FNDC - Alemanha 1

The purpose of this Act is to promote competition through regulation of the telecommunications sector, to guarantee appropriate and adequate services throughout the country and to provide for frequency regulation.

§2 Regulation

(1) Telecommunications and frequency regulation shall be a sovereign task of the Federal Republic of Germany.

(2) The aims of regulation shall be:

to safeguard the interests of users in the fields of telecommunications and radiocommunications as well as to maintain telecommunications secrecy;
to ensure equal-opportunity and workable competition, in rural as well as urban areas, in telecommunications markets;
to ensure provision throughout the Federal Republic of Germany of basic telecommunications services (universal services) at affordable prices;
to promote telecommunications services in public institutions;
to ensure effective, interference-free use of frequencies, due regard also being paid to broadcasting requirements;
to protect public safety interests.

(3) The provisions of the Law against Restraints of Competition shall remain unaffected.

(4) The sovereign rights of the Federal Minister of Defence shall remain unaffected.

§3 Definitions

For the purposes of this Act

"operation of transmission lines" shall mean exercise of de jure and de facto control (functions control) of all the functions that must necessarily be provided for the implementation of information transmission on transmission lines;
"operation of telecommunications networks" shall mean exercise of de jure and de facto control (functions control) of all the functions that must necessarily be made available for the provision via telecommunications networks of telecommunications services or for non-commercial telecommunications purposes; this shall also apply where transmission lines owned by third parties are used within the telecommunications network;
"terminal equipment" shall mean equipment intended for direct connection to the network termination of a telecommunications network or intended to interwork with a telecommunications network and to be connected for such interworking directly or indirectly to the network termination of a telecommunications network;
"radio equipment" shall mean the electrical transmitting or receiving equipment between which information transmission can take place without any trunk line;
"commercial provision of telecommunications services" shall mean telecommunications offered on a sustained basis, including transmission line offers to third parties, with or without the intention to realise profits;
"property" shall mean a part of the earth's surface entered in the Land Register as a separate property or a part of the earth's surface which, due to the way it is economically used or to its outward appearance, forms a unit even where this unit consists of several properties under real property law. Road and rail networks shall not be deemed a unit;
"licence" shall mean the authorisation to offer specified telecommunications services for the public;
"mobile radio services " shall mean telecommunications services intended for mobile use;
"network access" shall mean the physical and logical connection of terminal equipment or other equipment to a telecommunications network or parts thereof as well as the physical and logical connection of a telecommunications network to another telecommunications network or parts thereof for the purpose of obtaining access to functions of such telecommunications network or to the telecommunications services provided via such network;
"numbers" shall mean character sequences serving addressing purposes in telecommunications networks;
"users" shall mean any parties having a demand for telecommunications services;
"public telecommunications network" shall mean the technical facilities in their entirety (transmission lines, switching equipment and any other equipment that is indispensable to ensure proper operation of the telecommunications network) to which, by means of network terminations, terminal equipment is connected and which serve to provide telecommunications services for the public;
"regulation" shall mean measures to achieve the aims referred to in §2(2) of this Act which regulate the conduct of telecommunications companies in the provision of telecommunications services, terminal equipment or radio equipment as well as measures to ensure effective, interference-free use of frequencies;
"satellite services" shall mean telecommunications services provided by means of satellite earth station equipment;
"voice telephony" shall mean the commercial provision for the public of the direct transport and switching of voice in real-time to and from the network termination points of the public switched network such that any user can use the terminal equipment connected to such network termination point to communicate with another network termination point;
"telecommunications" shall mean the technical process of sending, transmitting and receiving any kind of message in the form of signs, voice, images or sounds by means of telecommunications systems;
"telecommunications systems" shall mean any technical equipment or systems capable of sending, transmitting, switching, receiving, steering or controlling as messages identifiable electromagnetic or optical signals;
"telecommunications services" shall mean the commercial provision of telecommunications, including transmission line offers to third parties;
"telecommunications services for the public" shall mean the commercial provision of telecommunications, including transmission line offers to any natural or legal persons and not solely to members of closed user groups;
"telecommunications lines" shall mean underground or overhead telecommunications cable systems, including the associated switching and distribution equipment, poles and supports, cable chambers and cable duct conduits;
"telecommunications network" shall mean the technical facilities in their entirety (transmission lines, switching equipment and any other equipment that is indispensable to ensure proper operation of the telecommunications network) which serve the provision of telecommunications services or non-commercial telecommunications purposes;
"transmission lines" shall mean telecommunications systems in the form of cable or radio links with the associated transmission equipment as point-to-point or point-to-multipoint links with a given information throughput (bandwidth or bit rate), including their network terminations;
"carrier network" shall mean a telecommunications network to which customers are not connected directly and which interconnects access networks;
"interconnection" shall mean the network access establishing the physical and logical connection of telecommunications networks to allow users connected to different telecommunications networks to communicate directly or indirectly.

