Yesterday evening, the Federal Ministry for Economic Affairs and Energy and the Federal Ministry of Transport and Digital Infrastructure published the draft bill for a law to modernize telecommunications law (“Telecommunications Modernization Act”). The Federal Government’s aim is to have the bill discussed by the Federal Cabinet on December 16, 2020.
Despite some positive adjustments in the draft bill compared to the previous version, BREKO misses the “big bang” for a fast and efficient fiber optic roll-out in key areas. BREKO Managing Director Dr. Stephan Albers comments: “The big, bold step towards the future is missing. The fact that fibre optics is THE future-proof and sustainable digital infrastructure that forms the central basis for the digitalization of society, the economy and administration is unfortunately not yet made clear by this draft bill. We would have liked to have seen a clear commitment to a future-proof and resilient digital infrastructure.”
The bill is still a long way from being implemented in a future-oriented way when it comes to the “right to fast Internet”, which is designed as a universal service and announced in the federal government’s coalition agreement. A coherent system is needed to give all citizens access to fast Internet. On the one hand, this must also include radio-based solutions when providing minimum coverage via existing infrastructures. On the other hand, priority must be clearly given to self-sufficient and subsidized expansion measures for fast internet over the universal service. “The implementation continues to violate the EU requirements, which regard universal service and thus also the right to fast internet as a last resort (“ultima ratio”) if all other available instruments do not lead to success. The requirement should also be designed to be technology-neutral, so that all radio-based solutions, such as mobile and satellite communication, are also taken into consideration,” explains Albers.
The much-discussed ability to pass on the costs of the broadband connection as part of the Operating Costs Ordinance is currently set to be deleted without replacement two years after the law comes into force. In the BREKO’s view, this means that great potential for accelerating the expansion of fiber optics, especially in the area of apartment buildings and thus the housing industry, is being wasted. “In order to give a real boost to the expansion of fibre optics, we are campaigning for a modernization of apportionability in the sense of ‘apportionability 2.0’ and have also made a concrete proposal for this, which unfortunately was not taken into account,” said Albers. The proposal provides for telecommunications providers to be able to make use of the possibility of apportionment in the future in the event of new investments in fiber optic networks to buildings and apartments. The levy should not be agreed “indefinitely”, but for a period that adequately reflects the value of the investment in the new fiber optic infrastructure. To this end, BREKO proposes a period of seven years. In addition, in order to create incentives for cooperation and the greatest possible diversity of offerings, the obligation to grant open access to the network should be included in the regulation, enabling other providers to access customers via the new network.
The draft bill now also contains a regulation for a long-disputed issue within the German government regarding the term of telecommunications contracts. In principle, the maximum possible minimum contract term of 24 months is to be retained. At the same time, however, providers will be obliged to provide a 12-month contract for each individual tariff, the price of which may not exceed that of a 24-month contract by more than 25 percent on a monthly average. BREKO considers this to be too far-reaching an encroachment on contractual freedom and also not in the interests of the vast majority of customers who deliberately opt for longer contract terms. In addition, 24-month contracts would be permissible under the European directives without any further conditions. “The legislator should stick to the tried and tested practice in Germany for fixed-term contracts, also against the background of planning security for the further expansion of fiber optics,” appeals BREKO Managing Director Dr. Stephan Albers.
“In order to really embark on the path to a digital future, we are counting on the federal government to take up our proposed amendments in the cabinet decision, or at the latest the Bundestag and Bundesrat in the parliamentary procedure, in order to accelerate the expansion of fiber optics. We will continue to work towards this with constructive proposals in the coming weeks,” explains BREKO CEO Albers.
Finally, BREKO criticizes the current concentration of legislative projects: “In addition to the TKG amendment, we also have the draft bill for the IT Security Act 2.0 and the draft Telecommunications and Telemedia Data Protection Act (TTDSG) on our desk. We consider it very critical to wave through these three legislative proposals, which are so important for the telecommunications industry, without adequate involvement of the industry,” said Albers.