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The Communications Commission has indicated that the traditional switched legacy network will no longer be used as a model for the determination of cost-oriented prices, reflecting its view that an internet protocol-based new generation network will soon become the relevant established technology. The decision leaves the incumbent operator and alternative providers preparing for a new era.

The Lawful Interception Ordinance has been revised and recently entered into force. Internet service providers now have a 12-month transition period in which to implement lawful interception. The revision was accelerated by two recent Federal Administrative Court decisions, which found the imposition of the lawful interception obligation on broadband and mobile devices to lack a sufficient legal basis.

According to a recent Competition Commission press release, the cooperation agreements between Swisscom (the former monopolist provider) and the local fibre-optic network utility providers in the cities of Basel, Bern, Luzern, St Gallen and Zurich, which include so-called 'hard' competition clauses, cannot be exempted from penalties in advance.

According to a recent press release from the Federal Office of Communication, amended tender documents for the auction of mobile radio frequencies have been published. Interested parties have until September 30 2011 to submit applications to the Federal Office of Communication for participation in the auction. The auction is expected to be held in the first quarter of 2012.

Mobile internet surveillance is necessary in the modern world in order to prevent crimes and convict criminals. However, in a recent case the Federal Administrative Court found that there must be a sufficient legal basis for an authority to be able to interfere with constitutionally protected rights such as the freedom of commerce.

Sunrise Communications AG recently filed a request with the Communication Commission for determination of cost-oriented access charges to cable ducts against Swisscom AG. Both Swisscom and Sunrise appealed ComCom's decision. The Federal Administrative Court rejected Sunrise's appeal and found ComCom's application of gross modern equivalent asset costs to be in line with the historical interpretation of the Telecommunication Act.

A recent Federal Supreme Court decision confirmed the annulment of a Sfr333 million fine which the Competition Commission had imposed on Swisscom. Strikingly, the decision did not take into consideration the interests of consumers, who are the ultimate victims of an ill-conceived regulatory system in which the authorities cannot request determination of cost-oriented interconnection or access charges ex officio.

In a recent decision, the Federal Administrative Court rejected an appeal by Swisscom against a decision of the Communication Commission which determined the interest rate payable by Swisscom on the repayment of excessive access charges.

The Office for Communication has issued an invoice for administrative fees to Meritus Cooperative. The Federal Administrative Court rejected Meritus's argument that it does not qualify as a telecommuncations provider since it operates no infrastructure of its own and lacks the technical expertise to offer communications services. The decision will have a significant impact on Swiss companies which offer Voice over Internet Protocol services.

The Federal Communications Commission has launched the public tender of those mobile radio frequencies that will become available in the near future. It intends to award the frequencies before Summer 2011 within the framework of an auction process. Applications must be filed by March 18 2011.

The Federal Council has published a report on the Swiss telecommunications market. The council concluded that although the time was ripe for political discussion on the regulation of the telecommunications market, there was no immediate need to revise the Telecommunications Act. This development comes as a surprise, given that the council has identified several areas in which the regulatory system could be improved.

The government is considering a revision of the Lawful Interception Act and its corresponding ordinance. Among other things, the draft act requires that telecommunications and internet providers assist the competent authority in the surveillance of communications traffic by obliging them to provide the authorities with historical communications data as well as real-time communications data and content.

The merger between Orange and Sunrise Communications has been prevented by the Competition Commission on the grounds that it would have led to a scenario whereby Swisscom – the number one mobile operator in Switzerland and former state monopolist – and the merged entity would have assumed collective market dominance. The decision, which is subject to appeal, comes as a surprise.

According to a recent press release, the Competition Commission will appeal the Federal Administrative Court decision to quash its decision to impose a fine of Sfr333 million on Swisscom for imposing abusive termination prices. The commission believes that, in relation to regulated markets, the Cartel Act must be applied in parallel to the sector-specific regulations of the Telecommunications Act.

In several recent appellate proceedings against decisions rendered by the Communication Commission (ComCom), the Federal Administrative Court had to rule on whether ComCom was competent to impose contractual changes on parties not privy to the proceedings and whether such third parties are entitled to benefit automatically from a retroactive application of lower charges determined by ComCom.

The Federal Administrative Court has quashed the Competition Commission decision to impose a fine in the amount of Sfr333 million on Swisscom for abusive pricing of mobile termination fees. The decision is not in the interests of the end user and once again demonstrates the serious deficiencies of the Swiss ex post system.

The Competition Commission has announced its intention to review the planned merger between Orange and Sunrise in Switzerland. Should the merger go ahead, the number of players in the Swiss mobile market would be reduced to two. Thus, the commission must assess the potential impact of the merger and, in particular, the risks associated with creating a duopoly.

