Australian Competition and Consumer Commission Question: 1 Topic: Experience in Media Related Mergers Reference: 31 March 2016 – Hansard Page 44 Senator: Urquhart

Senate Environment and Communications Legislation Committee ANSWERS TO QUESTIONS ON NOTICE Inquiry into the Broadcasting Legislation Amendment (Media Reform) Bill 2016

Agency: Australian Competition and Consumer Commission Question: 1 Topic: Experience in media related mergers Reference: 31 March 2016 – Hansard page 44 Senator: Urquhart

Question: Senator URQUHART: What experience does the ACCC have in assessing proposed deals against the criteria of media concentration or dilution of independent voices? Mr Sims: I will let Rami answer that in detail, because we have dealt with quite a number of mergers and Rami can describe that. In a sense, the current rules that are in existence now have limited the available mergers, but obviously, as you see with Foxtel-Ten, new technologies are throwing more things at us. Foxtel-Ten forced us to look at a lot of things. In the end, I think the dominant factor was the fact that it was a minority shareholding, but I think that gave us a good experience base. But we have done a lot of things in the past. Mr Greiss: We have looked at 55 media related mergers since 2006. Senator URQUHART: Are you able to provide the details of those on notice? Mr Greiss: I certainly can, yes. Senator URQUHART: Great. Sorry, I did not mean to stop you. Mr Greiss: That is okay. Senator URQUHART: If you want to elaborate a little bit, it would be good to have a bit more detail— Mr Greiss: I am absolutely happy to provide that list of matters. It is all on the public record. When we looked at, for example, the merger of Foxtel and Austar a few years ago, that was a very wide ranging review and took us down a number of paths, so we built up a lot of expertise then. It is one of those market segments or one of those industries which have a lot of rapid change, so of course we need to ensure that we keep up with where things are at. But, as Rod said, the specialist telecommunications division provides that expertise. Mr Sims: I think it is fair to say that many of these things have been perhaps narrower issues than we will be facing in future, and I think we will be facing more complex issues whether or not these changes are made, simply because the world is changing so much. We will have to grapple—again, from an SLC point of view—with the diversity question in more detail, but I think that is inevitable one way or another, and we have the skills, I think, to give it a good job.

Answer:

Number of No Year media Opposed Undertakings Not opposed Withdrawn decision mergers 2006 8 1 0 7 0 2007 20 0 3 17 0 2008 5 0 0 4 1 2009 5 0 0 3 2 2010 5 0 0 5 0 2011 4 0 0 3 0 1 2012 4 1 1 2 0 2013 0 0 0 0 0 2014 1 0 0 1 0 2015 3 0 0 3 0 2016 to 0 0 0 0 0 date Total 55 2 4 45 3 1

2006 (8) • News Limited - acquisition of Noosa Journal Review type: Informal Review Date completed: 6th December 2006 Industry: Newspaper Outcome: Not opposed • News Limited - proposed acquisition of FPC Magazine Group Review type: Informal Review Date completed: 28th November 2006 Industry: Publishing Outcome: Not opposed • Community Newspaper Group Limited - acquisition of The Advocate Review type: Informal Review Date completed: 28th November 2006 Industry: Newspaper Outcome: Not opposed • Win Corporation Pty Ltd - proposed acquisition of SelecTV Broadcasting Ltd Review type: Informal Review Date completed: 15th August 2006 Industry: Television services Outcome: Not opposed • ThoroughVisioN and Sky Group - proposed joint venture Review type: Joint Venture Arrangement Date completed: 15th August 2006 Industry: Racing broadcasting Outcome: JV not approved • Media Monitors Australia Pty Ltd - acquisition of Rehame Australia Monitoring Services Pty Limited Review type: Informal Review Date completed: 4th July 2006 Industry: Media Intelligence Outcome: Not opposed • The Border Morning Mail Limited - proposed sale. Review type: Informal Review Date completed: 6th June 2006 Industry: Newspaper printing or publishing Outcome: Not opposed • News Limited - proposal to acquire two suburban newspapers: 'Westside Weekly' (circulating in south- west Brisbane) and 'Ipswich's Own'. Review type: Informal Review Date completed: 28th March 2006 Industry: Newspaper Printing or Publishing Outcome: Not opposed

