European communications law and technological convergence : deregulation, re-regulation and regulatory convergence in television and telecommunications / Pablo Ibáñez Colomo.
2012
KJE6964 .I33 2012 (Map It)
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Details
Author
Title
European communications law and technological convergence : deregulation, re-regulation and regulatory convergence in television and telecommunications / Pablo Ibáñez Colomo.
Published
Alphen aan den Rijn : Wolters Kluwer, 2012.
Call Number
KJE6964 .I33 2012
ISBN
9041138293
9789041138293
9789041138293
Description
xxviii, 315 pages ; 25 cm.
System Control No.
(OCoLC)769266020
Bibliography, etc. Note
Includes bibliographical references and index.
Series
Record Appears in
Table of Contents
List of Abbreviations
xix
List of Tables
xxi
List of Figures
xxiii
Foreword / Joaquin Almunia
xxv
Acknowledgements
xxvii
pt. I
The Multiplication of Regulatory Regimes in Communications Markets
1
ch. 1
Technological Convergence and Its Impact on Television and Telecommunications
3
1.
Technological Convergence as an Incremental Process: Features and Main Stages
4
1.1.
Convergence at the Level of Networks during the 1960s through the 1980s
5
1.1.1.
The Emergence of Cable Television during the 1960s and the 1970s
5
1.1.2.
The Use of Terrestrial Networks for the Provision of Telecommunications Services
6
1.2.
The Impact of Information Technologies on Television and Telecommunications through the 1980s and 1990s
7
1.2.1.
Information Technologies and Telecommunications Services
7
1.2.2.
Information Technologies and Television Services
7
1.2.3.
Internet: A Virtual Network on Top of Physical Networks
8
1.3.
Last Frontiers of Technological Convergence
9
2.
Technological Convergence: Mutations in the Television and the Telecommunications Sectors
11
2.1.
Impact of Technological Convergence on the Value Chain
11
2.1.1.
Impact on the Television Value Chain
11
2.1.2.
Impact on the Telecommunications Value Chain
14
2.2.
Economic Assumptions in Legacy Regulation
14
2.2.1.
From Channel Scarcity towards Content Scarcity
14
2.2.2.
Diversity of Content and Viewpoints
15
2.2.3.
Consumer Preferences, Demand Elasticity and Technological Convergence
16
2.2.4.
From the Exploitation of Market Power towards the Control of Exclusionary Conduct in Telecommunications Regulation
18
3.
A Framework for the Analysis of Regulatory Responses to Technological Convergence
19
3.1.
Technological Convergence Leads to Conflicts between Regimes
19
3.1.1.
Tools, Objectives and the Impact of Technological Convergence
19
3.1.2.
Competition Law as a Source of Regulation
21
3.2.
Elements of a Critical Analysis of Existing Regulation
22
3.3.
Technological Convergence and the Regulation of Bottlenecks
23
3.3.1.
The Notion of Bottleneck
23
3.3.2.
Regulatory Approaches to Bottlenecks
24
3.4.
A Note on Vocabulary
27
3.4.1.
Technical Vocabulary
27
3.4.2.
Vocabulary Used in the Substantive Analysis
29
ch. 2
Legacy Television Regulation: A Defensive Reaction to Technological Convergence
31
1.
The Legacy Model
31
1.1.
Origins and Evolution
31
1.2.
The Interplay between Justifications and Objectives
34
1.2.1.
Traditional Justifications for the Legacy Regime
34
1.2.2.
Economic Assumptions and Presumptions Informing Intervention
35
1.2.3.
Objectives as Justifications and the Perpetuation of Legacy Television Regulation
36
1.3.
Main Features of Legacy Television Regulation
37
1.3.1.
Pluralism as a Paramount Objective in Legacy Television Regulation
37
1.3.2.
`Taxation by Regulation' in Television
41
2.
A Defensive Reaction to Technological Convergence: Main Features
42
2.1.
Coordination at the International Level
43
2.1.1.
Basic Principles of the TVWF Directive
43
2.1.2.
Elevating Tools of Legacy Regulation at the EU Level
44
2.2.
The Extension of Legacy Regulation to New Players and Technologies
45
2.2.1.
The Extension of Legacy Regulation to Non-terrestrial Channels
45
2.2.2.