§4 Notification Requirement

Whosoever provides telecommunications services shall notify the regulatory authority in writing within a period of one month of the startup, modification or termination of operations. The regulatory authority shall publish the essential details of such notifications at regular intervals.

§5 Reporting Requirement

Whosoever provides telecommunications services shall undertake to provide the regulatory authority upon demand with reports which it as the national regulatory authority requires to fulfill its reporting requirements in relation to the European Commission on the basis of Directives and Recommendations issued in accordance with Article 6 of Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (OJ No L 192 p 1) and Article 90(3) of the Treaty establishing the European Community.

Part II

Regulation of Telecommunications Services

Chapter One Licences

§6 Licensed Sector

(1) Whosoever:

operates transmission lines going beyond the limits of a property and used to provide telecommunications services for the public
offers voice telephony on the basis of self-operated telecommunications networks

shall require a licence.

(2) The licences required under (1) above shall be divided into the following Licence Classes:

1. Licences for the operation of transmission lines:

for mobile radio services for the public by the licensee or other parties (Licence Class 1: Mobile Radio Licence);
for satellite services for the public by the licensee or other parties (Licence Class 2: Satellite Licence);
for telecommunications services for the public whose provision is not covered by Licence Classes 1 or 2, by the licensee or other parties (Licence Class 3);

2. Licences for voice telephony on the basis of self-operated telecommunications networks (Licence Class 4). This Licence Class shall not include the right to operate transmission lines.

(3) It shall be presumed that the operation of transmission lines used by third parties constitutes a telecommunications service for the public.

(4) Upon request the regulatory authority may also award licences from Licence Classes 1 to 4 as a composite licence. In this regard, it shall be bound to the scope specified in (1) above.

§7 International Status

Licensees providing international telecommunications services or operating, within the framework of their offering, radio equipment which may cause harmful interference to radio services of other countries shall be deemed recognised operating agencies within the meaning of the Constitution and the Convention of the International Telecommunication Union.

§8 Licensing

(1) Upon written request licences shall be granted in writing by the regulatory authority. The licence application shall specify the area where the activity subject to licence will be performed. The regulatory authority will decide on licence applications within a period of six weeks.

(2) The regulatory aims according to §2(2) of this Act shall be observed when licences are granted. To ensure the regulatory aims according to §2(2), collateral clauses may be attached to the licence even after it has been granted. If the prerequisites for a collateral clause cease to exist, the regulatory authority shall repeal such clause at the request of the licensee.

(3) A licence applied for shall be denied when

the regulatory authority does not possess any usable frequencies which could be assigned to the applicant seeking to operate radio links, or
facts warrant the assumption that
the applicant does not possess the reliability, efficiency and specialised knowledge required to exercise the licence rights applied for and hence it must be expected that such licence rights will not be exercised on a lasting basis, or
public safety or order would be prejudiced as a result of a licence being granted.

Whosoever guarantees

compliance, as a licensee, with the legal provisions shall be deemed to possess the reliability
availability of the means of production for setting-up and operation necessary to exercise licence rights shall be deemed to possess the efficiency
the necessary knowledge, experience and skills of the persons engaged in the exercise of licence rights shall be deemed to possess the specialised knowledge

required according to sentence 1 subparagraph 2(a) above.

