CMS' legal assistance to cable companies successful: broadcasting decisions quashed.

Ruling attracts wide comment in the national press. Calls for political intervention. OPTA, the relevant Dutch competition authority, is reviewing the matter.

CMS Derks Star Busmann provided Delta N.V., Delta Kabelcomfort Netten B.V. and CAIW Diensten B.V. with legal assistance in proceedings that successfully challenged the access to their cable networks they had been ordered to provide to third parties.

On 5 March 2009 OPTA, the Dutch regulator, issued what has been called its Broadcasting Decisions ordering the four largest cable operators in the Netherlands, Ziggo, UPC, CAIW and Delta to permit third parties access to their cable networks and laying on them certain obligations in that respect.

On 18 August 2010 the Trade and Industry Appeals Tribunal (CBb) quashed OPTA's decisions ordering access to Dutch cable television services.

The quashing of the ‘must carry obligations’ imposed on the cable operators relieves them of the requirement to open their networks to third parties wishing to offer their own programme packages.

Unlike the first Broadcasting Decisions of 2006 (that were also quashed in part in the proceedings at the first instance) the CBb held that there existed fundamental grounds underlying its decision to quash these Broadcasting Decisions. OPTA had taken the view that the retail markets needed to be defined regionally on the basis of the areas served by the various cable operators. OPTA came to this conclusion because of the alleged differences in strategy, market share and pricing between the various cable operators.

In the proceedings before the Tribunal the cable operators put forward extensive arguments disputing OPTA's viewpoints. This led the CBb to hold that OPTA had failed to make plausible its claim that different conditions of competition applied. No appeal to a higher court is possible.

In the light of the Tribunal's ruling and the legal grounds it is very much open to doubt whether OPTA will be able to remedy the situation that has arisen by recourse to a new market survey. In a press release OPTA has stated that it is investigating whether the Tribunal's ruling leaves scope for further steps or whether the ruling has definitively blocked the mandatory opening of access to cable television. OPTA will be taking a decision on this matter shortly.

Robert Bosman acted for Delta in these proceedings. Simon Sanders acted for CAIW.