The Dutch regulatory authority OPTA has today published a letter, which it has sent to the European Commission, by means of which it confirms that a compromise has been reached to avoid a European Commission veto of its draft Market Analysis of retail markets for the supply of free-to-air (i.e. not pay-tv) radio- and television packages via cable transmission.

In its original notification, OPTA had proposed to declare various cable-tv companies as having Significant Market Power in their respective geographic areas, and had proposed to regulate the retail tariffs of these companies (retail tariffs to end-users for radio and television transmission via cable-tv).

After the European Commission's eCommunications Consultation Task Force (eCCTF) had expressed serious doubts and had initiated a Phase II investigation (see a previous T-REGS news item), OPTA partially withdrew its notification (the withdrawal occurred in several stages).

This case had received major political attention in the past few weeks (in the Dutch Parliament, in government circles in The Netherlands and even abroad), and today's letter from OPTA makes clear that a deal has been reached.

The key sections of the OPTA letter are reproduced in full below:

[...] The Commission, OPTA, NMa and the Ministry of Economic Affairs have subsequently discussed the matter. Information has been submitted to the Commission by OPTA as well as by other NRA’s and by parties active in the markets involved or parties that are in any way impacted by the outcome of the notification process.

The Commission has brought to the attention of OPTA that during and prior to the procedure, cable operators have indicated that they would be willing to voluntarily freeze their subscription tariffs of their free-to-air rtv-packages. The Commission has also stated that, in the light of both its serious doubts about the ex ante regulation of this market and this voluntary freeze of these tariffs, a veto of OPTA’s draft decisions in their present format would be unavoidable.

In the light of these considerations, OPTA is willing to amend its draft decisions as follows:

1. The regulatory period of the above mentioned decisions will be one year.

2. During this year, OPTA will not intervene in the relevant retail tariffs on the condition that increases of the retail tariffs of the cable operators addressed by the decisions will not exceed the increase of the consumer price index (CPI).

3. OPTA will monitor the application of the condition under 2. A breach of the condition under 2 will be considered an exceptional circumstance as mentioned in art. 7(6) of the Framework Directive.

4. OPTA will monitor the broadcasting markets in the Netherlands in 2006 and if deemed necessary, it will draft new decisions pertaining to these markets for the years 2007 and further. These draft decisions will be notified in accordance with art. 7 of the Framework Directive. OPTA will cooperate with the Commission on finding possibilities to limit time loss and the administrative burdens on market parties as well as on OPTA and the Commission for these proceedings.

5. The retail obligation in par 16 will not be affected and the retail obligation in par 17 will only slightly be modified by these amendments.

We understand the above is satisfactory for the Commission. [...]

The full text of the OPTA letter (body in English, dictum in Dutch) can be accessed by clicking here.

The OPTA press release (in Dutch only), in which OPTA expresses satisfaction that a veto has been avoided, can be accessed by clicking here.

For a discussion of this development, and its implications going forward, please contact Yves Blondeel.