Fusionskontrolle in dynamischen Netzsektoren am Beispiel des Breitbandkabelsektors– zugleich ein kritischer Beitrag zur Kartellrechtsdogmatik des Bundeskartellamtsnach Iesy/Ish und TC/Ish und sektorspezifischen Regulierungskonsistenzseitens der Bundesnetzagentur

The working report looks at the actual situation of the German broadband cable market in thecontext of merger control and sector specific regulation. A crucial problem in dealing with thecable market whether in antitrust cases or in the regulatory context is the precise assessmentof the economic conditions, especially the arguable question if the network has still characteristicsof a natural monopoly – still a common argument in network industries. The reporttherefore uses the basic concept of the disaggregated identification of network-specific marketpower. The unique structure of the German broadband cable industry with its horizontal andvertical separation of the distribution network shows a highly contestable market with elementsof competitive franchise bidding. On the other hand the cable market is suffering fromthat separation due to problems of inefficiency, especially in times of dynamic changes incommunications with powerful intermodal competitors like Deutsche Telekom AG (DTAG)with an innovative IPTV infrastructure. To this date these market characteristics have beenignored.The report lays special stress on merger control by the German Cartel Office during the past 6years within this sector. The motivation for a dogmatic examination of the Cartel Office positionwith merger control has emerged predominantly with the clearing of the two big mergers,Iesy/Ish and TeleColumbus/Ish. It was the first time the authority cleared a merger with an“against giants defense” in the cable television industry. The justifications for the clearing theCartel Office gave in the holdings of its decisions raise questions of their consistency withpreceding judgments although the consolidation is an inevitable step. However there remainseveral open questions, particularly the proper definition of the relevant market(s) and its (there)reciprocity with assessing market dominance – an important point the Cartel Office misjudgedin a contradictory way. The paper delivers a comparative insight into U.S. merger controlof telecommuni