Today the European Commission opened an in-depth investigation concerning the Austrian regulator's (KommAustria's) proposal to continue to regulate the wholesale market for analogue terrestrial radio broadcasting transmission in Austria by requiring the transmission network provider to grant private radio operators price regulated access to its transmission services.

The markets for broadcasting transmission services were removed by the Commission from the list of EU markets recommended for ex ante regulation already in the 2007.

Whilst the current case concerns three broadcasting transmission markets in Austria, namely (i) a market for the transmission of analogue terrestrial (FM) radio broadcasting signals; (ii) a market for multiplexing of broadcasting signals (i.e. a method by which multiple signals are combined into one signal over a shared medium in order to share scarce resources) and (iii) a market for the transmission of digital terrestrial TV broadcasting signals, the in-depth investigation opened today only concerns the first, the radio market. Given that KommAustria proposes to deregulate the other two, TV-related markets due to a high degree of infrastructure competition or a complete lack of demand, the Commission had no comments in relation to the draft measure concerning (ii) and (iii).

On the market for analogue terrestrial radio broadcasting, KommAustria observed a market situation largely unchanged since the last review in 2013, which it sees characterised by a very high degree of market power of the current significant market power (SMP) operator Austrian broadcasting services (ORS), who is a subsidiary of the public service broadcaster – and main customer of ORS – Austrian public TV and radio (ORF). Despite the observed lack of competitive developments, KommAustria proposes to impose a practically unchanged set of remedies, including a strict price control and a non-discrimination obligation.

In addition, KommAustria excludes from the relevant market the supply by ORS to ORF. As a result, ORF receives a different and arguably better service than its direct competitors and, as the majority owner of its supplier (ORS), can influence the latter's decisions concerning infrastructure developments (such as where to build radio transmission masts etc.). Furthermore, under the plans of KommAustria ORF is also subject to different price conditions than competing private radio providers.

KommAustria focuses its regulatory approach on ensuring a level playing field between competing private radio providers by way of a relatively strict price regulation for access to ORS's radio broadcasting network with uniform nationwide tariffs, neglecting to a degree the competitive relationship between ORF and its private competitors. The development of infrastructure competition is not regarded as a regulatory goal. The lack thereof is not regarded as a competition problem and therefore not sufficiently taken into account in the design of its regulatory response to the market failures identified.

As a result of the above, the Commission has serious concerns as to the compatibility of KommAustria's draft measures with the EU telecoms framework and principles of competition law in three main aspects:

  • First, through excluding ORS's supply to ORF from the market, a market environment is created that potentially favours ORF over private competitors, hence distorting competition of radio broadcasters at the retail level.
  • Second, the proposed remedies, most notably the non-discrimination obligation and the price control obligation for access to ORS's radio transmission network, are affected by the faulty market definition, as these remedies are not targeted at allowing competition with the SMP-operator but only at creating a level playing field among third parties.
  • Third, the observed lack of infrastructure competition is not regarded as a competition problem to be addressed by way of remedies.

With regards to its doubts about the market definition, the Commission now has two months to discuss the draft measure with KommAustria, in close cooperation with the body of European regulators (BEREC). At the end of the Phase II investigation period, the Commission may either lift its reservations or issue a veto decision under Article 7.

Concerning the Commission's doubts about the proposed remedies, the Phase II investigation lasts for three months, again in close cooperation with BEREC. The Commission may, at the end of the Phase II either lift its reservations or issue a Recommendation under Article 7a of the Framework Directive requiring KommAustria to amend or withdraw its draft measure.

Background

The market for analogue radio broadcasting in Austria is still dominated by ORS, which operates the only nationwide terrestrial broadcasting network. Contrary to other broadcasting markets, the analogue radio broadcasting market has not seen growing infrastructure competition or inter-platform competition, due to the importance of analogue radio devices particularly in cars. The only notable competitor of ORS operates with a limited regional footprint and only few broadcasting sites.

The proposed SMP-operator ORS is a subsidiary of the Austrian public service broadcaster ORF, who holds a controlling block of 60% of ORS's shares. ORS holds a steady market share of 90 % (99% including "self-supply" to ORF)

The overall market structure of the market has remained largely unchanged over the last regulatory period. As a result, KommAustria has not observed that the currently imposed remedies have led to any development of infrastructure competition. Due to this and due to the fact that promoting infrastructure competition is not regarded as a relevant regulatory goal in the draft measure, KommAustria proposes to continue regulation of the market with again largely unchanged remedies, failing however to explain how the same set of remedies will lead to a different market outcome.

If the regulatory approach remains largely unchanged, as proposed by KommAustria, the Commission believes that the current market structure will remain stable in the medium to long term. KommAustria clarified that a meaningful move towards digital radio broadcasting is not expected in the medium to long term.

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