In a partial award, the Communication Commission has established the prices and conditions for access to Swisscom's cable ducts by alternative service providers. The commission ruled that Swisscom is required to permit access to its entire system of cable ducts at cost-oriented prices, provided that sufficient capacity exists, and to set prices which are substantially lower than those quoted by Swisscom in its price manual.

France Telecom and TDC have announced their plan to consolidate their Swiss telecommunications operations – Orange Switzerland and Sunrise, respectively – to form a new entity in which France Telecom will own 75% and TDC the remaining 25%. The proposed merger is an indication of the failings of the regulatory framework and increases the risk of the emergence of a duopoly, to the detriment of consumers.

The Federal Communication Commission announced in a recent press release that it has instructed the Federal Communication Office to prepare for the allocation of mobile radio frequencies which are currently free or will soon become free. The so-called 'digital dividend' frequencies in the frequency band 790 to 862 MHz should also become available for mobile services in the future.

The Competition Commission has found that Swisscom had set its asymmetric digital subscriber line wholesale prices at an excessive level, resulting in a price margin squeeze. The commission found that through this abusive pricing, Swisscom had restrained its competitors and had thereby abused its dominant market position. Swisscom is set to challenge the decision.

In an important recent ruling the Federal Supreme Court held that it was not competent to hear an appeal by Sunrise Communications AG regarding the determination of Global System for Mobile spectrum licence fees. Sunrise had requested that the licence fees be determined in accordance with the fee schedule applicable at the time that the licence was granted.

Sunrise – Switzerland's second largest provider of telecommunications services – has complained to the Competition Commission against Swisscom for abuse of market dominance. Sunrise complained after Swiss Post awarded the contract for broadband services for its post offices and teller machines to Swisscom, despite Swisscom's offer of Sfr20.4 million being far lower than Sunrise's offer of Sfr29.7 million.

On behalf of the Federal Communication Commission, the Federal Office of Communication has opened a public consultation regarding the allocation of mobile radio frequencies which are currently free and those that will become available in 2013 and 2016. Interested parties are invited to file their comments by June 26 2009.

The state prosecutor ordered a telecommunications service provider to scan its networks for calls to or from a specified number abroad and to relay the content of the traffic to the competent authority in real time. The Federal Administrative Court rejected an appeal by the provider and made clear that a screening order may cover not only a single access number, but also the entire traffic over a provider's network.

The latest revision of the Telecommunications Act in 2007 introduced, among other things, the unbundling of the local loop. The opinion of some market participants and politicians is that the compromise reached in Parliament is unsatisfactory and insufficiently flexible. Therefore, the Commission for Transport and Telecommunications has sought to invite the Federal Council to issue a report by mid-2010.

The Federal Administrative Court has confirmed a 2007 Communications Commission decision, pursuant to which Swisscom was ordered to offer bitstream access at regulated prices. Swisscom has stated that it has accepted the judgment; however, in regard to ongoing Competition Commission proceedings, it continues to maintain that it has not misused its market dominance.

The Competition Commission has announced its initial finding that Swisscom had abused its dominant position in the asymmetric digital subscriber line market. Swisscom has been invited to comment on the Secretariat's findings before the commission hands down its decision.

The Swiss Communication Commission has again ruled against Swisscom, the incumbent operator, in interconnection proceedings brought by Tele2 and other operators. The commission not only reduced the interconnection prices for the period from 2007 to 2008, but also held that parties which did not engage in the interconnection proceedings are nonetheless eligible for the lower prices ordered by the commission.

Sunrise, Switzerland's second largest telecommunications operator, is set to acquire Tele2 for a purchase price of Sfr50 million. The Competition Commission is expected to approve the acquisition, given the strong position of Swisscom - still by far the largest telecommunications operator in Switzerland. Tele2 has reportedly blamed the Swiss regulatory environment for the move.

On September 24 2008 the Communication Commission lowered the fees for access to the last mile from Sfr23.50 to Sfr18.18 for 2008 (Sfr16.92 for 2007), and for collocation services. In particular, the commission lowered the prices for a feasibility study and implementation by between 55% and 85%. In separate decisions the commission lowered the interconnection prices for 2007 and 2008 by 25% to 30%.

The Competition Commission, the price regulator and the Federal Communication Commission have jointly proposed an amendment to the Telecommunications Act which would permit the Competition Commission to determine network access prices independent of a request for determination by the party seeking access.

The president of the Communication Commission and PostReg has proposed a merger of the mobile networks owned by Orange and Sunrise, the two Swiss-wide alternative providers of mobile services. The merger appears to be the only solution to help the alternative providers compete against Swisscom, whose market share is increasing.

