|This text is availlable at the "Regulierungsbehörde für Telekommunikation und Post" in PDF-Format as Download [LINK].
of 31. July 1996
The German Bundestag has adopted the following Act with the consent of the German Bundesrat:
TABLE OF CONTENTS
Part I General Provisions
Part II Regulation of Telecommunications Services
Chapter One Licences
§ 6 Licensed Sector
Chapter Two Universal Service
§ 17 Universal Services
Part III Rates Regulation
§ 23 Objections to and Objection Proceedings concerning General Terms and Conditions
Part IV Open Network Provision and Interconnection
§ 33 Special Control of Abusive Practices
Part V Customer Protection
Part VI Numbering
§ 43 Numbering
Part VII Frequency Regulation
Part VIII Use of Trafficways
§ 50 Principles for the Use of Public Ways
Part IX Approval, Transmitting Equipment
Chapter One Approval
§ 59 Terminal Equipment
Chapter Two Transmitting Equipment
Part X Regulatory Authority
Chapter One Establishment, Headquarters and Organisation
§ 66 Establishment, Headquarters and Legal Status
Chapter Two Functions and Powers
Chapter Three Proceedings
Chapter Four Remedies and Civil Proceedings
Chapter Five Activity Report, Cooperation
Part XI Telecommunications Secrecy, Data Protection, Safeguards
§ 85 Telecommunications Secrecy
Part XII Penal and Administrative Fines Provisions
Chapter One Penal Provisions
Chapter Two Administrative Fines Provisions
Part XIII Transitional and Final Provisions
Part I. General Provisions
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.
(1) Telecommunications and frequency regulation shall be a sovereign task of the Federal Republic of Germany.
(2) The aims of regulation shall be:
(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.
For the purposes of this Act
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.
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.
Regulation of Telecommunications Services
Chapter One Licences
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:
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.
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.
(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
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.
(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.
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.
(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 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,
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.
(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.
(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.
(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.
A licence may be wholly or partially revoked in the event of
(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
(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.
(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.
(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