Hünenberg, 02.06.2021

Expert comments on the mobile phone antenna negotiations

The mobile operator Swisscom has complained about the difficult contract negotiations regarding a mobile phone antenna location in Hünenberg. Making such complaints public seems to be a preferred model for Swisscom, says one specialist in this field.

The municipality of Hünenberg has terminated the contracts with Swisscom for two mobile antennas in Hünenberg. The reason for this, according to Swisscom, was that the municipality wanted to negotiate new rental conditions. The company itself stated that it had been looking for a solution for a year and a half, whereby, in its own opinion, the mobile operator has made "very fair" offers.

Media spokeswoman Sabrina Hubacher said that Swisscom was interested in keeping the sites. But: "At the same time, however, Swisscom cannot let itself be dictated to with regard to rental rates and stricter contractual terms."

This statement is refuted by a specialist* for mobile phone antenna rental contracts, however. The specialist advises institutional landowners, such as banks, insurance companies, pension funds and investment foundations, as well as the public sector and private individuals, on mobile phone antenna systems and contractual terms. As a result, he has to negotiate with the commercial mobile phone providers – including Swisscom. With regard to the tone of the company's statement to the media regarding the situation in Hünenberg, he says:

"Swisscom places itself in the “role of the victim”. And this is a company that has posted a net profit of more than CHF 1.5 billion per year over the past ten years!"

The engineer finds this approach unacceptable. He also explains that Swisscom often proceeds in this way: there is first an "escalation" of the negotiations with landowners, and then the step into the public sphere. In the event of a termination of the tenancy, long negotiations follow, and Swisscom will sometimes turn to the media, or, as in other cases, will send circular letters to the local population. "This is all done in order to create additional pressure on the land owners," explains the expert, who has witnessed such a procedure.

Swisscom recently informed the residents of a municipality in Central Switzerland that the network would become worse because a contract has been terminated due to failed negotiations, and the antenna would have to be dismantled.

"The strategy was successful. The landowner was approached about this in the village, in his club and by neighbours, until he finally gave in,says the expert, who advised the landowner in question at the time. Nevertheless, the landowner ultimately received six times the previous annual rent, as well as better contract terms.

A similar procedure took place in a Zurich municipality
The failure of contract negotiations regarding new rental conditions between municipalities and Swisscom is something that the expert has already experienced. Swisscom's approach in a Zurich municipality was strikingly similar to that in Hünenberg, as can be seen from the reply to Swisscom’s appeal to the Rental Court (Mietgericht), submitted by the lawyers of the Zurich municipality.

A 5G antenna was to be erected on the railway track embankment near Zythus in Hünenberg
Stefan Kaiser (May 19, 2021)

In that particular case, Swisscom went a step further than in Hünenberg, and filed an action for wrongful contract termination. A lawsuit was not possible for Swisscom In Hünenberg, however, because this is clearly not a case of a "rental of business premises", where the special protection provisions from the Tenancy Law (Mietrecht) would be of benefit to Swisscom.

A glance at the document also supports the specialist’s statement that Swisscom often follows the same pattern. One example: the media spokesperson indicated that, although they were very interested in keeping the locations in Hünenberg, the company could not allow rental rates and stricter conditions to be "dictated" to it. Swisscom’s statements in the Zurich municipality sound very similar: the termination is described as abusive/wrongful (missbräuchlich), because

'The defendant carried out the cancellation in order to compel the plaintiff to accept new terms that could be dictated by the defendant'.

(Note: The municipality is referred to here as the 'defendant' (Beklagte), while Swisscom is 'the plaintiff’ (Klägerin): editor’s comment).

No verdict has been reached yet. The reason? "We are still in ‘settlement discussions’”. However, the risk involved in seeking litigation against an unwelcome precedent lies with Swisscom," says the expert.

Contract conditions somewhat worse
Negotiations on a new rental rate are part of the everyday business of the specialist. "There are still a lot of restrictive contracts (Knebelverträge) between providers and landowners in the mobile phone market. Not only at Swisscom, but also at Salt and Sunrise," he explains. According to him, a fair contract should include equal rights and obligations for both parties – and no excessively long contractual periods. "It therefore makes perfect sense to re-negotiate contracts, as has been done in Hünenberg. And it’s not uncommon for such negotiations to take a long time."

According to a statement by the municipality of Hünenberg, the low rent was decisive for the termination of the site: CHF 6,000 per year was paid to the municipality. Other landowners In the canton are paid up to four times more, however. "Nevertheless, Swisscom's final offer, which has been increased in the meantime, is still far from the usual market conditions," continues the statement. The expert adds: "If these two locations were to disappear, Swisscom could, of course, also rent the cantonal masts in the ‘Chnodenwald’ wood, as the other two providers already do."

In the Zurich case, Swisscom was annoyed by the fact that the specialist was mandated with the contract negotiations, in particular because he has been able to achieve rental rates eight to ten times higher than before in other cases – while also neutralising the risks and liabilities from the existing contracts, which were formulated very unilaterally in favour of Swisscom.

The lawyers noted that the plaintiff’s point of view was that it was improper (unanständig) for someone to object when a contract contains unfavourable conditions. "The new contracts stipulate that a conversion from 4 to 5G will have to be approved," states the specialist. This provides security for landowners, as there is always a risk of displeasure from the local population in the event of such conversions.

Excessively long contract period was a bone of contention
Hünenberg apparently also wanted more security: according to the statement, Swisscom was required to obtain the consent of the municipality before the transmission power of the antenna system could be significantly increased. This would be the case if it were to be converted to 5G. The municipality also wanted a contract for a limited period of ten years. "Instead, Swisscom wanted a minimum contract period of 15 years, with a tacit extension of five years in each case, unless the contract was terminated in advance with a notice period of three years," writes the Hünenberg municipal council. (!! editor)

The local council says it is unwilling to bind the municipality for a "disproportionately long period" with regard to a rapidly developing area of technology. The specialist also does not recommend this, but also emphasises that long-term contracts are a model of Swisscom – an excessively long contract period was also part of the disagreements in Zurich.