III.1.3 Licences for the provision of mobile voice telephony service and other public mobile services
III.1.3.1 Statutory provisions
As already mentioned, pursuant to Art. 14 (1) TKG, a licence is required for the provision of mobile voice telephony service and other public mobile services.
The procedure for frequency allocation is laid down in Art. 49 and 49a TKG. Pursuant to Art. 49a (2) TKG, the regulatory authority shall allocate frequencies in line with the principles of an open, fair and non-discriminatory procedure. The frequencies shall be allocated to the applicant who guarantees the most efficient usage of frequencies. Such usage is determined, subject to Art. 49a (1) and (8) TKG, by the amount of the frequency usage fee offered. Thus, TKG clearly suggests auctions as an appropriate approach to frequency allocation. Other types of allocation, e.g. a "beauty contest" are to be rejected because they either violate the principles of an open, fair and non-discriminatory procedure or provide different/additional criteria for the determination of the most efficient usage. Finally, it shall be noted that in auctions in multiple round format also the risk for the licence applicants is reduced and, as a result, a market price is achieved. The intended award of mobile frequencies shall be put out to tender by virtue of office, as well as the fact that an applicant has fulfilled the licence obligations. The invitation to tender shall be published in the "Amtsblatt zur Wiener Zeitung". The period for submission of bids shall be at least 2 months.
The licensing and frequency allocation procedure comprises two stages.
- After receipt of the applications it shall be reviewed in a first stage if the general prerequisites for the licence award (as laid down in Art. 15 (2) TKG) apply pursuant to Art. 49a (6) TKG, i.e. if the applicant has the necessary technical competence and there is no reason for the authority to presume that the applicant will not provide the service applied for according to the licence, in particular with regard to the quality and the coverage obligation. In this respect, the applicant's financial strength, his experience in the telecommunications sector as well as in related sectors and his professional qualification shall be taken into account. Pursuant to Art. 49a (6) TKG, the regulatory authority shall exclude applicants not complying with the general prerequisites for obtaining a licence from the frequency allocation process.
- All applicants not excluded from the procedure pursuant to Art. 49a (6) TKG, shall participate in an auction. Apart from the general provisions of Art. 15 (2) TKG, Art. 49a (1) and (8) TKG specify the most efficient frequency usage as additional criterion for the allocation of frequencies. Such usage shall be determined by the amount of the frequency usage fee offered, which the applicant shall state already in his application for frequency application.
| Info Box 7: Art. 49a (1) TKG: Frequency allocation by the regulatory authority |
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The regulatory authority shall allocate the frequencies assigned to it to the applicant who complies with the general prerequisites pursuant to Art. 15 (2) Z 1 and 2 and guarantees the most efficient usage of the frequencies. Such usage shall be determined by the amount of the frequency usage fee offered. |
