On 29 November 2010, the Belgian Competition Council (the Council) issued a second decision in the Telenet/Belgacom saga relating to the conditions imposed on Telenet after its acquisition of Canal+ in 2003 (for a summary of the first decision see ACT - Belgian Competition and Regulatory Report: Issue 20, 21 and 22 January 2008 – December 2008 ). More specifically, Telenet sought to have the requirement to give competing distribution platforms access to its premium content channel Prime removed. First, the Council established the relevant standard of review to be applied in assessing the existing conditions. It stressed that the relevant standard was not whether it had been reasonable at the time to impose the conditions, nor whether it would be reasonable today to impose such conditions, but rather it was Telenet’s responsibility to provide sufficient evidence that maintaining the conditions today would be unjustified. Such a review warrants a careful analysis showing the evolution of the markets in question since the original decision.
The Council further pointed out the correlation between the conditions and the bidding procedure for premier league football rights. The bidding procedure itself is subject to separate scrutiny by the Council, but in the Telenet case the legality of the bidding procedure was outside the competence of the Council. As a result, any decision on the conditions could not result in obligations being indirectly imposed on Pro League, the organizer of the football rights bidding process.
The Council held that Telenet still enjoys a monopoly position on the retail market for delivering TV content. The fact that Telenet’s cable network is technically able to deliver both analogue and digital signals only strengthens this position in the Council’s view, as the strong market position on the market for delivery of analogue signals can serve as leverage to expand Telenet’s position on the digital signal delivery market. The conditions, however, were specifically designed to mitigate any exclusionary effects resulting from Telenet’s exclusive access to premium content. Given that such rights are acquired through a bidding process, and that bids can be placed on various packages of rights, there is a possibility that Telenet would not acquire rights on an exclusive basis. In the interests of proportionality the Council therefore decided to amend the conditions so that they only come into effect if Telenet wins all premier league rights. The obligation to make Prime available to competing platforms will only kick in under these circumstances.