The Swiss Federal Communications Commission (ComCom) has today published a decision in which it rules that existing interconnection regulation (as amended in 2003) requires dominant operators to make available local loop unbundling and shared access to the local loop.

The decision is a ruling in the context of a dispute between TDC Switzerland (a major new entrant operator) and Swisscom (the incumbent operator).

Specifically, the ComCom came to the conclusion that Art. 11.1 of the Telecommunications Law (the generic interconnection obligation), read in conjunction with Art. 3 (definition of interconnection) of the Telecommunications Law, and Art. 43 (specific reference to local loop unbundling and shared access) of the Ordinance on Telecommunications Services, must be interpreted as meaning that the obligation of interconnection incorporates an obligation of local loop unbundling / shared access.

The ComCom decision also addresses, in lengthy chapters, issues of ownership rights and the freedom of enterprise of the dominant operator. The ComCom specifically concludes that the interconnection regime, incorporating local loop unbundling and shared access to the local loop, does not constitute a serious interference with the ownership of the network, and does not constitute expropriation. As regards the freedom of enterprise, the ComCom specifically concludes that, whilst there may be interference by the interconnection regime, such interference is justified, notably by its proportionality to the public policy goals pursued by Switzerland's competition law and telecommunications policy and regulation.

Although Switzerland is not a member of the European Union (EU) or of the European Economic Area (EEA), the ComCom decision repeatedly refers to the EU Regulation on local loop unbundling, and emphasises Switzerland's policy (which is also expressed in the explanatory memorandum of the Ordinance on Telecommunications Services, as modified in 2003) of seeking to have similar telecommunications regulation to that of the EU. The ComCom also refers to Switzerland's commitments as a signatory of the World Trade Organisation (GATS).

The full text of the ComCom decision (available only in German at this time) can be accessed by clicking here.

The decision can be appealed before the Federal Tribunal.

For a discussion of local loop unbundling, shared access, and bitstream access in Switzerland, please contact Yves Blondeel.