DLA Piper secures victory for Transatel SA in landmark telecoms dispute

DLA Piper has secured a victory for the French telecommunications service provider, Transatel SA, in a dispute under telecommunications law before the Federal Network Agency (BNetzA). In this landmark procedure, the BNetzA ordered the German mobile network operator, Telefónica Germany GmbH & Co. OHG, to submit a draft agreement regarding access to regulated wholesale roaming services to Transatel.

Transatel operates as a Mobile Virtual Network Enabler and offers mobile services worldwide. This includes machine-to-machine and Internet of Things communication. To do so, the company secures roaming agreements with the network operators in the countries where it provides these services.

In Germany, Telefónica refused the request by Transatel to submit a draft agreement on access to wholesale roaming services, which are governed in the EU by the Roaming Regulation. Among the grounds for the refusal were that Transatel did not issue its customers with SIM cards with country-specific (e.g. French) subscriber identifiers, but instead with non-geographical subscriber identifiers, the so-called IMSI with MCC 901 assigned by the International Telecommunication Union. These did not fall within the scope of application of the Roaming Regulation.

The BNetzA has now rejected this, and in the dispute resolution proceedings initiated by Transatel, has decided that Telefónica's refusal was unlawful and the draft agreement must now be submitted. Numerous other telecommunications companies, as well as the Association of Telecommunications and Value-Added Service Providers, were summoned as interested parties to the proceedings.

According to BNetzA, it is not the subscriber identifier that is decisive in whether the EU Roaming Regulation is applicable, but rather the actual home network of the party seeking access. As Transatel is a French company with a French home network, it is entitled to the agreement in accordance with the EU Roaming Regulation, whereby Transatel should be granted the opportunity to use the country code 901.

Prior to this decision, the BNetzA had contacted the Body of European Regulators for Electronic Communications (BEREC), which, in particular, shares the view that the EU Roaming Regulation also covers roaming services that Transatel offers via IMSI with MCC 901, for customers with a home network in an EU member state. The decision of the BNetzA and the opinion of BEREC are the first on this issue within Germany and Europe.

In the press release from the BNetzA on 7 June 2018, Jochen Homann, President of the BNetzA, explained the decision as follows: “The decision provides an important boost to competition and innovation on the wholesale markets, particularly in respect of the Internet of Things or communication between machines.” Web link here

The DLA Piper team managing the proceedings on behalf of Transatel comprised of Hamburg based Litigation & Regulatory partner, Dr Michael Stulz-Herrnstadt, and senior associate, Christoph Engelmann. They were supported by Frankfurt-based Corporate partner, Dr Mathias Schulze-Steinen, who established contact with the client, and Litigation & Regulatory associate, Fabian Jeschke.