Telecoms and Media. An overview of regulation in 43 jurisdictions worldwide Contributing editors: Laurent Garzaniti and Natasha Good

Transcription

1 Telecoms and Media An overview of regulation in 43 jurisdictions worldwide 2014 Contributing editors: Laurent Garzaniti and Natasha Good Published by Getting the Deal Through in association with: Ali Budiardjo, Nugroho, Reksodiputro APTS Alves Pereira & Teixeira de Sousa, RL AVM Advogados Barretto Ferreira e Brancher Sociedade de Advogados (BKBG) BBH, advokátní kancelář, s.r.o. Bentsi-Enchill, Letsa & Ankomah Carey Coulson Harney Debarliev, Dameski & Kelesoska Attorneys at Law Djingov, Gouginski, Kyutchukov & Velichkov Drew & Napier LLC ELIG, Attorneys-at-Law ENSafrica Fasken Martineau DuMoulin LLP Freshfields Bruckhaus Deringer Gilbert + Tobin Greenberg Traurig, SC Hayabusa Asuka Law Offices Lee Hishammuddin Allen & Gledhill Lenz & Staehelin Matheson MJM Barristers & Attorneys Mkono & Co Advocates Nikolinakos-Lardas Law Firm Rajah & Tann LLP Seth Dua & Associates Streamsowers & Köhn Tark Grunte Sutkiene Vasil Kisil & Partners Webb Henderson Wierzbowski Eversheds Wiltshire & Grannis LLP YangMing Partners

2 contents Telecoms and Media 2014 Contributing editors: Laurent Garzaniti and Natasha Good Getting the Deal Through is delighted to publish the fully revised and updated fifteenth edition edition of Telecoms and Media, a volume in our series of annual reports that provide international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and business people. Following the format adopted throughout the series, the same key questions are answered by leading practitioners in each of the 43 jurisdictions featured. This year s edition also benefits from an expanded overview section, with two new chapters covering Network Sharing, and Convergence in the US Telecommunications and Media Industry. Every effort has been made to ensure that matters of concern to readers are covered. However, specific legal advice should always be sought from experienced local advisers. Getting the Deal Through publications are updated annually in print. Please ensure you are referring to the latest print edition or to the online version at Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. Once again, regulatory agencies have assisted us in the verification of the factual information relating to their jurisdiction and we acknowledge their cooperation on page 14. We would also like to extend special thanks to contributing editors Laurent Garzaniti and Natasha Good of for their assistance with this volume. Getting the Deal Through London March 2014 Overview 3 Laurent Garzaniti, Natasha Good and Hein Hobbelen Network Sharing 6 Malcolm Webb Webb Henderson Convergence in the US Telecommunications and Media Industry: Legal Considerations 10 John Nakahata and Michael Nilsson Wiltshire & Grannis LLP Acknowledgements for Verifying Content 14 Angola 15 António Vicente Marques AVM Advogados Australia 21 Simon Muys, Peter Waters and Adelina Widjaja Gilbert + Tobin Austria 29 Bertram Burtscher and Gernot Fritz Belgium 35 Laurent Garzaniti, Hein Hobbelen and Anneleen Straetemans Bermuda 43 Timothy Frith MJM Barristers & Attorneys Brazil 49 Ricardo Barretto Ferreira and Paulo Brancher Barretto Ferreira e Brancher Sociedade de Advogados (BKBG) Bulgaria 54 Violetta Kunze and Milka Ivanova Djingov, Gouginski, Kyutchukov & Velichkov Canada 62 Laurence J E Dunbar, Leslie J Milton, Scott M Prescott and Stephen P Whitehead Fasken Martineau DuMoulin LLP Chile 69 Alfonso Silva Cubillos and Eduardo Martin Cuadrado Carey China 77 Chuan Sun, Victoria White and Annalisa Heger Freshfields Bruckhaus Deringer Czech Republic 86 Petr Prouza, Lukas Marek and Radim Kotrba BBH, advokátní kancelář, s.r.o. European Union 92 Laurent Garzaniti, Thomas Janssens, Hein Hobbelen and Alexia Burckett St Laurent France 103 Jérôme Philippe and Aude-Charlotte Guyon Germany 110 Norbert Nolte, Sibylle Gering and Christoph Werkmeister Ghana 117 Josiah Kojo Ankoma-Sey and Susan-Barbara Adjorkor Kumapley Bentsi-Enchill, Letsa & Ankomah Publisher Gideon Roberton gideon.roberton@lbresearch.com Subscriptions Rachel Nurse subscriptions@gettingthedealthrough.com Business development managers George Ingledew george.ingledew@lbresearch.com Alan Lee alan.lee@lbresearch.com Dan White dan.white@lbresearch.com Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Tel: Fax: No photocopying: copyright licences do not apply. First published 2010 Fifteenth edition Previously published as: Telecoms ( ) ISSN The information provided in this publication 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 client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of March 2014, be advised that this is a developing area. Printed and distributed by Encompass Print Solutions Tel:

