Rejection of Amendment and Transfer of a UMTS Concession and Withdrawal of the Concession

Facts

The 3G Mobile AG, a wholly-owned subsidiary of the Spanish Telefónica Móviles S.A., received concession No. 25100007 on January 31, 2001, for the provision of telecommunications services based on the IMT-2000/UMTS standard. The concession includes, among other things, provisions on national roaming, duration of the concession, transfer of the concession, amendment of the concession, revocation and withdrawal, as well as supply obligation.

In June 2002, the Communications Commission lifted the coverage obligation of 20% by the end of 2002 for all four concessionaires. The 3G Mobile AG filed an application for amendment of the UMTS concession in December 2004 and an application for approval of the transfer of its UMTS concession to Swisscom Mobile AG in March 2005.

The Communications Commission rejected both applications and withdrew the UMTS concession from the 3G Mobile AG. The 3G Mobile AG lodged an administrative appeal with the Federal Court and requested the annulment of the Communications Commission's decision and the approval of its applications.

Considerations

1. Admissibility of the Administrative Appeal

The administrative appeal is admissible since the Communications Commission, as the concession authority, is responsible for the transfer and amendment of a telecommunications concession as well as for decisions on supervisory measures.

2. Right to be Heard

The 3G Mobile AG complains of a violation of its right to be heard. However, the lower court granted the 3G Mobile AG extensive access to the files and the opportunity to comment on the grounds of the decision.

3. Bias of the President of the Communications Commission

The 3G Mobile AG complains of the bias of the President of the Communications Commission. However, the complaint is belated and therefore inadmissible.

4. Rejection of the Concession Amendment

The lower court rejected the concession amendment because the 3G Mobile AG did not prove that it could no longer fulfill its supply obligation for reasons beyond its control.

5. Rejection of the…