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Telecoms and Media 2021 – Switzerland Telecoms & Media 2021 Telecoms Telecoms & Media 2021 Contributing editors Alexander Brown and David Trapp © Law Business Research 2021 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Telecoms & Media [email protected] Senior business development manager Adam Sargent 2021 [email protected] Published by Law Business Research Ltd Contributing editors Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Alexander Brown and David Trapp The information provided in this publication Simmons & Simmons LLP is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the 22nd edition of Telecoms & Media, client relationship. The publishers and which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. May and June 2021. Be advised that this is Throughout this edition, and following the unique Lexology Getting The Deal Through format, a developing area. the same key questions are answered by leading practitioners in each of the jurisdictions featured. Lexology Getting The Deal Through titles are published annually in print. Please ensure you © Law Business Research Ltd 2021 are referring to the latest edition or to the online version at www.lexology.com/gtdt. No photocopying without a CLA licence. Every effort has been made to cover all matters of concern to readers. However, specific First published 2000 legal advice should always be sought from experienced local advisers. Twenty-second edition Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contri- ISBN 978-1-83862-728-7 butors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the contributing editors, Alexander Brown and David Trapp of Simmons & Simmons LLP, Printed and distributed by for their continued assistance with this volume. Encompass Print Solutions Tel: 0844 2480 112 London June 2021 Reproduced with permission from Law Business Research Ltd This article was first published in July 2021 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2021 Contents Introduction 3 Philippines 103 Alexander Brown and David Trapp Rose Marie M King-Dominguez, Miguel Franco T Dimayacyac and Simmons & Simmons LLP Leo Francis F Abot SyCip Salazar Hernandez & Gatmaitan Brazil 4 Mauricio Vedovato and Daniela Maria Maria Rosa Nascimento Portugal 109 Huck Otranto Camargo Advogados Nuno Peres Alves and Mara Rupia Lopes Morais Leitão, Galvão Teles, Soares da Silva & Associados China 11 Jingyuan Shi, Ryo Lu and Jenny Liu Russia 118 Simmons & Simmons LLP Anastasia Dergacheva, Ksenia Andreeva, Anastasia Kiseleva, Kamil Sitdikov and Alena Neskoromyuk Egypt 21 Morgan, Lewis & Bockius LLP Mohamed Hashish and Farida Rezk Soliman, Hashish & Partners Singapore 127 Lim Chong Kin European Union 28 Drew & Napier LLC Anne Baudequin, Christopher Götz and Martin Gramsch Simmons & Simmons LLP South Korea 141 Ji Yeon Park, Juho Yoon and Kwang Hyun Ryoo Greece 46 Bae, Kim & Lee LLC Dina Th Kouvelou, Nikos Th Nikolinakos and Alexis N Spyropoulos Nikolinakos & Partners Law Firm Switzerland 149 Mario Strebel and Fabian Koch Ireland 56 CORE Attorneys Ltd Helen Kelly, Simon Shinkwin and Kate McKenna Matheson Taiwan 158 Robert C Lee and Sharon Liu Italy 67 Yangming Partners Alessandra Bianchi Simmons & Simmons LLP Turkey 164 Cigdem Ayozger Ongun, Volkan Akbas and Selin Cetin Japan 76 SRP Legal Atsushi Igarashi, Takuya Yamago, Koshi Okabe and Yukito Nagaoka TMI Associates United Arab Emirates 175 Raza Rizvi Mexico 84 Simmons & Simmons LLP Julián Garza and Paulina Bracamontes B Nader Hayaux & Goebel United Kingdom 182 Alexander Brown and David Trapp Nigeria 93 Simmons & Simmons LLP Chukwuyere E Izuogu, Otome Okolo and Tamuno Atekebo Streamsowers & Köhn United States 199 Colleen Sechrest, Kent D Bressie, Michael Nilsson and Paul Caritj Harris Wiltshire Grannis LLP 2 Telecoms & Media 2021 © Law Business Research 2021 Switzerland Mario Strebel and Fabian Koch CORE Attorneys Ltd COMMUNICATIONS POLICY As an exception, registration is still required where the use of certain addressing elements and radio frequencies require a licence. Regulatory and institutional structure Under the applicable regulatory framework, licences are still 1 Summarise the regulatory framework for the communications mandatory for the use of mobile radio frequencies for the provision of sector. Do any foreign ownership restrictions apply to telecommunication services and the provision of universal services. communications