. The law contains telecommunication norms such as regulations for radio bases.
|
Labor Code
Law N°2, August 26, 1943.
|
Ministry of Labor
|
Labor
|
The code establishes basic and mandatory rights and conditions to be observed in every labor relationship. It includes the conditions of labor contracts, vacation period, minimum wage, maternity and sick leave, termination, worker’s compensation, severance payment, Christmas bonus, and holidays. It also regulates the work of minors and pregnant women.
|
Indigenous Law
N° 6172, November 29, 1977.
|
National Indigenous Issues Commission (Planning Ministry)
|
Indigenous Communities
|
This law acknowledges as native population those ethnic groups descending from pre-columbine civilizations who keep their cultural identity. The lands set aside for reserves are registered on behalf of the reserves and cannot be leased, transferred, or sold to non-natives. The law does not make any reference to provisions for installation of infrastructure. However, the areas and limits of the reserves are clearly established by the Government. The areas which could be considered subject to environmental protection are regulated by the applicable environmental legislation.
|
Note: Telecom. stands for Telecommunication.
Table 3.5 Principal Environmental, OHS and Labor Regulations Applicable to Construction Works
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Name of the Provision
|
Number
|
Issuance date
|
Occupational Health and Safety
|
|
|
Labor Code
|
Law Nº 2
|
26/08/43
|
General Health Law
|
Law Nº 5395
|
30/10/73
|
Work Risks Law
|
Law Nº 6727
|
9/03/82
|
General Regulations to Grant Sanitary Operation Permits by the Ministry of Health
|
Executive Decree Nº 33240-S
|
23/08/2006
|
Regulations for the Labor and Occupational Health of Teenagers
|
Executive Decree Nº 29220-MTSS
|
10/01/2001
|
Regulations for the Occupational Safety Offices or departments
|
Executive Decree Nº 27434-MTSS
|
25/11/1998
|
Regulations of the Occupational Safety Commissions
|
Executive Decree Nº 18379 – TSS
|
16/08/88
|
Occupational Safety National Plan
|
Executive Decree Nº 16621-PLAN-TSS
|
04/11/1985
|
Occupational Safety Council
|
Executive Decree Nº 13961-TSS
|
01/10/1982
|
Industrial Hygiene Regulations
|
Executive Decree Nº 11492 - SPPS
|
22/04/80
|
Amendment to the Work Risks General Regulations
|
Executive Decree Nº 17963-TSS
|
24/06/1988
|
Emergency Ladders Regulations
|
Executive Decree Nº 22088-S
|
27/04/1993
|
Work Hygiene and Safety General Regulations
|
Executive Decree Nº 1
|
2/01/67
|
Construction Security Regulations
|
Executive Decree Nº 25235 - MTSS
|
5/02/96
|
Security Devices for the Protection of Works
|
Executive Decree Nº 26041 - MOPT
|
7/07/97
|
Regulations for the Control of Noise and Vibrations
|
Executive Decree Nº 10541 - TSS
|
14/09/79
|
Noise Pollution Control Regulations
|
Executive Decree N° 28718-S
|
08/06/2006
|
Environmental
|
|
|
Environmental Law
|
Law Nº 7575
|
4/10/95
|
Water Law
|
Law Nº 276
|
27/08/42
|
General Regulations for Environmental Impact Studies
|
Executive Decree Nº 31849-MINAE-S-MOPT-MAG-MEIC
|
28/06/2004
|
Regulations for the Approval and Operation of Wastewater Treatment Systems
|
Executive Decree Nº 31545-S-MINAE
|
22/12/2003
|
Regulations for Management of Dangerous Industrial Waste
|
Executive Decree N° 27001-MINAE
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29/04/1998
|
INVU Construction Regulations
|
Executive Decree N° 4230-INVU
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24/09/1992
|
Construction Law
|
Law N° 833
|
4/11/49 and its amendments
|
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