In order to comply with the EU legal framework, the German telecommunication market was deregulated on the basis of the Telecommunication Act of 25 July 1996 (TA). It came into force on 1 August 1996. The ending of the monopoly for the offering of voice telephony services to the public came, however, into force on 1 January 1998. Basically access to the German telecommunication market is not subject to an requirement to obtain a permit or licences. However, any person who provides telecommunication services on a commercial basis in Germany must notify the Regulatory Authority for Telecommunications and Posts (RegTP). There are, however, significant exceptions from this general rule. According to Section 6 TA, any person who
1. operates transmission lines which extend beyond the boundaries of a parcel of land and are used for public telecommunication services, and for
2. offers voice telephony services to the public on the basis of self-operated telecommunications networks.
requires a licence.
Licences are divided into 4 classes:
- Licence Class 1: operation by the licensee or others of transmission lines for mobile radio services for the public (mobile radio licence)
- Licence Class 2: operation by the licensee or others of transmission lines for satellite services for the public (satellite transmission licence)
- Licence Class 3: operation by the licensee or others of transmission lines for telecommunications services for the public not covered by Licence Classes 1 or 2
- Licence Class 4: provision of voice telephony services for the public on the basis of self-operated telecommunications networks (this licence class does not also include the right to operate transmission lines)
The following has been compiled from the former Ministry of Post and Telecommunications Official Journal No. 17/1996 (Degree 116/96) amended to take into account any changes to the legal situation since then.
Point 3 below outlines the licencing process. Excluded from this process are those licenses, who according to Section 10 TA are restricted as to the number of licences that can be granted. Section 10 TA applies to the allocation of radio frequencies. The number of licences for radio based services can be restricted, if sufficient frequencies are not available for issuing to all applicants (e.g. GSM, DCS 1800 and ERMES).
The content of the licence must be in accordance with the information shown in Annex 1 hereto.
The due and proper exercise of the licence rights is be determined by the TA and the relevant statutory provisions. Annex 2 hereto makes reference to specific statutory obligations and statutory restrictions.
Frequencies for radio based transmission lines and numbers will be allocated under a separate procedure. The provisions of the licence are subject to amendments by the relevant administrative acts, who allocate numbers and frequencies.
3. SUBMISSION OF APPLICATIONS
Licences for the operation of transmission lines which exceed the limits of a property and are to be used to provide telecommunications services to the general public, and licences for the provision of voice telephony services to the general public can be applied for from the Regulatory Authority of Telecommunications and Posts (RegTP) in writing and in the German language at the following addresses:
Licence Classes 1 and 2
Regulatory Authority of Telecommunications and Posts - Department 315 - P.O. Box 80 01 55003 Mainz
Licence Class 3 and 4
Regulatory Authority of Telecommunications and Posts - Department 316 - P.O. Box 80 01 55003 Mainz
The application for the issue of a licence must include the following information:
a) Name and address of the applicant
b) Legal form of the applicant/company
c) Shareholders of and number of shares held in the applicant/company
d) Licence Class(es) applied for
e) Details of planned nature of telecommunications services to be provided
f) Details of the territory to be covered by the licence, including a general location plan, if such area does not cover the whole territory of the Federal Republic of Germany
g) Details of the intended date of commencement of the activities subject to the licence
h) Name of a contact person with representative power with telephone and fax numbers
i) Extract from the Commercial Register (certified)
j) Evidence of structural separation
The applicant must show evidence that it is not a company which possesses a dominant market position pursuant to Sec. 22 of the Law Against Restraints of Competition in markets other than telecommunications.
k) If applicable, a negative clearance certificate from the Federal Cartel Office.
To the extent that other companies have an interest in the applicant, which up to the date of the submission of the application are deemed neither to be concentrated with the applicant nor with each other within the meaning of Sec. 23 para. 2 and 3 of the Law Against Restraints of Competition (Gesetz gegen Wettbewerbsbeschrankungen - GWB), then the applicant must furnish evidence, by means of a negative clearance certificate from the Federal Cartel Office, that no objections exist on the basis of the GWB to this form of organisation.
4. CONDITIONS FOR THE ISSUE OF A LICENCE
The issue of a licence is subject to certain conditions which have to be met by the applicant. These include in particular technical competence, solvency and reliability of the applicant.
The regulatory authority may for this purpose require proof and documentation from the applicant. It is recommended that the applicant submit such proof and documentation with the application for a licence. Proofs and documentation suitable for this purpose are listed below.
a) Evidence of technical competence
Under Sec. 8 TA, any person who can offer the guarantee that the persons exercising the licence rights will possess the required knowledge, experience and expertise is deemed to possess technical competence.
The applicant should accordingly give evidence of the knowledge, experience and expertise possessed by the persons envisaged for the operation of the transmission lines. Such evidence may also include personal licences already issued according to Section 63 TA.
b) Evidence of solvency
Under Sec. 8 of the TA, any person who can offer the guarantee that he possesses the requisite resources for setting up and operating the telecommunication services in question is deemed to be solvent.
