Broadband

We offer strategy advice for the development of business models in the telecommunications sector and, in this context, we are particularly specialised in public sector business models for wired broadband expansion. In addition, we provide advice for mobile network development (LTE and 5G) as well as Wi-Fi infrastructure establishment.

We prepare project-related feasibility studies in collaboration with cooperation partners from the field of technical and industry-specific business advice. In doing so, we identify opportunities for business models, particularly in the semi-autonomous public enterprises model (Eigenbetrieb) (expansion of passive infrastructures by the public sector) and in the profitability gap model (granting of aid to private telecommunications companies). We offer comprehensive legal advice in the development of gigabit strategies to Länder as well as administrative districts, cities, and municipalities.

Our legal advice covers all legal framework conditions in the design and implementation of public broadband projects. Particularly, we offer:

• identification of legal forms of organisation for the implementation of broadband projects: We provide advice on the fundamental decision of whether the implementation of a broadband project seems preferable as a semi-autonomous public enterprises model (Eigenbetrieb) or profitability gap model. When implementing build-operate-transfer models, we identify suitable forms of organisation, i.e. public law options (including the establishment of special purpose associations, public sector institutions, intermunicipal cooperation) and organisational forms in the public sector (in particular the establishment of infrastructure companies).
• Advice on arrangements at municipal level, particularly compliance with the municipal law regulations relating to economic activity of public authorities.
• Design of broadband projects with respect to state aid law, particularly ensuring compliance with EU state aid law, design of projects in accordance with the federal NGA framework or the General Block Exemption Regulation (GBER, Allgemeine Gruppenfreistellungsverordnung, AGVO). Individual notification to the EU Commission, in this case if complete charge is taken of coordination and reconciliation with competent authorities at the Länder and federal government as well as the EU Commission levels. Design of projects in accordance with the EU Commission's SEGEI regulations (based on the Altmark judgement of the European Court of Justice), particularly design of acts of entrustment.
• Advice on the general terms of telecommunications law, particularly in matters relating to the application for rights of use in accordance with section 69 Telecommunications Act (TKG) as well as, on a case by case basis, for the consent of the authorities responsible for the construction and maintenance of public ways in accordance with section 68 (3) Telecommunications Act (TKG). We provide advice on claims for joint use and coordinated installation in accordance with the Act to Facilitate the Deployment of High-Speed Digital Networks (DigiNetzG). In addition, a special focus of our consulting activities is on regulatory issues (notably vectoring regulation by the Federal Network Agency).
• Drafting of wholesale agreements (granting of network access and provision of passive telecommunications infrastructure) as well as end customer contracts (comprehensive contract drafting, drafting of general terms and conditions).
• Drafting and monitoring necessary public tenders.

Depending on the respective business model, we identify financing requirements in specific projects. We prepare the necessary budget estimates and balance sheets to identify the amount of equity capital to be contributed and the amount of outside capital required.

We support project sponsors in discussions on project financing with commercial banks and public development banks.

Most notably, we provide support in identifying subsidy programmes and in drafting subsidy applications. A special focus of our consulting activities is the support of projects that are funded by the federal government's broadband funding programme. In addition, we have extensive experience with subsidy programmes established by individual Länder to promote the expansion of broadband.

A special focus of our consulting activities is the design and monitoring of tenders in subsidized broadband projects.

Thus, we have deep expertise in the legal design and implementation of tenders for the award of service concessions in profitability gap models.

In build-operate-transfer models, we design the tenders for commissioning a telecommunications company to operate the publicly built telecommunications infrastructure and to offer wholesale and retail products. We draft and negotiate the corresponding lease agreements for the provision of publicly built passive telecommunications infrastructure. In addition, we design and supervise all tenders for the procurement of the construction and supply services necessary for grid construction.

If requested, we can act as an external awarding authority in relevant tenders. Additionally, if requested, we also take charge of the entire management  and implementation of tenders carried out via electronic tendering platforms. We are also happy to provide interested municipalities with access to an electronic awarding platform.

In cooperation with our construction & real estate practice group, we offer comprehensive legal project management in the context of broadband infrastructure expansion. Particularly, our legal project management services in this area cover the monitoring of development milestones as well as the enforcement of claims in the event of delays or disruptions to the construction process.

Furthermore, we offer support in documenting the expansion to comply with the requirements of supervisory authorities and funding bodies, especially in the context of the requisitioning of funds.

We offer comprehensive seminars and training courses on all legal issues related to subsidised broadband projects. Among other things, we offer workshops for municipalities on all legal issues relating to the Act to Facilitate the Deployment of High-Speed Digital Networks (DigiNetzG) (in particular legal framework conditions for shared use and coordinated installation, dispute resolution procedures at the Federal Network Agency).

Even if the key emphasis of the advice needed for broadband projects is on legal consultancy, there are always tax aspects that require a robust assessment.

We know from experience that questions regarding the origin of commercial operations (BgA) regularly arise. Furthermore, there are always questions regarding turnover tax, because such projects always require the cooperation of public authorities and commercial companies.

We will be happy to answer any of your questions.

Our business audit firm Muth & Co. Wirtschaftsprüfungsgesellschaft GmbH is also at your disposal to answer any audit-related questions.

The target figures supplied by the offering companies must be subjected to regular audits already at the ongoing proceedings stage, regardless of whether a build-operate-transfer model or a profitability gap model was selected. However, further auditing activities must also be performed during and after the implementation phase: For example, it is necessary to routinely carry out reliable target-performance comparisons in order to identify deviations from the original plan in good time and to determine the reasons for them.

It should be further noted that broadband projects depend heavily on funding. In this respect, funding bodies have an interest in ensuring the proper handling and use of funding, which must be regularly confirmed by a qualified auditor.