Paris, July 1st, 2005
ARCEP(Autorité de régulation des communications électroniques and des postes) published today a public consultation on the analysis of the wholesale market for broadcasting transmission services.
This document contains ARCEP’s analysis of competition on this market. It defines the market considered to be relevant for ex ante regulation, the operator having a significant market power and the obligations ARCEP believes should be imposed to this operator in order to solve competition issues.
This consultation was made possible thanks to information received after an ARCEP’s questionnaire had been launched in July 2004.
This document is submitted to public consultation until September 9, 2005.
After having considered all the contributions of the players, ARCEP will submit its analysis to the broadcasting supervisory authority (Conseil supérieur de l’audiovisuel) and to the competition authority (Conseil de la concurrence) and will ask for their opinions. They will make comments on the relevant market definition and on the SMP operator designation.
Draft decisions for market definition, SMP operator and remedies imposition will then be transmitted to the European Commission and to the national regulatory authorities (NRA) of other EU Member States.
- What is market 18?
One of the 18 markets the European Commission identified as being relevant for sector-specific regulation is the wholesale market for broadcasting transmission services, used to deliver broadcast content to end users. It covers networks and related installations used to deliver the services which provide content.
Contents are not covered by the scope of this market, which only deals with networks.
Before analysing the substitutability which would delimit the market, ARCEP described in its document radio and television services provided to the public.
The following are covered: television and radio (whether analogue or digital) via terrestrial networks, cable, ADSL and satellite. At this point, ARCEP is not including television on mobile telephones because of the small number of subscribers foreseen for the period of analysis.
ARCEP also describes the broadcasting technical chain, players and offers to TV channels or radios.
The aim of this first step is to improve the understanding of market 18 which was not under ARCEP’s jurisdiction under the former regulatory framework.
- ARCEP delimits the relevant market
Next, ARCEP delimits the wholesale markets for audiovisual broadcasting services. Upon completion of its analysis of the substitutability of services for supply and demand, ARCEP identifies the five following markets:
- the wholesale market for AM broadcasting services;
- the wholesale market for FM broadcasting services;
- the wholesale market for terrestrial TV transmission services;
- the wholesale market for cable and ADSL TV transmission services;
- the market for satellite TV transmission services.
In order to determine whether these five markets should be subject to ex ante regulation, ARCEP tests their relevancy using three cumulative criteria defined by the European Commission:
- high and non-transitory entry barriers;
- market structure which does not tend towards effective competition within the relevant time period;
- insufficiency of competition law alone to address the market failures.
ARCEP considers that all three criteria are met for the wholesale market for terrestrial broadcasting transmission services. Therefore, this market is deemed to be relevant. It includes wholesale access offers offered by one transmission services provider to another one in order to provide terrestrial broadcasting services, whether in analogue or digital mode.
ARCEP believes that TDF has a having significant market power on this market that justifies the imposition of remedies
ARCEP believes that TDF, which controls almost all terrestrial broadcasting transmission infrastructures, should be considered as having significant market power on this market.
ARCEP also considers that the decrease of analogue terrestrial TV transmission segment, partly due to ATT near switch-off justifies the restriction of the scope of remedies to the digital terrestrial transmission segment.
Therefore, ARCEP proposes to impose TDF several obligations:
- Obligation to provide network access on fair and reasonable terms;
- obligation of non-discrimination;
- obligation of accounting separation;
- obligation to publish an offer, whose characteristics remain to be defined;
- obligation to avoid eviction or excessive pricing.
ARCEP wishes that this consultation remains open on a significant number of points, in particular on the remedies question. It also invites the players to communicate quantitative and contractual information which would help the understanding of the relationships between players, and in particular between content producers and broadcasters.
Comments must be sent to ARCEP, before September 9, 2005, preferably by e-mail to the following address: m18(@)arcep.fr