The Australian Competition and Consumer Commission has decided not to intervene in Foxtel's proposal to make re-supply of free-to-air channels on its pay TV services conditional on free-to-air broadcasters acquiring satellite capacity from Optus.
The decision responds to a notification* by Foxtel, which hopes to re-supply free-to-air channels to both its cable and satellite pay TV customers when it commences a digital broadcast.
Currently free-to-air channels are only supplied on Foxtel's cable pay TV service.
ACCC Commissioner, Mr Ed Willett, said that after consulting with industry, the ACCC had concluded the public benefits of the conduct were likely to outweigh any resultant public detriment.
"The public benefits recognised by the ACCC include the fact Foxtel subscribers will be able to receive pay TV and free-to-air channels on one transmission platform. This will allow access via one electronic program guide and one remote control.
"Further, Foxtel subscribers will be able to access digital free-to-air services through their Foxtel pay TV services, without the need to buy additional equipment. This will become more significant as the digital offering of free-to-air broadcasters is further developed".
Most of the submissions received from market participants urged the ACCC to prevent the proposed conduct on the grounds the public benefits of the proposed conduct were outweighed by the likely public detriment.
These submissions largely argued the conduct will strengthen the bargaining position of Foxtel and Optus in its dealings with free-to-air operators.
However, Mr Willett said most of the detriments raised were more in the nature of private detriments, which were balanced by private benefits, rather than public detriments.
"It is important to recognise the ACCC is required to look at public detriment. It was not convinced a more efficient outcome would result in the absence of the proposed conduct.
"However, the ACCC recognises that commercial negotiations regarding re-supply are still occurring between Foxtel, Optus and the free-to-air operators and will continue to monitor the progress of these negotiations to ensure it is appropriate that the immunity in respect of this conduct should remain".