Outremer Telecom referred practices implemented by Télédiffusion de France (TDF) in the market for terrestrial broadcasting to the overseas territories to the Competition Authority. Outremer complained that TDF's technical and pricing bid for overseas hosting had been published late and incompletely. This late publication was made further to an invitation for bids issued by France Télévisions for the award of digital terrestrial television (TNT) broadcasting contracts in the overseas territories.
TDF is an incumbent terrestrial broadcasting operator and owns most of the infrastructure necessary for hosting on its sites. This hosting is indispensable for alternative operators such as Outremer, the first alternative overseas telecommunications operator. ARCEP - the French electronic communications and postal regulatory authority - had imposed on TDF an obligation to publish reference bids specifying the technical and pricing hosting conditions and the broadcasting infrastructure access conditions. These conditions are necessary for TDF's competitors to respond to the invitations for bids.
In examining TDF's position on the market for access services to the infrastructure necessary for overseas digital broadcasting, the authority found that TDF held a dominant position on this market. TDF owned infrastructure which could not be duplicated by new entrants under reasonable economic conditions and within sufficiently short timeframes to respond to the invitations for bids for TNT. Moreover, no other telecommunications operator could offer equivalent hosting services.
The authority went on to analyse TDF's contested practices. It indicated that it was not a question of penalising TDF's breach of the obligation to publish a reference bid which ARCEP had imposed, but rather of penalising an independent practice on the market. The authority focused on TDF's liability in exploiting its dominant position to delay without cause the publication of its reference bid, which was also missing certain key elements. In other words, it was a question of checking whether, according to the authority, TDF had distorted competition in the invitations for bids by creating information asymmetry with its competitors.
In a February 5 2015 decision the authority concluded that TDF's late and incomplete publication of its reference bid constituted an abuse of dominant position. It held that there was no technical or regulatory justification for the delayed and incomplete nature of this publication. TDF was aware that this would likely prevent competitors from participating in the invitations for bids under normal competitive conditions, even though - as the dominant operator - it had a special responsibility not to distort competition. The authority found that this practice had not only potential restrictive effects against new entrants, but also actual restrictive effects, since the practice at issue had allowed TDF to retain its broadcasting monopoly for a further five years.
Consequently, the authority fined TDF €4.2 million - the penalty was increased on the grounds that TDF was a repeat offender.
The decision confirms that economic operators must take care, when answering invitations for bids, to guard against practices that may be characterised as abuses of dominant position or, as illustrated by other cases, concerted practices.
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