Sky and Vodafone Air Competition Fears of Virgin Media and O2 Merger UPDATE

Sky UK (Sky Mobile, Sky Broadband) and Vodafone have today published their responses to the Competition and Markets Authority‘s (CMA) on-going phase 2 investigation into the proposed £31bn merger between mobile operator O2 and broadband ISP (inc. TV, phone) Virgin Media, which raises a number of competition concerns.

In theory, there shouldn’t be too many obstacles to the deal since both operators’ largely focus on different parts of the wider UK telecoms market. But in practice the CMA did recently raise some predictable concerns (here) about the merger’s potential impact on the markets for retail and wholesale mobile services, as well as the market for business leased lines (specifically those used to supply mobile operators / masts).

For example, there’s a concern that Mobile Virtual Network Operators (MVNO) on O2’s network, such as Tesco, Sky Mobile and others, could potentially face service restrictions or higher prices for access, which might in turn lead to price hikes for consumers or force the MVNO providers to change operator (i.e. a reduction in competition by the backdoor).

However, such gripes are fairly predictable and similar fears were raised against the previous merger between BT and EE, which still managed to pass through the CMA with only relatively minor adjustments. Nevertheless, it was inevitable that some of those impacted by the deal, either directly or indirectly, would have a few words to say about it.

Sky’s Response

In Sky’s case their main concern (here) is the understandable risk of “input foreclosure” (i.e. this arises if the merged firm were to stop supplying rivals). “O2’s incentives to provide wholesale mobile services on favourable terms will materially reduce as the Merged Entity pursues increased uptake of fixed/mobile bundles benefiting from its converged and vertically integrated operations … the Merged Entity will [also] have the ability to degrade Sky’s mobile service,” said Sky.

Sky goes on to state that this fear is not merely theoretical because they claim to have already expended a “significant amount of time and resources” in order to protect Sky Mobile’s position against such a risk (a lot of the details here have been redacted).

However, O2 and Virgin Media countered, in their own joint response (here), that the merged company “will have neither the ability nor the incentive to foreclose other MNOs and such a strategy would in any event have no material effect on competition in the retail mobile market.”

Voda’s Response

The situation is a bit more complicated for Vodafone because, on the one hand, they have a natural vested interest in disrupting the merger (the last thing they want is another fully converged fixed and mobile rival like BT/EE to fend off against).

On top of that they also rely upon Virgin Media for a fair bit of their backhaul capacity and have a network (mast) sharing agreement with O2. Suffice to say that their response extends to 17 long pages (here).

Vodafone Statement

If this transaction proceeds, as mentioned above the UK market will be dominated by two operators that serve more than double the number of fixed and mobile customers compared to their nearest competitor.

Procuring wholesale network products gives operators that do not have network or only have network in one part of the market (fixed or mobile) the ability to provide converged retail services. If converged network operators are allowed to follow an input foreclosure strategy and frustrate supply of these wholesale products to other operators in an increasingly converged market, the competitiveness of the overall market will suffer.

Returns in UK telecoms markets are low, debt ratios are high and mobile network costs are set to increase substantially. This is driven by the need to replace Huawei technology, additional network security requirements being imposed and the roll-out of 5G technology, together with the need for additional 5G infill sites. However, the benefits for society of upgraded mobile technology are wide and meaningful. Fixed networks in the UK also require fibre investment and upgrading to ensure the ever-increasing technology needs of the UK are met.

In considering [CONFIDENTIAL] the two clearly identified theories of harm, the CMA should consider this overarching longer-term potential harm for UK telecoms markets and focus on ensuring any remedies enable other competing operators in the market to credibly compete with the two very large-scale vertically-integrated operators by securing competitive wholesale access in both fixed and mobile markets. This will help ensure a more competitive enduring landscape, to the ultimate benefit of consumers.

At this point it’s easy to forget that Vodafone has previously also discussed merging with Virgin Media, in fact they’ve done so on several occasions, but of course that never amounted to anything and in the end Liberty Global (Virgin’s parent) clearly found it easier to do a deal with O2 (Telefonica). Perhaps in another universe we might thus be attributing these complaints to O2 rather than Vodafone, but that’s not how things panned out.

Once again, this is all very similar to the gripes that were levelled against BT and EE’s proposed merger some years ago and we suspect that it won’t be enough to prevent Virgin Media and O2’s deal either. None of this is to say that the CMA won’t require some sort of commitment from the merged company before they sign the deal off, but rather that any requirements will be resolvable.

Meanwhile O2 and Virgin Media remain of the view that their deal is “pro-competitive” and will achieve closure by around mid-2021.

UPDATE 26th Feb 2021

The CEO of O2, Mark Evans, has since confirmed that they have “reached an agreement” with Sky that “addresses their concerns in full, and the CMA is fully aware of that situation.” So that’s one objection out of the way.