Dutch cablenets Casema, Essent, Multikabel, UPC, and Delta Kabel have won their appeal against OPTA’s March 17, 2006 ruling on broadcast distribution services. The business tribunal (College van Beroep voor het bedrijfsleven, CBb) has overruled the regulator’s decision ordering the cable operators to open up their networks to other providers of broadcast distribution services and to also offer unbundled services. The operators will also now not have to provide information as to how they derive their ratecards.
The court judged that OPTA had provided insufficient information to underpin its 2006 rulings. It also said that it was unclear as to whether any social benefit resulting from the regulation would outstrip the regulatory costs. It remains to be seen if there is sufficient interest from third parties to buy unbundled access capacity from the cable operators.
KPN also appealed against the OPTA ruling, seeking more stringent regulation of the cable market and in particular an obligation for operators to resell the cable access connection, and the basic analogue service, to competitors such as the incumbent telco. The court disagreed with OPTA’s ruling that the cable operators were a dominant market force in their operating territories.
Last Friday competition regulator NMA also ruled against KPN, which had lodged a complaint against the cable operators, alleging the operators were breaching the competition law by using their monopoly to unlawfully cross-subsidise digital services by hiking analogue rates, forcing consumers to buy analogue services to gain access to digital and internet services, and denying KPN access to the cablenets. The NMA ruled that analogue and digital services consist of one and the same market and that bundled packages rates covered their costs, meaning there was no illegitimate cross subsidy. The denial of access to KPN by the cable operators does not warrant further investigation, according to the competition authority.
OPTA had previously deferred any further judgments in 2007 until the outcome of the appeal and will now have to arrive at a new set of regulations for the cable distribution market.