3G or not 3G, that is … not a question to be left to sports rights holders
The European Commission has published a concluding report (10 pages, PDF) on the sector inquiry into the provision of sports content over third generation mobile networks. The sector inquiry began at the start of 2004 and its reported aim was to allow the Commission and EFTA Surveillance Authority to develop knowledge of the sector, in light of concerns that competition was restricted or distorted. The Commission has also produced an index of documents, including the issues paper (8 pages, PDF) from May 2005.
The Commission reports several conclusions on market definition. In short: the supply of sports content on mobile devices is very unlikely to be in the same relevant market as the supply of TV content; the “coverage of sports events” on mobile devices might be in a different market to the supply of other content on mobile devices; and “careful and continued market research on the accuracy of the market definition for each case situation” is needed. The report proceeds to highlight a number of competition concerns that were identified in the inquiry and provides a brief discussion of some of the arguments raised on each of these.
The report provides scant reference to statute (the terms “Article 81” and “Article 82” appear once each) and no reference to case law. Beyond some rather obvious conclusions on market definition, and perhaps because of the document’s high-level perspective, the discussion of “competition practices” does not provide any credible guidance on the types of conduct or agreement that may be illegal. It is probably best seen as a statement of the Commission’s enforcement priorities.
The Commission is keen that rights for 3G content are not “under-exploited”, be this through joint selling arrangements or by rights holders bundling mobile rights with TV rights. Similarly, it intends to be alert where investment in innovative mobile technologies is impeded by lack of available rights, for instance where the rights available for mobile content are limited to maintain the value of TV rights (”timing embargoes on mobile rights in order to avoid alleged cannibalisation of the value of TV rights cannot be proportionate given the little substitution existing between TV services and mobile services”).
