The section third of the Room of the Contentious-administrative thing of the Supreme Court has rejected the resource presented/displayed by Sogecable and Telefónica against five of the 34 conditions that the Government in 2002 imposed to authorize to both companies to the fusion of Digital Satelite channel and Via Digitalis.
In its sentence, the Supreme one guarantees the restriction by the Government to the increase of prices that could be received to the subscribers after the unification of the supply of both platforms, that Sogecable and Telefónica opposed to understand that to adopt this kind clause “against the principle of freedom of company” when being a sector nontaken part, and in that the Administration lacks tariff power.
For the Supreme one, aside from which the Government sufficiently motivates the reasons that force this restriction --to avoid that the costs of the fusion move to the consumers-- he guarantees the decision in which the condition is not absolute, by not referise to new products of the platform result of the fusion (Digital) but to the existing ones, and in addition the clients lack the negotiation power who had the financial organizations in a contentious one before the Supreme one --invoked by the appellants-- on prices of companies of security by its services to these organizations.
The Supreme one also guarantees by “proportionate” the condition object of resource that prohibited strategic alizanas between Sogecable and Telefónica in the means sector that exceeded to the own object of the fusion. Thus, it understands that the interference between the markets concerned by the operation and regarding mass media is doubtless, and is not strange therefore a alizanas condition that restrinaj in this land.
The sentence confirms also other resorted conditions to contravene supposedly the freedom of company like the one to put at the disposal of other programmers the 20% of contents of platafroma fused. Thus, esteem that the condition has one double slope: one first, referred to the condition of Sogecable like wholesale platform, in which it acts like “carrier”, and another one in relation to independent programmers who manage their own channel.
“Of not existing this last aspect the danger that is run the operation of concentration you supposed a diminution of these channels at the disposal of third parties in the same proportion that lso that was emitted pro Via Digitalis, not to have Sogecable interest in its emission, since, on the one hand, also it takes part in the descendant market of production and, on the other, it has already contractual bonds on the matter with other producing companies”, indicates the High Court.