EWE and Freenet file suit against extension of mobile frequencies

The Federal Network Agency must defend its decision to extend the usage rights for some mobile frequencies in court. EWE and Freenet filed a lawsuit with the Administrative Court (VG) in Cologne on Wednesday, the companies confirmed to heise online. The plaintiffs do not consider the conditions imposed by the Federal Network Agency on the mobile network operators to be sufficient.

The mobile network operators Telefónica Deutschland (O2), Deutsche Telekom and Vodafone are currently using frequencies in the bands around 800 MHz, 1.8 GHz and 2.6 GHz, the usage rights for which expire at the end of the year. After almost a year of debate, the Federal Network Agency decided in March not to reallocate these usage rights but to extend them until 2030.

Guard rails or service provider obligation

The conditions with which the regulatory authority is flanking the extension are highly controversial in the industry. The network operators were required to further expand the coverage of their networks in rural regions and along transport routes and railroad lines. They are also required to negotiate with competitors on the provision of network capacity.

However, the Federal Network Agency was unable to impose a so-called service provider obligation –, i.e. the obligation to cede network capacity to a competitor –. The three mobile network operators find the requirements tough enough as it is. Their competitors criticize that the existing negotiation requirement is a toothless tiger and demand a service provider obligation.

"The negotiation requirement is ineffective because it does not solve the problems identified by the market. The last few years have clearly shown this," explains Matthias Büning, Head of Regulation at EWE TEL. "We have already had to take legal action against the allocation of 5G frequencies for this reason and were successful. Like the Federal Cartel Office and the Monopolies Commission, we believe that a clear obligation on the part of mobile network operators is essential."

The Federal Cartel Office and the Monopolies Commission had criticized the Federal Network Agency's decision and called for the three network operators to be obliged to offer competitors access to their networks.

The competition watchdogs saw newcomer 1&1 in particular as being at a disadvantage, as it would be denied the opportunity to acquire high-reach spectrum in the medium term due to the extension. The Federal Network Agency therefore ordered that the newcomer be given 2×5 MHz of the so-called area frequencies at 800 MHz.

Freenet's business model as a mobile communications provider is to offer its own tariffs on the networks of the three major network operators. Fixed network operators such as EWE also use this capacity to offer mobile communications under their own brand in a package with fixed network connections and other services.

Successful lawsuit against 5G auction

Freenet and EWE had already successfully filed a lawsuit against the design of the auction for 5G frequencies in 2019. After the Federal Administrative Court overturned an initial ruling, the Cologne Administrative Court declared the auction conditions invalid in the second round –, among other things because the German government had influenced the decision of the actually independent regulatory authority.

The Cologne Administrative Court did not allow an appeal against this ruling. The Federal Network Agency has since lodged an appeal against this decision, as confirmed by a spokesperson for the authority on request. However, the Federal Administrative Court has not yet made a decision on this.

The German Broadband Communications Association (Breko), in which numerous regional fixed network operators are organized, expressly welcomed the renewed action by EWE and Freenet. "These lawsuits are the only logical response to a decision that ignores the warnings of the Federal Cartel Office and the Monopolies Commission against cementing unequal competitive conditions in mobile telephony," says Breko's head of office Sven Knapp.

Instead of forcing its way through to a service provider obligation, the Federal Network Agency has merely added a few "guard rails" to the ineffective negotiation requirement, criticizes Knapp. "With this completely inadequate measure and the renewed renunciation of an effective service provider obligation, which would sustainably strengthen competition, the Federal Network Agency is protecting the market power of the established mobile network operators."

"The Federal Network Agency has so far only been aware of complaints filed by EWE TEL and freenet against the Presidential Chamber's decision of March 24, 2025 from the press," explained a spokesperson for the regulatory authority. "They have not yet been forwarded to the Federal Network Agency by the competent administrative court in Cologne."

(vbr)