(4) Licences may be granted for a limited period, provided this is expedient in view of the scarcity of frequencies available.

(5) Frequencies required to operate transmission lines under licence shall be assigned in accordance with the provisions of §§44 to 48 of this Act.

§9 Change of Licensee

(1) Transfer of the licence shall be in written form and require prior written approval by the regulatory authority. In respect of the denial of approval §8(3) sentence 1 subparagraph 2 and §11(3) shall apply accordingly.

(2) Any other licence transfer to a new holder or any change in ownership of the licensee or any permission to use the licence shall be notified to the regulatory authority without undue delay.

§10 Limitation of the Number of Licences

The number of licences for telecommunications markets may be limited if frequencies as provided for by the frequency usage plan are not available for licensing in sufficient quantity. The parties concerned shall be heard prior to any such decision. The decision shall be published in the Official Gazette of the regulatory authority.

§11 Award Proceedings Following a Limitation of the Number of Licences

(1) If the number of licences is limited as provided for by §10 of this Act, the regulatory authority may, after hearing the parties concerned, hold an auction in accordance with (4) below or competitive bidding in accordance with (6) below. Decisions on the choice of proceedings and the determinations and rules for the conduct of the proceedings according to (4) or (6) below shall be published in the Official Gazette of the regulatory authority.

(2) Licences shall be awarded in accordance with §8 of this Act following completion of the proceedings as laid down in (4) below, except where such proceedings are not suitable to ensure the regulatory aims specified in §2(2) of this Act. This may be the case particularly where a licence has already been granted on the relevant product and geographical market for the applicable telecommunications service for the public without an auction having been held or where an applicant as a licensee or a user of the applicable service can claim a legal right to preference for the frequencies to be assigned under licensing. Frequencies for the radio link-up of accesses shall be granted solely by way of competitive bidding.

(3) Where it is to be expected that equal-opportunity competition on the relevant product and geographical market for the telecommunications service subject to licence will be prejudiced by a successful auction bid according to (4) below or a successful competitive bid according to (6) below, the companies concerned may be excluded from the award proceedings. Due regard shall be paid to the justified interests of the companies concerned in respect of the deployment of new technologies.

(4) The aim of the auction is to determine which bidder/s is/are best placed to use the radio frequencies sold at auction for the efficient provision of the applicable telecommunications service for the public. Prior to the auction, the regulatory authority shall identify, in observance of §47 of this Act and the ordinance having the force of law issued by virtue of this provision,

the minimum requirements in terms of specialised skills and qualifications bidders shall evidence in order to be admitted to the auction,
the relevant product and geographical market for which the radio frequencies bought at auction may be used in observance of the frequency usage plan,
the licence conditions, including the degree of coverage in respect of frequency usage and the time required to achieve such degree, as well as the frequency usage conditions of the future licence that must be observed,
the basic number of radio frequencies which the bidder must buy at auction for the startup of the telecommunications service, provided such basic number is necessary.

The regulatory authority shall also determine in detail the rules for holding an auction, such rules being objective, comprehensible and non-discriminatory and taking the interests of small and medium-sized enterprises into consideration. The regulatory authority may stipulate a minimum bid for participation in the auction.

(5) Where the auction according to (4) above is not suitable for licensing, licences shall be granted in accordance with the competitive bidding proceedings according to (6) below.

(6) The aim of competitive bidding is to determine which bidder(s), by way of proven skills and qualities, is/are best placed to satisfy users' demand for the applicable telecommunications service for the public. Prior to competitive bidding the regulatory authority shall identify, in observance of §47 of this Act and the ordinance having the force of law issued by virtue of this provision,

the minimum requirements in terms of specialised qualifications bidders shall evidence in order to be admitted to competitive bidding,
the relevant product and geographical market for which the licences are to be granted,
the licence conditions, including the degree of coverage in respect of frequency usage and the time required to achieve such degree, as well as the frequency usage conditions of the future licence that must be observed,
the criteria according to which bidders' eligibility is assessed.

