Competition G Information, communication and multimedia Medal Vertical and horizontal integration in the media sector and EX. competition law Miguel Mended Premier* “The CIT and Media sectors within the E Ponca Framework” U. L. B. -SIMI (Studies on Media, Information and Telecommunications) CEASE-Norwegian School of Management, Oslo Telethon Broadcast Brussels, 7 April 2003 OUTLINE Introduction l. Convergence and integration 1 . Technical convergence 2. Economic convergence 3. Efficiencies II. Competition Issues 1. The competitive arena 2.
Foreclosure 3. The dominance test Ill. Vertical Integration 1. 2. 3. 4. The gate-keeper issue Foreclosure of input markets Leveraging Network effects IV. Horizontal integration 1. General assessment 2. The Newsroom/Tell; case 3. The MME/Tale Warner case V, Remedies 1. The balance between efficiencies and foreclosure 2. Remedies in the Newsworthiness; case 3. Remedies in the cases Veined/Seagram/Canal Plus, Pizzazz and AOL/Time Warner Conclusion * Administrator, European Commission/G Competition/MedIa unit. Lecturer at the Law school of the university of Lisbon.
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The pollens expressed are purely personal and only engage the author. Vertical and horizontal Integration In the media sector and EX. competition law’ – M. Mended Premier Ladies and Gentlemen, I wish first of all to thank the SIMI Center and Telethon for inviting me to speak here today. I intend to give you a brief overview of the competition Issues raised by vertical and horizontal Integration of companies In the media sector. I will start by referring to the convergence trend in the media and telecommunications sectors and its link to the concentration wave we have witnessed during these past three years.
I will then highlight the main competition issues which his type of operations raise from a theoretical point of view. I will subsequently address the issues linked specifically to vertical as well as to horizontal integration, and conclude by illustrating how the European Commission has dealt with these problems by means of remedies accepted as a condition for the approval of this type of concentrations. In so doing, I will refer to a number of cases recently assessed by the Commission such as Outlet Warner, MME/Tale Warner.
Pizzazz, Veined/ Seagram/Canal Plus and, decided just last week, Newsroom/Teller;. L. CONVERGENCE main driving forces behind the recent changes occurred in the media and telecoms industries. However, as it so frequently happens with notions that turn into ‘buzzwords”, the many meanings attributed to the term “convergence” are often ambiguous and, as such, unhelpful in order to describe the evolution of the media and telecoms industries. Let me therefore turn, first of all, to the two meanings of the term “convergence” that I consider to be most relevant from a competition law point of view. . Technical convergence Technical convergence mainly concerns the possibilities offered by digital technology. Those possibilities are reflected, for example, in the infra-structures required to deliver contents like movies or music. With the current digital technology, huge amounts of data may be transmitted to a high number of users through different networks (mobile networks, Internet, satellite). This allows for the denationalization of media products traditionally sold as physical products newspapers, films, Cad’s) by transforming them into packages of bytes.
At the same time, digital technology allows for the convergence of traditionally separate media into a single product, putting together text, sound, video and voice in what has come known as multimedia. Access to TV broadcasting, or rather webmaster, on the Internet is already nowadays a reality and listening to an MPH music file on a cellular phone is nothing new. 2. Economic convergence Audio-visual products were never cheap but the growing competition induced by the proliferation of TV channels has Inflated production costs.
For example, the by now famous saga “The Lord of the Rings” has had reported costs of в? 278 million. In order to have an idea of the recent increase in the price for audio-visual contents it is sufficient to compare, for example, he price paid for broadcasting rights of the Football World Cups of 1990, 1994 and 1998 – 241 million SEC – with the price paid for the same rights in respect of the Nor Cups of 2002 and 2006 – 1,7 billion Euro. Only large companies seem to be able to afford such astronomical costs. “Vertical and horizontal integration in the media sector and EX. competition law’ – M.
In face of economic barriers of such dimension, media companies have shown a trend towards concentration. 3. Efficiencies What appeared to be particularly new about these alliances and mergers in the media industry was the search of not only he traditional economies of scale but, above all, the search of economies of scope. This translated into an attempt to use the same product in a number of different Nays: pure entertainment and telecommunication, or entertainment and information, or information and telecommunication.
