German telecommunications regulator enacts new rules to facilitate M2M communication

By Sven-Erik Heun, Valerian Jenny, Simon Assion


On June 15, 2016, the German national regulatory authority for telecommunications Bundesnetzagentur (BNetzA) has published new rules on the use of IMSI numbers for M2M services. The rules were eagerly awaited by many providers of M2M services, in particular for connectivity services used in connected vehicles or devices. Since many of these services, objects and devices are to be connected and and marketed internationally, restrictions in the international use of IMSI numbers are capable of creating strong market barriers.

BNetzA changes its numbering rules to ease market access for M2M services and to allow exterritorial use of numbers

With the new rules, BNetzA addresses the particular issue of the extraterritorial use of IMSI numbers (an IMSI, i.e. International Mobile Subscriber Identity, is the number used to identify a particular SIM in a cellular network). Previously BNetzA had taken the stance that due to a “principle of non-permissibility of the extraterritorial use of numbers”, IMSI numbers could not be used outside the jurisdiction for which they were initially issued, except for non-permanent roaming (e.g. usage by travelling persons). With the release of the new rules, BNetzA changes this position: the use of extraterritorial IMSIs for M2M services provided in Germany is now possible, as well as the use of German IMSIs for extraterritorial services.

The BNetzA has enacted the new rules with two decrees: Firstly, decree no. 32/2016, which changes section 6 of the German numbering plan (PDF) for IMSI numbers, thereby permitting the use of German IMSIs for M2M services in other countries (“outgoing”). Secondly, decree no. 33/2016 (PDF), permits the use of extraterritorial (foreign) IMSIs in Germany (“incoming”). With a third decree no. 34/2016 (PDF), BNetzA has partially withdrawn previous assignments of IMSIs, insofar as those assignments contained restrictions on the use of IMSIs that exceeded the newly introduced rules. This creates a unified legal framework for all M2M services based on IMSIs; at least as far as the German telecommunications law on number assignments is concerned.

What will happen next?

The new rules became effective on June 16, 2016; service providers can now rely on them from. In theory, affected enterprises have a right to appeal against the new rules; however it is rather unlikely that this will happen. In any case, such an appeal would not directly affect the effectiveness of the new rules, unless the BNetzA decided to change the decrees during the appeal procedure – which is also unlikely. It is to be noted though that in the decrees, the BNetzA generally reserves the right to withdraw them, either fully or partially, for a particular type of business model. Previous experience shows that BNetzA would only do this after a careful assessment of the situation and consultation of market participants.

The new rules resolve some issues with the marketing of IMSI-based M2M services in Germany. The same applies to German-based enterprises which want to market their IMSI-based M2M services in other countries. The BNetzA however has pointed out in its decrees that the extraterritorial use IMSIs for M2M services always involves at least one other jurisdiction, and therefore another regulator. The change of rules in Germany only affects the German side of things, so M2M service providers still have to clarify the legality of their extraterritorial use of IMSIs under the rules of the other affected jurisdiction(s), be it incoming or outgoing.

What should providers of M2M services do now?

Enterprises that want to rely on the new rules should check carefully whether their services match the definition of “M2M communications”, which the BNetzA has included in its new decrees.

In addition to that, numbering issues are not the only legal provisions to be kept in mind when developing and marketing M2M services. Just recently, the Body of European Regulators for Electronic Communications (BEREC) has released a proposal for “Guidelines” on net neutrality rules (PDF), which touches the question whether M2M services connecting to the internet have to comply with the EU´s net neutrality rules enacted in the so-called TSM Regulation (Regulation (EU) 2015/2120). BNetzA has also emphasised that the permission to use extraterritorial IMSIs in Germany does not exempt service providers from other rules of German telecommunications law that may be applicable, e.g. the obligation to register as a telecommunications service provider in Germany, which is mandatory in some circumstances (sec. 6 of the German Telecommunications Act).