By Christoph Engelmann, Senior Associate, Hamburg

DLA Piper recently advised a client (Transatel) on a very interesting matter leading to the German telecommunications regulator Bundesnetzagentur (BNetzA) issuing a landmark decision on the applicability of the Roaming Regulation on so-called 901 International Mobile Subscription Identities (IMSI). In this decision BNetzA ruled that the defendant in that case, a German Mobile Network Operator (MNO), has to provide the applicant, Transatel, a French Mobile Virtual Network Enabler/Aggregator (MVNE/A), with a draft contract for wholesale roaming access pursuant to Art. 3 par. 5 sentence 2 of the Roaming Regulation even if the applicant uses non-geographic numbering on its SIM cards (so-called 901 IMSI).

The decision is based on a dispute resolution procedure started by the applicant after the defendant refused to grant wholesale roaming access with regulated charges as set out in the Roaming Regulation. The defendant is of the opinion that the Roaming Regulation does not apply to the applicant’s business model because the applicant uses the shared or non-geographic Mobile Country Code (MCC) 901 awarded by the International Telecommunication Union (ITU) for numbering its SIM cards instead of using geographic MCCs awarded by the regulatory authorities of the individual countries (e.g. MCC 208 for France).

Before making its decision BNetzA requested the Body of European Regulators for Electronic Communications (BEREC) to adopt an opinion with regard to the action to be taken in accordance with the Roaming Regulation. In its opinion BEREC considers that the Roaming Regulation covers roaming services provided by the applicant via 901 IMSI for customers with a home network that is located in an EU Member State. BEREC also refers to its report “Enabling the Internet of Things” BoR (16) 39 where it pointed out that the MCC 901 could be used for the addressing in Internet of Things (IoT) services.

With its decision BNetzA follows up on BEREC’s opinion ordering the defendant to provide the applicant with a draft contract for wholesale roaming access. The draft contract has to enable the applicant to use IMSI with the MCC 901. BNetzA based its decision on the fact that the Roaming Regulation does not contain any provision concerning numbering with regard to SIM cards or end users. Instead it focuses on the Roaming Regulation’s definitions of “roaming customer” and “home network” that do not exclude the MCC 901. In addition, BNetzA points out that the BEREC’s Wholesale Roaming Guidelines BoR (17) 114 mention that a roaming customer could for example be identified by numbering resources from European Economic Area (EEA) Member States which are in accordance with the E.212 ITU Recommendation and BNetzA notes that the MCC 901 is part of that recommendation.

In order to make sure that the roaming services are provided in accordance with the Roaming Regulation, BNetzA notes that the defendant may include specific measures that the visited network operator may take to prevent permanent roaming or anomalous or abusive use of wholesale roaming access as well as the objective criteria on the basis of which such measures may be taken in its reference offer that is used as the basis for the requested draft contract. However, according to BNetzA this may only be based on information on roaming traffic in an aggregated form but not on specific information relating to individual roaming traffic.

In BNetzA’s official press release Jochen Homann, President of BNetzA, explains that 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”. The decision is the first of its kind in Germany and BNetzA invited the three MNOs in Germany to participate in the procedure. The decision enables Mobile Virtual Network Operators (MVNOs) that are operating globally to use the international numbering with MCC 901 for all of their SIM cards instead of applying for a local number in each country while still benefiting from the regulated charges in the Roaming Regulation for the parts of their business that covers roaming customers with a home network in the EEA.

Following this decision, the defendant is obliged to provide a draft contract to the applicant within one month. If the parties are not able to agree on the contract terms, BNetzA may rule on the terms in a separate dispute settlement proceeding. In addition, it is up to the parties to file an action against BNetzA’s decision with the competent administrative court.