Decision on the broadcasting of the Radio Piz Corvatsch AG program via the telephone network

Facts

Since 1931, the Swiss Broadcasting Corporation (SRG SSR) has been providing the program service for the telephone network (comprising 6 channels). It broadcasts on three channels the first radio programs of Schweizer Radio DRS, Radio Suisse Romande and Radio della Svizzera Italiana, which are essentially parallel broadcasts of programs also accessible via FM frequencies. The original programs broadcast on the three other channels are "Light" (mainly entertainment music), "Classic" (mainly classical music) and "Channel one" (light music and English-language programs). In the canton of Graubünden, the SRG SSR broadcasts the "Radio Rumantsch" program instead of the "Light" program. On 22 December 1993, the Federal Office of Communications approved "in principle" the request of Radio Piz Corvatsch AG to broadcast its program on the telephone network within its official service area. It invited the SRG SSR to indicate, within 30 days, which program broadcast on the telephone network in the official service area of Radio Piz Corvatsch could be replaced. The SRG SSR filed an administrative appeal against this decision with the Federal Department of Transport and Energy; against the rejection decision of the latter, it filed an administrative law appeal on 30 June 1994, which the Federal Court dismissed.

Considerations

First, the Federal Court examines whether Art. 108 para. 2 of the Ordinance on Radio and Television (RTVO), on which the decision in favor of Radio Piz Corvatsch AG is based, is contrary to the system and the law. It concludes that this provision is not in itself illegal or contrary to the system, as the PTT companies, in broadcasting radio programs on their telephone network, act in a similar manner to a cable network concessionaire, and Art. 47 of the Radio and Television Act (RTVA) provides that the Federal Office may oblige the operator of a cable network to broadcast a program that is not broadcast wirelessly, on the mandate of a Swiss broadcaster at the local or regional level.

Next, the Federal Court examines the relationship between Art. 108 para. 2 RTVO and Art. 20 para. 2 of the SRG SSR's 1992 concession, which provides that the program service of the telephone network remains "until further notice" a matter for the SRG SSR. It…