Court: Telekom must grant Deutsche Glasfaser access to empty conduits

Another legal setback for Telekom in disputes over open networkaccess. The Cologne Administrative Court has upheld a decision by the Federal Network Agency from March in summary proceedings, according to which Telekom Deutschland GmbH must grant Deutsche Glasfaser access to empty conduits of the publicly funded telecommunications network on two routes in the Bavarian municipalities of Heßdorf and Großenseebach.

Deutsche Telekom is also not permitted to charge any fees that are due regardless of whether access is actually granted, for example for the preparation of an offer. According to the court, such costs could "result in open network access to a subsidized network not being granted, even though demand and capacity would have been available". This is because the company requesting access would then already have to take a cost risk with the request.

The Administrative Court announced on Monday that it had issued an urgent decision to this effect on June 24 following a "summary examination" of the arguments put forward by both sides and had since served it on the parties involved (case reference: 1 L 681/24). In particular, it refers to Section 155 TKG. This stipulates that network operators who have used state subsidies for broadband expansion must, in principle, make all types of active and passive access products available to competitors in good time and on fair and reasonable terms.

Telekom defended itself against the competitor's application primarily with the argument that it could not offer open access for third parties because the empty conduits were too thin. However, the Federal Network Agency did not accept the reference to a lack of capacity: The Bonn-based company was applying too narrow an understanding of the infrastructure considered to be supported.

Urgent application by Telekom

Telekom filed an urgent appeal against the regulatory authority's decision, which the Cologne judges have now rejected. They reasoned that the Network Agency had rightly based its decision on a broad understanding of the infrastructure deemed to be supported. This is because only such an understanding enables effective open network access "in order to compensate for the distortion of competition caused by public funding".

The urgent decision is final. However, the issue is not yet off the table, a spokesperson for Deutsche Glasfaser told the municipality: The main proceedings on the legality of the Federal Network Agency's decision are still pending: "A ruling cannot be expected in the short term." There is nothing the municipality can do.

For the residents of the affected areas, however, the fiber optic expansion is unlikely to proceed quickly for the time being. According to the municipality, Deutsche Glasfaser has already abandoned its expansion plans in the town of Heßdorf. In the districts of Untermembach, Niederlindach and Hannberg, the network operator is sticking to its expansion plans and wants to lay its own fiber optic cables from Telekom's existing local nodes to the individual streets.

(olb)