Legal framework for frequency allocation
In general, the telecommunications authority is responsible for allocating frequencies for communication services. However, for certain frequency ranges the Federal Minister may issue an ordinance limiting the number of allocations. If such a limit is defined, the regulatory authority (Telekom Control Commission) is then responsible for allocating the frequencies.
The frequency bands listed below were deemed to be limited in number (i.e., scarce) in the Frequency Utilization Ordinance 2005 (FNV 2005, Federal Law Gazette II No. 307/2005 as amended by Federal Law Gazette II No. 333/2009). As a result, the Telekom Control Commission is responsible for allocating frequencies in the following bands:
- 451,300/461,300 - 455,740/465,740 MHz Mobile communications
- 880-915/925-960 MHz Digital mobile communication systems (GSM)
- 1800-1805 MHz future european harmonized usage
- 1710-1785/1805-1880 MHz Digital mobile communication systems (GSM)
- 1900-1980/2010-2025/2110-2170 Digital mobile communication systems (UMTS/IMT2000)
- 2500-2690 MHz Digital mobile communication systems (IMT)
- 3410-3494/3510-3594 MHz Point-to-multipoint systems/MBWA
- 3600-3800 MHz Point-to-multipoint systems/MBWA
MBWA: mobile broadband wireless access
The allocation procedure for the frequencies allocated by the regulatory authority (Telekom Control Commission) is governed by Art. 55 TKG 2003.
Under Art. 55 Par. 1 TKG 2003, the regulatory authority is to allocate the frequencies placed under its authority to the applicant which fulfills the prerequisites under Par. 2 No. 2 TKG 2003 and ensures the most efficient use of the frequencies allocated. This is to be determined by the amount of the frequency license fee offered.
The regulatory authority is required to allocate frequencies according to the principles of an open, fair and non-discriminatory procedure and of economic efficiency. The regulatory authority must put the intended allocation of frequencies out to public tender if the demand for such an allocation is identified by virtue of office or if an application is received and the regulatory authority concludes that the applicant is in a position to comply with the incidental provisions associated with the right to use the frequencies.
Once the terms and conditions of the invitation to tender have been approved by the Federal Minister of Transport, Innovation and Technology, the invitation to tender is to be published in the "Amtsblatt zur Wiener Zeitung" with a tender submission period of at least two months.
After carrying out an auction procedure, the regulatory authority is to allocate the respective frequencies to the applicant(s) which ensure(s) the most efficient use of frequencies.
Frequency trading
The possibility of transferring frequencies to other operators is another substantial change compared to the regulations previously in effect. Under certain circumstances, the Telecommunications Act 2003 (TKG 2003) allows companies which hold frequency usage rights to transfer such rights to other companies. However, such transfers require prior approval by the regulatory authority.
The regulatory authority is required to publish the application and its decision to approve or reject the transfer of frequency usage rights.
Decisions in this regard must be based on the technical effects of the transfer as well as its effects on competition.
In the terms and conditions of the invitation to tender, the regulatory authority may stipulate that the frequencies to be allocated in the given procedure can be transferred to other companies. Such transfers are only possible on the condition that the usage rights remain unchanged.
Changes in frequency allocations
On the basis of Art. 57 Par. 4 TKG 2003, frequency allocation holders also have the right to apply for changes in their frequency allocations. When making decisions in this regard, the regulatory authority must consider the technical effects of the changes as well as their effects on competition.