On 31 October 2008, the Council approved the acquisition by Tecteo of sole control of BeTV and ACM. Tecteo is, together with its partner Brutélé, the main cable TV operator in Wallonia and an important operator in the Brussels region. BeTV is the most important broadcaster of French language pay-TV channels in Belgium. ACM provides technical services for the transport of audiovisual signals to Tecteo, Brutélé and BeTV.
This decision followed positive advice from the Auditor who had noted that, unlike integrated operators such as Belgacom and Telenet, Tecteo did not dispose of a pay-TV offering allowing it to compete effectively with distributors on other platforms. The Auditor concluded that in these circumstances it would not be appropriate to impose conditions in order to approve the transaction.
Nevertheless, the Council, after having heard the observations of a number of interested third parties (including the Conseil Supérieur de l’Audiovisuel, Belgium’s regulator of the French-speaking electronic media), decided to impose two conditions to approve the operation.
First, Tecteo is not allowed to conclude exclusivity agreements with free-to-air TV channels. This commitment addresses the Council’s concern that Tecteo would use its bargaining power (arising from the combination of its premium and free-to-air offering and from the indispensable nature of the infrastructure it controls together with Brutélé and the eight Walloon cable distributors it recently purchased) to impose exclusivity conditions that would make it impossible (or at the very least difficult) for free-to-air TV channels to be broadcasted on another platform, in particular in the territory covered by its cable infrastructure.
Secondly, Tecteo is not allowed to refuse or withdraw access to its cable network in a discriminatory fashion. This commitment applies to requests from both free-to-air TV channels and pay-TV channels. Its purpose is to ensure that Tecteo will not be able to grant exclusive access to its cable infrastructure to BeTV, thereby depriving other (non-integrated) audiovisual services broadcasters of such access.
These commitments essentially correspond to the ones which had been imposed on 25 April 2008 by the Council in its Tecteo/Brutélé decision (see Belgian Competition Law Report issue 21, 2008/Q3). This decision is currently on appeal before the Brussels Court of Appeal and, should the Court decide to annul or amend it, the commitments attached to it may be deprived of their binding force. This is why the Council considered that it was indispensible to also attach conditions to its decision in Tecteo/BeTV, since it was not absolutely certain that the conditions of the Tecteo/Brutélé decision would remain binding on Tecteo.
In order to facilitate the BCA’s monitoring of these commitments (which will remain in force until 31 December 2011), Tecteo has also had to commit itself to report annually to the Auditor on any exclusivity agreement (or agreement having a similar effect) concluded, any request for access and refusal of access, as well as on the capacity available on the cable and the extent to which this capacity will allow to meet possible requests for access and, finally, on any contestation concerning the implementation of the commitments.