services? Frequency licences are issued either by criteria competition or, more commonly, by frequency auction. Importantly, in the absence of detailed The telecommunications sector in Switzerland is regulated at the federal principles for the granting of mobile radio frequency licences, the authori- level, the main sources of law being: ties have considerable discretion in setting the allocation or auction rules • the Federal Act on Telecommunications (TCA) of 30 April 1997, with respectively. However, the authorities have to exercise their discretion a first partial revision introduced in 2007, as last amended on 1 dutifully – that is, in line with the constitutional principles and the legal January 2021; and purpose of the TCA. Importantly, the general rules on public procurement • the Federal Ordinance on Telecommunications Services (OTS) of 9 do not apply. Licences are granted only if, having regard to the national March 2007, as last amended on 1 January 2021. frequency allocation plan, enough frequencies are available. Special rules apply if the broadcaster of a radio programme service The TCA regulates the transmission of information through telecommu- is granted a licence under the Federal Act on Radio and Television (RTVA) nications techniques, including the transmission of radio and television of 24 March 2006, as last amended on 1 January 2021. programme services. Its main purpose is to ensure that a range of Such licences can be acquired only by a person that has the cost-effective, high-quality telecommunications services are available in necessary technical capacities and, if required, the relevant proficiency Switzerland that are competitive both on a national and international level. certificate. Also, such a person has to commit itself to comply with the The OTS contains detailed rules that implement the provisions of the TCA. applicable legislation, in particular, the TCA, the RTVA, their implementing Within this regulatory framework, the Federal Communications provisions and the licence conditions. Depending on the kind of licence Commission (ComCom) acts as the independent licensing and market required, eligibility, documentary and procedural requirements vary. regulatory authority for the communications sector. Its main activities and Certain foreign ownership restrictions may apply. competencies relate, in particular, to the granting of licences for the use Applications and notifications can be submitted online via of radio communication frequencies as well as the regulation of the terms OFCOM’s website. of application of number portability and free choice of supplier. ComCom According to the TCA, licences for radio communication and instructs the Federal Office of Communications (OFCOM) concerning universal services are of limited duration. In 2012, licences for frequency the preparation of its business and the implementation of its decisions. spectrum were allocated in a public-tender procedure. In early 2019, Moreover, it has delegated some of its tasks to OFCOM. additional frequencies, particularly for the introduction of the next-gener- Certain foreign ownership restrictions may apply. In the absence of ation network 5G, were auctioned. All licences are issued in a technology any international commitments to the contrary, ComCom or OFCOM, as neutral manner. The licences allocated in 2012 will expire at the end of the case may be, may prohibit undertakings incorporated under foreign 2028 and the licences allocated in 2019 will expire at the end of 2028 law from using radio frequencies or addressing resources (as defined in or 2033, respectively. The universal service licence for Swisscom was the TCA) in Switzerland unless reciprocal rights are granted. Under the renewed for 2018 to 2022 (ie, five years). same conditions, they can be refused to be granted a licence or can be Concerning fees, the licensing authority charges administration and prohibited from transferring a licence. licence fees for radio communication licences. No licence fee is charged on radio licences for the distribution of licenced radio and television Authorisation/licensing regime programmes under the RTVA. Additionally, the Federal Council may 2 Describe the authorisation or licensing regime. exempt certain governmental and non-governmental organisations from paying the licence fee provided they do not perform telecommunications Under the revised
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