In its session of 25 May 2004, the Austrian Telecom Control Kommission (TKK) adopted a draft decision mandating mobile number portability, and putting forward key operational modalities and fines for non-compliance. The final decision is foreseen for mid-July.

The Austrian authorities have been attempting to introduce/impose mobile number portability since the year 2002, but could previously not find a legal basis to impose it, and could not reach a voluntary agreement with the mobile operators.

Mobile number portability is a legal obligation at the EU level only since the adoption of the new EU regulatory framework for electronic communications (in particular the Universal Service and Users’ Rights Directive 2002/22/EC), which was transposed into Austrian law on 20 August 2003.

§23 of the Austrian Telecommunications Act mandates mobile number portability.

From October 2003 to mid-February 2004, a number of formal arbitration requests relating to mobile number portability were filed by various operators with RTR/TKK, and the regulatory authority has now combined these into a single procedure, so as to reach, or rather impose, a solution that is applicable to all mobile operators.

The TKK proposals include the following:

The recipient operator, i.e. the ‘new’ operator selected by the customer, takes the lead in the number porting process. The recipient operator must have a mandate from the customer.

The maximum time frame for the porting of a number is 3 days.

Existing contracts between the customer and his previous mobile telephony provider are not automatically cancelled. The implication is that the customer is liable for the payment of outstanding debts, and could be tied to a contractual obligation to pay the subscription fee for a minimum contractual period that the customer has agreed to, even if the customer no longer uses the mobile telephony service of a particular operator.

The customer pays a maximum of €4 for the porting process (the fee can be determined by individual mobile operators, insofar as it respects the €4 maximum). The TKK argues that -at this time- it is impossible to set a cost-oriented rate, as no cost data are available. Hence the fee to be paid between mobile operators per ported number is set at zero.

The maximum amount of numbers to be ported per day is capped. Initially, there will be an obligation for the porting of 500 numbers per day, but the draft decision provides a system to increase this maximum amount.

With ported numbers, consumer protection issues arise relating to the retail charges that are applicable for calls to given mobile numbers (Austrian mobile operators practice particularly differential tariffs for on-net and off-net calls). The TKK suggests that an audio message should announce the name of the network the called party is connected to. The voice message must be free of charge and can be switched off at the request of the calling party.

The TKK’s draft decision gives mobile operators a deadline of 16 Oct 2004 to make arrangements for number portability. From 16 Oct 2004 onward, a fine of €20.000 will be applied if a mobile operator fails to provide mobile number portability. From 16 Nov 2004, the fine goes up to €30.000, and in Dec 2004, the fine will be €40.000. From 1 February 2005 onward, the fine will be doubled each month. Fines are payable to the operator who would suffer from a delay in the porting process (the recipient operator).

In Nov 2004, the Austrian regulatory authority will evaluate whether it is (technically and economically) possible to allow for even shorter number portability time frames. The mobile operators will have to report systematically in order for the RTR/TKK to be able to make this assessment.

A slide presentation by the regulatory authority on this issue (in German only) can be downloaded by clicking here.

For a discussion, please contact Alexa Veller.