5G regulation and law in Switzerland

5G is at the top of the agenda for the government, which has set out three implementation phases:

• Phase 1: An auction of 15-year spectrum licences (“concessions”) by the communications regulator (ComCom) in the 700 MHz, 1400 MHz, 2600 MHz and 3.5 GHz bands ran from the end of January 2019 until early February 2019. 
• Phase 2: The worldwide standardisation of 5G (established under the auspices of the International Telecommunication Union (ITU)) was divided into two sub-phases: The first, which finished in mid-2018, enabled the use of the 3.5 GHz and 700 MHz bands for 5G. The second, which began in 2020, will enable the use of the remaining bands for 5G. Based on recent ITU announcements, the standard shall continue to be developed with 5G trials and pre-commercial activities to help evaluate the candidate technologies and frequency bands. In February 2021, the ITU published the first edition of the detailed specifications of the terrestrial radio interfaces of International Mobile Telecommunications-2020 (IMT-2020, can be downloaded here: https://www.itu.int/rec/R-REC-M.2150/en) approving three technologies as meeting IMT-2020 specifications (3GPP 5G-SRIT, 3GPP 5G-RIT and 5Gi). According to the ITU, since publication, "more than 200 commercial launches across the world and more than 1200 announced devices" were noted. On 23 February 2023, in a second edition, the ITU approved a fourth technology (known as "DECT 5G-SRIT") as part of ongoing standards development for 5G mobile services. Further requirements are expected at the ITU World Radiocommunication Conference (WRC-23) set to be held in Dubai at the end of 2023. 
• Phase 3: Telecom Service Providers (operators) granted a licence in the 700 MHz band must make 5G accessible to at least 50% of the population using their own infrastructure by 31 December 2024. Operators granted a licence in other bands must make 5G accessible to at least 25% of the population using their own infrastructure by the same date.

5G services are being offered at slightly higher prices than 4G (in some cases, a paid "5G option" is offered as an "add-on" to the basic subscription), but these could drop in the coming years. Mobile operators are likely to earn more by offering 5G to corporate customers for major projects such as the Internet of Things or to SMEs in rural areas, where using mobile networks might be more cost efficient than investing in proprietary landline infrastructure.

5G will be central to Industry 4.0, the Internet of Things, self-driving cars, virtual reality, medical applications and other innovations. Applications such as steel and metal smart factories and campus networks are already in operation.

So far, there are no signs that 5G access would be withheld/not offered to any operators or industrial companies. If this were to happen, legal remedies would have to be sought and courts would shape decisions, encouraging mobile operators to grant access. Ericsson, Qualcomm and Swisscom have announced a dynamic "5G spectrum sharing agreement". Furthermore, Swiss telecom providers are obliged by law to interconnect with other operators’ 5G networks to enable the transmission of calls. It is likely that operators or industrial companies have gained access to 5G frequencies, but this information is not publicly accessible. The domestic telecom operators are offering 5G access to industrial companies as well as to individuals. 

5G roll-out is fully underway. According to statements by operators, 5G coverage has now been achieved across the country. There are no signs that such frequencies would be withheld from stadiums, airports or other special premises

ComCom auctioned a wide range of frequencies in the 700 MHz, 1400 MHz and 3500 MHz bands, between 29 January and 7 February 2019. 

The 15-year licences were awarded to:

• Salt, which secured 20 MHz in the 700 MHz band, 80 MHz in the 3.5 GHz band, and 10 MHz in the 1.4 GHz band
• Sunrise, which purchased 10 MHz in the 700 MHz band, 100 MHz in the 3.5 GHz range, and 15 MHz in the 1.4 GHz band
• Swisscom, which won 30 MHz in the 700 MHz band, 120 MHz in the 3.5 GHz band, and 50 MHz in the 1.4 GHz band   

What were the criteria for awarding each of the tenders?:
ComCom carried out a simple electronic clock-auction. Thus, all participants were able to bid for all bands at the same time and under equal conditions. However, ComCom applied (i) spectrum caps. For example, in the highly attractive 700 MHz spectrum segment, bidders were not allowed to bid for more than three blocks in order to prevent over-concentrated ownership. The regulator also set (ii) minimum prices for spectrum licences.

Operators must meet the following conditions and assume certain obligations if a licence is granted:

• Spectrum licence requirements: operators must meet the general licence requirements such as (i) adequate technical skills, (ii) assurance that applicable telecommunication laws can be observed and (iii) market competition will not be substantially reduced or compromised (Art. 23 Federal Telecommunications Act [TCA]);
• Bank guarantee: operators must provide a bank guarantee covering the minimum prices set by ComCom for the allocation of spectrum licences;
• Coverage obligations (post awarded spectrum): operators granted a licence in the 700 MHz band must make 5G accessible to at least 50% of the population using their own infrastructure by 31 December 2024 (not via interconnection with other operators). Operators granted a licence in other bands must make 5G accessible to at least 25% of the population using their own infrastructure by the same date.

