Federal Council describes Teleclub as independent of the state

In connection with the relicensing of Teleclub, the Federal Council has addressed the question of whether the state may be directly or indirectly involved in broadcasting. Although the legal basis is disputed, the Federal Council considers a minority shareholding to be possible in the present case. After 10 years of validity, Teleclub's license was renewed in May 2006. The pay-TV broadcaster Teleclub is majority-owned by Cinetrade, which operates cinemas and exploits film rights. In September 2004, Swisscom acquired a 49% stake in Cinetrade and secured an option for a further 26%. This commitment has raised the question of the independence of radio and television from the state, especially as the Confederation is Swisscom's main shareholder. The Federal Constitution guarantees "the independence of radio and television as well as autonomy in programming". On the other hand, there is a Federal Council strategy paper on the development of Swisscom, which calls for Swisscom to step up its activities in the broadcasting sector.
OFCOM commissioned an expert opinion from the two constitutional law professors Jörg P. Müller and Markus Schefer. They came to the conclusion that even an indirect, minority shareholding of the Confederation in a TV broadcaster in terms of capital and votes would not be permissible. Swisscom, for its part, commissioned two expert opinions. The first assessed Swisscom's entry into the TV business as permissible. The question of state independence does not arise in practice, as the Federal Council is not subject to any temptation to determine the selection of the Teleclub Board of Directors. The second expert opinion is also positive and states that the legal structure of Swisscom and the Swisscom Group does not allow the federal government to exert any influence on the programming of Teleclub.
The Federal Council took the view that a majority shareholding would be tricky in view of the constitutional requirement of state independence. A minority shareholding, on the other hand, was possible in the present case, as Swisscom is not in a position to exercise a controlling influence over the company in view of the shareholder structure. Taking these arguments into account, the Federal Council considered it constitutionally possible to extend or reissue the Teleclub license on the basis of a 49% stake held by Swisscom in Cinetrade.
The stance of accepting a 49% municipal shareholding in a broadcaster is also in line with DETEC's practice: the local cable network operator 022 Télégenève, which is majority-owned by the City of Geneva, wanted to increase its shareholding in the local TV broadcaster Leman Bleu. Since the City of Geneva itself already has a stake in Leman Bleu, DETEC prohibited 022 Télégenève from increasing its stake in Leman Bleu. The municipality would otherwise have held more than 50 percent of a TV broadcaster.
At the end of May 2006, the Federal Council granted the pay-TV channel Teleclub a new television license until the end of May 2013, giving the channel the right to expand its own offering to seven channels and also to offer domestic sport.