3 contents Greece 123 Dina Th Kouvelou and Nikos Th Nikolinakos Nikolinakos-Lardas Law Firm Hong Kong 129 Chuan Sun, Victoria White and Annalisa Heger Freshfields Bruckhaus Deringer Malaysia 189 Adlin Abdul Majid and Mae Lee Kah Ching Lee Hishammuddin Allen & Gledhill Mexico 196 Bertha Alicia Ordaz-Avilés and Octavio Lecona-Morales Greenberg Traurig, SC Singapore 248 Chong Kin Lim, Charmian Aw and Shawn Ting Drew & Napier LLC South Africa 261 Zaid Gardner ENSafrica India 137 Atul Dua, Salman Waris and Arjun Uppal Seth Dua & Associates Indonesia 145 Agus Ahadi Deradjat, Kevin Omar Sidharta and Serafina Muryanti Ali Budiardjo, Nugroho, Reksodiputro Ireland 153 Helen Kelly and Claire Morgan Matheson Italy 159 Tommaso Salonico and Luca Ulissi Japan 168 Nao Tsuchiya Hayabusa Asuka Law Offices Kenya 173 Richard Harney and Terry Otaba Coulson Harney Lithuania 179 Indrė Burbulytė Tark Grunte Sutkiene Macedonia 185 Elena Miceva and Dragan Dameski Debarliev, Dameski & Kelesoska Attorneys at Law Myanmar 203 Chester Toh, Alroy Chan and Daryl Larry Sim Rajah & Tann LLP Netherlands 208 Onno Brouwer, Winfred Knibbeler and Nima Lorjé New Zealand 214 Malcolm Webb and Anisa Purbasari Webb Henderson Nigeria 220 Tamuno Atekebo, Otome Okolo and Chukwuyere E Izuogu Streamsowers & Köhn Poland 227 Arwid Mednis Wierzbowski Eversheds Portugal 234 Belén Granados, Daniel Bobos-Radu and Sofia Lima APTS Alves Pereira & Teixeira de Sousa, RL Russia 242 Igor Gerber and Andrey Filippenko 267 Marcel Meinhardt, Astrid Waser and Michael Cabalzar Lenz & Staehelin Taiwan 273 Robert C Lee and Lawrence Liao YangMing Partners Tanzania 278 Kamanga Wilbert Kapinga and Nimrod Mkono Mkono & Co Advocates Turkey 283 Gönenç Gürkaynak and İlay Yılmaz ELIG, Attorneys-at-Law Ukraine 289 Anna Babych and Oksana Krasnokutska Vasil Kisil & Partners United Kingdom 295 Rod Carlton, Mark Sansom, Francesco Leonetti and Thomas Cooling United States 308 John Nakahata, Kent Bressie and Paul Margie Wiltshire & Grannis LLP 2 Getting the Deal Through Telecoms and Media 2014

4 Lenz & Staehelin Marcel Meinhardt, Astrid Waser and Michael Cabalzar Lenz & Staehelin Communications policy 1 Regulatory and institutional structure Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services? In, the telecommunications sector is regulated at federal level. The Federal Communications Commission (ComCom) is the independent licensing and market regulatory authority for the communications sector. The main activities and competences of ComCom relate, in particular, to the granting of licences for the use of radio communication frequencies as well as the regulation of the terms of application of number portability and free choice of supplier. ComCom instructs the Federal Office of Communications (OFCOM) with respect to the preparation of its business and the implementation of its decisions. Moreover, it has delegated some of its tasks to OFCOM. OFCOM itself is part of the Federal Department of the Environment, Transport, Energy and Communications (DETEC) and acts as the supervisory authority in the communications sector. The Federal Act on Telecommunications (TCA) dated 30 April 1997 (as amended on 1 July 2010) and the Federal Ordinance on Telecommunications Services (OTS) dated 9 March 2007 (as amended on 1 March 2012) represent the main sources of law with respect to telecommunications. The TCA regulates the transmission of information by means of telecommunications techniques, including the transmission of radio and television programme services. The aim of the TCA is to ensure that a range of cost-effective, high-quality and nationally and internationally competitive telecommunications services are available to individuals and companies in and that effective and fair competition among carriers, operators and service providers will be guaranteed. In principle, certain foreign ownership restrictions may apply. If no reciprocal rights are granted abroad, and subject to international obligations to the contrary, foreign companies can be prohibited from providing telecommunications services in, can be refused to be granted a licence, or can be prohibited from transferring a licence. 2 Authorisation/licensing regime Describe the authorisation or licensing regime. Licences for telecommunications services have been, in principle, abolished. A telecommunications service provider (TSP) is only obliged to register with OFCOM and to notify the authority of the services to be offered in. The registration fee and the annual administrative fee currently amount to 960 Swiss francs. Licences must only be acquired for radio communications and universal services. Accordingly, the use of the frequency spectrum for the provision of telecommunications services requires a radio communications licence. Special rules apply if the broadcaster of a radio programme service is granted a licence under the RTVA (see question 15). Pursuant to the TCA, licences for radio communications and universal services are of limited duration. In 2012, licences for the entire frequency spectrum, including the digital dividend, for the provision of mobile telecommunications services were re-allocated in a public tender procedure. Each of the three previously existing mobile network operators in acquired a licence. These new licences will expire at the end of 2028 and were issued in a technology-neutral manner, allowing the use of the latest mobile radio technologies such as LTE. 3 Flexibility in spectrum use Do spectrum licences generally specify the permitted use or is permitted use (fully or partly) unrestricted? Is licensed spectrum tradable or assignable? Radio communications licences do specify the permitted use (eg, radio, TV, amateur radio) and different rules on the trading and returning of allocated radio frequency spectrum apply. Under the TCA, a licence can only be transferred in whole or in part with the consent of the licensing authority. This also applies to situations involving an economic transfer of the licence. Such economic transfer occurs in case of acquisition of control (in the meaning of the Federal Cartel Act) of the licensee. (See question 14 with respect to the transfer of licences in the field of broadcasting.) There is no specific regulatory framework for the assignment of unused radio spectrum. OFCOM is responsible for the management of the radio spectrum and establishes the National Frequency Allocation Plan that is approved by the Federal Council. 