The Extension of Legacy Regulation to Point-to-Point On-Demand Services
47
2.3.
The Protection of the Legacy Market Structure
48
2.3.1.
The Protection of Incumbent Operators through `Must-Carry'
49
2.3.2.
The Protection of Terrestrial Television
50
2.3.3.
The Protection of `Free Television'
51
2.4.
Consequences of a Defensive Reaction to Technological Convergence
53
ch. 3
The Rise of Competition Law as a Source of Television Regulation
57
1.
Background
57
1.1.
Emerging Issues Have Largely Been Ignored in Television Regulation
57
1.2.
Regulatory Outcomes May Be Achieved through Competition Law
58
2.
On the Application of Competition Law as Regulation: Defining the Terms of the Controversy
59
2.1.
Competition Law Can Mimic Regulation
59
2.1.1.
The Need for a Behavioural Trigger in Practice
60
2.1.2.
Ex Ante Intervention Is a Typical Feature of Competition Law
62
2.1.3.
Competition Law Becomes Prescriptive in Presence of a Bottleneck Segment
66
2.2.
Substantive Concerns Raised by the Application of Competition Law as Regulation
69
2.2.1.
Standards and Timing of Intervention
73
2.2.2.
Competition Law and Rivalry Bias
74
2.2.3.
The Instrumentalization of Competition Law
76
3.
Competition Law Enforcement around the Premium Content Bottleneck
78
3.1.
The Emergence of the Premium Content Bottleneck
78
3.1.1.
Technological and Economic Background
78
3.1.2.
The Monopolization of the Premium Content Bottleneck
80
3.1.3.
Business Models and the Extent of the Premium Content Monopoly
83
3.2.
Dealing with the Premium Content Bottleneck
86
3.2.1.
Opening the Premium Content Bottleneck in Acquisition Markets
87
3.2.1.1.
Exclusive Licenses under Article 101(1) TFEU: The Principles of Coditel II
87
3.2.1.2.
Sharing the Premium Content Bottleneck under Article 101 TFEU
90
3.2.1.3.
Opening the Premium Content Bottleneck in Merger Cases
96
3.2.1.4.
Beyond Competition Law: Explicit Regulatory Approaches at the National Level
98
3.2.2.
Isolating the Premium Content Bottleneck in Exploitation Markets
100
3.2.2.1.
Dealing with the Collapse of Rivalry in the Premium Content Bottleneck
100
3.2.2.2.
The Consolidation of `Triple Play': The Response from Competition Law
103
3.2.2.3.
Beyond Competition Law: Explicit Regulatory Approaches at the National Level
104
ch. 4
Technological Convergence and the Regulation of Telecommunications: Achievements and Limits of Re-regulatory Reforms
109
1.
Regulatory Reaction to Technological Convergence
109
1.1.
Main Features of Legacy Sector-Specific Regulation
109
1.2.
The Rationale behind Deregulation
110
1.3.
Main Features of the Regulatory Framework
112
1.3.1.
Objectives of the Regulatory Framework
113
1.3.2.
Guiding Principles behind Intervention
115
2.
Legal Framework for the Promotion of Competition in Electronic Communications
117
2.1.
Architecture of the Regulatory Framework
117
2.1.1.
Justifications behind the Creation of an Ad Hoc Regime
117
2.1.2.
A Form of Competition Law with a Structural Trigger
118
2.2.
Market Selection and Market Definition
119
2.2.1.
The `Three Criteria Test' as a Structural Trigger
119
2.2.2.
Market Definition and SMP Assessment
121
2.2.3.
Presumption of Anticompetitive Foreclosure in Downstream Markets
122
2.2.3.1.
The `Three Criteria Test' as a Response to Anticompetitive Foreclosure
122
2.2.3.2.
Anticompetitive Foreclosure and Implicit Assumptions in the Regulatory Framework
123
2.3.
Remedies
124
2.3.1.
Opening the Local Telecommunications Bottleneck to Competition by Limiting Its Scope
124
2.3.2.
Measures Complementing Bottleneck Access
125
3.
Television Networks and Television Content under the Regulatory Framework
127
3.1.
Defining the Scope of the Regulatory Framework
128
3.1.1.
