Cable Europe answer to BEREC s questionnaire for a report on oligopoly analysis and regulation

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1 BoR PC01 (15) 13 Cable Europe answer to BEREC s questionnaire for a report on oligopoly analysis and regulation 25 January 2015 Introduction Cable Europe welcomes the opportunity to answer BEREC s questionnaire for its upcoming report on oligopoly analysis and regulation. As this discussion is of utmost importance for our association and its members and that the elaboration of our thinking is still underway, we reserve the right to come back to BEREC with further elements and data during the course of this year. As a general starting point, Cable Europe is pleading for BEREC's thinking in this area to remain consistent with the principles of general competition law and not to develop a telecoms-specific regulatory regime for oligopolistic market structures. We would also remind BEREC that the existence of oligopolistic market structures is not, in and of itself, indicative of an impediment to competition and in some cases leads to beneficial outcomes. Moreover, as any claim for joint/collective dominance requires, according to the jurisprudence, very strict economic conditions to be met, we believe that it is better dealt with by Competition Authorities. In any event, if such claim is to be considered under the current electronic communications regulatory framework, any extension of the concept beyond the way it has been applied in competition law would be misguided. Furthermore, the telecoms sector is an area where massive investments are still needed, whether by ADSL, cable, mobile or even satellite 1. Introducing more ex ante regulation specifically dealing with oligopolies, absent of any proven competition problems, could negatively affect those investments. The relevance of investment in the electronic communications sector is such, that it is one of President Juncker s priorities for the new Commission. As we know, he has announced unlocking public and private investments in the real economy of at least 315 million over the next three years. 1 See Solon, Broadband on Demand, Cable s 2020 Vision, p. 53: With its fibre powered, ultra fast networks, the European cable industry plays a crucial role in achieving the Digital Agenda s key goals. Cable s potential contribution of reaching at least 27% of the broadband penetration target is remarkable considering the relatively small footprint of cable compared to telecom incumbents and mobile. Yet, reaching the full coverage and penetration targets is not something that cable can do on its own. Ultimately a mix of technologies needs to be deployed in the European marketplace if the consumer is to be the winner. 1

2 The way the Investment Plan is built as well as the way a regulatory approach is constructed will both have a big impact on investment made by private companies. One should prevent any regulatory policy that could undermine the incentives of privately-owned companies, such as cable, to invest. Finally, there is increasing advent/entry of new players, like OTTs, on the market as well as increasing convergence of ultrafast mobile and fixed networks. Cable Europe therefore questions the foundation of static oligopoly analysis and ensuing regulation when existing and new players are more and more competing for the same customers and when markets are evolving. Question Do you consider that there has been an increase in oligopolistic market structures in any of the electronic communications services markets or more generally in the sector? There is certainly evidence of an increase in market concentration of the traditional players in the electronic communications services sector. This, we believe, has been influenced by the need to achieve scale in order to effectively compete and by a growing consumer demand for consolidated product offerings. There are an increasing number of new, large scale competitors entering the market (in particular OTT providers), for whom the attainment of scale is relatively easy and swift. Established players have found that they need to adapt in order to remain competitive. Established telecommunications infrastructure providers are also characterised by having very high fixed costs and therefore there are not that many actors playing in this sector. Even supported by regulation, it appears that the access seeking service providers have had difficulties in sustaining a long term business case. In addition, there remain some scale and density economies in most electronic communications market that place a limit in the number of operators that can profitably compete at a given moment. But the question is not there. Oligopoly is not wrong per se, it is just a market structure which can produce either a non-competitive or a perfectly competitive outcome. Under the current regulatory framework, what is important to check is whether there exists single or joint SMP (note that according to the same framework the mere finding that an oligopolistic market is not perfectly competitive is not enough to impose regulatory obligations if such finding is not accompanied by a single or joint dominance declaration). Moreover, the debate nowadays should not so much be about the (arbitrary) number of electronic communications network providers on a market anymore but rather about barriers to entry, the characteristics of those markets and the growing number of new services provided. Netflix, for example, has faced very low barriers to entry to provide SVOD content to a European customers base of several millions. Mandated access to legacy ducts and poles has reduced the cost of deployment of new fibre networks by altnets. One could rather wonder whether the access question is still up to date in such a context. In any case, competition 2

