The Telekommunications Act contains pursuant to Art 125 (3) TKG "transitional stipulations" concerning the award of frequency spectrum to licenses of mobile telephony.
Already in October 1997, Mobilkom had submitted an application on the basis of Art. 125 (3) TKG.
The "Explanatory Remarks on the Government Bill" contain the following passage on Art. 125 (3) TKG: "To obtain an objective opinion on the question of how many subscribers are needed for exhaustion of the subscriber capacity, the Federal Minister of Science and Transport will commission a study by an independent expert".
Samy A. Mahmoud (Carleton University, Ottawa, Canada) was commissioned with this study. He concluded that the subscriber capacity of Mobilkom was exhausted mainly in the large, high-traffic conurbations. On the basis of this study as well as further investigations TKK finally came to the conclusion that the subscriber capacity of Mobilkom in the Federal Province of Vienna was, in fact, exhausted. By Notice of 10. 08. 1998, a frequency spectrum of 2x5 MHz from the DCS-1800 frequency range was therefore allocated, limited to base stations situated in the Federal Province of Vienna. Frequency use was determined to start on 01.01.1999.
Connect appealed to the Federal Constitutional Court against this Notice, the petition for the suspending effect of the decision filed at the same time was granted. In the decision of 24.02.1999 the Federal Constitutional Court finally rejected the appeal as being unfounded, but ruled that Art. 133 Z 4 B-VG was superseded by direct applicability of Art. 5a (3) of the ONP Framework Directive (90/387/EEC as amended by 97/51/EC) and that thus appeals against decisions of TKK as regulatory authority to the Federal Administrative Court were permissible.
| Info Box 9: Art. 125 (3) TKG |
| The authority may, on demand, allocate additional frequencies in packages of 5 MHz each from the frequency range reserved for DCS-1800 to incumbent licensees for the provision of the reserved telecommunications service by means of mobile radio in the digital cellular mobile telephony range if at least three years have elapsed since the Licence Notice of the licence applicant for the DCS-1800 licence to be granted in 1997 came into force. Prior to this date, additional frequencies from the frequency range reserved for DCS-1800 may be allocated to incumbent licensees only if their subscriber capacity has been proved to be exhausted, while taking all reasonable economic and technical measures. |
Subsequently, Connect filed a complaint also with the Federal Administrative Court. On 24.11.1999, the VwGH finally decided to seek preliminary rulings on two issues from the Court of Justice of the European Communities. The proceedings are still pending. The frequencies have been used by Mobilkom since 24.02.1999.
In October 1998, max.mobil. also filed a request for allocation of frequencies on the basis of Art. 125 (3) TKG. In December Mobilkom requested frequencies for additional areas.
Both proceedings were decided on 25.08.1999. Mobilkom is currently entitled to use the frequencies from the DCS-1800 frequency range in the Federal Province of Vienna as well as in some surrounding villages, in and surrounding the City of Salzburg, in Graz and in the Rhine Valley, whereas max.mobil. may use the frequencies in Vienna and in the Rhine Valley.