From an economic point of view, economies of scope basically translate in lower Average Total Costs as a result of producing a Med range of products. The main feature of this type of concentrations is the vertical Integration of the different levels of production and distribution of media products sister them in DVD’s or CDC and distribute them not only to “brick and mortar” shops but also through the cable, satellite or mobile telephony networks they own. Vertically integrated companies are in a position to exploit their products at every single level of the value chain. Create Once, Place Everywhere! Seemed to be the motto for the media industry during the Internet bubble, illustrating the need for media producers to place their products in the largest possible number of different platforms. This was the underlying reason for alliances and mergers between impasses which are active in sectors of the economy that used to be separate like television and telecommunications. Operations like AOL/Time Warner, Veined/ Universal, Veined/Avoidance for the setting up of portal Pizzazz or the acquisition of Dutch entertainment producer Model by the Spanish telecoms company Telephonic clearly illustrate this trend.
It should be said that, to a large extent, the ratio underlying some of these operations Nas a deep faith in the Internet potential and a strong belief in the synergies resulting from cross-supply between different technical platforms belonging to the name vertically integrated company. The burst of the “dotcom bubble” showed how some of these expectations were possibly premature. We now start seeing some of the vertically integrated groups selling off some of their units (AOL/TWO or Veined/ Universal) and witness consolidation caused by heavy losses incurred during these past few years.
Such is the case of the pay-TV industry, as illustrated by the merger in Spain of the platforms Canal Satellite and Via Digital and the merger in Italy between the platforms Stream and Teller;, approved by the Commission Just last week. After erred of extensive vertical integration, we now witness a reflux of horizontal Integration dictated to some extent by financial reasons. II. COMPETITION ISSUES 1 . Ere competitive arena Turning now to the competition issues raised by integration of companies, the first step required in order to understand the forces at play is to determine the perimeter of the competitive arena.
What do media companies compete for, whom do they try to sell their products to and how do they intend to do t? Media companies compete for – essentially – three things. First, they compete for content, which is what they will ultimately sell to their customers. Access to content produced by third parties or the establishment of production facilities is a sine qua non condition for entering or staying in business. Secondly, they compete for the best Nay to deliver such content to customers.
Access to delivery channels owned by third parties or 3 the possibility to establish their own paths to the customer is what allows media companies to distribute their output. Finally, they compete for the obvious ultimate addressee of all this competition: the customer. But this is a contest which goes beyond the obvious competition for a onetime sale. Some of the businesses in the Edie & telecoms sector (e. G; pay-TV, Internet access), like most IT-driven businesses, basis allows for the progressive development of new services and products and for the consequent increase in ARP .
Access to potential clients managed by third parties or the build-up of their own client basis is the ultimate target of media companies. 2. Foreclosure Foreclosure of the competitive arena is a central concern of EX. competition policy in relation to vertical agreements and mergers. Restricted access to input markets (copyrights or contents) or to sales markets (customers, at retail level) may limit inter-brand competition. The extreme example is where a company, as a result of a vertical or horizontal integration, succeeds in simply barring the access to a given market to its competitors.
However, in real life foreclosure does not arise in such simplistic terms and mostly materializes by indirect means. For example, by raising rivals’ costs, by raising barriers to entry or by engaging in tying/ bundling. Tying is particularly relevant in the media and telecoms sectors given that it is often present in explicit (and in most cases, legitimate) commercial offers: for example, a bundled offer of pay-TV and Internet access, or both plus fixed telephony Iso called “triple play’).
The ability to raise rivals’ costs may easily arise where a dominant firm is in a position ROR acquires such position as a result of a concentration) to control the access by competitors to a given infra-structure or input (a technology or a copyright) and Inhere it has the possibility to charge supra-competitive prices for such access. In the media sector one could think about, for example, access to a satellite platform for TV distribution or to a proprietary standard for Conditional Access System. A company in these circumstances is commonly referred to as a “gate-keeper”.
A central element in the assessment of market power of a company and its possibility of foreclosing a given market is the concept of barriers to entry. Where entry barriers do not exist, easy entry will quickly eliminate the problem, even where the incumbent holds large market shares. Entry barriers might be described as “the advantages of established sellers in an industry over potential entrant sellers, these advantages being reflected in the extent to which established sellers can persistently raise their prices above a competitive level without attracting new firms to enter the industry’2.
