(CONSISTENT with ARTICLE 7, NUMBER 3 of DIRECTIVE 2002/21/EC As Written by the Directive

(CONSISTENT with ARTICLE 7, NUMBER 3 of DIRECTIVE 2002/21/EC As Written by the Directive

NOTIFICATION OF DRAFT MEASURE ABOUT expiry of regulatory obligations imposed on meo, in the context of the Wholesale market of analogue terrestrial television broadcasting

(CONSISTENT WITH ARTICLE 7, NUMBER 3 OF DIRECTIVE 2002/21/EC as written by the Directive 2009/140/CE)

  1. On August 2nd, 2007[1], ANACOM’s Board of Directors approved the decision concerning the review of the wholesale broadcasting market for delivery of content to end-users[2].
  2. On that market review, ANACOM identified as relevant for the purposes of ex-ante regulation the following market:
  • Wholesale market of analogue terrestrial television broadcasting that covered the whole national territory.
  1. Following the market analysis, ANACOM concluded that MEO (former PT Comunicações, S.A.) had SMP whereby a set of obligations wereimposed, namely obligation of access to, and use of, specific network facilities, obligation of transparency, obligation of non-discrimination, obligation of accounting separation, obligation of price control and cost accounting, and obligation of financial report.
  2. Since August 2007, when the aforementioned analysis was published, several changes happened that affected the market structure with particular impact on the wholesale broadcasting market for delivery of content to end-users, namely the end of analogue terrestrial television broadcasting[3] (switch off) after the transition to digital terrestrial television (DTT) in Portugal, that was accomplished on April 26th, 2012.
  3. After the switch off the substitutability of analogue terrestrial television broadcasting service by DTT was complete and mandatory, and currently there are no rights of use of frequencies assigned for the analogue terrestrial television broadcasting service nor frequencies allocated on the national table of frequency allocations (NTFA)for the analogue terrestrial television broadcasting service. In this context,from April 26th 2012 onwards the provider of the analogue terrestrial television broadcasting service stopped to provide that serviceand startedto provide only DTT service (complemented with satellite television broadcasting for the free to air television broadcasting of its contents for end users).
  4. As the wholesale market of analogue terrestrial television broadcasting does not exist anymore following the switch off, the regulatory obligations imposed on MEO automatically expired as there is no object. So, in this market there is no operator providing services and therefore the obligations previously imposed are inapplicable[4].
  5. This understanding was included in the draft decision concerning the wholesale broadcasting market for delivery of content to end-users, approved on July 22nd2015, and was subject to public consultation and prior hearing of interested parties.
  6. There were no comments regarding this subject.
  7. Within the context of the opinion presented regarding the aforementioned draft decision, the National Competition Authority had no comments about this issue.
  8. The draft decision, that included several issues namely the analysis of DTT market and pay TV market, was notified to European Commission on November 18th 2015, and the European Commission presented a serious doubts letter (on December 17th 2015).
  9. Considering the serious doubts presented by the European Commission, ANACOM has decided on December 23rd 2015, pursuant to the Community notification procedure, to withdraw the draft decision concerning the wholesale broadcasting market for delivery of content to end-users.
  10. Regardless of the procedures to follow by ANACOM concerning the abovementioned draft decision about the wholesale broadcasting market for delivery of content to end-users, namely regarding the analysis of DTT market, the issue concerning the expiry of regulatory obligation imposed on MEO, following the decision of August 2nd 2007, in the context of the wholesale market of analogue terrestrial television broadcasting, is unquestionable and should be officially closed.
  11. This fact does not have any impact in a possible future definition of the wholesale broadcasting market for delivery of content to end-users where the DTT service may be included, nor affects any understanding in the context of the abovementioned possible future analysis.
  12. Therefore, ANACOM declares the expiry, with effects from April 26th 2012, of the obligations imposed on MEO by decision of August 2nd 2007 concerning the review of the wholesale broadcasting market for delivery of content to end-users.

Please refer to the following documents:

  • Summary Notification Form – Market 18 of the 2003 Recommendation [“Summary Notification Form – Market 18”];
  • Draft measure about expiry of regulatory obligations imposed on MEO, in the context of the Wholesale market of analogue terrestrial television broadcasting

1

[1]Vide

[2]Market 18 of the EC Recommendation 2003/311/EC, of February 11th.

[3]That happened on April 26th2012, in compliance with the Resolution of the Council of Ministers, number 26/2009, published on March 17th, and according to the detailed plan approved by ANACOM on June24th2010.

Available here:

[4] This is a particular case that does not fulfil the typical market review process as this is not the case where a market previously defined and notified is found to be competitive and consequently regulatory obligations imposed on the SMP operator are supressed. In this case, the intention is to notify the European Commission about the inexistence of such market, in the sequence of the switch off, and the subsequent expiry of the obligations imposed on MEO.

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