Criteria shall be the specialised knowledge and efficiency of the bidders, the suitability of plans to be submitted for the provision of the telecommunications service subject to competitive bidding and the promotion of workable competition in the relevant market. Preferred in the selection procedure shall be those bidders ensuring a higher degree of coverage for the applicable telecommunications services subject to licence. The regulatory authority shall also determine in detail the rules for conducting competitive bidding, such rules being objective, comprehensible and non-discriminatory. In the event of various bidders being equally well placed as a result of competitive bidding, the decision shall be taken by drawing lots.

(7) Where frequencies are granted according to (4) or (6) above for the radio link-up of accesses, the regulatory authority shall require the licensee as a condition of his licence to offer to a particular section of the residential population within a specified period of time universal service, ie voice telephony with ISDN supplementary services, as well as access to emergency call facilities in the licence area according to §8(1) sentence 2.

§12 Provision of Customer Data

(1) A licensee providing voice communication services for the public shall undertake to give other licensees providing voice communication services for the public, upon request and in an appropriate form for the customer's use, access to customer data, observing the applicable data protection regulations, for the purposes of starting up an inquiry service or publishing a directory of numbers. This may be subject to a fee based on the costs of efficient provision.

(2) In addition, a licensee providing voice communication services for the public shall undertake to give any third party, upon request and in an appropriate form for the customer's use against payment of a reasonable fee, access to customer data, observing the applicable data protection regulations, for the purposes of starting up an inquiry service or publishing a directory of numbers.

§13 Provision of Emergency Call Facilities

(1) A licensee providing voice communication services for the public shall undertake to provide emergency call facilities to all end users free of charge.

(2) A licensee providing voice communication services for the public shall, at the application of the competent federal state or an authority empowered to provide emergency services, install additional emergency call devices in public telephones allowing users to establish voice contact with an emergency call answering position by means of a simple procedure and, as far as possible, with automatic indication of the location of the telephone used. Public telephones with devices according to sentence 1 shall be marked as such. With regard to the provision and operation of emergency call facilities, the applicant shall pay a fee covering the full costs.

§14 Separation of Corporate Structures and Segregated Accounting

(1) Companies having a dominant position according to §22 of the Law against Restraints of Competition in markets other than telecommunications markets shall carry on telecommunications services through one or more legally independent companies.

(2) Companies having a dominant position according to §22 of the Law against Restraints of Competition in a telecommunications market shall guarantee the transparency of financial relations between and among telecommunications services in the licensed sector and between and among such services and telecommunications services in the non-licensed sector by establishing a segregated accounting system. In this regard, the regulatory authority may prescribe the structure of internal accounting for particular telecommunications services subject to licence.

§15 Licence Revocation

A licence may be wholly or partially revoked in the event of

the licensee not fulfilling the obligations arising from his licence or ensuing from this Act, violating in particular the secrecy of telecommunications, data protection regulations or penal provisions,
a reason for denial according to §8(3) sentence 1 subparagraph 2 arising in respect of the licensee or in respect of the party having permission to use the licence in the cases of §9(2) of this Act.

§16 Licence Fee

(1) Licences shall be granted for a fee. The Federal Ministry of Posts and Telecommunications shall be empowered to lay down, in agreement with the Federal Ministry of the Interior, the Federal Ministry of Finance, the Federal Ministry of Justice and the Federal Ministry of Economics, by ordinance having the force of law but not requiring the consent of the German Bundesrat and as provided for by the Administrative Expenses Act, chargeable acts, the level of the fee and the reimbursement of expenses.

(2) In the event of an auction according to §11(4) of this Act there shall be charged a fee according to (1) above only insofar as it exceeds the proceeds from the auction.

