This presentation by Francisca Levin Visic (Head of the Mergers Division, FNE, Chile) was made during the discussion “Media Mergers” held for competition authorities officials on 27 September 2022. More materials on the topic can be found at https://www.oecd.org/competition/latinamerica. This presentation was uploaded with the author’s consent.

1. MEDIA MERGERS
FNE EXPERIENCE
FRANCISCA LEVIN VISIC
HEAD OF THE MERGERS DIVISION
FISCALÍA NACIONAL ECONÓMICA
Fuente: CBRE

2. LANDMARK MEDIA MERGER DECISIONS
Market
Definition
Closeness of
competition
Remedies

3. MARKET DEFINITION
 Particularly in media mergers, market definition is used as a preliminary tool to evaluate competitive effects.
 FNE mostly relies on closeness of competition between merging parties and on the competitive pressure exerted by other
undertakings
 However, in AT&T / Time Warner (2017) the FNE expressly defined a separate relevant market for OTT platforms and Pay-TV.
According to the investigation, currently, OTT platforms and traditional TV
are considered complementary, nor substitutes. This, in the first place, is
because these attend to different consumers' preferences. Also, in second
place, because of the behavior observed between Pay-TV operators, who
have partially incorporated OTT platforms characteristics, but as a
complement to traditional TV.
As was mentioned above, because of the quantitative tools to be used, it is not
necessary to define precisely the downstream relevant market, since the
competitive closeness is reflected directly by diversion ratios. However, the OTT
platforms will not be considered into the relevant market definition, because
of the analysis developed at Section II of this report. Following foreign
jurisprudence, it is considered that the relevant market includes all Pay-TV
operators, notwithstanding the technology that they use to transmit their
signal. But the precise definition of the relevant market might be left open,
because it is not relevant to the competitive analysis of this concentration.

4. MARKET DEFINITION
Recently, in Discovery / WarnerMedia (2022),
five years after AT&T, the FNE acknowledged
that while some changes had occurred in the
market, the changes were not major enough in
order to begin considering OTT platforms as
part of the Pay-TV market.
Although the number of consumers that would be
willing to replace traditional Pay-TV services by OTT
platforms has increased, both services are still
complementary. Therefore, they would not be
direct competitors.
OTT
Television Channels
Pay-TV providers

5. MARKET DEFINITION
Only OTT (and mMVPD) Pay TV + OTT Only Pay-TV
Pay-TV and OTT Consumption
2016 2021

6. REMEDIES
HORIZONTAL
Discovery / Warner Media (2022)
Horizontal concerns (merged entity would increase its
negotiation power vis-à-vis the Pay-TV providers) that
the parties remedied with:
• The prohibition on tying and bundling Linear
Channels
• Mandatory offer of a “baseball arbitration”
VERTICAL
AT&T / Time Warner (2017)
Vertical concerns (upstream Time Warner is a
content provider and downstream AT&T owns
Pay-TV operators in Chile) that the parties
remedied with:
• Chinese walls
• Access remedies
• Mandatory offer of a “baseball arbitration”

7. MEDIA MERGERS
FNE EXPERIENCE
FRANCISCA LEVIN VISIC
HEAD OF THE MERGERS DIVISION
FISCALÍA NACIONAL ECONÓMICA
Fuente: CBRE