Competition issues at heart of NTL sale

Net Results: Few topics animate the average punter in Ireland more than access to television

Net Results: Few topics animate the average punter in Ireland more than access to television. We are such a nation of telly-addicts that, in the mid-1990s, the citizens of Donegal actually elected a TD, Tom Gildea, whose political platform was built around saving independent TV deflector systems from switch-off. So if the Competition Authority gets a chance to run an eye over the sale of the State's largest cable TV network NTL Ireland to the US merchant bank Morgan Stanley, all parties to the transaction will be praying that the deal doesn't fall foul of political sensitivities.

The €320 million deal has already been complicated by the fears of NTL's parent that it will provoke a lengthy review by the regulators. This is why Europe's largest cable firm, UnitedGlobalCom (UGC), which owns Chorus, has arranged for its bankers Morgan Stanley to buy NTL Ireland in an interim step before it swoops for NTL Ireland later in the year.

It believes that using a "warehousing" arrangement, whereby Morgan Stanley holds NTL Ireland in trust for it until an initial review by the Competition Authority is completed, will gain clearance more quickly than by simply buying the firm itself.

This would enable NTL Ireland's owners to pocket the cash before UGC purchases NTL Ireland from Morgan Stanley, a transaction that could provoke a lengthy review by both the Competition Authority and the Minister for Enterprise (who retains the ultimate powers in media mergers).

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Indeed, UGC's financial wizardry looks like the type of masterstroke its controlling shareholder, US cable veteran John Malone, is famous for, particularly given that NTL had warned that it could scuttle any deal which would lead to lengthy regulatory scrutiny.

But only a fool would prejudge a regulatory review. It is entirely possible that UGC's decision to "warehouse" its deal using its corporate financiers will only raise suspicions among Competition Authority members, who will have to judge if the proposed merger will damage competition in the pay-TV market.

Section 16 of the 2002 Competition Act could be interpreted as enabling these types of deals to go ahead without notifying the Competition Authority. But it is possible that the failed bidders for NTL will launch a legal suit.

But would a single, national cable firm in Ireland damage competition? Given that NTL and Chorus operate in different areas and currently do not compete against one another for customers, the answer seems an obvious "no".

The possibility of future competition is also limited because cable networks, by their very nature, are almost impossible to replicate from scratch given the huge cost of digging streets. The possibility that either firm could extend its wireless MMDS network to serve the other's franchise areas is also limited due to a scarcity of radio spectrum..

So merging both companies will clearly not damage infrastructure competition, a key plank of the Commission for Communications Regulation's (ComReg) future strategy for communications.

UGC is pursuing the type of "triple play" strategy (pay-TV, telephone and broadband) in many of its European markets that NTL singularly failed to implement since it acquired Cablelink in 1999. For example, following a network upgrade programme at its Austrian cable operation, more than 40 per cent of UGC's subscribers signed up for all three services, a situation that has forced the incumbent telecoms operator, Telekom Austria, to develop and invest in its network. Contrast this to the situation in the Republic where Eircom pulled the plug on similar ambitious plans shortly after NTL Ireland stopped upgrading its own network.

In short, a strong national cable operator could provoke others to sharpen up their act as the era of technological convergence finally comes of age. So far so good for UGC, and its grand ambitions in the Irish market.That leaves only one potential stumbling block - the wide-ranging programming and other broadcasting assets controlled by UGC chairman John Malone.

Malone controls firms that own a host of content from the Discovery channels to the shopping channel QVC. Through his company, Liberty Media, he also controls an 18 per cent stake in News Corp, the firm that owns Ireland's biggest digital television provider BSkyB. Other content providers in the Irish market, such as Setanta Sports - which also bid for NTL - could argue that a national cable firm with links to BSkyB could squeeze them for the cost of broadcasting on their networks.

Malone has faced regulatory hiccups in the European market before, when he pulled out of a $4.9 billion deal to acquire six German cable systems in 2002. But the odds have to favour the cable veteran, who would then have to prove he can deliver in the Republic, given the poor performance of Chorus to date.