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An extract from The Technology, Media and Telecommunications Review, 12th Edition
Telecommunications and internet access
According to Article 3 TCA, telecommunications service means transmission of information for third parties by means of telecommunications techniques. Transmission by means of telecommunications techniques is defined as sending or receiving of information, by lines or radio, by means of electrical, magnetic or optical signals or other electromagnetic signals. Despite these statutory definitions, it was unclear whether and to what extent OTT services qualify as regulated telecommunications services. When revising the TCA, the legislator clarified that OTT-services are regulated.28
Internet service providers have the same duties as other telecommunications services providers, which are complying with employment legislation and guaranteeing the working conditions that are customary in the sector and offering an appropriate number of apprenticeships.29
The technology-neutral TCA sets forth further obligations, but certain reliefs apply to VoIP providers specifically. They do not need to have a fixed pre-setting of another provider, namely no carrier preselection offer, since market conditions are not comparable to traditional telephony.30 If providers of VOIP cannot guarantee correct routing of emergency calls for every location due to technical constraints, it is sufficient if correct routing is guaranteed for calls from the main location cited in the subscription contract.31
ComCom awards one or more universal service licences to ensure that universal service is guaranteed for the whole population of Switzerland. Universal service licences are put out to tender as a competition based on criteria set forth in the OTS.32 The universal service comprises, inter alia, public telephone services, the public directory, data transmission services with a minimum transmission speed of 10Mbit/s for downloads and 1Mbit/s for uploads as well as services for people with special needs.33 However, the licensee may use the technology or technologies that it deems the most appropriate to provide the service. In addition, the universal service licensee is not obliged to provide broadband access when another operator offers a comparable alternative offering on the market. The Federal Council fixes ceiling prices for the services forming part of the universal service in the OTS.34 There is only one universal service licence in place, which was awarded to Swisscom.
The Federal Council does not subsidise investment in broadband infrastructure. OFCOM is nevertheless pushing the development of broadband services and has adopted expert recommendations to increase respective investments. Moreover, cantons and municipalities actively support the development of broadband networks. For example, the city of Zurich funds its electric utility provider to build a fibre optic network. Despite financial support from the government being scarce, consumer demand for high-speed internet has made several market players invest in broadband infrastructure over the past few years. In 2019, a third of Swiss households were directly connected by a fibre optic connection.35
Until recently, a Code of Conduct that Switzerland’s main providers agreed upon in 2014 solely governed content discrimination (net neutrality). This Code explicitly allowed the application of tailored prices to data traffic associated with particular applications (zero rating) as well as bandwidth throttling. When initiating the revision of the TCA in 2017, the Federal Council tried to follow this somewhat lenient approach. Following the National Council’s Transport and Telecommunications Commission’s call for action, however, parliament enacted a strict obligation to net neutrality: Under the revised TCA, telecommunications service providers must transmit information without making a technical or economic distinction between senders, receivers, content, services, classes of service, protocols, applications, programmes or terminals. Nevertheless, there are few exceptions to the net neutrality rule, as follows:
Note that clauses in pre-formulated terms and conditions do not qualify as indications of the customer’s express request.37
Moreover, telecommunications service providers must combat spam. Pursuant to the revised TCA, telecommunications service providers are obliged to enable their customers free of charge to filter incoming advertising calls and spam messages.38 They must, inter alia, provide customers upon request with peripheral information on advertising messages and advertising calls as well as addressing resources, names and addresses of the customers whose connections were used for unfair mass advertising.39
At the wholesale level, providers of telecommunications services with a dominant position in the market must provide other registered providers access to their network and services in a transparent and non-discriminatory manner. Forms of access to be granted under the TCA include:
If the providers of telecommunications services do not agree on the conditions of access within three months, ComCom will decide at the request of one of the parties and OFCOM.41 The OTS deals with the maximum access price. It provides detailed guidance on the rather complex calculation of these cost-oriented prices.42
The main regulation governing privacy in Switzerland is the Federal Data Protection Act (FDPA). To harmonise the FDPA with international developments, in particular the European Union’s General Data Protection Regulation (GDPR), Switzerland revised the FDPA in 2020. The revised FDPA will probably come into effect at the end of 2022 or the beginning of 2023 and mirrors many of the provisions set out in the GDPR. The Federal Council has also released a draft for the new Ordinance to the Federal Act on Data Protection (FDPO), which specifies details regarding data security and cross-border data transfers. The draft, however, is facing criticism from stakeholders, who argue that it imposes duties that go beyond the FDPA. The Federal Council is expected to take account of at least some of these objections when finalising the FDPO.
Whoever processes personal data must respect the processing principles: lawfulness, good faith, proportionality, transparency, data accuracy and data security. However, non-compliance with the general principles may be justified in exceptional circumstances, for example, where the person concerned consented to the processing at hand.43 Personal data may be transferred abroad only if the destination country ensures an adequate level of data protection. The FDPIC publishes a respective list of countries. Similar to the GDPR, transmission of personal data to countries not having an adequate level of protection may take place if adequate safeguards or exceptions set forth by the FDPA apply.44
Article 43 et seq. TCA set forth additional data protection and security rules in the telecoms sector. The obligation of communication secrecy prohibits any person who is or has been responsible for providing a telecommunications service from disclosing information relating to subscribers’ communications or granting anyone an opportunity to do so.45 Furthermore, providers of telecommunications services may process customer location data only for the purpose of providing telecommunications services and invoicing, except where the customer consented to other purposes or the data was anonymised beforehand.46 Data stored on external equipment, in particular cookies, may be processed for providing telecommunications services and invoicing. Processing for other purposes is possible if the customer is informed about the use of cookies and his or her right to opt out.47 Finally, the revised TCA and the Ordinance thereto include provisions regarding the protection of children and adults.48 The Federal Council may require the providers of internet access services to inform their customers about the options in the area of children and adult protection. In addition, there are provisions dealing with the prevention of illegal pornographic content.49
The Federal Act on the Surveillance of Post and Telecommunications (SPTA) and its related ordinance govern governmental surveillance in cases of criminal investigations, in the context of judicial assistance in criminal matters as well as in the context of a search for missing persons.50 The SPTA applies to telecommunications service providers, operators of internal networks and providers of services based on telecommunications services (providers of derived communications services).51 The Federal Service for the Surveillance of Post and Telecommunications (Service) may order and instruct these providers on how to carry out the surveillance of users, request them to take any necessary measures and supervises implementation. The scope of this cooperation is set out in detail in the SPTA. Telecommunications service providers, inter alia, must store peripheral data for six months and assist in real-time surveillance of communication content.52 Providers of derived communication services’ cooperation duties are limited to tolerate the Service’s surveillance by providing necessary access and information.53 All providers bear the costs for providing the facilities needed for cooperation and only receive adequate compensation for individual surveillance measures.54
Different statutes deal with cybersecurity and cybercrime matters as follows:
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