Award procedure

(1) Where the Federal Network Agency has ordered, under section 91(9), that the assignment of frequencies is to be preceded by an award procedure, it may, after hearing the circles concerned, conduct the auction procedure under subsection (5) or the tender procedure under subsection (6). In deciding on the choice of award procedure under the first sentence, the Federal Network Agency determines the general objectives of the procedure. In addition to promoting competition and improving coverage, in particular in rural areas, the objectives are limited to one or more of the following aspects:
1. ensuring the required service quality;
2. promoting the efficient use of frequencies, including having regard to the conditions applicable to the rights of use and the level of fees; or
3. promoting innovation and business development.
(2) The award procedure best suited to achieving the regulatory objectives under sections 2 and 87 is to be conducted. For frequencies intended for the transmission of broadcasting within the area of responsibility of the Länder, the auction procedure under subsection (5) is not to be conducted.
(3) The Federal Network Agency publishes the decision on the choice of award procedure and the determinations and rules for conducting the procedures, stating the reasons. It also publishes the associated frequency use conditions. It sets out the results of any assessment of the competitive situation, and of the technical and economic circumstances of the market, connected with the decision.
(4) Before conducting an award procedure, the Federal Network Agency determines
1. the minimum subjective, professional, and substantive conditions to be satisfied by an applicant for admission to the award procedure;
2. the use of frequencies for which the frequencies to be awarded may be used, having regard to the Frequency Plan;
3. the basic complement of frequencies necessary for commencing the telecommunications service, insofar as this is necessary; and
4. the frequency use conditions, including the degree of coverage in the use of frequencies and the timetable for its implementation; in determining the degree of coverage and its timetable, the Federal Network Agency takes into account, in addition to the regulatory objectives under sections 2 and 87, possibilities for holders of rights of use of frequencies to make reasonable shared use of, or to deploy, publicly funded infrastructure.
(5) In the case of an auction, the Federal Network Agency determines, before conducting the award procedure, the detailed rules for conducting the auction procedure. The rules must be objective, comprehensible, and non-discriminatory, and must take into account the interests of small and medium-sized undertakings. The Federal Network Agency determines a minimum bid for the right of use of the frequencies to be auctioned, and payment arrangements. The auction is preceded by a procedure in which admission to the auction must be applied for in writing or electronically. The Federal Network Agency decides on admission by written or electronic notice. The application for admission is to be refused where the applicant does not set out and demonstrate that it satisfies the conditions determined under subsection (4) and the conditions existing under section 91(5).
(6) In the case of a tender, the Federal Network Agency determines, before conducting the award procedure, the criteria by which the suitability of applicants is assessed. The criteria are
1. the reliability, expertise, and capability of the applicants;
2. the suitability of the plans to be submitted for the use of the frequencies put out to tender;
3. the promotion of a sustainably competitive market; and
4. the geographic degree of coverage. Where suitability is otherwise equal, the applicant offering a higher geographic degree of coverage with the corresponding telecommunications services is to be selected. The Federal Network Agency determines the award price payable in the event of the award of the right of use of frequencies, and payment arrangements.
(7) The frequencies are assigned under section 91 after the award procedure under subsection (3), first sentence, has been conducted. Commitments entered into by applicants in the course of an auction or tender procedure become components of the frequency assignment.
(8) In an auction procedure under subsection (5) or a tender procedure under subsection (6), the maximum period of six weeks referred to in section 91(4) may be extended for as long as necessary, but by no more than eight months, in order to ensure a procedure that is fair, reasonable, open, and transparent for all parties involved. These time limits are without prejudice to applicable international agreements on the use of frequencies and satellite coordination.