Some critical reflections about access obligations under the European communications framework

Communications & Strategies, Oct, 2007 by Natali Helberger

Conclusions

This article has raised some doubts as to whether access obligations are by default the optimal answer to undesirable exclusive control over technical facilities in pay-TV (e.g. the Electronic Programme Guide, Conditional Access or Application Programme Interface). It concluded that under certain circumstances, access obligations can result in the opposite effect of what they were supposed to do: further strengthening the position of one pay-TV platform and discouraging investment in competing services for consumers. This is particularly true in situations where a facility is not per se non-duplicable, but where the bottleneck character of a facility is the result of a proprietary standard, indirect networks effects and/or high individual switching costs for consumers because of technical, contractual or information lock-ins. In such a situation, interventions that seek to reduce switching costs by tackling restrictive conditions in consumers' subscription contracts and by enhancing transparency for consumers are probably better suited to promote functioning competition, diversity and pluralism. The conditional access, as well as the EPG and the API, are just three examples of facilities in modern electronic communications markets that do not display the essential facility-like characteristics of traditional bottlenecks in this sector, and that are subject to access regulation. The Access Directive has broadened the power of National Regulatory Authorities to impose access obligations on operators of all kinds of technical facilities, including such whose gateway character depends on the market conditions in a concrete case (possible examples could be mobile and broadband platforms, operational support systems, operating systems, switching services, search agents, Digital Rights Management, etc.). While the arguments brought forward in this article concentrated on the example of conditional access, National Regulatory Authorities would do well to use the margins of Articles 8-13 of the Access Directive and examine the relevancy of these arguments also when imposing access on other facilities than the conditional access.

References

AREEDA P. (1990): "Essential Facilities: An Epithet in Need of Limiting Principles", Antitrust Law Journal, no. 58, p. 841.

BULLINGER M. (1997): "Verbreitung entgeltlicher Rundfunkprogramme und Mediendienste in Paketen", Archiv fur Presserecht, no. 5 p. 761.

CAVE M. & COWIE C. (1996): "Regulating Conditional Access in European Pay Broadcasting", COMMUNICATIONS & STRATEGIES, no. 23, pp. 119-142.

European Commission:

--(2006a): "Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the Review of the EU Regulatory Framework for electronic communications networks and services", Brussels, 29.6.2006, COM(2006) 334 final.

--(2006b): "Communication From the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the Review of the EU regulatory Framework for electronic communications networks and services", Staff Working Document, Brussels, 28 June 2006, COM(2006)334 final.