DLA Piper Intelligence

Telecommunications
Laws of the World

Overview of legal landscape

Austria
Austria

In Austria, the field of telecommunications is strongly influenced by European requirements. The European legal framework was implemented through the Telecommunications Act (Telekommunikationsgesetz - TKG 2003). With this Act, regulation has developed from sector-specific regulation towards a more general competition law approach. In the TKG 2003, the regulatory authorities have been assigned new tasks, such as, for example, a number of authorisations to issue ordinances. Regulation and monitoring of the Austrian telecommunications market is undertaken by the Telekom-Control-Commission (TKK) and the Regulatory Authority for Broadcasting and Telecommunications (RTR).

The purpose of the TKG 2003 is to promote competition in the field of electronic communications in order to provide reliable, low-cost, high-quality and innovative communications services.

The key features of the TKG 2003 are:

  • According to the principle of general authorisation any person is entitled to provide communications networks and services. The intended provision, its modifications and its termination have to be notified to the regulatory authority.

  • Due to universal service obligations, a minimum set of public services has to be provided to all users at an affordable price regardless of their place of residence or work.

  • The regulatory authority is obligated to enforce all the objectives of the TKG 2003 as they are laid out in Article 1 TKG 2003, especially in respect of the regulation of competition.

  • The Federal Minister of Transport, Innovation and Technology administers the frequency spectrum as well as the Austrian rights of use and orbital positions of satellites. He is obligated to take appropriate measures to ensure efficient and interference-free use.

The regulatory authority is responsible for providing efficient structuring and administration of the communications parameters in their entirety.

Last modified 5 Oct 2016
Overview
Austria

In Austria, the field of telecommunications is strongly influenced by European requirements. The European legal framework was implemented through the Telecommunications Act (Telekommunikationsgesetz - TKG 2003). With this Act, regulation has developed from sector-specific regulation towards a more general competition law approach. In the TKG 2003, the regulatory authorities have been assigned new tasks, such as, for example, a number of authorisations to issue ordinances. Regulation and monitoring of the Austrian telecommunications market is undertaken by the Telekom-Control-Commission (TKK) and the Regulatory Authority for Broadcasting and Telecommunications (RTR).

The purpose of the TKG 2003 is to promote competition in the field of electronic communications in order to provide reliable, low-cost, high-quality and innovative communications services.

The key features of the TKG 2003 are:

  • According to the principle of general authorisation any person is entitled to provide communications networks and services. The intended provision, its modifications and its termination have to be notified to the regulatory authority.

  • Due to universal service obligations, a minimum set of public services has to be provided to all users at an affordable price regardless of their place of residence or work.

  • The regulatory authority is obligated to enforce all the objectives of the TKG 2003 as they are laid out in Article 1 TKG 2003, especially in respect of the regulation of competition.

  • The Federal Minister of Transport, Innovation and Technology administers the frequency spectrum as well as the Austrian rights of use and orbital positions of satellites. He is obligated to take appropriate measures to ensure efficient and interference-free use.

The regulatory authority is responsible for providing efficient structuring and administration of the communications parameters in their entirety.

Last modified 5 Oct 2016
Laws and regulations

All laws and ordinances mentioned below can be found here.

  • Telecommunications Act 2003

  • E-Commerce Act (E-Commerce-Gesetz - ECG)

  • The Act on Radio and Telephone Systems and Telecom Terminal Equipment (Bundesgesetz über Funkanlagen und Telekommunikationsendeinrichtungen - FTEG)

  • KommAustria Act (KommAustria-Gesetz - KOG)

  • Telephone Rates Act (Fernmeldegebührengesetz)

  • Digital Signature Act (Signaturgesetz - SigG)

  • Data Protection Act 2000 (Datenschutzgesetz - DSG)

  • Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb - UWG)
  • Law on Alternative Dispute Resolution in Consumer Affairs (Bundesgesetz, mit dem ein Bundesgesetz über alternative Streitbeilegung in Verbraucherangelegenheiten erlassen wird)

Ordinances of RTR-GmbH:

  • Ordinance on Notification on Data to the Central Information Point for Infrastructure Data (ZIS Einmeldung von Daten an die Zentrale Informationsstelle für Infrastrukturdaten - ZIS-EinmeldeV)

  • The Communication Parameters, Fees and Value-Added Services Ordinance (Kommunikationsparameter-, Entgelt- und Mehrwertdiensteverordnung - KEM-V)

  • Itemised Billing Ordinance (Einzelentgeltnachweisverordnung - EEN-V)

  • Ordinance on Communications Parameter (Kommunikationsparameter)

  • Cost Control Ordinance (Kostenbeschränkungsverordnung)

  • Information Requirement Ordinance (Mitteilungsverordnung - MitV)

  • Number Porting Ordinance 2012 (Nummernübertragungsverordnung 2012 - NÜV 2012)

