On January 11, 2023, the Secretary of Trade issued Resolution 8/2023 (the “Resolution”), whereby a fine of AR$150 million was imposed to Telecom Argentina S.A. (“Telecom Argentina”) and Arte Radiotelevisivo Argentino S.A. (“Artear”) for abusing their dominant position in the pay television market through the imposition of discriminatory sales conditions for their television signals Canal 13 and TN, in accordance with the Antitrust Law No. 27,442.
Telecom Argentina is the main pay television company in Argentina, whereas Artear is the owner of certain television signals (mainly the news channel TN and the on-air television signal Canal 13). Both companies are owned by the same economic group and are vertically integrated, since pay TV companies (such as Telecom Argentina) distribute the television signals of companies such as Artear.
AMX Argentina S.A. (“AMX“, a subsidiary of the Claro group) filed a complaint before the National Antitrust Commission (CNDC) against Artear (owner of the television signals Canal 13, TN, Volver, Metro, Canal A, Quiero Música, Magazine), Telearte S.A. Empresa de Radio y Televisión (owner of the television signal Canal 9), América TV S. A. (owner of the television signals América TV and A24) and Eventos Producciones S.A. (owner of the television signal Canal 26) for refusal to sell their television signals and the imposition of discriminatory conditions for their acquisition, in particular, the requirement of a minimum number of subscribers, which allegedly obstructed AMX’s access to the pay TV market.
As a consequence of AMX’s complaint, the CNDC launched an investigation in 2018 for the alleged abuse of dominant position in the pay TV market. According to the complaint, AMX (a company that provides mobile and fixed telephone services, internet services, and pay TV services in Argentina under the Claro brand) faced an artificial entry barrier to the pay television market in the geographic markets of the Metropolitan Area of Buenos Aires, the city of Córdoba and the city of Rosario (the “Relevant Geographic Markets”).
The CNDC, ex officio, broadened the investigation against Telecom Argentina since the latter is part of the same economic group as Artear and competes in the same market in which AMX was attempting to enter. Within the framework of the proceedings, Artear and Telecom Argentina were found to have abused their dominant position from December 2017 to July 2021, by fixing an excessive number of minimum subscribers for AMX in the Relevant Geographic Markets. Such a condition, the CNDC concluded, constituted an artificial entry barrier, which forced AMX (a new player in the pay TV market) to operate under a competitive disadvantage.
According to the CNDC’s investigation, Telecom Argentina had a market share of over 50% in the pay TV market in the Relevant Geographic Markets, while Artear’s television signals (i.e., TN and Canal 13) had a market share that ranged between28.1% and 34.1% in the on-air television signals market and in the news television signals market (depending on the different measurement methodologies employed by the CNDC).
Notwithstanding that the claimant and the main investigated companies worked out a commercial solution in July 2021, the Secretary of Trade imposed a fine on Telecom Argentina and Artear for abusing their dominant position with the object and effect of preventing and/or delaying the entry of AMX to the pay television market, while exempting from sanctions the remaining companies as they did not have a dominant position, nor were they vertically integrated.