`Electronic Communications Services'
128
3.1.2.
`Electronic Communications Networks'
129
3.1.3.
Implications of the Limited Scope of the Regulatory Framework
131
3.2.
The Links between Television and Electronic Communications in the Regulatory Framework
133
3.2.1.
Conflicts between National Television Regulation and the Regulatory Framework
134
3.2.2.
Adjusting the Regulatory Framework to Meet Pluralism Objectives
137
3.3.
SMP Assessment in Television-Related Markets
139
3.3.1.
`Market 18' in the 2003 Recommendation
139
3.3.1.1.
The Uncertain Scope of `Market 18'
139
3.3.1.2.
The Position Adopted by the European Commission
140
3.3.1.3.
The Future of `Market 18'
141
3.3.2.
Other Markets
142
ch. 5
The Emergence of `Conflict Points' between Regimes
145
1.
The Outcome of Two Conflicting Responses to Technological Convergence
145
1.1.
Two Conflicting Responses to Technological Convergence
145
1.2.
Implications of the Multiplication of Regulatory Regimes
146
1.2.1.
The Emergence of Three Sources of Regulation across the Communications Value Chain
146
1.2.2.
The Recourse to Different Regulatory Techniques
148
1.2.2.1.
Assumptions in Regulation: The Economic Features of the Sector
148
1.2.2.2.
Presumptions in Regulation: Analysis of the Expected Behaviour
149
1.2.3.
Furthering Diverging Objectives
150
2.
Towards a Critical Assessment: Dealing with `Conflict Points' between Regimes
150
2.1.
Understanding Conflicts of Tools and Conflicts of Objectives across the Value Chain
150
2.2.
Conflicts of Tools around the Premium Content Bottleneck
151
2.3.
Conflicts of Objectives and the Exploitation of Television Channels
152
2.4.
Conflicts of Tools and Access by Channels to Networks and Multichannel Services
156
pt. II
An Assessment of Regulatory Choices in `Conflict Points' between Regimes
159
ch. 6
The Acquisition and the Exploitation of Television Rights: Competition Law and Rivalry Bias
161
1.
Determinants of the Competitive Process and Implications for Policy-Making
161
1.1.
Explaining the Exclusive and Non-exclusive Licensing of Television Rights
163
1.1.1.
Incentives to License on an Exclusive and a Non-exclusive Basis
163
1.1.2.
Implications for Policy-Making
164
1.2.
Sharing the Premium Content Bottleneck
164
1.2.1.
Behavioural Triggers and the Potential Scope of Application of the Remedy
164
1.2.2.
The Tendency of the Premium Content Bottleneck towards Monopoly
165
2.
Principles of Intervention under Competition Law
165
2.1.
An Assessment of Competition Law Concerns
166
2.1.1.
Price-Fixing
166
2.1.1.1.
Joint Selling as Part of a Broader Agreement
168
2.1.1.2.
Joint Selling, Price-Fixing and Transaction Costs
170
2.1.2.
Output Restrictions
173
2.1.3.
`Cross-Platform' Bundling
174
2.1.4.
Anticompetitive Foreclosure
175
2.1.4.1.
Market Definition and Foreclosure Assessment
176
2.1.4.2.
Lack of Foreclosure Assessment
177
2.1.4.3.
The Link between Foreclosure and Remedies
178
2.2.
An Assessment of Remedies: Effectiveness and Feasibility
180
2.2.1.
Remedies Preserving Competition `for' the Market in Acquisition Markets
180
2.2.2.
Remedies Opening the Premium Content Bottleneck
181
2.2.2.1.
Sharing the Bottleneck through Sale in Packages: A Failed Remedy
181
2.2.2.2.
The Dubious Pertinence of the `Single Buyer Rule'
182
2.2.3.
Treating the Premium Content Bottleneck as `Commons': A Remedy for Exceptional Circumstances
183
3.
Reconsidering Intervention under Competition Law
184
3.1.
Competition `for' the Market Is the Valid Expression of the Competitive Process in Acquisition Markets
185
3.1.1.
Remedies to Preserve Competition `for' the Market in Acquisition Markets
185
3.1.2.
Foreclosure Concerns in Neighbouring Markets Do Not Justify That the Competitive Process in Acquisition Markets Is Altered
186
3.2.