2007 (20) • ACP Magazines Ltd - completed joint venture with Northern & Shell Plc Review type: Informal Review Date completed: 20th December 2007 Industry: Magazines and Publications Outcome: Not opposed • Google Inc - proposed acquisition of DoubleClick Inc Review type: Informal Review Date completed: 30th October 2007 Industry: Media (Internet Advertising) Outcome: Not opposed • Seven Network Limited - proposed acquisition of Unwired Group Limited Review type: Informal Review Date completed: 25th October 2007 Industry: Media Outcome: Not opposed • Macquarie Media Group - proposed acquisition of certain regional radio assets owned by Fairfax Media Limited – Review type: Informal Review Date completed: 17th October 2007 Industry: Media Outcome: cleared with s87B undertaking to divest radio stations in Bundaberg, Port Lincoln, Spencer Gulf, Launceston, Burnie, Devonport, Queenstown, Scottsdale. • Macquarie Media Group - proposed acquisition of Southern Cross Broadcasting (Australia) Ltd – Review type: Informal Review Date completed: 17th October 2007 Industry: Media Outcome: related to the transaction above and resolved via the same undertakings. • ACP Magazines Pty Ltd - acquisition of EMAP Australia Pty Ltd Review type: Informal Review Date completed: 18th September 2007 Industry: Magazine publishing Outcome: Not opposed • Fairfax Media Limited - acquisition of Riverina Media Group Review type: Informal Review Date completed: 18th September 2007 Industry: Media - newspapers and printing Outcome: Not opposed • Fairfax Media Limited - proposed acquisition of certain assets of Southern Cross Broadcasting (Australia) Ltd Review type: Informal Review Date completed: 13th September 2007 Industry: Media Outcome: Not opposed • Pacific Magazines Pty Ltd - proposed acquisition of EMAP Australia Pty Ltd 5

Review type: Informal Review Date completed: 13th September 2007 Industry: Magazine publishing Outcome: Not opposed • WIN Television Network Pty Ltd - proposed acquisition of Channel 9 South Australia Pty Ltd Review type: Informal Review Date completed: 2nd July 2007 Industry: Media – television Outcome: Not opposed • Pacific Magazines Pty Ltd - proposed acquisition of certain magazine titles of Time Inc Magazine Company Pty Ltd, IPC Media Australia Holdings Pty Ltd Review type: Informal Review Date completed: 26th June 2007 Industry: Magazines and publications Outcome: Not opposed • News Limited - proposed acquisition of certain magazine titles of Time Inc Magazines Company Pty Ltd, IPC Media Australia Holdings Pty Ltd Review type: Informal Review Date completed: 26th June 2007 Industry: Magazines and publications Outcome: Not opposed • Prime Television Limited - acquisition of 2 AM radio stations from Elmie Investments Pty Ltd Review type: Informal Review Date completed: 25th June 2007 Industry: Media - Radio communications Outcome: Not opposed • West Australian Newspapers Holdings Ltd (WANH) - acquisition of The Kimberley Echo Review type: Informal Review Date completed: 9th May 2007 Industry: Media - Newspaper publishing Outcome: Not opposed • Fairfax Media Limited - proposed acquisition of Rural Press Limited Review type: Informal Review Date completed: 18th April 2007 Industry: Media - Newspaper publishing Outcome: cleared with s87B undertaking to divest two newspapers in Newcastle/Hunter. • PBL Media Pty Ltd - proposed acquisition of Swan Television & Radio Broadcasters Pty Ltd Review type: Informal Review Date completed: 20th March 2007 Industry: Media Outcome: Not opposed • PBL Media - proposed joint venture between Elders Ltd, Bell Potter, PBL Media Review type: Joint Venture Arrangement Date completed: 8th March 2007 Industry: Media Outcome: Not opposed • West Australian Newspapers Holdings Limited - acquisition of Bunbury Area Licence & associated radio station from Elmie Investments 6

