Whether a telecommunications service is subject to the German Telecommunications Act (TKG) is of considerable importance for service providers whose services require or involve data transmission (e.g., via a fixed or mobile Internet connection). These are, in particular, services provided in the area of Connected Cars and autonomous driving. Services in the area of telemetry, agtech, medical products, industrial production and IoT applications in general are also affected.

Many provisions of the TKG, in particular those relating to customer protection and public safety, are linked to the existence of a telecommunications service. If a telecommunications service exists, these requirements must be implemented and the service provider must report its activities to the Federal Network Agency.

The regulatory authority has now explained how it classifies and distinguishes certain constellations.

1. Telecommunications services only exist if they are provided for third parties. Radio connections from vehicle to vehicle or vehicles to infrastructure, as in the case of C-ITS, are not telecommunications services and are therefore not subject to regulation.
2. The M2M service in itself is not a telecommunications service. This is clear from the explanatory memorandum to the law, which separates signal conveyance (connectivity) from the content component (as a so-called OTT service).
3. The underlying signal conveyance (connectivity) is usually a telecommunications service. The provider of this service (at an upstream level) is the (virtual) mobile network operator or a fixed network operator.
4. Particularly relevant is the case in which the provider of the M2M service sells the user a “package” combining signal transmission and a content component. While the resale of telecommunications services can lead to the reseller itself also becoming a provider of such services and thus also subject to regulation, the Federal Network Agency has now clarified that the connectivity is an upstream product and that the providers of the M2M service are therefore not to be classified as providers of the underlying connectivity. The prerequisite is that signal transmission is only a necessary but subordinate component of the offering. Such an M2M service is then not subject to regulation under the TKG.
5. By contrast, a telecommunications service exists if the provider of the M2M service concludes an independent contract with the user for the connectivity service or if the signal transmission is also used for other applications, such as surfing the Internet or for telephony or messenger services.

The statement by the Federal Network Agency is to be welcomed. Even though the view had already prevailed on the market that providers of M2M services were not regularly to be classified as providers of telecommunications services, the regulatory authority’s assessment now gives many providers legal certainty. However, it should be noted that here, too, it depends on the individual case. Companies should check whether they fall under the exceptions described.

If you have any questions, please contact our team.