Seven Swiss power suppliers recently announced their cooperation in supporting the construction and operation of a broadband fibre-optic network in Switzerland. The consortium's goal is to support an open fibre-optic telecommunication infrastructure, providing both service providers and customers with non-discriminatory access.

The Communication Commission has ordered Swisscom, the former Swiss monopolist, to make an offer for sub-loop unbundling. Swisscom has so far argued that the Telecommunications Act provides no legal basis for sub-loop unbundling, but the commission rejected this view and the argument that the commission lacked competence to make an order without a third party's explicit request.

The Communications Commission has rendered a decision holding that Swisscom invoiced excessive interconnection charges for the years 2004 to 2006 and has ordered Swisscom to reduce its prices for the period by 15% to 20% for usage charges, and by 5% to 15% for non-usage charges. The commission also announced that it will shortly determine the interconnection charges for 2007 and 2008.

A public utility company's plan to build its own fibre-optic telecommunications network has been criticized by existing service providers, particularly those which have already invested heavily in their own infrastructure, as they fear that the company's access to financing and existing networks gives it an advantage over private competitors.

The Federal Administrative Court has found that the Communication Commission is competent to determine Swisscom's interconnection charges for 2007. The decision is to be welcomed and should further accelerate interconnection proceedings in the future. In the past, these proceedings have been known to last for over half a decade.

Based on an opinion of the Competition Commission, the Communication Commission has announced that it has ordered Swisscom to offer fast bitstream access for a period of four years. This is the first Communication Commission decision on unbundling since local loop unbundling was introduced in the Telecommunications Act effective as of April 2007.

Swisscom has announced that its customers may combine their mobile subscription with broadband access without subscribing to a telephone line. Sunrise has filed a complaint against Swisscom with the Competition Commission arguing, among other things, that the bundle violates the prohibition against tying arrangements, as 'naked' digital subscriber line is available only to Swisscom mobile customers.

Tele2 Telecommunication Services AG appealed a Communications Commission decision to the Federal Administrative Court, requesting that the court quash a commission order and approve its requests to be allocated additional frequencies and require all licensees to offer national roaming at cost-oriented prices. The court quashed the order, holding that it was made in violation of the applicable procedural rules.

The revised Telecommunications Act and Telecommunications Ordinance have entered into force. In addition, Swisscom Fixnet AG has published its new offers. Notably, Swisscom made no offer for bitstream access. It appears that Swisscom takes the position that it is not to be regarded as dominant in this market and therefore is not required to offer bitstream access.

The Federal Council has decided to promulgate the revised Law on Telecommunications and its supplementary decrees from April 1 2007. The key changes introduced through the revision are the unbundling of the last mile, as well as new rules on jamming transmitters and spam, as summarized in this update.

The Federal Supreme Court has confirmed an order of the Competition Commission in which the commision determined the charges for number portability as far lower than those levied by Swisscom Fixnet AG. The court rejected Swisscom's argument that there was no sufficient legal basis for the commission to determine the fees for telephone number portability.

The Swiss Competition Commission has found that mobile operators Swisscom, TDC (Sunrise) and Orange enjoy a dominant position in the market for termination of calls on their networks. Tele2 was held not to have a dominant position. The mobile operators are expected to challenge the commission's findings.

In a recent decision the Federal Supreme Court held that a servitude that permits a party to transport electricity over a power supply line running across private property does not permit the beneficiary to use that servitude to transport data for telecommunications purposes.

The Federal Communications Commission is launching a competitive tender for the new universal service licence. The licence will cover the entire national territory and will run for 10 years from January 1 2008. The universal service will also be extended to include broadband services, additional services for people with disabilities and public call boxes.

The Swiss Federal Council has amended the Decree on Telecommunications Services to include broadband access, permitting internet access at a minimum transmission rate of 600/100 kilobits per second in the universal service. The decree specifies the maximum price limit for this service at Sfr69 for a bundle including broadband connection, voice channel, telephone number and telephone directory entry.

Earlier this year the Federal Supreme Court remanded a dispute between Swisscom Fixnet AG and Verizon Switzerland AG and TDC Switzerland AG to the Federal Communication Commission (ComCom), ruling that the so-called 'Delta X' method should not be used to determine interconnection charges. The ComCom has now recalculated the interconnection charges relying solely on the so-called 'plausibility schedules'.

The Swiss Federal Supreme Court has rejected an appeal filed by Swisscom Mobile AG against an interim order of the Federal Communications Commission. The proceeding illustrates the strategy which Swisscom has adopted since the first interconnection proceedings were initiated, seizing all opportunities to drag things out and delay the proceedings by challenging them every step of the way.

