The German Telecommunications Modernization Act (TKG)

Certain “Over-the-top Services” are now also subject to the legal guidelines and directives of the German Telecommunications Act (TKG)

On April 22, 2021, the German Federal Parliament (Bundestag) ratified the bill that had been drafted by the German Federal Government with the aim of modernizing existing telecommunications legislation. This bill was also later endorsed by the German Federal Council (Bundesrat). The German Telecommunications Modernization Act (TKMG) will thus enter into force with legally binding effect on December 1, 2021.

We spoke to Stefan Michaelis, head of the valantic Telco Solutions & Services GmbH (TSS) business unit, about the realignment and modernization of the TKG and the consequences for so-called over-the-top service providers such as messenger services.

Stefan, why was a revision and modernization of the TKG necessary?

Stefan Michaelis: Already on December 20, 2018, Directive (EU) 2018/1972 of the European Parliament and of the Council of December 11, 2018 on the European Electronic Communications Code entered into force. The Directive combines and modernizes various European directives in a single legal act. The key objectives of the EU Code are the expansion and use of very high capacity networks. It also aims to guarantee sustainable competition and ensure the interoperability of telecommunications services.

The present TKMG results in a comprehensive modernization of the current TKG. This amendment is also flanked by another law, the German Telecommunications Telemedia Data Protection Act (TTDSG), which in turn is accompanied by a new technical guideline, the German Technical Guideline for Implementing Statutory Measures for Monitoring Telecommunications (TRTKÜV 8.0). Both these Acts as well as the Guideline will come into force on December 01, 2021.

What implications will the German Telecommunications Modernization Act have for obligated telecommunications service providers?

First of all, it is significant that the amended definition of “telecommunications service” – as per the Code – takes into account the further development of services used for communication purposes. This is based on a functional approach, and not solely on a technical one. The new definition eliminates existing ambiguities and thus enables the specific rights and obligations provided under TKG and TTDSG to be applied to the various types of services in a coordinated manner that corresponds to the individual provisions.

In the future, additionally to traditional telecommunications services, number-independent interpersonal telecommunications services in particular will be partially subject to regulation.

What are the consequences of this amended definition?

It results in, among other things, a realignment of the grouping and regulation of so-called over-the-top (OTT) services such as instant messengers, web mail services, group chats etc.

While this may seem unspectacular at first glance, it does, however, result in a significant extension of the parties who are obligated: For the first time, providers who do not operate their own network infrastructure but simply use an existing infrastructure on which they offer their own services must also fulfill the TKG compliance guidelines. This applies in particular to the group of number-based interpersonal telecommunications services (OTT-0) and the group of number-independent interpersonal telecommunications services (OTT-I). The group of other and telemedia services (OTT-II services), which includes voice assistants, broadcasting, social networks and services for machine-to-machine communication, are fundamentally not covered by the TKG, but are regulated as telemedia services under the TMG.

Why did the TKG’s ambit need to be extended and what is the relevance of this extension for fulfilling TKG compliance?

In recent years, the way in which we communicate with each other and, in turn, the communication channels we use to do so, have changed enormously. Whereas in the past we used to make innumerable phone calls via landline and mobile networks and send countless text messages, this has shifted significantly to messenger and web mail services. This applies to regular consumers, but unfortunately also, for example, to the modus operandi employed in preparing and committing criminal offences, up to and including organized crime, serious crime and terrorism. For this reason, quite a number of guidelines and obligations – primarily regulations in the sections relating to “Customer Protection” and “Public Safety” – now apply to OTT services.

Particularly the “Public Security” section is relevant from a TKG compliance perspective since OTT services are now also obliged to collect and store data for requests for information from the security authorities (Section 172 (3) TKG).

What does this mean in concrete terms for OTT service providers?

Companies must check meticulously whether their service falls within the scope of the modernized TKG, which specific guidelines have to be observed, and which sanctions could be imposed in the event of non-compliance.

With which legal guidelines can valantic assist communications service providers?

Our extensive expertise in the area of TKG compliance allows us to assist the affected companies, particularly in the area of public security and consequently in fulfilling the obligation to collect and store data in accordance with Section 172 paras. (1) and (3) TKG. As the implementation can result in a substantial amount of effort within an organization, our experts accompany and advise service providers – from planning and technical implementation through to operating and establishing or executing the technically relevant processes.

As a specialized IT service provider with a focus on TKG compliance, we offer interested companies a comprehensive solution and service portfolio that has been proven over many years. Due to our many years’ activity in this field, we also see ourselves as a vicarious agent for our customers, acting as a link between the obligated parties, the German Federal Network Agency (BNetzA) and the authorized bodies. This allows companies to concentrate on their core business and, if desired, to engage us with implementing and executing the entire TKG compliance process.

Many thanks for the interview, Stefan!