Lower Austrian act for a tax on transmitter stations: Serentschy presents opinions of the regulatory authority

Lower Austrian act "torpedoes" regulatory objectives of Austrian Telecommunications Act 2003 - Provincial act contains constitutionally questionable provisions - Principle of equality violated - Clarity requirements ignored - Technical and economic study to be published in late July 2005

Press release dated 30 June 2005

The Austrian Regulatory Authority for Broadcasting and Telecommunications (RTR) was commissioned by the Austrian Federal Minister of Transport, Innovation and Technology on June 22, 2005, to prepare an opinion on the act on transmitter station taxes passed by the province of Lower Austria. In the course of preparing this opinion, the regulatory authority reviewed the Lower Austrian provincial act under Austrian constitutional law and European law, and whether the act is in line with the regulatory objectives of the Austrian Telecommunications Act 2003 (TKG 2003).

Lower Austrian act "torpedoes" regulatory objectives of Austrian Telecommunications Act 2003

"The Lower Austrian act on transmitter station taxes ignores the interests of federal legislature, as it obviously "torpedoes" the objectives of the Austrian Telecommunications Act 2003," comments Serentschy. "Article 1 of TKG 2003 explicitly requires the promotion of fair and functional competition, location quality and infrastructure investments. However, the provisions of the Lower Austrian act run counter to these objectives and thus also to European law."

Provincial act contains constitutionally questionable provisions

"After a careful review, we have found several aspects of the act to be questionable under Austrian constitutional law," comments Georg Serentschy, managing director at RTR, on the authority's opinion.

Principle of equality violated

"In our opinion, this act introducing a 'cellular antenna tax' violates the principle of equality for multiple reasons: Certain transmitter stations are exempted from the tax requirement without any recognizable factual justification – the act only applies to mobile network operators," explains Serentschy. "Likewise, it is not justifiable why the tax only applies to transmitter stations located on private property, while transmitters on public property are exempted."

Clarity requirements ignored

The regulatory authority has found another constitutional violation with regard to legislative clarity requirements. "The act contains unclear provisions in several essential respects. For example, it is not entirely clear what the Lower Austrian legislature means by 'transmitter station," or whether the tax requirement only applies to active transmitter stations or also to those which have been shut down," explains Serentschy.

"Even if the views we have expressed in the opinion are not shared, it is evident that the tax requirement passed by the province of Lower Austria also places considerable burdens on previous investments in infrastructure, thus creating a disproportionate burden on planning certainty among mobile network providers. This has implications for economic and telecommunications policy which have to be handled by the federal legislature, as its interests are obviously impacted negatively," concludes RTR's managing director.

Technical and economic study to be published in late July 2005

In the next step, the regulatory authority will analyze the coverage of Austria with cellular antennas, the potential for shared sites and the expansion needs for optimized network coverage. This technical and economic study is scheduled for publication in late July 2005.

RTR's opinion on the act passed by the Lower Austrian Provincial Parliament for a tax on transmitter stations: