Following a ruling by the Dutch Trade and Industry Appeals Tribunal, cable operators UPC, Ziggo, Delta and CAIW are no longer required to give their competitors access to their networks. The Tribunal has overturned the market analysis that telecoms regulator OPTA published in March 2009.
The regulator has been trying for three years to “open up” Dutch cable networks to competitors. The European Commission rejected the first draft regulation, but a second draft was approved in February 2009. OPTA took a two-tiered approach to opening up the networks, first for analogue television, to be followed later by digital television.
The country’s two largest operators, Ziggo and UPC, were singled out for having to allow third party analogue access to their networks. They both went to the Tribunal and argued that the case OPTA had built was without merit: in its market analysis, the regulator said the cable operators were dominant in their regional markets; according to the operators OPTA should have instead looked at the national market, where there indeed is competition from national players such as KPN (IPTV and DTT), Tele 2 (IPTV) and Canal Digitaal Satelliet (DTH).
With the analysis shattered the OPTA Open Cable rulings have also been brought to an end. There is no appeal possible following the ruling of the Tribunal. The most likely scenario is now that OPTA will try and come up with a new analysis of the market. At least, that seems to be what a number of political parties want.
It is our take that the Open Cable ruling was ill advised and most likely politically motivated. Yes, cable operators have been dominant parties on the regional television market, but with the introduction of digital television consumers have become wise to the fact they do have a choice. And they are switching in all highly cabled markets – to DTT, DTH or IPTV. So competition between rather than non-infrastructures is working.
And more competition is on the way. In The Netherlands, incumbent KPN is investing in FTTH networks via a stake in Reggefiber. And newcomers such as Your.TV are planning to offer streamed TV channels via broadband – the ultimate Over the Top challenge. Originally, Your.TV was interested in gaining access to analogue and digital tiers on the cable networks, but after the level of wholesale pricing emerged, it decided to go OTT.
For many years, a number of would-be operators have been looking at similar OTT solutions, but so far no one has come up with the right model. With access to fast broadband becoming ever more popular in The Netherlands, ‘cord cutting’ can become a reality – but of course, the viewer will still need a broadband connection – via cable, copper or fibre. The crux will be if parties such as Your.TV will be able to acquire the streaming rights to major public and private broadcasters in order to offer a real alternative.