Facts
In September 1999, Swisscom AG approached the Federal Office of Communications and presented its new interconnection service "Swisscom to PTS 0800 Access Service from Swisscom Payphones". This concerned access to 0800 numbers (toll-free numbers) of other telecommunications service providers from Swisscom AG's public payphones (telephone booths). Swisscom AG requested a statement on whether the compensation for this service through a cost-oriented interconnection agreement would be permissible and whether the Federal Council's price cap would not apply.
In its response, the Federal Office of Communications stated that a price cap of 40 cents (until April 30, 2000) or 50 cents (from May 1, 2000) applies to the use of a public payphone, which is a fee to cover the infrastructure costs. This price cap should generally be imposed on the operator of the 0800 number or, within the framework of interconnection, on the other telecommunications service providers.
In its basic interconnection offer valid from January 1, 2000, Swisscom AG set a basic fee of 29.10 cents per minute for the service "Swisscom Publifon to PTS Freephone Access", which was later reduced to 24.74 cents per minute.
The Federal Office of Communications then initiated a supervisory procedure against Swisscom AG, as it was of the opinion that the imposition of a basic fee of 24.74 cents per minute instead of the maximum permissible surcharge of 40 or 50 cents per call violated the Telecommunications Act and Swisscom AG's universal service concession.
Considerations
The Federal Supreme Court concluded that the statutory price cap for the surcharge on the use of public payphones applies not only in the relationship between the universal service concessionaire (Swisscom AG) and its customers, but also towards other telecommunications service providers. The price cap also applies when a connection to a…