The applicant should in particular give details of the amount of its planned mid-term (5 years) investments and their financing. The securing of the financing should be attested by documentary proof, e.g. written financing commitments by the parent company, other affiliated companies or banks. Mere declarations of intent or commitments to take action will not be accepted as sufficient evidence .
c) Evidence of reliability
Under Sec. 8 of the TA, any person who can offer the guarantee that he, as licensee, will comply with statutory regulations is deemed to be reliable.
The applicant should in particular state whether, in the last five years, it, any affiliated company in the meaning of Sec. 23 para 1 sentence 2 and paras 2 and 3 of the GWB or any person appointed to manage its business
- has had a telecommunications licence revoked,
- has had conditions imposed because of the non-fulfilment of obligations under a telecommunications licence,
- has been prosecuted for a breach of telecommunications or data protection regulations or
- has legal proceedings pending in any of the above-mentioned cases.
d) Evidence of former activities (references) in the area of telecommunications or setting-up and operation of similar installations (e.g. the operation of networks on the basis of rented transmission lines or the operation of the company's own telecommunications networks).
e) General location plan showing the territory in which the activities subject to the licence are to be carried on, if such area is not to cover the whole territory of the Federal Republic of Germany.
f) Time schedule for the submission of the plan showing technical protective measures (Sec. 87 TA).
g) Time schedule for the submission of the plan concerning technical realisation of supervision/monitoring measures (Sec. 88 TA) and for the implementation of the supervision/monitoring technology (Sec. 16 of the Regulation for the Supervision of Telecommunications Traffic (FUV)).
Fees will be charged for the granting of a licence in accordance with the Telecommunications Licence Fee Regulation. According to this regulation, the fees may be within in the following ranges, with the amount fees for nationwide licences at the upper end of the range:
Licence class 1: DM 15,000 to DM 5,000,000 Licence class 2: DM 15,000 to DM 30,000 Licence class 3: DM 2,000 to DM 10,600,000 Licence class 4: DM 2,000 to DM 3,000,000
Parameters for Licences
- Subject matter of licence (operation of transmission lines or provision of voice telephony)
- Territory to be covered (nation-wide or limited area)
- Licence class 3: Right to operate transmission lines (cable and/or wireless broadcast)
- Licence class 4: Right to provide voice telephony to the general public
- Right to use public traffic routes, free of charge
- (if applicable) Right to be allocated frequencies pursuant to the frequency-area allocation plans and frequency use plans under the procedures envisaged for this purpose in the TA
- (if applicable) Right to be allocated rights to use numbers (e.g. network access numbers in connection with the number allocation plan.
- for the licence
- (if applicable) for numbers
- (if applicable) for frequencies
- (if applicable) time-restrictions (e.g. upon request by applicant or due to shortage of frequencies)
- reservation of right to revoke
- (if applicable) conditions.
Amendment of the licence
Frequencies and numbers are allocated by independent administrative act. The licence is supplemented by this administrative act.
Note: The obligations incumbent upon a licensee derive directly from the TA and the supplementary statutory regulations. These obligations are therefore not stated in the licence document itself.
Particular attention is drawn to the following statutory restrictions or statutory obligations for the sake of clarity.
1. Market dominance
If the licensee has a dominant market position pursuant to Sec. 22 of the Law Against Restraints of Competition in the relevant product and geographical market, he shall be subject to the relevant provisions of the Telecommunications Act.
2. Open network access and interconnection
The licensee for transmission lines for the public is obliged to facilitate interconnection of its network and/or transmission lines with other public telecommunications networks. The extent that it has a dominant market position within the meaning of Sec. 22 of the Law Against Restraints of Competition, a licensee is obliged to facilitate the access of other users to its network and/or its transmission lines. This is regulated in greater detail in the Fourth Part of the Telecommunications Act and the statutory regulation issued on the basis of Sec. 35 para. 5 of the TA.
3. Telecommunications secrecy; Securing of telecommunications installations
The licensee is obliged by law to maintain telecommunications secrecy and to keep its telecommunications installations secure (Secs. 85 and 87 TA). Particular attention is drawn to the obligation to submit a security plan (Sec. 87 TA).
4. Restriction of telecommunications secrecy
With regard to the restriction of telecommunications secrecy by monitoring telecommunication, the licensee is subject to the provisions of the Letter, Post and Telecommunications Secrecy Act, the Foreign Trade Act, the Code of Criminal Procedure, the Telecommunications Act and of the Regulation for the Supervision of Telecommunications Traffic (FÜV).
5. Technical realisation and supervision measures
Particular attention is drawn to the regulations concerning technical realisation and supervision measures (Sec. 88 TA).
6. Data protection; requests for information by security authorities
With regard to the protection of personal data, the licensee is subject to the provisions of the Telecommunications Act, the Telecommunications Services Undertakings and Data Protection Regulation and, in addition the provisions of the Federal Data Protection Act. Attention is drawn to the obligation to furnish information to security authorities under Sec. 90 TA.
