The Dutch Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven – CBb) has overturned the market analysis that telecoms regulator OPTA published in March 2009. The verdict has far-reaching implications for the Open Cable ruling in the Netherlands.
By overturning the analysis, the basis for the Open Cable provisions issued by OPTA has been removed and as a result third parties will no longer be able to sell analogue cable products on the country’s two largest networks, Ziggo and UPC.
The case was started by cablers Ziggo and UPC, who did not agree with the opening up of their networks for third party resellers of their analogue product, as well as Delta and CAIW, arguing that there is already enough competition between the various infrastructures. The Tribunal has now confirmed this is indeed the case on a national basis.
Tele 2 has already started selling analogue cable products, but was told by a judge that its marketing messages needed to be corrected. With the ruling by the CBb, Tele 2 will no longer be allowed to sell analogue cable product. Also other potential resellers including Deutsche Telekom’s Dutch subsidiary Online, YouCa and YourTV, will not be able to sell such products.
Under OPTA’s Open Cable ruling, all four major Dutch operators, Ziggo, UPC, Delta and CAIW would also be required to allow “reasonable requests” from third-parties for access to their digital tiers. This will no longer be the case.
UPC Nederland issued a brief statement in an email: “This decision on the broadcasting market, including analogue resale obligation, shows that the Dutch national television market there is already showing very strong competition. On this market, KPN, Canal Digital, Tele2 and cable providers – including UPC and Ziggo – are active. Competition between multiple communication infrastructures ensures technological innovation, digitisation and a wide choice for consumers. ”
A spokesperson for Tele 2 has said that the ball is now back again in the court of the OPTA. Other parties are “studying the implications”, while Your TV issued a statement that it will roll out an HDTV service before the end of the year. “Your.TV it is no longer dependent on the recent ruling by the CBb, which will keep the cable networks of UPC and Ziggo closed. Any consumer with a broadband connection of 8 Mbps or more can order a digital HDTV receiver from Your.TV. This receiver can be connected via HDMI to any HD TV set; the distribution of the TV signal goes via broadband subscription of the consumer. Your.TV expects its HDTV subscription prices will be below the pricing p current analogue TV of UPC and Ziggo.”
The Trade and Industry Appeals Tribunal, also known as Administrative High Court for Trade and Industry, is a specialised administrative court which rules on disputes in the area of social-economic administrative law. In addition, this appeals tribunal also rules on appeals for specific laws, such as the Competition Act and the Telecommunications Act. No further appeals are possible following a ruling by the Tribunal.
The full text of the verdict by the CBb can be found here (available in Dutch only).
Story updated at 17.15 CET