4 Ex-ante regulatory obligations Which communications markets and segments are subject to ex-ante regulation? What remedies may be imposed? relies in general on ex-post regulation. Only for universal services licences does the Federal Council decide on quality criteria and periodically fix upper limits for the prices of the services of the universal service. These upper limits apply uniformly over the whole area and are determined by the development of the market. Moreover, special rules apply to providers that have a dominant position in a market. They are obliged to grant access to infrastructure and services to other providers in a transparent and nondiscriminatory manner at cost-oriented prices. In 2006 the Federal Supreme Court for the first time confirmed the determination of interconnection prices using a cost model based on LRIC

5 lenz & Staehelin 5 Structural or functional separation Is there a legal basis for requiring structural or functional separation between an operator s network and service activities? Has structural or functional separation been introduced or is it being contemplated? There is no legal basis for a structural separation between an operator s network and service activities. 6 Universal service obligations and financing Outline any universal service obligations. How is provision of these services financed? The ComCom awards one or more universal service licences to TSPs wishing to provide a universal service for the whole population in all parts of the country. There is no obligation to provide a universal service. Universal service licences are put out to tender and awarded on the basis of a competition based on specific criteria (such as the applicant s technical capability, financial soundness and ability to comply with the law and the licence conditions). In 2007, the ComCom renewed Swisscom s universal service licence for a 10-year term starting in The Federal Council periodically reviews the universal service catalogue and adapts it to new needs and the technological progress. Currently, universal service includes: public telephone services; additional service (barring of outgoing calls); emergency calls; data transmission services; public pay telephones; services for the hearing impaired; and directory and operator services for the visually impaired and people with limited mobility. To date, new technologies such as fibre optic or mobile phone services are not included in the universal service. If it is clear before the granting of the licence that even with efficient management it will not be possible to cover the costs of the provision of the universal service in a given area, the licensee is entitled to financial compensation. The compensation would be financed by levying a fee on all TSP. 7 Number portability Describe the number portability regime in your jurisdiction. The numbering scheme under the National Numbering Plan allows number portability between TSPs offering the same category of telecommunications services. Within such categories, TSPs are obliged to grant number portability. The relevant categories are: public telephone services (such as fixed net services); mobile telephony; and non-geographic services (such as premium-rate services). TSPs that are required to grant number portability must bear their own costs. However, a TSP that passes a number to another can demand that the latter contributes to administrative costs. The costs of transmitting a passed-on number to its destination are regulated in interconnection contracts between the TSPs. If there is no agreement, the rules of interconnection apply by analogy. The new TSP can pass part of the costs of number portability to the subscriber. 8 Customer terms and conditions Are customer terms and conditions in the communications sector subject to specific rules? Regarding customer terms and conditions there are no specific rules. However, the Federal Council periodically fixes upper limits for the prices of the services of the universal services (see question 4). Thus, the prices for connection, national calls to fixed-network connections, the surcharge for the use of a public pay telephone and the use of the transcription services are defined in the OTS. 9 Net neutrality Are there limits on an internet service provider s freedom to control or prioritise the type or source of data that it delivers? Are there any other specific regulations or guidelines on net neutrality? has not adopted any rules precluding network service providers from discriminating between the different types and sources of data transmitted over their networks. There are also no specific regulations or guidelines on net neutrality. According to public statements of the large internet service providers, prioritisation of certain content for the purpose of network management occurs on a regular basis, in particular to avoid responsibility for illegal actions of its customers, to fight spam and viruses and to improve the network s quality. Such actions have been perceived as an intrusion into net neutrality by some customers. The Federal Council announced that it will monitor the current situation in as well as in foreign countries and take actions where problems arise. 