The New Austrian Communications Authority ("Kommaustria")

1. Juli 2001
Mag. Matthias Brandl, LL.M.

There are Proposals for a Framework Directive, a Universal Service and User"s Rights Directive, a Data Protection Directive, an Access and Interconnection Directive, an Authorisation Directive as well as a Regulation on Unbundled Access to the Local Loop. These proposed new EU-Telecommunication Framework takes account of the increasing convergence of media, telecommunications and information technology. In its Article 3 the proposed Framework Directive requires Member States to establish National Regulatory Authorities which are independent of operators and are able to perform the tasks under the new Framework. Consequently Member States have to establish one or more bodies which are competent to regulate media and telecommunication as well as information technology organisations.

In order to follow this approach, the Austrian Government on 5 December 2000 released a proposal for a "Communication Organisation Act". It envisaged the establishment of an independent regulatory authority ("KommAustria"). The proposal took account of regulatory convergence and gave KommAustria a series of tasks in the field of media, telecommunications and information technology.

Thus, the authority was, in particular, to:
· establish and ensure a fair and effective competition by safeguarding fair and equal access to infrastructure, services and to end users;
· promote market entry of new operators;
· perform the role as "watchdog" over the market, thereby eliminating abuse of dominant positions by communication organisations as well as by broadcasters;
· enforce European competition law;
· ensure plurality of opinions, especially with regard to concentrations in the media sector;
· regulate content;
· administer the frequency spectrum.

Within KommAustria three sub-commissions were to be established, the media commission, the infrastructure commission and the competition commission. Thus the media commission was to authorise broadcasting programmes and allocate frequency to broadcasters. It should generally regulate and supervise broadcasters, in terms of infrastructure as well as in terms of content. Among the duties of the infrastructure commission was the regulation of access to communication services and infrastructure, to regulate interconnection, to license communication operators and to provide them with frequency.

The competition commission was to supervise competition and market power and, if necessary, to initiate procedures against abuses of dominant position. The competition commission furthermore had to regulate the universal service fund as well as to approve tariffs and terms and conditions of operators.

However, from the day of its release the proposal caused controversy. As it provided for the establishment of an independent authority, a voting quorum of 2/3 majority was needed in Parliament for its enactment. However, the opposition (whose votes were therefore necessary) refused to agree to the proposal which consequently could not be enacted as envisaged.

Members of the Government-parties therefore issued another draft. This one was substantially modified as compared to the initial proposal and no longer provided for an independent Communications Authority. It did neither take into account the increasing convergence to the extent as did the first Government proposal. In turn, the second proposal could be enacted merely by the votes of the Government parties.

As a result, on 1 March 2001 the second proposal was enacted as Communication Organisation Act ("KommAustria-Gesetz", "KOG"). It establishes the Communications Authority (Kommunikationsbehörde Austria - "KommAustria") which is an administrative body directed and supervised by the Chancellor"s Office. However, KommAustria is competent for the regulation of broadcasting organisations only and does not regulate telecommunication organisations or "organisations providing communication networks or services" as the proposed Framework Directive now calls them. KommAustria grants (and withdraws) licences to broadcasting organisations and its operating equipment and supervises these organisations. It regulates content of broadcasting programmes and administers frequency spectrum - only in relation to broadcasting.

Section 5 of the KOG establishes the "Rundfunk und Telekom Regulierungs-GmbH" ("RTR-GmbH") as a supporting body. The RTR-GmbH is to support both KommAustria as well as the current telecommunication authority - "Telekom-Control Kommission" ("TKK"). Consequently, the Telekom-Control GmbH, which is the existing regulatory authority supporting TKK, will be merged into RTR-GmbH. As a result, RTR-GmbH will take over the tasks previously performed by Telekom-Control GmbH and will furthermore support KommAustria. It therefore acts for two authorities - the dependent KommAustria and the independent TKK.

This somewhat strange constellation will most likely lead to problems in regulatory practice. For example, RTR-GmbH is financed - like the existing Telekom-Control GmbH - by the industry itself. It will be funded by licensing fees and financial contributions (section 6 KOG). Both broadcasting organisations as well as telecommunication providers will have to pay in a share of their turnovers achieved on their respective markets. However, the contributions payable by the undertakings are effectively prescribed by two different authorities - KommAustria for broadcasters and TKK for telecommunication operators. Inconsistencies in defining the markets on which the relevant turnovers are achieved and thus in calculating the payable amounts can therefore not be excluded. Another likely regulatory problem is the administration of frequencies by two different authorities: Whereas broadcasting organisations get their frequencies from KommAustria, telecommunications organisations are allocated the frequencies by TKK. Thus, infrastructure regulation is again performed by different authorities.

Section 11 KOG furthermore provides for the establishment of the Federal Communication Senate ("Bundeskommunikationssenat"), an independent authority, to which appeals against decisions of KommAustria can be referred. In the Parliament Correspondence to the proposal members of the coalition parties consider the establishment of the Senate to be an equal substitute to an independent Communication Authority as initially proposed by the Government on 5 December 2000. However, another inconsistency with the existing telecommunication framework arises: While decisions of the independent TKK can only be referred to the Supreme Administrative Court (or the Supreme Constitutional Court) for judicial review, decisions of KommAustria first have to be appealed against at the Federal Communications Senate before a complaint to the Supreme Courts can be made.

The regulatory concept of the new Communication Organisation Act therefore seems not to mirror the EU Commission"s intention to "merge" the media, telecommunications and information technology sectors into one regulatory body and to regulate and supervise them by one authority or at least by bodies which are essentially established under the same principles (independence). The Act will be brought before the "Bundesrat" (the second parliamentary chamber) for approval on 13 March 2001. Whether the concept will work in practice without major problems or inconsistencies, remains to be seen.


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