Review type: Informal Review Date completed: 20th February 2007 Industry: Media - print and radio Outcome: Not opposed • News Ltd - acquisition of three newspaper titles from Times Publications Review type: Informal Review Date completed: 30th January 2007 Industry: Suburban newspaper publishing Outcome: Not opposed • News Limited - proposed acquisition of certain community style newspapers and magazines of FPC Community Media Group Review type: Informal Review Date completed: 17th January 2007 Industry: Publishing Outcome: Not opposed

2008 (5) • APN News & Media Ltd - proposed acquisition of Northern Rivers Echo Review type: Informal Review Date completed: 18th November 2008 Industry: Community News Paper Outcome: Not opposed • Seven Network Limited - completed acquisition of West Australian Newspaper Holdings Ltd (WANH) shares Review type: Informal Review Date completed: 29th October 2008 Industry: Media Outcome: Not opposed • ACP Magazines Pty Limited - completed swap of magazine titles with Next Media Investments Pty Ltd Review type: Informal Review Date completed: 13th June 2008 Industry: Media Outcome: Not opposed • Joint venture between ACP Magazines Pty Ltd and BBC Magazines Review type: Informal Review Date completed: 16th April 2008 Industry: Magazine publishing Outcome: Not opposed • Illyria Pty Limited and Consolidated Press Holdings Limited - proposed acquisition of Consolidated Media Holdings Limited Review type: Informal Review Date completed: 7th April 2008 Industry: Media Outcome: Withdrawn

2009 (5) • Illyria Nominees Pty Limited - proposed acquisition of a 50% interest in DMG Radio Australia Pty Ltd Review type: Informal Review Date completed: 15th December 2009 Industry: Radio broadcasting Outcome: Not opposed • Endemol BV - proposed acquisition of Southern Star Group Ltd Review type: Informal Review Date completed: 2nd February 2009 Industry: Television production Outcome: Withdrawn • FremantleMedia Group - proposed acquisition of Southern Star Group Ltd Review type: Informal Review Date completed: 20th January 2009 Industry: Television program production Outcome: Withdrawn • Macquarie Media Group - proposed acquisition of an interest in Mildura Digital Television Pty Ltd Review type: Informal Review Date completed: 20th January 2009 Industry: Media, television, advertising Outcome: Not opposed • Prime Media Group Limited - proposed acquisition of Darwin Digital Television Pty Ltd Review type: Informal Review Date completed: 20th January 2009 Industry: Media, television, advertising Outcome: Not opposed

2010 (5) • Fairfax Media Limited - proposed acquisition of Southern Independent Publishers Ltd Review type: Informal Review Date completed: 14th December 2010 Industry: Media Outcome: Not opposed • Fairfax Media Limited - acquisition of Naracoorte Herald Pty, South East Coastal Leader Pty Ltd, Border Chronicle Pty Ltd Review type: Informal Review Date completed: 6th December 2010 Industry: Media Outcome: Not opposed • Network Services Company - completed acquisition of certain distribution agreements from NDD Distribution Pty Ltd Review type: Informal Review Date completed: 9th November 2010 Industry: Magazine distribution services Outcome: Not opposed • Bass Radio Pty Ltd - proposed acquisition of commercial radio broadcasting licence from Tasradio Pty Ltd Review type: Informal Review Date completed: 12th October 2010 Industry: Media, Advertising, Radio Broadcasting Outcome: Not opposed • ACP Magazines Ltd - proposed acquisition of 'Recipes+' magazine from Knockout Media Pty Ltd Review type: Informal Review Date completed: 13th April 2010 Industry: Magazine publishing Outcome: Not opposed

