Facts
The Swisscom Fixnet AG and the Cablecom GmbH disputed the price for porting telephone numbers. The Cablecom GmbH applied to the Federal Communications Commission (ComCom) to newly determine the price for porting a telephone number at CHF 31.--. The ComCom obliged the Swisscom Fixnet AG to offer or charge the porting of individual numbers at a price of CHF 17.65 for the year 2004, CHF 15.15 for the year 2005, and CHF 11.90 for the year 2006. The Swisscom Fixnet AG filed an administrative appeal with the Federal Supreme Court and requested that the ComCom's ruling be lifted.
The parties and the Federal Supreme Court discussed the ComCom's jurisdiction, price regulation for number portability, the distinction between fixed and variable costs, and the determination of personnel costs. The Federal Supreme Court examined whether the ComCom had exceeded its regulatory competence and whether the price regulation was based on a sufficient legal basis.
Considerations
The Federal Supreme Court decided that the ComCom was competent to determine the price for porting telephone numbers. Price regulation for number portability was an important instrument for promoting competition in the telecommunications sector. The ComCom had not exceeded its regulatory competence, as the delegation in Art. 28 para. 4 TCA was comprehensive and took into account technical development and international harmonization.
The Federal Supreme Court found that the distinction between fixed and variable costs by the ComCom was based on the applicable ordinance law and corresponded to the purpose of the TCA.…