BEREC Opinion on Phase II investigation Case AT/2017/2020
On 12 October 2017, the European Commission registered a notification from the Austrian Regulatory Authority, Kommunikationsbehörde Austria (KommAustria), concerning the wholesale markets for broadcasting transmission services in Austria.
KommAustria proposes to define the following product/services wholesale markets: (i) the wholesale market for the “transmission of analogue terrestrial (FM) radio broadcasting signals to end users”; (ii) the wholesale market for the “multiplexing of broadcasting signals via the platforms MUX A and MUX B; and (iii) the wholesale market for “the transmission of digital terrestrial tv broadcasting signals to end users”.
As the markets for broadcasting transmission services are no longer listed in the Recommendation on Relevant Markets, KommAustria carried out the three criteria test with regard to the notified markets. KommAustria concludes that the only relevant product/service market remaining susceptible to ex ante regulation is the wholesale market for the transmission of analogue terrestrial (FM) radio broadcasting signals to end users since all three criteria are cumulatively met.
On 13 November 2017, the Commission sent a serious doubts letter opening a phase II investigation pursuant to Article 7 and 7a of Directive 2002/21/EC as amended by Directive 2009/140/EC. Pursuant to Article 7 of the Framework Directive, the Commission’s doubts concern the exclusion in the relevant market definition of analogue radio of the broadcasting transmission services provided to the public broadcaster ORF by SMP operator. The Commission is of the view that such self-supply should be considered to be part of the same market as external supply and that such exclusion is not in line with the principles of competition law and can have a significant effect on both the finding of SMP and the assessment of the scope and appropriateness of the remedies, such as the non-discrimination obligation.
On the basis of the analysis set out in this opinion, BEREC considers that the Commission’s serious doubts pursuant to Article 7 of the Framework Directive regarding the draft decision of KommAustria on wholesale markets for broadcasting transmission services in Austria are justified.