On 2 November 2012, the Dutch competition authority ("NMa") published its decision in which it granted a licence to the Dutch telecom company KPN to acquire four service providers of Reggeborgh. The four service providers offer television, internet and fixed telephony services to consumers through Reggefiber’s optical fibre network (Fiber to the Home, “FttH”). Reggefiber in turn is a joint venture of KPN and Reggeborgh.
In its second-phase decision the NMa concluded that there are indications that the geographical dimension of the market for television, internet and fixed telephony is limited to the smallest catchment area of one infrastructure. In view of the still ongoing roll out of the FttH-networks this area comprises the area within a municipality where an FttH-network has been rolled out. The NMa unconditionally cleared the transaction. The NMa took into account that KPN does not only compete with service providers through Reggefiber’s optical fiber fibre network, but also with cable companies that have their own coax-networks and with various other providers through KPN's own copper network.
The case is interesting in that the NMa conducts a competition analysis on the basis of local markets. The decision therefore confirms that according to the NMa the gradual roll-out of the FttH-networks leads to diverging competitive conditions for electronic communications services. The local approach by the NMa differs from the decision-practice of the Dutch telecoms regulator (“OPTA”). OPTA so far considered in its three-yearly market analysis decisions that the geographic dimension of the retail-markets for fixed telephony and internet is national.
The case therefore demonstrates that, notwithstanding the NMa’s praise of the cooperation with OPTA in this case, both regulators feel free to adopt different approaches when analysing cases in the communications sector. On 1 January 2013, the NMa and OPTA are expected to merge into one new authority (The Netherlands Authority for Consumers and Markets (“ACM”)). It therefore remains to be seen to what extent discrepancies as in the underlying case are likely to still occur.