Chapter Two Universal Service

§17 Universal Services

(1) Universal services are a minimum set of telecommunications services for the public in respect of which a particular quality has been defined and to which every user shall have access, irrespective of place of residence or place of work, at an affordable price. Designated as universal services shall be telecommunications services which can be assigned to the sectors of voice telephony and the operation of transmission lines according to §6(1) of this Act and whose provision for the public as basic services has become indispensable. Also designated as universal services may be those telecommunications services which are directly connected with telecommunications services according to sentence 2 above and whose provision for the public as basic services has become indispensable.

(2) The Federal Government shall be empowered to designate as universal services, by ordinance having the force of law and requiring the consent of the German Bundestag and the German Bundesrat, telecommunications services according to (1) sentences 2 and 3 above. Such designation shall be adapted to technical and social developments in line with requirements. The ordinance shall also stipulate the minimum quality and the criteria governing universal service pricing. The regulatory authority shall have the power to decide on compliance with these criteria. The consent of the German Bundestag according to sentence 1 above shall be deemed given unless the German Bundestag refuses to give consent within three parliamentary weeks of receipt of the said ordinance from the Federal Government.

§18 Obligation to Provide Universal Services

(1) Where a universal service according to §17 of this Act is not being appropriately and adequately provided or where there is reason to believe that such provision will not be ensured, each licensee operating in the relevant product market for the applicable telecommunications service subject to licence and achieving a share of at least four percent of the total sales of this market within the purview of this Act or having a dominant position according to §22 of the Law against Restraints of Competition in the relevant geographical market shall undertake to contribute to providing the universal service. The obligation according to sentence 1 above shall be fulfilled in accordance with the provisions of this Chapter.

(2) Paragraph (1) above shall apply accordingly to any company constituting a single company with a licensee. A single company is created through any linkage of companies within the meaning of §23(1) sentence 2 and (2) and (3) of the Law against Restraints of Competition.

§19 Imposition of Universal Services

(1) The regulatory authority shall publish in its Official Gazette notice of the relevant product and geographical market in which a universal service according to §17 of this Act is not being appropriately or adequately provided or in which there is reason to believe that such provision will not be ensured. It shall give notice of its intention to proceed as provided for by §§19 to 22 of this Act unless a company declares itself willing, within one month of the notice being published, to provide such universal service without any compensation according to §20 of this Act.

(2) Upon expiration of the period referred to in (1) above the regulatory authority may oblige any licensee having a dominant position according to §22 of the Law against Restraints of Competition in the relevant product and geographical market to provide such universal service in accordance with the conditions laid down in the ordinance and in the provisions of this Act.

(3) Where in the relevant market for the applicable telecommunications service subject to licence several licensees jointly have a dominant position according to §22 of the Law against Restraints of Competition, the regulatory authority may decide, after hearing the licensees concerned, whether and to what extent it will oblige one or more of these licensees to provide the universal service. Such obligation may not unduly prejudice the licensees thus obliged in relation to other licensees.

(4) The provisions of (2) and (3) above shall apply accordingly to any company operating in a market referred to in (2) above and constituting a single company with a licensee according to (2) or (3) above. A single company is created through any linkage of companies within the meaning of §23(1) sentence 2 and (2) and (3) of the Law against Restraints of Competition.

(5) Where a provider who, according to (2) to (4) above, is to be obliged to provide universal service, furnishes prima facie evidence that, in the case of such obligation, he will be able to claim compensation according to §20(2) sentence 2 of this Act, the regulatory authority may, in place of the decision to oblige one or more companies under (2) to (4) above, solicit bids for the universal service, awarding it to t

Leis no mundo

Alemanha 1

Translation

Telecommunications Act

TABLE OF CONTENTS

Part I General Provisions

Part II Regulation of Telecommunications Services

Part III Rates Regulation

Part IV Open Network Provision and Interconnection

Part V Customer Protection

Part VI Numbering

Part VII Frequency Regulation

Part VIII Use of Trafficways

Part IX Approval, Transmitting Equipment

Part X Regulatory Authority

Part XI Telecommunications Secrecy, Data Protection, Safeguards

Part XII Penal and Administrative Fines Provisions

Part XIII Transitional and Final Provisions

Part I. General Provisions

§1 Legislative Purpose