10 Next-Generation-Access (NGA) networks Are there specific regulatory obligations applicable to NGA networks? Is there a government financial scheme to promote basic broadband or NGA broadband penetration? The Swiss legislation on telecommunications is technology-neutral and does not contain any specific definitions referring to NGA networks. Therefore they are, in principle, subject to the provisions of the TCA. There is no federal scheme to promote broadband penetration. However, some local authorities are actively supporting the development of broadband networks. For example, the city of Zurich has assigned financial means to its own electric utility to build an areawide fibre optic network. Furthermore, the licence for universal services obliges Swisscom to provide a broadband internet connection with at least a 1,000/100kb/s transmission speed to all households in addition to analogue and digital telephone connections. 11 Data protection Is there a specific data protection regime applicable to the communications sector? TSPs are subject to a general confidentiality obligation (article 43 of the TCA). They cannot disclose to a third party any information relating to a subscriber s communications or give anyone else an opportunity to do so. Subscribers must be granted access to the data on which invoices are based, in particular the addressing resources, the times when calls were made and the payment due. Moreover, anyone requiring this data to trace nuisance calls or unfair mass advertising must be informed of the name and address of the subscribers whose lines were used for such calls. Under the TCA, TSPs may process customer location data only for the provision of telecommunications services and for charging purposes. The processing of data for other services requires prior consent of customers or anonymous processing. Telecommunications service providers may process the personal data of their customers insofar and for as long as this is necessary for establishing communications, providing information on post and telecommunications traffic in accordance with article 5 of the Federal Act on the Interception of Postal and Telecommunications Services (IPTS), and for obtaining due payment for their services. 268 Getting the Deal Through Telecoms and Media 2014

6 Lenz & Staehelin In addition, the Federal Act on Data Protection (FADP) dated 19 June 1992 (as amended 1 January 2011) applies. The FADP aims to protect the privacy and the fundamental rights of persons when their data is processed by private persons or federal bodies. Anyone who processes personal data must not unlawfully breach the privacy of the data subjects in doing so. In particular, he or she must not process personal data in contravention of the principles of the FADP, process data pertaining to a person against that person s express wish without justification or disclose sensitive personal data or personality profiles to third parties without justification. The principles of the FADP are, inter alia, that personal data may only be processed lawfully, that its processing must be carried out in good faith and must be proportionate and that the purpose of its processing must be evident to the data subject. The FADP also provides certain specific regulations for the communication sectors as for example the limitation of the right to information for journalists. However, in relation to the IPTS, which regulates the procedure of interception and the obligation of operators to assist the government, the FADP is lex specialis. Interception measures are only permitted regarding certain severe criminal offences listed by the Federal Office for the Interception of Postal and Telecommunication Services (the IPTS Office) and on condition that other measures have remained unsuccessful. 12 Key trends and expected changes Summarise the key emerging trends and hot topics in communications regulation in your jurisdiction. In 2012, the Federal Council published a supplementary report on the evaluation of the telecommunications market. The Federal Council came to the conclusion that the current TCA is being overtaken by rapid technological developments in the telecommunications industry. For example, the current TCA is based on the copper network, which will increasingly be replaced by new fibre, cable networks and mobile radio systems. This means that there is a risk that the existing TCA may not have its full impact on such new technologies. It therefore intends to initiate the drafting of a consultation paper on a partial revision of the TCA. At the centre of Swiss telecommunications policy are provision of technology-neutral, open and fair access to networks, universal service, protection of users, and a functioning internet. The creation of legal certainty in all these areas will be the focus of the Federal Council s telecommunications strategy for the future. In addition, in a currently pending motion the parliament will have to decide on whether it wants to oblige the Federal Council to include net neutrality in the planned revision of the TCA. Media 13 Regulatory and institutional