Mobile dispute: Court criticizes Federal Network Agency's inaction

Legal defeat for the Federal Network Agency: The Cologne Administrative Court has upheld a complaint by Multiconnect that the regulatory authority had remained largely inactive in arbitration proceedings due to a dispute between the Munich-based telecommunications company and Telefónica over access to the major mobile network operator's network. In a recently published ruling from April 25 (case no. 1 K 8270/24), the judges clarified that the Federal Network Agency must make a decision in such cases within the maximum period of four months stipulated in the Telecommunications Act (TKG). Expected additional circumstances also did not justify an extension. Exceeding the deadline would effectively lead to a denial of legal protection and an obstruction of competition.

Mobile network operators are legally obliged to negotiate the shared use of radio capacities with service providers without their own network infrastructure. In this specific case, Multiconnect and Telefónica were unable to agree on the modalities, with the result that the smaller competitor filed an application with the regulatory authority in spring 2023 to initiate dispute resolution proceedings. The first hearing took place in July of the same year. However, little has happened since then: the Federal Network Agency argued that the case was exceptionally complex and involved a large number of applications, documents and complex legal issues from a difficult subject area.

Time is an existential factor for competitors

The Administrative Court did not accept these arguments. It found that the greatest possible acceleration of the procedure was appropriate for reasons of promoting competition. In access disputes, the time factor is existential for competitors. According to the ruling, the Federal Network Agency must therefore ensure in organizational terms that proceedings can be decided within the four-month period. Multiconnect sees this announcement as an indication that the Presidential Chamber of the regulatory authority must restructure the negotiation requirement: The ruling chamber responsible for arbitration should actually be able to apply the requirements within the statutory period and not have to obtain additional market data first, for example.

Competitors have long been calling for the Federal Network Agency or the legislator to introduce a service provider obligation instead of the vague negotiation requirement. This would require the three established mobile network operators Telekom, Vodafone and Telefónica to lease some of their capacity to competitors who do not have their own infrastructure. According to Multiconnect, the ruling is also likely to have an impact on other lawsuits such as those filed by Freenet and EWE against the adherence to the negotiation requirement in the regulator's current decision on frequency extension. Here, too, the question arises as to whether the guidelines for negotiations that have now been established are practicable and can be enforced in a timely manner. The broadband association Breko is also missing decisive action by the required arbitrator in the discussion on the dual expansion of fiber optic networks.

(mma)