In 2004 Cablecom GmbH filed a request for interconnection against Swisscom Fixnet AG with the Federal Communication Commission (ComCom), for determination of Swisscom's prices for number portability. Applying the principle of cost orientation, ComCom held that Swisscom had to demonstrate the relevant costs. After analyzing Swisscom's calculations, ComCom concluded that these costs should be substantially reduced.

A penalty given under revised Article 49a of the Cartel Act can be reduced in whole or in part if the enterprise assists in the discovery and termination of the unlawful behaviour. However, the Federal Supreme Court has confirmed that notification can lead to exemption only if the enterprise involved has notified the Competition Commission prior to the notification or launch of an investigation.

Following the National Council's decision not to enter into the debate on the privatization of Swisscom, the Council of States has also decided not to get involved. Therefore, at least for the time being, the privatization of Swisscom is off the agenda.

The Federal Supreme Court has once again remanded the interconnection dispute between Swisscom Fixnet AG and Verizon Switzerland and TDC Switzerland AG to the Federal Communications Commission. The decision appears to make it clear that, once interconnection charges have been determined, they will apply retroactively to all competitors, irrespective of whether they were a party to the proceedings.

A Competition Commission finding that all Swiss mobile operators have a monopoly on incoming calls on their own networks appears to open the door for interconnection proceedings under Article 11 of the Telecommunications Act, which provides that an enterprise which has a dominant position in the market must offer interconnection according to the principles of non-discrimination, transparency and cost orientation.

The Federal Communications Commission (ComCom) has revoked 3G Mobile AG's Universal Mobile Telecommunications System licence because 3G Mobile was not utilizing the licence and therefore did not fulfil the conditions relating to coverage. It has also released further details on the auction for three broadband wireless access licences, expected to take place in early June 2006.

According to the Competition Commission Secretariat, all Swiss mobile operators have a monopoly on incoming calls on their own networks. However, the secretariat believes that only Swisscom Mobile used its dominant position to charge abusive termination fees during the period which the commission is investigating. Swisscom has vigorously contested the allegations.

The pending revision of the Telecommunications Act remains focused on the unbundling of the local loop. On March 21 2006 the Conciliation Commission proposed a compromise pursuant to which the two-year period for bitstream access is extended to four years. The proposal was accepted on the same day by the National Council and the Council of States in an effort to save the Telecommunications Act revision.

In November 2005 the Federal Council concluded that it was necessary to prepare a new legal framework for its participation in Swisscom AG. A draft consultation paper envisages amending the Telecommunications Enterprise Act, which would permit Switzerland to reduce its shareholding in Swisscom to less than 50%.

The Federal Council has proposed several changes to the universal service obligation in view of the forthcoming tender for the universal service licence. The most prominent change is the proposal to include broadband access in the list of the universal services.

The Federal Supreme Court has ruled that there is no sufficient legal basis in the Telecommunications Act to order the incumbent operator to grant interconnection for leased line and bitstream access. The decision highlights the serious flaws in the Telecommunications Act and the urgent need for its revision.

The Council of States has voted in favour of a more restricted unbundling of the local loop than had originally been proposed by the Commission on Transport and Telecommunications earlier in 2005. The change, which was not entirely unexpected, is thought to be a move designed to protect Swisscom and is a serious blow to the full liberalization of the telecommunications market.

The Federal Communication Commission has relaxed the carrier selection requirements for Voice over Internet Protocol (VoIP) operators. It has also introduced amendments allowing number portability to apply to VoIP operators. In addition, calls made from the principal VoIP location only must be identifiable, for the purposes of emergency calls.

In a press release issued on November 28 2005 the Federal Communication Commission announced that three broadband wireless access licences will be awarded during the second quarter of 2006. The Federal Office for Communication is charged with organizing the auction, which will be conducted as a single sealed bidding process.

The Swiss Federal Council has announced that it is to sell its majority interest in Swisscom. It is of the view that this statutorily required majority interest restricts the strategic positioning of Swisscom. Another advantage is that the sale would allow the Swiss Parliament to take decisions and pass new laws in the telecommunications sector completely free from bias.

Swisscom, the former Swiss monopolist, has announced it is reducing interconnection charges for 2006 by roughly 5%. However, according to competitor Sunrise, the reduction appears to take into account only the cost savings achieved through Swisscom's optimization of its processes and networks. Sunrise claims the interconnection charges are still in excess of long-run incremental cost.

A September 22 2005 hearing in the Swiss National Council revealed a stark discrepancy between the views of the Swiss National Council and the Swiss Council of States in the ongoing unbundling debate. The disagreement on this critical issue puts the entire revision of the Telecommunications Law in jeopardy.

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