The European Commission is taking action to ensure the Dutch telecoms regulator, ACM, retains full independence in the application of EU telecoms rules to television broadcasting transmission.
The 2009 EU Regulatory Framework for telecoms requires that national regulators have full independence in how they apply market regulation. The commission believes that current Dutch regulation limits this regulatory discretion by attempting to directly regulate the market in two ways.
In the first case, broadcasters subject to ‘must-carry obligations’ are forced to offer for resale their television programmes, as well as the transmission service that carries them, at wholesale level at ‘cost-oriented’ prices (to prevent undue profits).
The second provision obliges the ACM to force companies found to have significant market power to resell their channels to competitors at cost-oriented prices. This is the so-called ‘open cable’ ruling, according to which cablers such as UPC and Ziggo have to offer basic analogue channels to third party resellers.
The commission is mainly concerned about how these regulatory provisions were imposed. It should be up to independent regulators to decide on whether such measures should be imposed, rather than the Dutch government.
The commission is therefore sending a reasoned opinion (the second stage in EU infringement proceedings). The Netherlands has two months to reply. In the absence of a satisfactory response, the commission may refer it to the EU Court of Justice.