2011 (4) • Consolidated Press Holdings Limited and Illyria Nominees Television Pty Limited - acquisition of shares in Ten Network Holdings Limited Review type: Informal Review Date completed: 14th July 2011 Industry: Media Outcome: No decision • Seven Group Holdings - acquisition of Prime Media Group Limited Review type: Informal Review Date completed: 21st June 2011 Industry: Media Outcome: Not opposed • WANH - proposed acquisition of Seven Media Group Pty Ltd Review type: Informal Review Date completed: 8th April 2011 Industry: Media Outcome: Not opposed • Southern Cross National Network Pty Ltd - proposed acquisition of Austereo Group Limited Review type: Informal Review Date completed: 17th March 2011 Industry: Media Outcome: Not opposed

2012 (4) • Seven Group Holdings Limited - proposed acquisition of Consolidated Media Holdings Limited - Review type: Informal Review Date completed: 11th October 2012 Industry: Media Outcome: Opposed • News Corporation - proposed acquisition of Consolidated Media Holdings Limited Review type: Informal Review Date completed: 31st July 2012 Industry: Media Outcome: Not opposed • Fairfax Media Limited - proposed acquisition of 50% interest in a joint venture with MMP Holdings Pty Ltd Review type: Informal Review Date completed: 23rd May 2012 Industry: Media Outcome: Not opposed • FOXTEL - proposed acquisition of Austar United Communications Limited - Review type: Informal Review Date completed: 10th April 2012 Industry: Subscription television Outcome: cleared with s87B undertaking

o not to acquire certain independent content on an exclusive basis, o to provide signal access to linear channels distributed be independent suppliers o to extend Foxtel’s Special Access Undertaking (to cover Austar)

2013 Nil

2014 (1) • iSentia Pty Limited - proposed acquisition of Australian Associated Press Pty Limited's media monitoring business Review type: Informal Review Date completed: 20th February 2014 Industry: Media monitoring Outcome: Not opposed

2015 (3) • Foxtel - proposed acquisition arrangements with Ten Network Holdings Ltd Review type: Informal Review Date completed: 22nd October 2015 Industry: Media Outcome: Not opposed • Channel 7 and Foxtel proposed joint venture Review type: Informal Review Date completed: 2nd March 2015 Industry: Media Outcome: Not opposed • Macquarie Radio Network Limited (MRN) - proposed acquisition of the radio assets of Fairfax Media Limited (FML) and FML's proposed acquisition of 54.5% of MRN Review type: Informal Review Date completed: 27th February 2015 Industry: Media Outcome: Not opposed

2016 nil

Senate Environment and Communications Legislation Committee ANSWERS TO QUESTIONS ON NOTICE Inquiry into the Broadcasting Legislation Amendment (Media Reform) Bill 2016

Agency: Australian Competition and Consumer Commission Question: 2 Topic: Live streaming content Reference: 31 March 2016 – Hansard pages 46-47 Senators: McKenzie & Reynolds (Committee Chair)

Question: Senator McKENZIE: Okay. But, anyway, well done. I have a series of questions around the metro affiliates live streaming the exact content that the regionals have purchased into those markets and whether that constitutes anticompetitive behaviour. It is loss leading. The same product is going into the market and no-one is being charged for it. Do you have a view on that? Mr Sims: I am thinking. Senator McKENZIE: The expression on your face right now is quite priceless. Mr Sims: Thank you. I am usually ready for most questions. I had not figured on that one. The honest answer is we have seen the streaming happening. I guess that has not been an issue that has occurred to us. It seems to us— Senator McKENZIE: I raised it with Southern Cross, WIN and Prime—specifically, that they have very expensive affiliation fees with those metros, which is part of their whole business model that is under pressure. Whilst negotiating exclusive rights to the product, those metro affiliates come straight in over the top and live stream. Mr Sims: I think, though, our response is going to be that essentially it sounds like a contractual issue. If you have entered into a contract to get a product on a particular basis and then someone comes in with the streaming, it seems to me the first question you would ask is whether you have a breach of contract, either explicitly against the terms or implicitly against what the contract was trying to achieve. From our perspective, looking at it from a competition point of view, obviously there is more content, so I suspect it will probably be— Senator McKENZIE: It is the same content, though. Mr Sims: Yes. Senator McKENZIE: It is the same milk, just with a different label on it. One is being sold for $1— Mr Sims: We will take it on notice. Senator McKENZIE: Could you, please? I would really appreciate it. Mr Sims: Given the way I am fluffing around, taking it on notice might be a good idea— Senator McKENZIE: I might write to you about that. Mr Sims: but my suspicion is it is going to turn out not to be anticompetitive, simply because it is really, as you say, the same content. We will get back to you, but I suspect it is a contractual issue. Senator McKENZIE: I would appreciate you having a look at that. Thank you.

