Anatel applies precautionary measure and releases Sky from complying with all pay TV rules

(credit: Freepik) Anatel’s board of directors unanimously approved today, the 25th, a precautionary measure that frees Sky from being classified as a holder of Significant Market Power (PMS) for the pay TV market. An unprecedented decision to say the least, considering that the operator is the second largest company offering this service, with 32.4% of the market, ahead of Oi, which had 12% and Vivo, with 8.3%, in February of this year, but which continue to be classified as PMS, in addition to the leader, Claro.

According to the rapporteur of the matter, advisor Artur Coimbra, the precautionary measure, which exempted the company from PMS obligations “It is not an act in the abstract, but it has a concrete basis and it will depend on other interested parties to also request the same treatment”, he stated.. He highlighted that “there is already a consolidated understanding at the agency that the SeAC (traditional pay TV) market will no longer be a relevant market measured at the agency for the purposes of market participation and for the competitive assessment of this market”

He pointed out that the precautionary measure for Sky is also based on the public consultation to amend the General Competition Targets Plan (PGMC) “and arises from the understanding that this market no longer exists as such, as streaming competes with the pay TV service ”. He also said that the decision to bring Sky forward the release of the rules is due to “the fumus boni iuris in favor of the applicant”.

This is because, he argued, “future regulations, such as the general consumer regulation (RGC) which comes into force in its entirety on September 2nd “will imply the need for investments by providers, especially to carry out new processes, improve existing processes, development of integrated systems and training of professionals”, which will require new R$ 83.5 million in investments, ” creating an unusual situation, in which SKY would have to spend a substantial amount of resources to meet the new obligations that will be imposed by the RGC on providers with PMS, and, in the near future, it will be released from these same obligations”. It is worth remembering, however, that currently SKY, as it is classified as a PMS, would be fulfilling most of its obligations. .

Cautionary Sky

Sky pointed out in its claim that the relevant market identified as SeAC has undergone significant changes, and states that Netflix reached the mark of 19 million subscribers in Brazil in 2021, while the total number of Pay TV subscribers is close to 11, 2 million (item 24 of the initial petition).

Thus, based on the reassessment of this market, SKY claimed that its share in the audiovisual segment would be approximately 2.5%, therefore below the level adopted by the PGMC for characterizing PMS.

O number calculated by SKY on the expenses projected for 2024 with the fulfillment of asymmetric regulatory obligations imposed on the Provider related to (1) quality levels and measurement, (2) maintenance of the User Council, (3) ombudsman, (4) service and billing, (5) reporting of regulatory obligations and (6) cybersecurity obligations, added to the costs arising from systemic and IT adjustments to comply with the recently issued Resolution No. 765, of November 6, 2023, which approved new rules consumers (“New RGC”), totaling R$ 83.5 million“, argued the company.

The Specialized Procardoria, although it did not understand that it was necessary to suspend the rule for the company in the form of a precautionary measure, admitted that an exception could be adopted, according to the decision taken. observing the premises established by the PGMC.