Unbundling of the subscriber line by the Federal Council not sufficiently legally justified

Facts

The Federal Supreme Court decides on the administrative court appeal of Swisscom Fixnet AG against the decision of the Federal Communications Commission (ComCom), according to which the joint and fully unbundled access to the subscriber line are cases of interconnection and must be offered by dominant providers in accordance with the conditions of the Telecommunications Act (TCA).

Swisscom Fixnet AG requests the annulment of the decision and the dismissal of the application of TDC Switzerland AG for an order on the conditions for these interconnection services. It argues that the decision is not based on a sufficient legal basis.

Considerations

The Federal Supreme Court finds that the Federal Council's ordinance regulation on the obligation to interconnect at the subscriber line lacks a legal basis. The Telecommunications Act does not contain the terms "access" or "forms of access" nor the term "unbundling", so that a sufficiently specific obligation to open the "last mile" for the telecommunications companies concerned cannot be derived from it.

A teleological interpretation of the law also does not lead to a clear result, as the law does indeed have a certain anti-monopolistic content, but this does not necessarily imply an opening of the subscriber line. Furthermore, there are various possible forms and framework conditions of unbundling, which are not evident from either the wording of the law or the purpose of the law.