structure Summarise the regulatory framework for the media sector in your jurisdiction. The broadcasting sector has three main authorities responsible for the granting of licences. The Federal Council is the licensing authority for the Swiss Broadcasting Corporation (SBC). With respect to other licences, licensing competence has been delegated to the DETEC. OFCOM puts the licences out for tender and consults interested groups. OFCOM further fulfils all sovereign and regulatory tasks related to the telecommunications and broadcasting (radio and television) sectors. It fulfils an advisory and coordinating function for the public and policymakers. It also guarantees that basic services will be provided in all parts of the country and for all sections of the population. On 21 November 2012, the Federal Council established the new Federal Media Commission. The Federal Media Commission consists of 13 representatives from various areas of the Swiss media sector and has been operational since August The Federal Media Commission advises the Federal Council and the Federal Administration in relation to media issues. The RTVA further provides for an Independent Complaints Authority for Radio and Television, which deals with complaints that relate to the editorial programme and rules on disputes on denied access to a programme. In, apart from the communications sector, regulation of the media sector is also dealt with at a federal level. The broadcasting, processing and reception of radio and television programme services are regulated by the Federal Act on Radio and Television (RTVA) dated 24 March 2006 (as amended on 1 February 2010), the Federal Ordinance on Radio and Television (RTVO) dated 9 March 2007 (as amended on 1 March 2013) and related decrees. 14 Ownership restrictions Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers? Licences for broadcasting may subject to any international obligations to the contrary be refused to foreign natural persons with their domicile in, companies with foreign control or Swiss companies with foreign participations, provided that the respective foreign state does not grant reciprocal rights to Swiss citizens or Swiss companies. In addition, the licence granted to broadcasters of radio and television programme services can only be transferred with approval of the licensing authority. The licensing authority examines whether the licence requirements are also met after the transfer. Economic transfer of the licence (ie, the transfer of more than 20 per cent of the share capital of the licensee) is also deemed to be such a transfer. The RTVA provides that a media corporation may not receive more than two radio and two television licences. In addition, the participation of the SBC in other companies that are broadcasting radio or television programmes requires the approval of the DETEC. There are currently no amendments planned regarding cross-ownership. 15 Licensing requirements What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations? Broadcasters of programme services are in principle required to obtain a licence. However, broadcasters that request neither splitting revenue nor guaranteed wireless terrestrial distribution can operate their service without a licence. The only requirement is prior notification to OFCOM. Also, broadcasters of programme services of minor editorial importance (such as programme services that can be received by fewer than 1,000 people at the same time) do not fall under the scope of the RTVA and do not need a licence or registration. The SBC is subject to a special licence with an extensive mandate. The Federal Council is the licensing authority for the SBC. With respect to the other licences, the licensing competence has been delegated to the DETEC (see question 13). If the broadcaster of a radio programme service is granted a licence under the RTVA, it is at the same time granted a licence under the TCA for use of the frequency spectrum (no separate application is needed). Cable TV operators are under a duty to broadcast in the respective coverage area TV programme services of broadcasters that have been granted a licence. Licences are awarded by public tender. To be awarded a licence, the applicant must: be able to fulfil the mandate; possess sound financial standing; 269

7 lenz & Staehelin be transparent about its owners; guarantee that it complies with the employment law regulations and the working conditions of the industry, the applicable law and in particular the obligations and conditions associated with the licence; maintain a separation of editorial and economic activity; have residence or registered offices in ; and not jeopardise the diversity of opinion and offerings The number of licences a broadcaster and its group companies may acquire is limited to a maximum of two television and of two radio licences. If there are several candidates for one licence, preference is given to the applicant that is best able to fulfil the performance mandate. If several candidates are equivalent, the applicant that best enhances diversity of opinion and offerings is given preference. Often, independent applicants (ie, those not belonging to a media corporation that already possesses other licences) are deemed to be better able to fulfil this criterion by the DETEC. The fee per year for a broadcasting licence amounts to 0.5 per cent of the gross advertising revenue that exceeds 500,000 Swiss francs. Furthermore, administrative charges will incur in relation to the radio and TV licence as well as to the telecommunications licence. These charges are calculated on the basis of time spent. A reduced hourly rate applies to the granting, amending or cancelling of a licence for the broadcasting of a radio or television programme service as well as for the radio communications licence. 