CHAIR: One of the other things about those three companies that Senator McKenzie cited was that it was also resulting directly, they asserted, in loss of advertising revenue because their evidence was that advertisers are now going— Mr Sims: We have heard that, yes. CHAIR: Could you take that on notice as part of that issue? Mr Sims: Yes. I guess that these comments that we have had with the regional stations have more convinced us that the 75 per cent reach rule is getting technologically overtaken.

Answer: Please refer to our responses to Senator McKenzie’s question in writing. Senate Environment and Communications Legislation Committee ANSWERS TO QUESTIONS ON NOTICE Inquiry into the Broadcasting Legislation Amendment (Media Reform) Bill 2016

Agency: Australian Competition and Consumer Commission Question: 3 Topic: Seven West Media submission Reference: 31 March 2016 – Hansard pages 47 Senators: Xenophon

Question: Senator XENOPHON: Mr Sims, could I refer you to the submission of Seven West Media at pages 10 to 11. They say: Removing the 2 out of 3 rule with no corresponding consideration of the minimum voices impacts in effect allows for only one major national deal to occur. They refer to the situation in Adelaide, because the number of voices in Adelaide is six, with the permitted minimum of five. They go on to say: It is worth noting that the two most widely speculated deals, the Nine/Southern Cross deal and the Ten/News deal would both reduce the voices in Adelaide to the permitted minimum voices. So presumably it would be a case of 'first in, best dressed' before the gate closed on any future M&A activity. My question to you is: given that the issue of the number of voices per market is something that I understand is determined by ACMA, how do you make a determination in terms of your statutory role when there is the added complication of the minimum voices rule, not just competition law matters that need to be considered? It is not a trick question; I am just intrigued as to how this would work through. Mr Sims: The minimum voices—five voices in a capital city—is potentially much less restrictive than I think the merger laws would be. You could have three different radio station owners, one newspaper and one television, which means you might allow the three television stations to merge. Whereas under the competition provisions I am pretty sure we would not allow that to happen. I think the competition test is probably a more rigorous one in that sense, because we see a media market but we also see, within that, television markets, radio markets and newspapers. Of course they overlap but I suspect our provisions would have more effect on the number of voices than the five players in a market rule Senator XENOPHON: I understand that, and I guess my final supplementary question on this is that Seven West says, 'presumably it would be a case of "first in, best dressed" before the gate closed on any future M&A activity' because of the voices requirement, so in the scenario that they have set out—I know it is difficult for you to comment on a hypothetical deal in case it does become an actual deal—there is a point that you need to balance what you can do under competition law and the fact that there is an interrelationship with ACMA. I am not sure how the two would interrelate, because there could be a scenario where there might be two merger and acquisition proposals at an identical time, which would mean that only one could get up because of the five voices threshold. Mr Sims: I do not know the Adelaide market, obviously, as you do, but I am struggling to see how there would be mergers that would quickly hit that threshold and stop yet another merger. As I say, you have got three television stations in Adelaide, you have got the Adelaide Advertiser, and I am sure you have got a number of radio owners, so I could not see that actually happening. The second point I would make is that, once you do have a transaction that does bring others out of the woodwork, and if someone felt that this was a transaction that, if it was done, that would be the finish of the matter, then that may well flush out somebody else's bid. Of course, we have seen that in other markets recently in the things we are doing. Mr Greiss: In case I misunderstand your question, my take on it is: we do not need to have regard to the five voices rule. If the first merger that you say might shut the gate were anticompetitive—I am talking in the abstract, of course—then we can do that. We do not have to have any regard to the ACMA rules in that respect. I am not sure if that was part of the premise of your question. Senator XENOPHON: The safest thing would be if I could refer you page 10 of the Seven West Media submission and, if you think is appropriate, to reflect on that, on notice, as to the interrelationship between the voices test and the scenario put by Seven West, which is not an unrealistic scenario in the Adelaide market. Mr Sims: We will certainly do that.

