After three years of investigation, the Supreme Administrative Court of Finland (SAC) finally decided a dispute regarding Ficora’s latest SMP decision on market 18, broadcasting transmission services (terrestrial TV and FM radio). To put it shortly, Digita as the SMP operator appealed against Ficora’s decision and wanted ex ante regulation to be lifted whereas the key broadcasters wanted the scope of regulation to be extended and application of the rules to be tightened. The SAC, however, dismissed the appeals and concluded that Ficora’s original decision of April 2015 could remain intact. More precisely, the SAC concluded that Ficora’s decision was not unlawful.
Ficora’s SMP decision focused and relied on infrastructure sharing; in other words, Ficora’s intention was to ease access to e.g. antenna co-location, equipment co-location and antenna capacity at the main transmission sites as a way to promote competitive entry at service level, both in terrestrial TV and FM radio. In consequence, Ficora imposed tighter regulation on access to site infrastructure while kept regulation of TV transmission services rather soft and practically lifted regulation of FM transmission services. In a way, Ficora’s approach made sense in early 2015 since the TV network licences were to be re-awarded later in 2015 and thus there was a chance for competitive entry at service level. However, as we know now, Norkring attempted to enter but failed and Digita secured its position as the only UHF network operator in 2016. The current market setting is thus very different in comparison to the outlook in early 2015.
Due to the fact that infrastructure sharing has not become a reality, Ficora has to reconsider the set of obligations in its forthcoming SMP decision. In particular, competitive entry in TV transmission services is no longer an option since all the UHF network licences are held by Digita until January 2027. In addition, while the licensing scheme in FM radio is more relaxed, past experience in TV may discourage competitive entry in FM transmission services. In sum, infrastructure regulation has proved insufficient and the market failure needs to tackled in a different manner.