16 Foreign programmes and local content requirements Are there any regulations concerning the broadcasting of foreignproduced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime? Broadcasters may be granted a licence for national and language region-specific programmes. These licences may contain obligations with respect to the portion of own productions and Swiss productions, in particular Swiss films. Local and regional providers of radio and television programme services must primarily take into account the particular characteristics of their service area. They must contribute to the forming of opinion on topics of local and regional social life and to the promotion of the cultural life in the service area. These licences will, therefore, contain specific obligations regarding local and regional content. Online as well as mobile content providers are not subject to this regime. 17 Advertising How is broadcast media advertising regulated? Is online advertising subject to the same regulation? Swiss law provides for both rules on advertising in general and specific rules for advertising in broadcast media. The Federal Act against Unfair Competition (UCA) dated 19 December 1986 (as amended 1 January 2013) contains several general provisions on advertising. It provides in particular that any advertisement that is deceptive or that in any other way infringes the principle of good faith and which affects the relationship between competitors or between suppliers and customers is deemed unfair and unlawful. In addition, the advertisement industry has installed soft law rules and established the Commission on Integrity in Commercial Communication in The Commission is a respected monitoring organisation that handles complaints from both consumers and competitors. It bases its decision on its own guidelines. Broadcast media advertising (form and content) is specifically regulated in the RTVA and the RTVO. As regards form, advertising must be clearly separated from the editorial programmes and must be clearly identifiable as such. Therefore, the beginning and end of an advertising slot must be indicated by a clear visual or audible marker. An advertisement that lasts longer than a minute must be identified as such for reasons of transparency. While surreptitious advertising is always illegal, product placement may be allowed if it fits into the dramatisation of a programme and is clearly declared as sponsorship. Regular radio and television programme staff are banned from appearing in advertisements. Local and regional broadcasters with limited financial resources are excluded from this restriction. There are scheduling and airtime restrictions for radio and TV advertising. Depending on the type of programme (eg, cinematographic film, documentaries, news programmes, programmes with a religious content, series, programmes for children) different scheduling restrictions apply. More severe restrictions apply to the SBC. As regards airtime, advertising may account for a maximum of 15 per cent of the daily transmission time and a maximum of 20 per cent (12 minutes) within one hour. The RTVO contains provisions on the use of new advertising forms such as split screen, interactive and virtual advertising (ie, the insertion of advertisements into an existing image by means of post-production). As regards content, the RTVA prohibits advertising for certain groups of products and services on radio and television, including tobacco products, certain alcoholic beverages, therapeutic products and political parties. Advertising is also prohibited if it disparages religious or political convictions, is misleading or unfair, or encourages behaviour that is prejudicial to health, the environment or personal safety. Since April 2010, less restrictive rules (in particular with regard to commercial breaks and product placement) apply to private broadcasters. There is no specific regulation for online advertising, as traditional online content is usually not covered by the RTVA (see question 19 for exceptions). Therefore, online advertising is only subject to the general advertising rules of the UCA. 18 Must-carry obligations Are there regulations specifying a basic package of programmes that must be carried by operators broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations? As regards must-carry obligations, the RTVA differentiates between broadcasting distribution networks that transmit content by wireless terrestrial broadcasting and by wire. In case of wireless terrestrial broadcasting, the programme services of the SBC and the programme services of broadcasters which possess a licence with a performance mandate are entitled to access the network. Broadcasters pay the owner of a radio communication licence cost-based compensation for the broadcasting. In case of broadcasting by wire, in addition to the abovementioned programme services the Federal Council has specified the programme services of foreign broadcasters that are to be transmitted by wire because of their special contribution to education, cultural development or free opinion-forming. Furthermore, on application by a broadcaster and subject to certain conditions, the OFCOM can require a TSP for a specific period to provide broadcasting by wire of a programme service within a specific area. The RTVO provides for a maximum number of programme services that have to be broadcast by wire free of charge. 270 Getting the Deal Through Telecoms and Media 2014