3 at all levels is clearly fierce today and this will only grow more and more in the future. Question In your view, are there any areas of concern in relation to oligopolistic outcomes which are not adequately addressed by the current regulatory framework (i.e. both the European Union relevant texts and NRA s policies)? In particular, what is your appreciation of the concept of collective dominance? What do you consider to be the most effective regulation of anti-competitive oligopolistic situations?) Cable Europe believes that the current regulatory framework continues to be the right framework under which to assess competitive conditions and, where appropriate, to define ex ante obligations imposed on SMP operators. The contention that the framework was originally thought of for a market structure characterised by a single SMP operator is not a sufficient justification to introduce changes in the framework, which already envisages the possibility of joint dominance. The economic literature explains that whereas we can predict the competitive outcome and market performance of market structures characterised by a monopoly/dominant firm, on the one hand, and by a large number of smaller competitor, on the other, such is not the case with market structures were there are a limited number of competitors. For these market structures it is hard for the economic analysis to forecast with some certainty the competitive outcome, which will depend on the subtle interplay of many factors and vary from one market situation to another. In addition, in a dynamic perspective, there is some trade-off between static efficiencies derived from having many competitors (typically service-based operators) in a communications market and long term efficiencies stemming from having less competitors (typically network based operators) with greater incentives to invest and innovate. That is why it would be indeed risky to set up a detailed ex ante regulatory regime to deal with oligopolistic markets. Likewise, according to mainstream economic theory, even if competition is not found to be intense in a given oligopolistic market structure, a distinction should be made between non-collusive oligopolies and coordinated oligopolies where there is tacit collusion (an economic concept which the case-law has been assimilated to that of collective/joint dominance). Whereas in a non-collusive oligopoly market participants are aware of each other s actions and adjust unilaterally their behaviour rationally, tacit collusion necessarily requires that firms multilaterally act with the intention of influencing the future actions of the competitors. If firms are acting in a way that takes their competitors actions entirely as given, and not open to influence by the firm s own actions (as in a noncompetitive/non coordinated oligopoly), then the situation is not one of tacit collusion. In accordance with the above, the European courts have defined collective dominance (a concept which was introduced in the electronic communications regulatory framework, with just a change of name, to joint dominance ) as a 3

4 situation where even without an explicit agreement, there is a viable coordination mechanism among market participants that allow them to act. In its landmark 2002 decision (Airtours), adopted just after the adoption of the 2002 Regulatory Framework and the Market Analysis Guidelines, the Court of First Instance defined collective dominance as a situation in which it is economically rational and preferable for firms to adopt, on a lasting basis, a common policy in the market with the aim of selling at above competitive prices. In the judgment, later reconfirmed by the European Court of Justice in Impala, the CFI set out three necessary conditions for a collective dominance position: i) Each member of the dominant oligopoly must have the ability to know how the other members are behaving in order to monitor whether or not they are adopting the common strategy. It is therefore necessary to have sufficient transparency: all firms in the oligopoly are aware, sufficiently precisely and quickly, of the way in which the other firms market conduct is evolving. ii) Any tacit co-ordination must be sustainable over time. Implicit in this is the view that a retaliatory mechanism of some kind is necessary, so that any firm that deviates from the co-ordinated practice would be met by competitive reactions (not necessarily only addressing the cheating firm) by other firms. iii) It is necessary that existing and future competitors, as well as customers, do not undermine the results expected from the common policy. Particularly relevant in this context is whether there are fringe competitors and, if they are able to counteract a collective dominant position. Whereas annex 2 of the current Framework Directive includes the third of these requirements among the basic conditions to appreciate a joint dominant position, it does not take into account requirements (i) and (ii), which according to current case-law are indispensable to establish collective dominance. Therefore, if any adjustment is to be made to the current electronic communications framework to cope with an eventual collusive oligopoly, it is to adapt annex 2 of the Framework Directive to the high standard of proof required by Competition Law in cases of collective dominance. The Commission s established criteria for assessing joint dominance 2 similarly require a high burden of proof. The criteria concern, substantively, stagnant or moderate growth, low elasticity of demand, lack of technical innovation, high barriers to entry and lack or reduced scope for price competition. These are not characteristics that we recognise as existing in the markets in which we operate indeed, they are rather characterised by vibrant competition and cycles of counter investment and innovation by competing providers In summary, a claim for collective/joint dominance requires very strict economic conditions to be met in Competition Law and is rather exceptional and normally restricted to some specific cases of coordinated effects within the merger control regime. Consequently, any extension of the concept beyond the way it has been 2 Communication from the Commission Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services [2002] OJ C 165/6 4

5 applied in competition law to set the basis for an ex ante regulatory regime in oligopolistic markets would be misguided. Therefore, Cable Europe invites BEREC to collect and examine thoroughly how the existing merger and case law apply in this context as well as the conditions they rule should be met before any joint dominance can be claimed. In any event, we are sceptical that the concept of collective/joint dominance, with its high standard of proof, is suitable to constitute the basis of a sound ex-ante regulatory policy without undermining the legal certainty that is necessary to incentivise investments in new networks and technologies. In our view, issues of collective/joint dominance are best dealt with in an ex-post analysis. In an ex post investigation the problematic market conduct in question is observable in most instances through reviews of major decisions which are documented. A Competition Authority has the right to gather evidence to demonstrate whether the actions in question were motivated by unilateral or collusive considerations. An ex-ante examination does not have such powers and relies on a balance of probability and more limited information and could therefore be appraised wrongly. The current regulatory framework was built initially to be a transition regime towards the full application of ex-post competition rules. Any changes to the regulatory framework should still allow the phasing out of sector specific regulation. # # # The European cable TV industry currently provides broadband, telephony and digital TV to more than 76 million customers. Cable Europe represents Europe s leading cable TV operators and their national trade associations. The aim of Cable Europe is to promote and represent the industry s public policy positions and business interests at both European and international level, and to foster cooperation among its members. 5

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