Although in cost cases barriers to entry will indeed have an economic nature, they may in some cases assume other forms. Regulation may function as an entry barrier when it provides for the establishment of special rights, for example when only a limited number of licenses is foreseen. This is the case of terrestrial TV and/or radio broadcasting due to spectrum scarcity. 3. The dominance test Most competition law Issues related to vertical and horizontal integration in the media sector have been dealt with by the European Commission under the Merger Regulation, I. . In respect of concentrations notified under the SEC Merger Regulations. As I. Pain, Barriers to Competition, H. IS. P. 1965, p. 3. Council Regulation (SEC) No 4064/89 of 21 December 1989 on the control of concentrations 4 [o know, pursuant to Article 2 (3) of the Merger Regulation, “a concentration which creates or strengthens a dominant position as a result of which effective competition Mould be significantly impeded in the common market or in a substantial part of it, shall be declared incompatible with the common market. The test applied by the Commission when assessing these operations was therefore a dominance test. The concept of dominance used under the Merger Regulation is equivalent to the one fined by the Court of Justice in Article 82 cases: “The dominant position (… ) relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers”4. “(… Such a position does not preclude some competition, which it does where there is a monopoly or quasi-monopoly, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in discard of it so long as such conduct does not operate to its detriment. “5 Ill. Vertical integration The reason why vertical integration is a particularly relevant competition issue in the media sector is because many media companies have during these past years actively sought to take vertical Integration as far as possible.
This has been a constant between undertakings, CO L 395/1 , 30. 12. 1989, as amended by council Regulation (SEC) NO 1310/97 of 30 June 1997, CO L 40/17, 13. . 1998. SEC], united Brands, case 2176, ECRU  207. SEC], Hoffman-La Ruche, case 85/76, ECRU  461. Feature of the concentrations in the media sector assessed by the Commission. The multiplication of the presence of a company throughout a number of markets along the value chain of the product concomitantly multiplies the possibilities for such a company to foreclose one or more of the corresponding markets where the company possesses market power.
In these circumstances, vertical integration may in itself raise barriers to entry. A number of recurrent competition issues has arisen in the asses dealt with by the Commission, and I propose to address the most significant ones. 1 . The gate-keeper A gate-keeper role is played by a company possessing a certain infra-structure, technology or know-how allowing it to exert a significant degree of control in respect of the access to a given market.
This degree of control is relevant from a competition point of view only where the market power of the gate- keeper is significant and where the infrastructure is a crucial gateway to the market or where the technology at stake is an essential input for any potential new entrant. A gatekeeper will be able to engage in exclusionary practices visa-Г-visa its competitors recent Newsroom/Teller; cases, concerning the merger of the two Italian pay-TV platforms Stream and Teller;.
As a result of the merger, the new entity would become the gate-keeper in respect of the access to the only satellite platform in Italy for the provision of pay-TV distribution services. Furthermore, it would become the gate-keeper in respect of a number of technical services associated to 6 Case COM/ M. 2876 Newsworthiness;. See prior notification nonce in COCO, CHIC, 23. 10. 2002, p. 0; press release IP/02/1782 of 29. 11. 2002; press release IP/03/478 of 02. 04. 2003. 5 45 pay-TV such as Conditional Access Systems, set-top boxes and Electronic Programmer Guides.
A gate-keeper issue also arose in the AOL/Time Warner mergers approved in the year 2000. AOL was the leading Internet access provider in the US and the only provider with a presence in most EX. Member States. Time Warner, on the other hand, was one of the world’s largest media and entertainment companies with interests in TV networks, magazines, book publishing, music, filmed entertainment and cable networks. The Commission found that the new entity resulting from the merger would have been able to play a gate-keeper role and to dictate the technical standards for on-line music delivery, I. . Streaming and downloading of music from the Internet. Consequently, AOL/TWO could end up holding a dominant position on the emerging market for on-line music delivery. This could happen in two ways. First, AOL/Time Warner would be in a position to develop a closed proprietary formatting technology for all the downloads and streaming of Time Warner and Bertelsmann tracks. The formatting language of AOL/Time Warner could become an industry tankard and competing record companies wishing to distribute their music on-line Mould be required to format their music using the new entity technology.
Because of its control over the relevant technology, the new entity would be in a position to control downloaded music and streaming over the Internet and raise competitor’s costs through excessive license fees. Alternatively, AOL/Time Warner could format its music (and Bertelsmann) to make it compatible with its own software WinZip only, ensuring at the same time that WinZip could support and play different formats used by other record companies.
By formatting its music and the music from Bertelsmann to make them compatible with its own software WinZip only, the new entity would cause WinZip to become the only “player” in the world capable of playing virtually all the music available on the Internet. By refusing to license its technology, the new entity would impose WinZip as the dominant music player as no other player would be able to decode the proprietary format of TWO and Bertelsmann music. As a result of the merger, the new entity would control the dominant player software and could charge supra-competitive prices for it. 2.
