The Office for Communication (OFCOM) has issued an invoice for administrative fees to Meritus Cooperative as a telecommunications service provider.
Meritus, which offers Voice over Internet Protocol (VoIP), short messaging and multimedia messaging services to its customers, has challenged the invoice, arguing that it does not qualify as a telecommunications service provider under Swiss law. According to Meritus, it operates no infrastructure of its own and lacks the requisite technical expertise to offer communications services. Rather, Meritus's transmission services are provided by a third party – Winet Network Solutions AG – which administers telephone numbers and implements the services. Meritus has no means of controlling the transmission of data.
On December 12 2010 the Federal Administrative Court rejected Meritus's arguments and confirmed OFCOM's decision which classified Meritus as a telecommunications service provider under Swiss law.(1)
The court held that any company that offers telecommunication services must register with OFCOM. Article 3(b) of the Telecommunications Act defines 'telecommunications services' as those services which involve the transmission of data. Article 3(c) of the act defines the 'transmission of data' as the sending or receipt of information by means of electronic communication.
According to the court, the fact that Meritus operates no part of the infrastructure required for the transmission of data is of no relevance. The fact that Meritus has a contractual relationship with its customers which use the services means that it qualifies as a telecommunications service provider.
The decision is subject to appeal.
If the Federal Administrative Court decision is not reversed on appeal, it will have a broad impact. In light of the ruling, pure VoIP providers which have a contractual relationship with their customers will qualify as telecommunications service providers – which was always the position taken by OFCOM – and, as such, will have to comply with the requirements of lawful interception.
The fact that a service provider operates no part of the relevant transmission infrastructure does not relieve it of its registration obligations as a telecommunications service provider.
For further information on this topic please contact David F Känzig at Thouvenin Rechtsanwälte by telephone (+41 44 421 45 45), fax (+41 44 421 45 00) or email ([email protected]).
(1) Details of the decision can be accessed at http://relevancy.bger.ch/pdf/azabvger/2010/a_00459_2010_2010_11_12_t.pdf.