Adjusting Intervention under Article 101 TFEU
187
3.2.1.
Assessing Restrictions of Competition: Horizontal Issues
187
3.2.1.1.
Market Power: A Central Issue in the Assessment
188
3.2.1.2.
Rules of `Purely Sporting Interest' and Competition Law
189
3.2.2.
Assessing Restrictions of Competition: Vertical Issues
191
3.2.2.1.
Exclusive Licensing and the Foreclosure of Generalist Advertising-Based Channels
192
3.2.2.2.
Exclusive Licensing and the Foreclosure of Premium Television Operators
193
3.2.2.3.
Exclusive Licensing and Retail Foreclosure
193
ch. 7
The Exploitation of Television Channels: The Limits of the `Logic of Foreclosure'
195
1.
Determinants of the Competitive Process and Implications for Policy-Making
195
1.1.
Explaining the Exclusive and Non-exclusive Supply of Television Channels
197
1.1.1.
Incentives to Supply: A Static Perspective
197
1.1.1.1.
Generalities
197
1.1.1.2.
Impact of Vertical Integration on the Incentives to Supply
198
1.1.2.
Incentives to Supply and Dynamic Considerations
199
1.2.
Implications for Policy-Making
200
1.2.1.
Intervention in Exploitation Markets versus Intervention in Acquisition Markets
200
1.2.2.
Mandated Shared Access and the Nature of Exploitation Markets
200
1.2.3.
Welfare Effects and Standards of Intervention
201
2.
Principles of Intervention under Competition Law and Sector-Specific Regulation
202
2.1.
Making Sense of the Shift Away from the `Logic of Foreclosure'
202
2.2.
An Assessment of Competition Law Concerns
203
2.2.1.
Exclusive Supply of Channels under Articles 101 and 102 TFEU
203
2.2.1.1.
Qualitative Importance of Channels and Anticompetitive Foreclosure under Article 101 TFEU: Telenor/Canal+/Canal Digital
204
2.2.1.2.
Quantitative Importance of Channels and Anticompetitive Foreclosure under Article 101 TFEU
204
2.2.2.
Vertical Integration and Downstream Foreclosure
205
2.2.2.1.
Ability to Foreclose
205
2.2.2.2.
Incentive to Foreclose
206
2.2.2.3.
Assessing the Competitive Impact of the Operation
206
2.2.3.
Leveraging under Article 102 TFEU
208
2.2.3.1.
Outright and Constructive Refusals to Supply
208
2.2.3.2.
Secondary-Line Discrimination
211
2.2.3.3.
Tying and Bundling
212
2.3.
Towards the `Logic of Replication'
214
2.3.1.
The Instrumentalization of Competition Law
214
2.3.2.
The Recourse to `Para-Competition Law'
216
2.3.3.
The Adoption of Ad Hoc Regimes Complementing the Regulatory Framework
218
2.3.3.1.
Ofcom's Regulation of Wholesale Access to Premium Content
218
2.3.3.2.
The Regulatory Regime Advised by the Autorite de la Concurrence
220
3.
Reconsidering Intervention under Competition Law and Sector-Specific Regulation
221
3.1.
Contributions and Limits of Competition Law and the Regulatory Framework
221
3.2.
Adjusting Regulatory Intervention
223
ch. 8
Access by Channel Operators to Networks and Multichannel Distributors: Distinguishing Tools and Objectives
225
1.
Determinants of the Competitive Process and Implications for Policy-Making
227
1.1.
Ability and Incentive to Discriminate against Unaffiliated Channel Operators
227
1.1.1.
Market Features Having an Impact on Incentives to Carry
227
1.1.2.
Implications for Policy-Making
228
1.1.2.1.
Standards of Intervention under Competition Law
228
1.1.2.2.
Standards of Intervention under Legacy Television Regulation
229
1.1.2.3.
Standards of Intervention under the Regulatory Framework
230
1.2.
Shaping Carriage Obligations
230
1.2.1.
The Award of Regulatory Privileges: `Must-Carry'
230
1.2.1.1.
A `Public Utility' Approach
231
1.2.1.2.
A `Universal Service' Approach
231
1.2.2.
