Preventive measures issued by the Antitrust Commission on the Pay TV market

The preventive measures were requested by the administrator of the Signal, Soluciones Logísticas S.A. (the “Claimant”), a company owned by Grupo Veintitrés. It stated that Telered only broadcasted the Signal for 15 days and then abruptly finished broadcasting the Signal without prior notice. Cablevisión, on the other side, never accepted broadcasting the Signal since it alleged not having a spot on its TV program schedule.

Cablevisión promised to review the possibility of incorporating the Signal on its TV program schedule within a 2-month period but never fulfilled its promise. Under the Claimant’s view, the assessment of the possibility of including the Signal on the TV program schedule of Cablevisión should not have taken more than ten days.

Lastly, the Claimant said that, under these conditions, it was impossible for the Signal to enter into the market since the refusal of Telered and Cablevision prevented the Signal from reaching a large number of people.

Pursuant to Section 35 of the Antitrust Law, the Antitrust Commission is entitled to issue, during the course of an investigation, preventive measures establishing the compliance of certain conditions or ordering the cease of an anticompetitive behavior, when said conduct has the potential to damage competition. The Antitrust Commission considered that in this case the requirements to issue a preventive measure pursuant to Section 35 of the Antitrust Law were duly evidenced. 

The Antitrust Commission analyzed the request of the Claimant and took into account that the Signal provided information and cultural content and competed with other pay TV signals that were owned by companies of the Clarín Group. The fact that Telered and Cablevision denied the access of the Signal to their TV program schedules was considered as an obstruction to competition in the market, with the consequence of preventing consumers from having access to wider choices, forcing them to consume contents offered by companies of Clarín Group. 

The Antitrust Commission also found that there was certain willful misconduct by the two companies controlled by Clarín Group in denying the broadcasting of the Signal. This was evidenced by the fact that Telered abruptly finished broadcasting the Signal and, at the same time, Cablevisión denied including the Signal on its TV program schedule. 

The authority expressed that the conduct of Telered and Cablevisión was, in principle, anticompetitive since it entailed an unjustified refusal to purchase and an impediment for a competitor to have access to the market performed by a dominant company.

The Antitrust Commission ordered Telered to reincorporate the Signal to the TV program schedule and it also ordered Cablevision to ensure the access of the Signal to its TV program schedule, in non-discriminatory conditions.

     

The new preventive measures clearly show that the Antitrust Commission is closely assessing the competitive conditions in the pay TV market. This is due to the fact that this is a highly concentrated market, with a few distributors of pay TV contents. 

It is possible that these new preventive measures may be revoked by the Court of Appeals as in previous cases. 

The Antitrust Commission had already issued a preventive measure on this market in January 2010, although said preventive measure was later revoked by the Court of Appeals. The Court of Appeal considered that the Antitrust Commission has no jurisdiction to issue these kinds of measures.