Murphy and pay-TV: an update

A version of the blog post below was first published on the Blackstone Chambers sports law blog: http://sportslawbulletin.org/.

Back in November I blogged on a Financial Times report that the European Commission was about to commence an antitrust investigation into pay-TV services.  That investigation was formally announced last Monday, in a statement by Joaquín Almunia, Commission VP for Competition Policy.

It had appeared that the Commission might carry out further investigation of the licensing of premium sports content (see p. 24 of the Staff Working Document accompanying the Commission’s Report on Competition Policy 2012, published in May 2013).  However, VP Almunia’s statement makes it clear that rather than involving further scrutiny of broadcasting rights in the sports sector, the investigation will be limited to the application of the principles established in Murphy to licensing deals between pay-TV operators and the major US film studios.  VP Almunia emphasises that the Commission is ‘not calling into question the possibility to grant licenses on a territorial basis, or trying to oblige studios to sell rights on a pan-European basis’.  Instead, the Commission is interested in licence restrictions ‘that prevent the selling of the content in response to unsolicited requests from viewers located in other Member States… or to existing subscribers who move or travel abroad’.  He gives the following illustrations: ‘if you subscribe to a Pay TV service in Germany and you go to Italy for holidays, you may not be able to view the films offered by that service from your laptop during your holidays. Similarly, if I live in Belgium and want to subscribe to a Spanish Pay TV service, I may not be able to subscribe at all if there is absolute territorial exclusivity’.

Important changes may be in the pipeline for the wider pay-TV industry.  But this is likely to be Murphy rolled out, not beefed up: anyone seeking to mount the kind of all-out Coditel II or Art. 102 TFEU challenge I mooted in my November post is unlikely to be assisted by the Commission’s new investigation.

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