Foreclosure of input markets A given company may hold a significant degree control primary input at the top of the value chain of the product. In the media industries, this will generally refer to the company producing the audio-visual product (films, music, TV-programmer) and/or holding the corresponding copyrights. The control exerted at the source will become relevant from a competition law point of view Inhere the amount or breadth of products and/or copyrights is such as to allow the company to gain a competitive advantage by means of exclusionary or discriminatory practices visa-Г-visa its competitors.
In AOL/Time Warner, for example, the combined entity would not only possess one of the largest music libraries in the world (Warner Music is one of the 5 music majors) but would also, due to contractual links, have preferential access to the library of Bertelsmann Music Group, also part to the group of the 5 music majors. This would result in the combined entity controlling the leading source of music publishing rights in Europe. 6 case COM/M. 1845 AOL,mere Warner, detections of 1 1. 10. 2000, CO L 268/28, 9. 10. 2001. Ere problem was aggravated due to the simultaneous notification of the projected roger between MME and Time Warner.
The preferential access by AOL/Time Manner to the music copyrights of MME, Warner and Bertelsmann would have put in the hands of the new entity half of all the music content available in Europe for on- line delivery. A similar problem arose in the Veined/Seagram/Canal Plus merger in respect of both music and films. Veined was a leading company in the telecommunications and media sector, with interests in mobile telephony networks, cinema production and distribution, and pay-TV services. Seagram was a Canadian company which, among other interests, controlled the Universal music and filmed entertainment businesses.
In terms of content, the merged entity would have the Normal’s second largest film library and the second largest library of TV programming in the EYE. It would also be number one in recorded music combined with an important position in terms of publishing rights in the EYE. The position of Veined/ Universal concerning music rights became particularly relevant in respect of the pizza’s portal, a portal run by a Joint-venture between Veined and Avoidance. The pizza’s Joint-venture had itself been notified to the Commission Just some months before the Veined/Universal merger. 3.
Leveraging A classic competition concern is the leveraging ability of the parties, I. E. Their ability to transpose their market power given market into a neighboring market, thereby creating or strengthening a dominant position. This problem may become particularly acute in cases where the parties extend their activities into different product or services markets, something that is explicitly sought for by media companies wishing to distribute their products concerns in respect of the ability of the parties to leverage their market power in the market for mobile telephony into the market for mobile Internet access.
The stated purpose of the Pizzazz portal was to create a “horizontal, multi-access Internet portal”, providing customers with a range of web-based services across a variety of platforms PC’s, mobile phones, TV set-top boxes). As regards Internet access via mobile phone handsets, the issue arose in respect of the significant market position of Avoidance in the market for mobile telephony in a number of European countries (and of Veined in France). Avoidance and Veined already had a very significant customer basis in these countries and therefore a solid path to the future customers of the JP was already established.
On the basis of their client basis for mobile telephony services, the position of the JP-parties in the market for mobile Internet access would be strengthened by the Pizzazz branded and integrated approach to Internet across ‘arioso platforms, which would allow for cross-selling and bundling of offers. This Mould allow the new entity to leverage a strong position in the mobile telephony market into a dominant position on the mobile Internet access market. As regards Internet access via TV set-top boxes, a similarly solid distribution channel was also owned by Canal+ in respect of its customer basis for pay-TV services.
A similar concern therefore arose in respect of the ability of Canal+ leveraging its strong market 7 case COM/M. 1852 Time Warner,’Mel, see press Release IP/00/617 of 14. 06. 2000. 9 case COM/M. 2050 Veined/ Seagram,’ canal Plus, detections of 13. 10. 2000, CO C 311/3, 31 . 10. 2000. 10 Case COM/JP. 48 Avoidance/Veined/Canal Plus, see Press Release Pill )0/821 of 24. 07. 2000. Position in the pay-TV market into the market for Internet access via set-top boxes. He overall concern therefore arose in respect of the ability of both Avoidance and Canal+ to migrate their customer basis from the mobile telephony and pay-TV arrests to the Internet access markets by using the already existing distribution channels. Another clear vertical leveraging issue arose in the Pizzazz case, as regards the buying power of the J-V parties. Already before the operation, Canal+ was an important buyer of content for pay-TV, such as Deprogramming, sports and films. Furthermore, it had a large customer basis accustomed to pay for content.
