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Highest court in antitrust matters upholds OPTA's television ruling

The Dutch Trade and Industry Appeals Tribunal (CBb) on 5 November 2012 published its ruling in the appeal procedure regarding the television market. The CBb ruled that the Netherlands Independent Telecommunications and Post Authority (OPTA) correctly rejected parties' requests for regulation of cable television, and that OPTA duly concluded that the television market does not qualify for ex-ante regulation.

Parties requested regulation of cable television

In 2011, YouCa, Tele2, T-Mobile and KPN requested a market analysis decision for television distribution from OPTA. They wanted OPTA to impose access obligations on cable operators. In December 2011, OPTA published its Television Analysis opinion, in which OPTA performed a three-criteria test to assess whether the television market qualifies for ex-ante regulation. In its opinion, OPTA concluded that the television market does not qualify for regulation, because this market is increasingly tending towards competition. OPTA therefore rejected the requests for a market analysis decision. Parties subsequently appealed OPTA’s decision, which the Television Analysis is an integral part of. Parties were of the opinion that, among other things, OPTA failed to define the market correctly, and that it was overly optimistic about market trends. OPTA allegedly overrated competitive possibilities for new entrants in television, and underestimated the cable operators’ market power as well as the importance of analogue cable television. Also, parties felt that OPTA should have issued a market analysis decision instead of an opinion.

The CBb ruling

The CBb’s ruling addresses parties’ grievances and follows OPTA in both its procedural approach and the material assessment. The CBb agrees with OPTA that the television market is already tending towards more competition. The CBb also ruled that the way OPTA defined the market, performed the three-criteria test, and rejected parties’ requests were in accordance with the legal framework and with OPTA’s powers. The CBb therefore declared the appeals to be unfounded.

No further appeal is possible against this ruling.