5G regulation and law in Switzerland

Information current as of 19 December 2019

What is the state of 5G deployment in Switzerland?

Implementing 5G communication services is at the top of the government’s agenda. The Swiss government has set out 3 envisaged phases for implementation of 5G in Switzerland:

  • Phase 1: Auction of spectrum licences (in Switzerland called “concessions”) by the Swiss communications commission (ComCom) in the spectrum segments 700 MHz, 1400 MHz, 2600 MHz and 3.5 GHz was opened to telecommunication service providers (TSPs) at the end of January 2019 and closed in early February 2019. Spectrum licences were awarded for 15 years (until 2033) to give TSPs planning security to make 5G accessible nationwide. 
  • Phase 2: The worldwide standardization of the 5G standard (established under the auspices of the International Telecommunication Union (ITU)) is divided in two subphases: The first sub-phase closed in mid2018 and enables the use of spectrum segments 3.5 GHz and 700 MHz for 5G. The second is estimated to be achieved in 2020 and will enable the use of the rest of the spectrum segments for 5G.
  • Phase 3: TSPs granted a licence in the spectrum segment 700 MHz by ComCom must make 5G accessible to at least 50% of the population in Switzerland through their own infrastructure until 31 December 2024. TSPs granted a licence in other spectrum segments must make 5G accessible to at least 25% of the population in Switzerland through their own infrastructure until 31 December 2024.

Which telcos and communications players are launching 5G services?

Auction of spectrum licences was closed in February 2019 and granted to three Swiss TSPs: Swisscom, Sunrise and Salt. Not all tendered spectrum licences were awarded. Five blocks in the 2600, 700 and 1400 MHz segments remain unawarded and may be re-tendered at a later point in time.

Another bidder, the British company Dense Air, was not granted any spectrum licences. Dense Air has specialized in building smaller telecommunication networks and in reselling transmission capacity to other TSPs or corporate clients. The decision to exclude Dense Air was criticized, but also a strategic move by ComCom. Had Dense Air been awarded spectrum licences, the risk of legal proceedings initiated by other TSPs would have been higher. This could have compromised the fast introduction of 5G in Switzerland. ComCom was of the view that competition among three Swiss TSPs in Switzerland is sufficient to ensure a competitive 5G landscape.

Are there any public tenders for spectrum licences?

Yes. The public tender was opened in July 2018 and closed in early October 2018. ComCom decided to proceed with a simple clock-auction proceeding on an electronic basis. Thus, all participants were entitled to bid for all frequency spectra together at the same time and under equal conditions. However, ComCom has applied: (i) spectrum caps – e.g., in the (highly attractive) 700 MHz spectrum segment, each bidder was not allowed to bid for more than three blocks of the segment to avoid over-concentrated ownership; and (ii) minimum prices for spectrum licences.

What are the conditions?

In accordance with the announcement in the tender proceedings, bidding TSPs must meet the following conditions and assume certain obligations if a licence is granted:

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

What has the government said regarding spectrum licences for commercial use?

The government holds a positive/optimistic position towards 5G spectrum licences for commercial use and underlines the opportunities associated with it. Not only should 5G enable smoother downloads and streaming of entertainment content, but 5G is also considered as the basis for Industry 4.0, Internet of Things, self-driving cars, telemedicine and similar innovations.

However, medical concerns have been raised. 5G can unlikely be implemented in Switzerland without changing the current statutes on protection against radiation. The current maximum exposure limits set forth in the applicable statutes and regulations will most likely have to be lowered to introduce 5G. Medical professionals and associations point out health risks and demand that changes to current statutes should not take place. It is unclear what impact health-related considerations will have. The interest of the Swiss economy and the government in introducing 5G quickly and nationwide is strong and likely to prevail. At the same time, the government wants to and must adhere to the precautionary principle of environmental protection law. Changes to the statutes are officially planned.

So far, only the Ordinance on Protection from Non-ionising Radiation of 23 December 1999 (ONIR) has been slightly adapted, on 17 April 2019. In particular, the concept of "electric smog monitoring" has been introduced. It will be conducted by the Federal Office for the Environment (FOEN) and its purpose is to determine the exposure of the population in Switzerland to non-ionising radiation. Currently, the FOEN is in the process of clarifying the parameters for monitoring and organizing it. The first results are expected in 2021 at the earliest. 

In September 2018, the Federal Department of the Environment, Transport, Energy and Communications (DETEC) set up the working group "Mobile Radio and Radiation" with the task of drawing up a report on the needs and risks of setting up 5G networks. The report was published at the end of November 2019 and suggests six accompanying measures for the expansion of the mobile network in particular:

  • The enforcement ONIR is to be simplified and harmonized together with the cantons;
  • The electric smog monitoring is to be further developed;
  • Information to the general public on mobile radio and radiation is to be increased;
  • Research into possible health effects is to be intensified;
  • An environmental medical advice centre for nonionising radiation is to be created; and
  • Within the framework of a new exchange platform "mobile radio of the future", discussions among stakeholders is to be continued and solutions sought. 

The DETEC is now considering the proposed measures of the working group and deciding on the next course of action.  

Are the rules for 5G already drafted, and if so, what do they say?

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

What are or would be the rules for granting competitors access to the new 5G networks, once they are deployed?

The current Swiss framework provides for statutory remedies: (i) access rights to competitors’ 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; and (iii) further access rights could – in theory – be granted by compulsory licences under Swiss patent law if a competitor would deny access to its network based on telecom-patents owned by them.

Dr Dirk Spacek, LL.M.