8 Lenz & Staehelin 19 Regulation of new media content Is new media content and its delivery regulated differently from traditional broadcast media? How? The delivery of traditional online content (websites, newsgroups, weblogs, etc) is not specifically regulated and no changes are planned (see question 23). Of course, general laws such as criminal law, intellectual property rights, etc, do apply. Online content that meets the legal definition of a programme service (ie, content that is delivered as a continuous sequence of broadcasts that are transmitted at certain times only and addressed to the general public (such as IPTV and streaming media)) falls, in principle, under the RTVA. However, programme services that can only be received simultaneously by 1,000 viewers or fewer (ie, offerings of minor editorial importance) as well as on-demand content are excluded from the RTVA (see question 15). Therefore, most of today s online content is not regulated. Broadcasts that are subject to the RTVA have to abide by the same rules (eg, regarding advertisement) as broadcasts via traditional media (see question 17). While there is no licence required, the broadcasters have to inform the OFCOM of their programme service. 20 Digital switchover When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated? In, the last analogue terrestrial TV programme services were disconnected in There is no specific timing required by law for the switchover from analogue to digital broadcasting of radio programme services. However, the OFCOM may grant financial help to licensed broadcasters to establish new broadcasting technologies if there are insufficient resources in the relevant area. The necessary funds are generated by licensing and consumer fees. According to the new National Frequency Allocation Plan, the frequency band from 790 to 862MHz, which has been freed up due to the digitalisation of TV, has been made available for mobile services. These frequencies were awarded in the auction of mobile radio frequencies in 2012 (see question 2). 21 Digital formats Does regulation restrict how broadcasters can use their spectrum (multi-channelling, high definition, data services)? In, no specific rules for digital formats exist. Digital broadcasting is subject to the general rules (see question 19). The provisions of the RTVA apply, if the digital formats are considered as a programme service, which is not the case with respect to IPTV and streaming media (see question 19). 22 Media plurality Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment? Swiss law provides for two ways to regulate media plurality. On the one hand, to be awarded a licence the applicant must, inter alia, not jeopardise the diversity of opinion and offerings (see question 15). In particular, if there are several candidates for one licence, preference is given to the applicant that is best able to fulfil the performance mandate. If several candidates are equivalent, the applicant that best enhances diversity of opinion and offerings is given preference (see question 15). In this context, the number of licences a broadcaster and its group companies may acquire is limited to a maximum of two television and of two radio licences. On the other hand, there are measures against media concentration once a licence has been granted. However, these are only applicable if an undertaking abuses its dominant position. In these cases, the DETEC consults the Competition Commission (ComCo). If the ComCo s report ascertains that a dominant undertaking jeopardises diversity of opinion and offerings as a result of its abuse of its dominant position, the DETEC may demand that the undertaking: ensures diversity by measures such as granting broadcasting time for third parties or cooperating with other participants in the market; takes measures against corporate journalism, such as issuing editorial statues to ensure editorial freedom; or should such measures prove to be clearly inadequate, adapts the business and organisational structure of the undertaking. 23 Key trends and expected changes Provide a summary of key emerging trends and hot topics in media regulation in your country. After a major revision, the amended RTVA entered into force on 1 April In the meantime the RTVA has been amended several times. On 29 May 2013, the Federal Council submitted draft amendments of the RTVA to the Parliament. The partial revision seeks an appropriate and practical fee system to secure the public service in. In particular the revision focuses on the replacement of the current reception fee by a universal radio and television fee. With some exceptions, all households and companies would have to pay a new universal radio and television fee. The reason for the change is that devices such as smartphones, computers and tablets allow radio and television reception. In addition, increased flexibility and a