If the parties negotiating the access conditions are unable to reach agreement within three months, the Federal Communications Commission (ComCom) determines the conditions for access to the equipment and services of market-dominant providers on application from one party (Art. 11a LTC).
The application for an access procedure can either be made directly to ComCom or to the Federal Office of Communications (OFCOM), which acts as the briefing authority in access procedures. In accordance with Art. 70 of the Ordinance on Telecommunication Services (DTS; SR 784.101.1), it covers
a. the submissions
b. the main facts
c. the access application form provided by OFCOM
In order to initiate the access procedure as rapidly as possible and to reduce its duration, it is important for OFCOM, as the briefing authority, to obtain from the outset a complete overview of the relevant facts and the legal issues that are in dispute. A well-founded application, drawn up carefully and setting out all the main facts can help considerably in achieving this.
The submissions explicitly listed in Art. 70 should, if possible, be presented in such a way that, with their structure and level of detail, they can be incorporated directly into the operative part of a subsequent decision on the merits of the case. The individual access services for which the conditions should be laid down must be listed in the submissions.
The main facts include, in particular
- applicant's details, i.e. its organisation and business activity
- the most detailed possible description of the services for which a decision on access conditions is requested (this should also include details of the purpose for which they will be used and details of the requirement for access)
- information on the negotiations to date
- a description of the specific offer made by the respondent, where applicable, or the reference offer published by it and the differences between the two parties.
Legal considerations are not explicitly mentioned in Art. 70 DTS as pertaining to the application. The application must also, of course, be legally founded. It is also important to show that the procedural requirements exist and that the respondent has the claimed market dominance. In addition, the application should also explain why any offer made by the respondent or the respondent's reference offer does not, in the opinion of the applicant, meet the legal requirements set out in Art. 51 et seq. of the DTS (non-discrimination, cost-based, market and sector norms).
The access application forms supplied by OFCOM refer primarily to the question of market dominance and the aim is to speed up the procedure by compiling all available relevant information at the earliest possible time. The form should completed for each access service that is the subject of the proceedings and the form should stipulate or show that the respondent disputes the market dominance. If closely-related services can be grouped together in a reasonable manner, the form may also be completed summarily by groupings. This form should help speed up the Swiss Federal Competition Commission's preparatory work in drawing up the expert opinion on the market dominance. The applicant may, of course, confine itself to details of information known or accessible to it.
Last modification 01.04.2015