7. Catastrophe and crisis
With regard to the securing of services during catastrophe and crisis situations, the licensee is subject to the provisions of the Securing of Post and Telecommunications Act (SPTA).
8. Influence on other legal relationships
The licence does not affect legal obligations incumbent upon the licensee pursuant to other legal relations concerning telecommunications whether a public or private nature. This applies in particular in the case of law or environmental law nature) and of public charges (taxes, fees, contributions, etc.).
9. Transfer of the licence and associated rights; change of ownership of the licensee
A transfer of a licence must be documented in writing and is permissible only with the prior written approval of the licensor (Sec. 9 para. 1 sentence 1 TA). Where frequencies have been allocated in connection with the licence, the same shall apply to a change of user of the allocated frequencies (Sec. 47 para. 6 sentence 1 TA).
Any other transfer of the licence to a new holder, any change of ownership in the licensee or any use (of the licence) granted to third parties must be notified to the licensor without delay (Sec. 8 para. 2 TA). Where frequencies have been allocated in connection with the licence, the same shall apply to a change of user of the allocated frequencies (Sec. 47 para. 6 sentence 1 TA).
10. Addition of ancillary provisions subsequent to the issue of the licence
To ensure that the regulatory aims pursuant to Sec. 2 para. 2 of the TA are achieved, ancillary provisions may be added to this licence even after it has been granted (Sec. 8 para. 2 TA).
For the operation of transmission lines by means of wireless transmission, the licensee will be allocated the frequencies required for this purpose upon request, as long as these are available and do not interfere with other frequencies (Secs. 47 - 49 TA):
12. Notification and reporting obligations
The licensee is obliged to notify the licensor in writing within one month of commencing, modifying or cessing of the operations (Sec. 4 TA).
The licensee is also obliged to provide the licensor upon request with reports such as are required by the licensor in its capacity as national regulatory authority, to fulfil its obligations to report to the European Commission (Sec. 5 TA).
13. Structural separation and separate accounting
Companies having a dominant market position within the meaning of Sec. 22 of the GWB in markets other than telecommunications must carry out their telecommunications services in one or more legally independent companies (Sec. 14 para. 1 TA).
If the licensee has a dominant market position within the meaning of Sec. 22 of the GWB, the transparency of financial relations among telecommunications services in the sector subject to licensing and those with telecommunications in the sector not subject to licensing must be guaranteed by the rendering of separate accounts, whereby the licensor may specify the form of accounting for certain telecommunications services subject to licensing (Sec. 14 para. 2 TA).
14. Submission of standard conditions of business
Standard conditions of business for the licensed telecommunications services must be submitted to the licensor in writing prior to the licence coming into force (Sec. 23 para. 2 sentence 1 of the TA). The licensor has the right to object to these standard conditions on the grounds mentioned in Sec. 22 para. 1 of the TA within four weeks of submission thereof.
15. Customer protection
With regard to customer protection, reference is made to Sec. 41 TA, which reads as follows:
"The Federal Government is empowered, for the special protection of users, in particular the consumer, to issue by secondary legislation with the consent of the Bundesrat framework provisions for the use of public telecommunications services.
Provisions on the conclusion, the subject and termination ofcontracts and on the rights and obligations of the contractual partners and others involved in telecommunications traffic may be laid down in such ordinance, whereby those regulations issued by the Parliament of the European Community and the Council of Ministers in accordance with Art. 8 of Directive 90/387/EEC of the Council of 28 June 1990 for the Completion of the Single Market for Telecommunications Services by means of the Introduction of Open Access to Networks (Open Network Provision - ONP) (OJ EC No. L 102 p.1), insofar as these regulate the position of the users should be observed.
Specifically provisions concerning in particular the following can be regulated
1. liability of provides and claims of users to damages and cease and desist orders
2. the unbundling of telecommunications services for the public in the licenced and non-licenced sectors, and the unbundling of such services in relation to each other
3. detailed conditions for the provision and use of general network access under Sec. 35 para. 1; such requirements must be based on objective criteria, be transparent and must guarantee equal access
4. how to refer to standard conditions of business and fees and the possibility of their incorporation
5. obligations to provide information
6. procedures and time-limits to be observed with regard to the modification of offers
7. Special requirements for invoicing and for evidence of the amount of fees, and
8. extra-judicial settlement of disputes."
The licensee is, under the conditions set forth in Sec. 40 TA, liable to users in respect of compensation and cease and desist undertakings.
16. Obligations to provide information
The licensor may, to the extent required for it to fulfil its duties pursuant to the TA request information from the licensee and inspect the business records (Sec. 72 TA).
For further information, please contact
Dr. Markus Deutsch Gleiss Lutz Hootz Hirsch Rechtsanwalte Gärtnerweg 2, 60322 Frankfurt/Main Germany Fax No: ++49/69/95514-198 Tel No: ++49/69/95514-106 E-mail: Click Contact Link
The article is correct to the best of our knowledge at the time of publication. However, the legal situation at the administrative practice of the Regulatory Authority may be subject to changes. Therefore, the article is only a general guide. Specialist advise has to be sought as regards your specific circumstances.