Licences were awarded following a clock auction format, enabling participants to bid on frequency blocks in all the available bands simultaneously. ComCom said that the spectrum cap allowed it to ensure that all mobile operators could acquire a wide range of 5G frequencies at reasonable prices.

The participants paid the following prices for their frequencies: 

• Salt: CHF 94.5m.
• Sunrise: CHF 89.24m
• Swisscom: CHF 195.56m

Most frequencies were awarded for a period of 15 years (with the exception of frequencies of 2600 MHz which were awarded until 31 December 2028). Five frequency blocks in the 2600 MHz, 700 MHz and 1400 MHz bands were not sold. The five blocks will remain with the Swiss Confederation and be put out for tender again at a later date.

(i) Compliance with general spectrum licence requirements (see above); and (ii) coverage obligations (see above) means that operators must use the spectrum awarded to them, and strive to enhance their own infrastructure to achieve a nationwide 5G coverage.

In 2022, court decisions were published that dealt with the conversion of installations from existing mobile radio installation (4G) to adaptive antennas (5G). In these decisions, in particular, compliance with the Swiss Ordinance on protection against non-ionizing radiation (NISV) – as of 1 January 2022 slightly adjusted with regard to adaptive antennas – and various building, and environmental regulations were examined. The litigation tended to focus on building permits issued to operators under a simplified procedure including the conversion of installations from 4G to 5G. Often, owners of neighbouring properties have objected to the building permit and claimed e.g. non-compliance with cantonal environmental law (e.g. forest law) or non-compliance with specifications under planning law (esp. protection of legitimate prevailing interests). Nevertheless, these complaints were ultimately rejected and so far, there are no publicly available decisions that confirm the non-compliance with obligations arising from the 5G licence regime. 

Spectrum sharing is generally not regulated, and subject to private agreements governed by freedom of contract. Spectrum sharing between mobile telecom providers is specifically regulated in Art. 11 TCA (interconnection right to use another TSP’s network at reasonable prices). This article is, however, only invoked if the parties cannot find a private agreement at reasonable terms within three months. In this case, the party requesting access to a network may resort to ComCom, which may then order reasonable terms to the owner of the relevant network. So far, there have not been any public statements from regulatory authorities on this particular issue.

Yes, but the details of these agreements are not publicly accessible.
Based on public announcements, it appears that Ericsson, Swisscom and Qualcomm partnered to make the country’s first over-the-air, DSS 5G data call on 31 October 2019. “Ericsson Spectrum Sharing (ESS) allows Swisscom to best leverage the existing frequency spectrum and infrastructure for 4G and 5G customers…” said Patrick Weibel, head of Swisscom’s 5G programme. “Spectrum sharing will ensure that Swisscom can provide extensive 5G coverage to its customers as soon as possible.” There is no public data available on traditional network sharing via interconnection, but we know it occurs by law. There are certain interconnection disputes that have reached the court stage (because the parties could not agree on reasonable pricing), but other than that, we have no knowledge of any such sharing agreements.

Switzerland participates as an observer in expert groups such as the Radio Spectrum Policy Group (RSPG) and the Radio Spectrum Committee (RSC), which coordinate spectrum use in the EU.

The current framework provides for statutory remedies: (i) Access rights to a competitor’s telecommunication networks under antitrust/competition law statutes based on the notion that the competitor holds a dominant position in the market (Art. 7, Federal Act on Cartels and other Restraints of Competition). (ii) Sector-specific interconnection rights to use another TSP’s network at reasonable prices are granted under Art. 11 TCA. (iii) Further access rights could – in theory – be granted by compulsory licences under Swiss patent law if a competitor were to deny access to its network based on its own telecom patents.

Since no domestic company has the means to supply the full infrastructure required for a 5G network, Switzerland must rely on certain foreign technology providers. The government says it is taking security concerns seriously, but acknowledges that its hands are somewhat tied by legal constraints. A spokesperson from the Office of Communications (OFCOM) stated that “based on the existing legal framework, the government cannot forbid the acquisition of equipment from Chinese technology providers by network operators.”
The government’s latest cybersecurity report (April 2020) notes that there is a general discussion about how to extricate the country “from dependence on the two de facto technology giants, the US and China.” The government also announced that it is setting up a cybersecurity competency centre to encourage further consideration of this topic. 

As of 1 January 2023, the Federal Council has revised the Ordinance on Telecommunications Services (revised OTS) with provisions relating to mobile networks that comply with the internationally defined technical specifications for networks from the fifth generation onwards in order to create additional security requirements. According to the revised OTS, operators must develop, implement and continuously review an information security management system including a business continuity management plan and a security incident management plan. Network and security operation centres shall exclusively be operated in Switzerland or in countries whose legislation guarantees adequate data protection.