  • Telecommunications Markets Ordinance (Telekomunikationsmärkteverordung - TKMVO)

  • Telecommunications Reference Rate Ordinance (Telekom-Richtsatzverordnung - TRV)

Ordinances of the Austrian Ministry of Transport, Innovation and Technology, the Austrian Ministry of Science, Research and Economy:

  • Ordinance on use of frequencies (Frequenznutzungsverordnung 2013 - FNV 2013)

  • Ordinances on Radio and Telephone Systems and Telecom Terminal Equipment (Betriebsfunkverordnung - BFV, Erteilung genereller Bewilligungen, Funkanlagen und Endgeräte - KennzeichnungsverordnungFEKV, Funkanlagen und Endgeräte - VerordnungFEV, Funkempfangsanlagenverordnung)

  • Telecommunications Fee Ordinance (Telekommunikationsgebührenverordnung - TKGV)

  • Ordinance on Statistical Enquiries (Kommunikations-Erhebungs-Verordnung - KEV)

  • Universal Services Ordinance (Universaldienstverordnung – UDV)

  • Ordinance on Surveillance of Telecommunications (Überwachungsverordnung– ÜVO)

Last modified 5 Oct 2016
Regulatory bodies

Austrian Regulatory Authority for Broadcasting and Telecommunications

The Austrian Regulatory Authority for Broadcasting and Telecommunications (RTR) carries out government duties as a legal entity owned and controlled by the Austrian federal government. It also provides telecommunications-related operational support for the Telekom-Control Commission.

In providing operational support for the Telekom-Control-Commission, RTR is mainly responsible for the fields of site sharing, approvals of general terms and conditions of business, electronic signatures, frequency assignment procedures and competition regulation. Additional activities at RTR include alternative dispute resolution, the administration of the Austrian Digitisation Fund and Television Fund, dispute settlement for retail customers, and the administration of communications parameters (eg numbering). RTR's objectives and duties are defined in Sec 115 TKG 2003, which stipulates that RTR must perform all duties conferred upon the regulatory authority by the TKG 2003 and by any ordinances issued under that act, unless the Telekom-Control-Commission is responsible for such duties pursuant to Art. 117.

As for its government duties, RTR mainly performs tasks related to the administration of communications parameters (allocation of telephone numbers by official decision) under Sec 7 of the TKG 2003.

Moreover, RTR was also granted the power to issue various types of ordinances in the TKG 2003 (see list of ordinances Laws and regulations). RTR additionally has the power to issue:

  • Ordinances with regard to service quality under Sec 17 Par. 3 TKG 2003
  • Subscriber notifications pursuant to Sec 25 Par. 3 TKG
  • Special information obligations pursuant to Sec 25b TKG 2003

Telekom-Control-Commission (TKK)

The Telekom-Control-Commission (TKK) is a panel authority with the powers of a court (Sec 116 TKG 2003). Under Art. 116 TKG 2003, RTR is responsible for managing operations for the TKK. In their activities on behalf of the TKK, RTR's staff members are bound by the instructions of the TKK's chairperson or the TKK member designated in the authority's rules of procedure.

Under Art. 20 Par. 2 of the Federal Constitutional Act, members of the TKK are not bound by any instructions in the performance of their official duties. Appeals against TKK decisions can be submitted to the Federal Administrative Court. Further appeals against decisions by the Federal Administrative Court may be submitted to the Austrian Administrative Court and the Austrian Constitutional Court.

The authority's duties are defined in Art. 117 TKG 2003, under which RTR is required, among other things, to:

  • Issue procedural decisions on security reviews in order to calculate the financial compensation to be paid from and into the Universal Service Fund
  • Identify the relevant markets subject to sector-specific regulation
  • Determine whether one or more undertakings have significant market power or effective competition prevails on those markets
  • Determine whether specific obligations are to be withdrawn, maintained, amended or imposed
  • Issue approvals of general terms and conditions as well as rates/charges
  • Assign frequencies for which a provision is made in the frequency usage plan
  • Issue decisions on the transfer of frequencies
  • Handle changes in frequency licences and revocations
  • Issue decisions on the right to operate communications networks or provide communications services
  • Issue decisions regarding injunctions
  • Identify infringements and the skimming of excessive gains
  • Submit petitions to the Cartel Court

RTR-GmbH and TKK operate from the same address (Mariahilfer Straße 77-79, 1060 Wien) and share a website.

Telecommunications Offices

These are used by the regulatory authority for supervision of all communication services; four offices with a regional area of responsibility exist.

Last modified 5 Oct 2016
Regulated activities

The provision of a public communications network or service, as well as its modifications and its termination, is regulated and shall be notified to the regulatory authority prior to the start of operation, modification or termination.

Under Austrian law, a 'public communications network' means a communications network used wholly or mainly for the provision of publicly available communications services, whereas a 'telecommunications service' means a communications service with the exception of radio and television broadcasting.

