On 4 June 2015, the French Competition Authority (the FCA) obtained amended commitments from TDF, a broadcasting network operator, to improve the terms of the hosting contracts it concludes with mobile operators for the use of its broadcasting pylons.
Further to the request for interim measures from FPS Power, the FCA raised competition concerns on the grounds that TDF’s competitors may be prevented from concluding contracts with mobile operators. Indeed, the excessive duration of TDF's contracts as well as the insertion of restrictive termination clauses is deemed likely to foreclose the market.
On 3 February 2015, TDF submitted a set of commitments which appeared to be insufficient according to the responses to the market test as regards the scope, the duration and the conditions of its termination clauses.
Therefore, on 11 May 2015, TDF submitted a new set of commitments, which are as follows:
- to limit the duration of future contracts to 10 years;
- to limit termination fees in the event of early termination (a penalty of 3-month’s rent) for ongoing and future contracts; and
- to set an annual quota for early terminations of up to 4% of the total number of sites covered by the hosting contracts, and if such quota is not achieved, to allow it to be carried over to the next year by a maximum of 10%.
On the basis that the accumulation of these three commitments for 11 years is deemed sufficient to meet its initial competition concerns, the FCA has made the commitments legally binding and decided to close the proceedings.
The FCA now has to make sure TDF complies with the commitments.