Germany

[DE] Federal Network Agency Notifies Market No. 18 Analysis

IRIS 2006-9:1/9

Carmen Palzer

Institute of European Media Law (EMR), Saarbrücken/Brussels

On 31 July 2006, the Bundesnetzagentur (Federal Network Agency - BNetzA) notified the European Commission of its proposed market definition and analysis for the field of broadcasting transmission services (market no. 18 in the Commission Recommendation), pursuant to Art. 7.3 of the Framework Directive (2002/21/EC). In Recommendation 2003/311/EC on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation, the European Commission had recommended that national regulatory authorities analyse the definition of various markets, including a relevant market for broadcasting transmission services to deliver broadcast content to end users (market no. 18).

The notification document reports that there are 30 markets in Germany which relate to the transmission of broadcast signals via cable, satellite and terrestrial means or functionally similar media. This number comprises 13 cable markets and 17 terrestrial markets, distinguished according to objective and spatial criteria. No market was distinguished for satellite broadcasting, since the BNetzA considers this to be a supranational market, for which the European Commission is responsible. In the opinion of the BNetzA, only 14 of these markets are susceptible to regulation, ie all the cable markets and one terrestrial market (the market for analogue terrestrial FM radio transmission, where T-Systems has significant market power). According to the notification document, undertakings have significant market power in only seven markets, ie six cable markets and the aforementioned terrestrial market.

The cable markets are subdivided into markets for feeding broadcast signals into cable networks und signal delivery markets. The first category involves the feeding of broadcast signals into a broadband cable network, which the relevant level 3 cable network operator makes available to a content provider. Signal delivery markets are peculiar to Germany, resulting from the existence of a network level 4, whose operators reply on signals delivered by level 3 operators.

Prior to notification, a national consultation procedure had been launched on 22 February 2006. The results of the consultation were published.

In a letter of 31 August 2006, the Commission wrote that, on account of the very particular situation in the German markets, it had no comment on the proposed market definition pursuant to Art. 7.3 of the Framework Directive. The regulatory authorities of the other member states had one month in which to submit an opinion on the market analysis. Under Art. 7.5 of the Framework Directive, the BNetzA may now (taking into account any opinions submitted) adopt the draft measures and communicate them to the Commission.