GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
6
communicated directly or indirectly with each other by telephone or over
the air. Like Radio 24, Sound Radio broadcast only in the Zürich dialect.
16. Swiss local radio stations began broadcasting from 1 November
1983 and attracted a large number of listeners. They came into competition
with Sound Radio, mainly because they could finance themselves through
advertising, subject to certain conditions. An opinion poll carried out in the
Zürich area and published on 1 December 1983 showed that Radio 24
reached 60% of listeners and Sound Radio 12%.
B. The proceedings in Switzerland
17.
On 17 August 1983 the Federal Council issued an Ordinance
relating to the Act governing correspondence by telegraph and telephone
("the 1983 Ordinance") to replace another of 10 December 1973. It came
into force on 1 January 1984 and contained general provisions applicable to
the licensing scheme.
It created a third category of licence for receiving installations community-antenna installations - which was additional to categories 1
(private receiving) and 2 (public receiving). By Article 78 § 1 (a) of the
Ordinance,
"A community-antenna licence shall entitle the holder to:
(a) operate the local distribution network defined in the licence and rebroadcast by
this means radio and television programmes from transmitters which comply with the
provisions of the International Telecommunication Convention of 25 October 1973
and the international Radio Regulations and with those of the international
conventions and agreements concluded within the International Telecommunication
Union;
..."
18. From 1 January 1984 most of the Swiss cable companies ceased to
retransmit the programmes put out by Sound Radio.
Some of them, however, including the community-antenna co-operative
of
Maur
and
the
surrounding
district
(Genossenschaft
Gemeinschaftsantennenanlage Maur und Umgebung - "the co-operative"),
continued to broadcast them.
1. The administrative proceedings
19. On 21 March 1984 the Zürich area telecommunications office of the
national Post and Telecommunications Authority (PTT) informed the cooperative that Groppera Radio AG’s broadcasts, since they did not comply
with the international rules in force, were unlawful, so that under Article 78
§§ 1 and 3 of the 1983 Ordinance retransmission was not covered by the
community-antenna licence. It added that the co-operative would be