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German courts likely to support DT bid to overturn Vodafone takeover

Deutsche Telekom has joined forces with cable industry associations and some smaller MSOs in Germany in a bid to overturn the European Commission’s decision announced last week to whitewash Vodafone’s acquisition of Unitymedia as part of a larger deal. As we reported last week, it had become almost inevitable the Commission would clear the way for Vodafone to gobble up Liberty Global’s Unitymedia business in Germany, along with UPC cable assets in Hungary, Romania and the Czech Republic, after concessions were offered in May 2019.

These otherwise minor concessions included granting Telefónica Deutschland full access to the Unitymedia cable network, which we argued then had thrown the cat among the pigeons of the putative total €18.4 billion deal. Prior to this olive branch, the deal looked unlikely to receive approval, although we might have noted the European Union tends to treat cases in Germany differently than elsewhere with seemingly less concern over antitrust issues.

Deutsche Telekom itself can feel aggrieved, given its past treatment not just by the EU but also the country’s own regulator, the Bundeskartellamt or Cartel Office, which it might have hoped would intervene this time. After all, Deutsche Telekom itself once owned nearly all German cable companies but it was the Bundeskartellamt that forced it to sell them off separately in 2001. At that time Telekom had planned to sell 6 cable firms to the forerunner of Liberty Global, but the Bundeskartellamt blocked that deal and forced the operators to be sold separately.

There was a clearer and more recent precedent in 2013 at the time Vodafone became a major force in German broadband and TV with the acquisition of Kabel Deutschland for $10 billion. At the time, Kabel Deutschland tabled a bid for smaller rival MSO Tele Columbus, which would have made Vodafone even stronger in Germany, but that was blocked by the country’s regulators.

Deutsche Telekom can therefore feel aggrieved both that Vodafone is being treated more leniently than it has in the past and that historical precedent has not been followed. Not surprisingly, it had hoped the EU would delegate the decision over the Vodafone takeover of Unitymedia to the local regulators but it decided to take a European-wide view on which basis there is less of a threat to competition.

Of course, the EU and Vodafone might argue that the landscape has changed, and so historical precedent has become irrelevant, but that only focuses attention on the situation on the ground in Germany. On that basis, the country cannot be compared with others where the cable sector has been consolidated by a single vendor, as Virgin Media has in the UK.  But in the UK the whole cable sector only accounts for about 20% of the total broadband market, while in Germany approaching 60% of the 40 million households are served by cable. After acquiring Unitymedia, Vodafone would have 80% of the cable market and therefore close on 50% of the broadband field.

In TV, Vodafone would be even more dominant depending on how the numbers are counted. Market shares in German pay TV are slightly harder to assess than many other markets because cable operators there distinguish between enhanced subscribers and what they call basic subscribers who pay little or nothing but do not access any encrypted premium content. They are therefore not pay TV subscribers in the commonly understood sense, which applies just to the other category of enhanced cable subscribers who have boxes capable of decrypting premium content. But nonetheless basic customers often also receive broadband from cable operators, which are therefore in a strong position to upsell them premium video packages and so those numbers do give an indication of market power.

On that basis, Unitymedia has over 6 million basic cable subscribers, while Vodafone has approaching 8 million, so the combined total is 14 million. By comparison, Sky Deutschland has 4.8 million video subscribers and Deutsche Telekom itself 3.3 million.

However, the groups considering legal action against the European Commission’s decision to approve Vodafone’s acquisition of Unitymedia are not quite on the same page and have differing perspectives. Telekom itself is focusing on the impact on media diversity and control over distribution packaging visibility of content, concerns which are naturally shared by German commercial broadcaster association VAUNET.

Then German fiber optic cable operator association BREKO, as well as Tele Columbus as one of the largest remaining operators, expressed a more local concern over supply of fiber to the country’s housing market. BREKO feared that with a market share of around 75%, Vodafone would have less incentive to participate in the country’s fiber roll out, having its extensive cable network in place. Tele Columbus feared that “re-monopolization of the cable market” would weaken competition in the supply of the housing market and lead to rising infrastructure and media provision costs for housing companies at the expense of tenants.

But German cable operator association FRK was worried about Deutsche Telekom’s dominance too. “The now manifested duopoly of Vodafone and Telekom with its concentrated power will threaten the existence of small and medium sized players in unequal competition,” warned FRK chairman Heinz-Peter Labonte. This muddies the water slightly, but it is clear that all parties are seeking a judicial review.

Telefonica is one notable absentee from the list of complainants over the European Commission whitewash having earlier urged the EU to block the deal, being presumably satisfied with the concessions it has already wrought from Vodafone that allow it access to Unitymedia’s cable footprint to sell broadband services, reaching 23.7 million households at download speeds up to 300Mbps.

While blocking the deal would be in the interests of German consumers and its remaining independent cable industry, the most likely outcome now is that it will still go ahead but with further concessions from Vodafone that may include guarantees to housing associations and commitment to fiber roll out.

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