CORE Attorneys is a Swiss boutique law firm focusing on competition law, regulatory and distribution law matters.
The revised Telecommunications Act entered into force on 1 January 2021 and takes into account the increasingly digitalized society. In particular, the revision strengthens consumer protection (unfair advertising, international roaming, net neutrality and protection of children and young people) and introduces deregulations and administrative simplifications (abolition of the notification obligation for TSPs and the general licensing requirement).
The revision of the Telecommunications Act (TCA), which entered into force on 1 January 2021, was dominated by the social transformation of our increasingly digitalised society. More and more data must be transferred faster and faster. In addition, the need for increased consumer protection became apparent. Hence, strengthening consumer protection by parallel amendments to the Federal Act on Unfair Competition (UCA; available only in German) and administrative simplifications were key drivers of the revision.
The main points of the revision may be summarised as follows:
Abolition of the General Notification Obligation as Major Administrative Simplification
The revised TCA does no longer include a general notification obligation for telecommunications service providers (TSP). Amongst others, the numerous providers of over-the-top services (OTT services) such as messenger, VoIP or IPTV services (e.g. Threema, Skype or Zattoo) benefit from this administrative simplification. However, TSP which use certain addressing elements or radio frequencies requiring a license must still be registered (Art. 4 para. 1 TCA).
Increased Consumer Protection Suggests Compliance Review
With the revision of the TCA, amendments to UCA were implemented in order to strengthen consumer protection. These amendments are far-reaching and could entail consequences under both civil and criminal law. TSP should therefore review their compliance measures and processes with regard to the new rules where necessary.
In particular, stricter regulations apply to advertising calls. Targeting conduct such as spoofing (i.e. a scam strategy that includes disguised communication), advertisers are now obliged to use and also display telephone numbers in advertising calls which are entered in the telephone directory and which they are entitled to use (Art. 3 para. 1 lit. v UCA). In addition, not only those who make such unfair advertising calls themselves, but also those who make use of the information obtained from such calls are acting unfairly under the revised regulation and could be prosecuted (Art. 3 para. 1 lit. w UCA). In addition, as from 1 July 2021, unfair advertising calls will also be covered by the obligation to combat spam (Art. 45a TCA).
Another important point of the revision is contained in Art. 26a UCA and deals with the revocation or blocking of domain names and telephone numbers. According thereto, responsible public prosecutor’s offices and courts may revoke or block domain names and telephone numbers in the case of criminal offences under Art. 23 in conjunction with Art. 3 UCA or Art. 24 UCA (violation of the obligation to disclose prices to consumers including the Ordinance on Price Indication [PIO; available only in German]) respectively, in order to prevent new violations of domain names or telephone numbers, regardless of the criminal liability of a particular person.
Regulation of Net Neutrality and Cyber Attacks and Unchanged Network Access Regime
The revised TCA now explicitly regulates that TSP must adhere to the principle of net neutrality, i.e. the obligation to treat all Internet communication equally. Therefore, a differentiation in transmission is only permitted in exceptional cases (Art. 12e TCA).
Furthermore, in order to increase cyber security, TSP are now obliged to combat unauthorized manipulation of telecommunications equipment (Art. 48a TCA), for instance by rerouting or preventing connections or by suppressing information.
The network access regime, however, finally remained unchanged and was not advanced to a regulation of access in a technology-neutral manner. Hence, network access regulation remains restricted to the copper lines under the revised TCA and does not cover, inter alia, fibre networks.
For a comprehensive overview over the Swiss telecoms and media regulation, please consult our publication Getting The Deal Trough – Lexology – Telecoms and Media (PDF).