Answer: This question concerns the interaction of the 5/4 voices test, administered by ACMA, and the mergers test under section 50 of the Competition and Consumer Act (CCA), administered by the ACCC. Specifically, it concerns a hypothetical scenario in which two mergers are proposed, each of which would reduce the number of voices in Adelaide from 6 to 5. This would mean that under ACMA’s voices test, one of the two mergers would be permitted but not both. In short: • When assessing a merger the ACCC can only apply the test in section 50 of the CCA, it cannot consider the impact of the ACMA legislation • The ACCC commences a merger review once we receive an appropriately detailed submission seeking clearance. • The duration of each merger review depends on the complexity and extent of competition concerns to be investigated • We would not deliberately speed up or slow down a review of one merger in order to favour one merger over another or to align the timing of two decisions By way of background, in Australia it is not mandatory for merger parties to seek the ACCC’s clearance, but in practice most parties choose to notify the ACCC of significant mergers in advance in order to have certainty about the ACCC’s view before they proceed. When a party notifies the ACCC about a proposed merger and provides a submission seeking clearance, the ACCC begins examining that proposal. If the merger raises no competition concerns, it will be ‘pre-assessed’, meaning that it will be cleared without the need to conduct a public review. This is normally a fast process and takes between 1 and 4 weeks in most cases. If potential competition concerns arise that require closer examination, the ACCC commences a public review. This generally takes 8-12 weeks, although this may be extended if serious concerns arise warranting the publication of a Statement of Issues and a further round of inquiries. The ACCC will consider any request for informal merger clearance when it is received and will deal with it as quickly and efficiently as possible, regardless of the operation of other regulatory processes such as ACMA’s voices test. In the hypothetical scenario set out above, this would mean that the ACCC would begin assessing each of the two proposed mergers as soon as it received a satisfactory submission from the merger parties. We would not delay the review of one merger in order to favour another, and nor would we accelerate either merger review in order to finish them simultaneously. Each merger review would be completed as quickly as possible and the time taken for each would depend on the extent of competition concerns to be investigated. For this reason, it is not possible to say definitively which merger review would be completed first; if the first merger raised complex competition concerns requiring an in-depth review, whereas the second merger raised no competition concerns and could be preassessed as not requiring a public review, then it is conceivable that the second merger review could be completed well before the first. However, other things being equal, if the mergers raised similar levels of competition issues for investigation, we would expect the merger reviews to be completed in the same order in which the applications were received. 3

Despite the operation of the 5/4 voices test the ACCC may find that neither merger would breach the CCA. At that point it would be a matter for the parties to determine their obligations under the broadcasting legislation. Companies considering mergers that raise competition issues should take into account the operation of the CCA. If they have commercial or other deadlines that must be met, they should consider approaching the ACCC early in order to ensure that they are able to obtain the ACCC’s view early and avoid any problems in meeting other deadlines. SENATE ENVIRONMENT AND COMMUNICATIONS LEGISLATION COMMITTEE Inquiry into the Broadcasting Legislation Amendment (Media Reform Bill) 2016 [Provisions] QUESTIONS ON NOTICE Canberra, 31 March 2016

WITNESS: Australian Competition and Consumer Commission

SENATOR: McKenzie

QUESTIONS:

1. What potential is there for the abolition of the two-of-out-three rule to erode media ownership diversity?

2. Will the ACCC investigate the impact of live-streaming by outside players into areas covered by regional licences?

3. Does consolidation of the commercial television sector raise any possible competition law issues that are commonplace in “thin markets”?

4. In what way does existing competition law enhance or secure competition in smaller markets?

5. What options are available to small market operators when faced with an anti-competitive challenge in the media space?

