On March 28 2012 the Federal Council issued a new report on the telecommunications market.(1) The council had previously published a similar report in 2010.(2) The 2010 report identified several shortcomings in the regulatory system, but found no urgent need for the legal framework to be revised. In the 2012 report the council concluded that the existing legal framework could be improved with regards to several identified issues, as its deficiencies have become more evident over time.

The council found that while the existing legal framework leads to positive results in the telecommunications market, technological advancement in the telecommunications field has already surpassed the existing legal framework. In particular, legacy copper technology, which forms the basis of the existing framework, is being replaced by next-generation network technology (eg, fibre, cable and new mobile technology).

Without the introduction of a technology-neutral approach for regulation, it is feared that the currently available regulatory instruments will become obsolete. Access guarantee, customer protection, net neutrality and the foundations for sustainable internet access are also thought to be of paramount importance.

In particular, the report concluded that the limitation of unbundling to the copper pair is inadequate, since copper is gradually being replaced by fibre.

Therefore, the council has proposed a partial revision of the existing regulatory framework. Such a revision must take into consideration the need for a flexible regulatory framework, which would permit intervention by the regulator as needed.

This could be achieved by introducing a technology-neutral regulatory framework on the level of the Telecommunications Act, which would then authorise the council to adapt implementing ordinances quickly should the need for intervention by the regulator arise. This approach is thought to balance the need for investment security with the need for more flexible regulatory intervention, in case competition in the market fails to function properly.

The legislative process for amending the existing legal framework is lengthy. Two years have already passed since the council identified the weaknesses of the existing regulation back in 2010.

The previous revision to the Telecommunications Act took three years to progress through the system from the council's draft proposal to enactment. It is hoped that a new law can be passed before competition in the telecommunications sector stalls again – to the detriment of alternative providers and end users.

For further information on this topic please contact David F Känzig or Katia Favre at Thouvenin Rechtsanwälte by telephone (+41 44 421 45 45), fax (+41 44 421 45 00) or email ([email protected] or [email protected]).


(1) See www.bakom.admin.ch/dokumentation/gesetzgebung/00512/03498/index.html?lang=de.

(2) See www.bakom.admin.ch/dokumentation/gesetzgebung/00512/03498/index.html?lang=de.