simpler licensing procedure are planned for private radio and television stations. The entry into force of the revised RTVA is unlikely to take place before Moreover, the revision of article 37 RTVO came into force on 31 March Licensed regional TV stations are now allowed to transmit their programme services digitally outside of their regional coverage areas. On 1 June 2013, the amended DETEC Ordinance entered into force. The obligation to broadcast certain television programme services in the analogue services on cable networks is being phased out and limited to digital services from A recent report of the Federal Council came to the conclusion that in the light of the experience gained there are no major regulatory gaps regarding social networks such as Twitter or Facebook, and, thus, no special regulation is required. Regulatory agencies and competition law 24 Regulatory agencies Which body or bodies regulate the communications and media sectors? Is the communications regulator separate from the broadcasting or antitrust regulator? Are there mechanisms to avoid conflicting jurisdiction? Is there a specific mechanism to ensure the consistent application of competition and sectoral regulation? The communications sector is regulated by the ComCom as the market regulatory authority and OFCOM as the supervisory authority. However, it is not possible to draw a strict line between the competences of OFCOM and the ComCom as the latter has delegated some of its competences to OFCOM (see question 1). The authorities regulating the media sectors are the Federal Council, the DETEC and OFCOM. Further, there are the recently established Federal Media Commission with advisory tasks and the Independent Complaints Authority for Radio and Television (please see question 13). In addition, anti-competitive practices and mergers in the telecoms and broadcasting sectors are subject to general competition laws enforced by the ComCo. The cases are prepared and processed by the staff of the ComCo Secretariat. In merger situations, 271

9 lenz & Staehelin and subject to the notification thresholds of the Federal Cartel Act being met, the parties require both clearance from ComCo and an approval of the transfer of the broadcasting and telecommunications licences by the respective licensing authority. Moreover, with regard to specific questions related to the conditions of competition, the telecoms and media regulators are obliged to consult the ComCo (see question 22). Thus, there is a close collaboration between the authorities to avoid jurisdictional conflicts, particularly concerning issues such as reviewing price-fixing arrangements, mergers and strategic alliances as well as the behaviour of dominant market players. 25 Appeal procedure How can decisions of the regulators be challenged and on what bases? In the telecommunications and media sector, the law provides for the following appeal procedures: decisions of the ComCom, OFCOM and the DETEC can be appealed to the Federal Administrative Court. The scope of judicial reviews is extensive. Therefore, an appeal can be lodged on the following grounds: wrongful application of the law; the facts established by the ComCom, OFCOM or the DETEC were incomplete or wrong; or the ComCo s, OFCOM s or the DETEC s decision was unreasonable. The judgments of the Federal Administrative Tribunal may be challenged before the Federal Supreme Court on the basis of law and procedure. An exception applies to decisions of the Federal Administrative Court regarding publicly tendered licences and disputes regarding access based on the rules on interconnection. These decisions are final and cannot be appealed to the Federal Supreme Court. Decisions of the Independent Complaints Authority for Radio and Television can be appealed directly to the Federal Supreme Court. 26 Competition law in the communications and media sectors Describe the key merger and antitrust decisions in the communications and media sectors adopted over the past year by your antitrust authority. The ComCo, inter alia, approved a share deal between Telecom Liechtenstein AG and Swisscom the Swiss incumbent telecommunications operator which allows the latter to acquire 75 per cent of the shares of Telecom Liechtenstein AG. Telecom Liechtenstein AG offers universal services in Liechtenstein. However, prior to the acquisition, several business units concerning Telecom Liechtenstein AG s business in have been outsourced. Therefore, the ComCo came to the conclusion that the share deal would not create a dominant market position. In addition, there have been approved mergers in the sectors of networks, online marketplaces and meta-portals. Further, the ComCo denied Swisscom s request for reconsideration of a settlement from 2002 between Swisscom and the ComCo Secretariat. Swisscom therein agreed not to attach any commercials specifically addressing clients without carrier pre-selection. The settlement has been concluded during an investigation of the Secretariat of the ComCo regarding a possible abuse of a dominant position by Swisscom. Marcel Meinhardt Astrid Waser Michael Cabalzar marcel.meinhardt@lenzstaehelin.com astrid.waser@lenzstaehelin.com michael.cabalzar@lenzstaehelin.com Bleicherweg 58 Route de Chêne Zurich 1211 Geneva 17 Tel: Tel: Fax Fax: Getting the Deal Through Telecoms and Media 2014

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