The pizza’s portal would combine a powerful new Internet access mechanism with paid- for content. Given the dominant position that the parties would acquire on the Internet access markets which I mentioned before, the operation would allow the arties to leverage their market power in the markets for Internet access into the market for the acquisition of paid-for content for the Internet. Moreover, the structural link between Veined and Canal+ and AOL France (55%) made the concern Ere leverage allowed for by the operation would naturally work in detriment of the parties’ competitors in the markets for mobile telephony and pay-TV.
The concerns Identified in the Pizzazz operation were strengthened when Veined and Canal+ notified some months later their acquisition of Seagram, the Canadian company owning the music and film business of Universal. The Commission considered that Canal+ would further increase its dominant position on a number of European pay- IV’ markets at national level. Already before the operation Canal+ enjoyed an almost monopolistic position in respect of the acquisition of the exclusivity on Hollywood films produced by the major studios (in France, Spain and Italy).
The acquisition of Universal Studios would further strengthen Canal+’s position as purchaser of Hollywood films, not only in respect of Universal itself but also in relation to other studios due to underlying financial links. Due to the vertical integration of Universal and Canal+, Canal+ would be able to average its position in order to secure the renewal of the exclusive agreements for pay-TV with all of the Hollywood studios and in fact also to enter into new deals.
The bargaining power of Canal+ visa-Г-visa the film studios would therefore be increased, allowing Canal+ to further foreclose the patty markets where it already was active. 4. Network effects Let me now turn to another issue that often arises in media cases, most notably since convergence with the telecoms industry became a reality: network effects. A network effect may, in simple terms, be described as the self-multiplying power of a network. In economic terms, a network effect occurs when the benefit of an individual who is linked to the network increases with the accession of other individuals.
In AOL/Time Warner, the Commission found that the distribution strength of AOL combined with the content of Time Warner and Bertelsmann would create network effects in respect of both content providers and consumers: – for content providers, the AOL Internet community would become an essential outlet for the distribution of their products; – on their side, consumers, would be deprived of any incentive abandon AOL. The network effects would work both ways: more bickerers would bring more content and more content would bring more subscribers.
Newcomers would also be attracted to AOL community because the 8 larger the community, the more the possibilities to chat and communicate through AOL. The reason for this lies at the critical mass of content owned by Time Warner and Bertelsmann (namely their huge music library) combined with the huge Internet community formed by AOL subscribers and the members to its Instant Messaging services. The critical mass of content owned by TWO and Bertelsmann would attract further music from other record companies.
Competing record companies would feel obliged to distribute their products through All’s online outlet, which would end up having access to all the available music. Furthermore, AOL would be able to bundle row and Bertelsmann music content (or filmed entertainment content) with Internet that content, allowing for instance its subscribers to access new releases before they Newer made public through other distribution channels. Attractive content such as music or films could also be used as promotional tools or loss-leaders in order to subscribe to Intricateness services.
Consequently, the more subscribers AOL would attract, the more important it would become as a carrier for content providers seeking to secure maximum distribution. First mover advantages are particularly strong in network industries. It comes as no surprise that, for example, mobile telephony companies give away, or strongly subsidies, mobile handsets to their customers such as to quickly establish a significant customer basis leading to increasingly stronger network effects.
This circumstance Justifies a particular attention by the Commission when assessing concentrations in the media & telecoms Industries. The combination of network effects with a strong market position may significantly raise barriers to entry and consequently lead to market foreclosure. IV. Horizontal integration Competition problems which are specific to the media sector are more likely to be found in cases of vertical integration than in cases of horizontal integration.
I would argue that in cases of horizontal integration, the competition issues arising in the media sector are equivalent to the ones to be found in any other sector. The issue basically concerns classic market power and the required exercise translates into measuring such market power with the help of the traditional analytical tools: market shares, barriers to entry, etc. Furthermore, there haven’t been that many examples of problematic cases of horizontal integration in the media sector dealt with by the Commission.
The two most significant examples are probably MME/Time Warner and the recent Newsroom/Teller;. 1 . The Newsroom/ relic; case This concentration was notified to the Commission on 16 October 2002 and was cleared on 2 April 2003, further to the submission by the parties of an extensive package of undertakings. Newsroom, the acquiring firm, is a global media company, which is active in the film and TV industries, publishing (newspapers and kooks) and a number of other areas. It controlled the Italian (satellite) pay-TV platform Stream Jointly with Telecoms Italian.