Last modified 5 Oct 2016
Registration / licensing

Communication providers have general authorisation to operate in Austria and do not require a licence, permit, consent etc. This concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States.

Nonetheless Austria does require a notification to RTR prior to the start of operation, for any modification or for termination of the services.

The notification has to be in writing and provide details of the provider, the legal structure of the undertaking, a short description of the network or service and the anticipated date of the start of operation, modification or termination of the service (Sec 15 TKG 2003).

Last modified 5 Oct 2016
Establishment

From a telecoms regulatory perspective, there are no requirements for a communications provider to be domiciled in Austria prior to or during the provision of services.

Last modified 5 Oct 2016
Interconnection/roaming

Every operator of a public communications network shall be under the obligation to make an offer for interconnection to other operators on request. All parties involved shall strive to achieve the objective of enabling and improving communication of the users of different public communications networks.

The regulatory authority may require an undertaking with significant market power to publish a reference offer. The undertaking shall provide in the reference offer sufficiently unbundled subservices, with a breakdown of the relevant offerings into components according to market needs, and state the associated terms and conditions (including prices). Such reference offers shall be submitted to the regulatory authority. Agreements on network access are to be submitted to the regulatory authority upon its request.

Interconnection shall comprise of at least the following services:

  • provision of the required switching of data of the respective connection or, in case of packet-oriented services, of the routing data to the interconnecting operator

  • delivery of the connections or data packages to the user of the interconnected operator, and

  • provision of the data required for interconnection payments to the interconnection operator in an appropriate manner

If link-up via lines is required for interconnection, the installation costs as well as the current expenses of the interconnected line shall be appropriately distributed between both operators.

If no agreement is reached between an operator of a public communications network or service specifically with significant market power and another operator of a public communications network or service, or an undertaking which specifically benefits from access obligations within six weeks of receipt of the application (despite negotiations), either party involved may have recourse to the regulatory authority. The regulatory authority may fix tariffs.

Roaming is based on the EU Roaming Directive.

Last modified 5 Oct 2016
Consumer protection

The TKG 2003 contains a number of consumer specific provisions, but does not include a definition of the term 'consumer' itself. Rather, it refers to the meaning of consumer in the Austrian Consumer Protection Law (Konsumentenschutzgesetz - KSchG).

According to the KSchG a consumer is anyone for which the deal in question is not part of his business.

For consumers, the TKG 2003 states that contracts for communications services between operators and consumers may not exceed an initial minimum contract duration of 24 months. Additionally, every subscriber must have the option of concluding a contract of no more than 12 months‘ minimum duration for each communications service (Sec 25d (1)).

Generally, with regard to consumers, all consumer law provisions apply in full.

Last modified 5 Oct 2016
Taxes and fees

A radio operator is required to pay a notification fee for the commencement of operating a radio system (Sec 82 TKG 2003). For other notifications, authorisations and approvals granted under the TKG 2003, fees also have to be paid.

For notifications, the assignment of frequency usage rights and other administrative activities, one-off fees have to be paid. For the use of frequencies, periodic fees which are defined in the Telecommunications Fee Ordinance, have to be paid.

According to Sec. 34 of the KommAustria Act, all operators/providers of public communications services are generally subject to financing contribution requirements. The annual fee is imposed for the financing of the regulatory authority, which is financed partially from the federal budget and partially from the contributions of the communication services and networks operators.

The operators' contributions are calculated on the basis of the net turnover for all services provided in Austria.

A turnover threshold is set at EUR 300 (calculated fee, not turnover) as adapted for inflation; contributions which are below this threshold are not payable.

Last modified 5 Oct 2016
Enforcement

If a person who is or was involved in operators' activities, discloses, without authorisation, the fact or the contents of the telecommunications traffic of specific persons to an unauthorised person or gives such person the opportunity to perceive facts himself that are subject to the obligation to maintain secrecy, or if a person falsifies, incorrectly relates, modifies, suppresses or incorrectly conveys a communication or withholds it from the intended recipient without authorisation, this constitutes a violation of user rights.

These persons are sanctioned by the court with a prison sentence of up to three months or a fine up to 180 times the daily rate (Art. 108 TKG 2003).

Further to the above-mentioned criminal penalty, the TKG 2003 provides administrative fines for various breaches of specific provisions of the TKG 2003, as provided by Art. 109 TKG 2003. The fines are divided into several classes, and can amount to up to EUR 4,000, EUR 8,000, EUR 37,000 or EUR 58,000, depending on the seriousness of the offence.

Cartel law sanctions, unfair competition law sanctions as well as data protection infringement sanctions may be imposed.

Last modified 5 Oct 2016
Contacts
Sabine Fehringer
Sabine Fehringer
Partner
T +43 1 531 78 1460
Last modified 5 Oct 2016