6. Does the ACCC perceive any inequity in continuing regulation of ownership of media companies operating in traditional formats when the media market has evolved so significantly? Are there any international comparisons that the ACCC could make in regards of media regulation?

7. Why isn’t online streaming subjected to the same requirements as others operating in the same licencing areas as licensees?

ANSWERS:

1. The two out of three rule prevents a person from owning television, radio and newspapers in the same market. Its abolition would remove an impediment from mergers and acquisitions that would lead a person to own all three.

However, the Competition and Consumer Act 2010 (CCA) (administered by the ACCC and, ultimately, courts) would continue to apply to any such merger, as would the 5/4 minimum voices rule (administered by ACMA).

The mergers provisions of the CCA are contained in section 50. Section 50 prohibits acquisitions that would, or would be likely to, substantially lessen competition in any market.

In applying this test the ACCC takes account of a number of factors, including whether the merger is likely to lead to an increase in prices (in this case, probably advertising prices), whether it is likely to lead to a decline in the level of quality or service offered by the merged firm, and whether consumers are likely to suffer a reduction in choice. As part of this assessment we would consider market concentration and the number of competitors in the market pre and post-merger.

Given this ability to take into account consumer choice as well as the number of competitors, the ACCC is able to consider diversity when applying the substantial lessening of competition test. However, the test under section 50 would not necessarily prevent every merger that leads

Page 1 of 3 to a reduction in diversity. To breach section 50, the reduction in diversity arising from the acquisition must be sufficiently significant and sustained to constitute a likely substantial lessening of competition in a market. In making this assessment the ACCC (or ultimately the Court if the acquisition is challenged) would take into account many factors, including competition between the merger parties, competition from other players in the market as well as the potential for entry by new competitors.

2. The ACCC investigates allegations of anticompetitive conduct or contraventions of the Australian Consumer Law under the provisions set out in the CCA. There is no clear indication that the conduct of live-streaming by players into areas covered by regional licenses raises concerns under the CCA. The ACCC’s would examine in more detail any allegations that have the potential to harm the competitive process or result in widespread consumer detriment.

3. A thin market is generally defined to be a market with few buyers, few sellers, and/or a low volume of trade. A market with few buyers or sellers may also be described as ‘concentrated’. While it is possible for some concentrated markets to be very competitive, market concentration can also be associated with reduced levels of competition, especially if there are also barriers to entry and a lack of other competitive constraints (such as countervailing power of customers) in the market.

We understand from the question that the thin markets of most interest in this context are television broadcasting markets in regional areas.

The mergers provisions of the CCA are contained in section 50. Section 50 prohibits acquisitions that would, or would be likely to, substantially lessen competition in any market. This section would apply to any merger (or acquisition) between a metropolitan and a regional television broadcaster.

As noted in response to question 1, in applying this test the ACCC and courts take account of a number of factors, including whether consumers are likely to suffer a reduction in quality or choice as a result of the merger. However, the test under section 50 does not prevent a merger unless it is likely to result in substantial lessening of competition in a market.

4. The competition provisions contained in Part IV of the CCA are designed to ensure that there is a competitive process and that certain practices are prohibited. The CCA contains prohibitions against anti-competitive contracts, arrangements or understandings, cartel, misuse of market power, anti-competitive mergers, resale price maintenance and secondary boycotts affecting competition.

5. As identified in the ACCC’s Compliance and Enforcement Policy, the ACCC will always prioritise anti-competitive concerns including cartel conduct, anti-competitive agreements and practices and the misuse of market power. Small market operators are able to contact the ACCC to report allegations of anti-competitive challenges to the ACCC. Additionally, small market operators are able to take private action under the CCA if they believe the CCA has been contravened and suffered loss or damage as a result, they may seek orders from a court in respect of such loss.

6. The ACCC has not examined any conduct or practices which has contravened the CCA in this market. The effectiveness of the framework for media policy and regulation is the outside of the ACCC’s role in administering and enforcing the CCA.

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7. The ACCC is an independent Commonwealth statutory authority within the Treasury Portfolio, matters that concern government policy should be directed to the relevant portfolio.

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