The Logic of the Regulatory Framework: Non-discrimination and Third-Party Access
232
1.2.2.1.
Reserving Transmission Capacity for Third Parties
232
1.2.2.2.
FRAND Conditions
233
2.
Principles of Intervention under Sector-Specific Regulation
233
2.1.
Regulatory Privileges under EU Law
234
2.1.1.
`Must-Carry' under Primary EU Law and the Regulatory Framework
234
2.1.1.1.
Principles for the Assessment of `Must-Carry': United Pan-Europe Communications
234
2.1.1.2.
Avoiding the Principles: Kabel Deutschland
236
2.1.2.
`Must-Carry' and Article 106(2) TFEU
237
2.2.
The Multiplication of Regimes and Tools: The Limits of the Regulatory Framework
239
2.2.1.
The Irrelevance of the Harmonization of `Must-Carry'
239
2.2.2.
The Inadequacy of SMP as a Structural Trigger
240
3.
Reconsidering Intervention under Sector-Specific Regulation
241
3.1.
The Endorsement of Pluralism and the Demise of Legacy Tools
241
3.1.1.
Pluralism as an Overarching Objective
241
3.1.2.
The Demise of the `Public Utility' Approach to `Must-Carry'
242
3.2.
Adjusting Existing Rules to Meet Pluralism Objectives
243
3.2.1.
Defining Rules around Technology Neutrality and Non-discrimination
243
3.2.2.
Other Regulatory Mechanisms
244
ch. 9
Reassessing the Role and Scope of Regulatory Regimes
247
1.
The Application of Competition Law as Regulation: A Critical Summary
249
1.1.
Vulnerabilities of Competition Law: Substantive Aspects
249
1.1.1.
The Assessment of Complex Economic and Technological Issues under Competition Law
249
1.1.1.1.
Persistent Biases in the Analysis of Competition Authorities
249
1.1.1.2.
Regulatory Choices under Competition Law
251
1.1.2.
Controversies Surrounding the Substantive Assessment under Competition Law
251
1.1.2.1.
Altering the Competitive Process to Accommodate Rivalry
252
1.1.2.2.
The Application of Competition Law in Market Structures Artificially Created through Regulation
254
1.1.2.3.
Influencing the Evolution of a Sector
255
1.2.
Vulnerabilities of Competition Law: Institutional Aspects
256
1.2.1.
The Institutional Architecture of Competition Law Enforcement
256
1.2.1.1.
The Combination of the Instruction and the Adjudication Functions in an Authority
256
1.2.1.2.
Policy Instruments and Expected Standards of intervention
257
1.2.1.3.
The Limited Scope for the Re-examination of the Practices
259
1.2.2.
Competition Law as Regulation and Its Uniform Application across the EU
260
1.2.2.1.
The Uniform Application of EU Competition Law under Regulation 1/2003
260
1.2.2.2.
The Adoption of Explicit Regulatory Regimes at the National Level
261
2.
The Limits of the Regulatory Framework: Towards Vertical Regulatory Convergence
262
2.1.
Flaws in the Architecture of the Regulatory Framework
263
2.1.1.
The Exclusion of Television Content from the Scope of the Regulatory Framework
263
2.1.1.1.
The Content/Network Divide and the Value Chain in Electronic Communications
263
2.1.1.2.
The Scope of the Regulatory Framework and Competition in Electronic Communications
264
2.1.2.
Enforcement Mechanisms of the Regulatory Framework
266
2.1.2.1.
The Confusion between the Objectives and the Outcomes of Regulation
266
2.1.2.2.
Television-Related Activities and the Consolidation of the Internal Market
267
2.2.
Matching Regulation and Market Reality
268
2.2.1.
Substantive Issues: Focus on the Objectives of Regulation
268
2.2.1.1.
Expanding the Scope of Regulation to Meet the Reality of the Market
268
2.2.1.2.
Refining the Tools
270
2.2.2.
The Case for EU Harmonization
272
3.
Defining the Respective Scope of Legacy Television Regulation and the Regulatory Framework
274
3.1.
The Future of Legacy Television Regulation
274
3.2.
Managing the Substantive Overlap with the Regulatory Framework
275
Bibliography
279
Table of Cases
299
Index
305