Public Competition Assessment 2 March 2016 Foxtel Management Pty Ltd and Ten Network Holdings Ltd - proposed acquisitions The ACCC’s decision 1. On 22 October 2015, the ACCC announced its decision not to oppose certain proposed acquisitions by Foxtel Management Pty Ltd (Foxtel) and Ten Network Holdings Ltd (Ten). 2. The proposed acquisitions by Foxtel and Ten comprise: . Foxtel’s proposed acquisition of up to 15% of Ten . Ten’s proposed acquisition of 24.99% in Multi Channel Network Pty Ltd (MCN) . The proposed granting of an option to Ten by Presto TV Pty Ltd (Presto) to acquire 10% of Presto. 3. The ACCC decided that the proposed acquisitions would be unlikely to have the effect of substantially lessening competition in contravention of section 50 of the Competition and Consumer Act 2010 (the Act). Section 50 prohibits acquisitions that would have the effect, or be likely to have the effect, of substantially lessening competition in any market. 4. The ACCC considered the competitive effects of the proposed acquisitions in the following markets: . the national market(s) for the acquisition of television content (including possible markets, or sub-markets, for the acquisition of sports content and premium Australian original content) . the national market for the supply of free-to-air (FTA) television services . the national market for the supply of subscription television (STV) services . a broader national market for the supply of television viewing services encompassing (at least) both FTA and STV services . the national market for the supply of subscription video on demand (SVOD) services . the national market for the supply of television advertising services. Page 1 of 18 5. The ACCC concluded that: . Although the proposed acquisitions will lead to a greater alignment of the interests of Foxtel and Ten, and will increase the degree of influence Foxtel has over Ten, the proposed acquisitions, on their own, are unlikely to result in a substantial lessening of competition. The proposed acquisitions are minority shareholdings and there are limitations on the extent to which Foxtel will be able to influence Ten as a result of holding a 15% shareholding in Ten. The other FTA networks, STV providers and streaming service providers (including SVOD providers) will continue to have sufficient alternatives to allow them to obtain content that is attractive to viewers. Foxtel and Ten will continue to face competition from the remaining FTA networks, and streaming services are also likely to become an increasingly competitive alternative for viewers, including for access to sports content. Advertisers will continue to have alternatives to Foxtel and Ten for television advertising in the event that MCN attempted to increase advertising rates or engage in anticompetitive bundling practices post-acquisition. 6. As the proposed acquisitions raise important issues, the ACCC is issuing this Public Competition Assessment to outline reasons for its decision. 7. Please note that this and other public competition assessments are subject to the following qualifications: (a) the ACCC considers each transaction on a case-by-case basis and so the analysis and decision outlined in one assessment will not necessarily reflect the ACCC’s view of another transaction even where that other transaction may involve the same or a related market; and (b) as assessments are brief and also do not refer to confidential information provided by the merger parties or other market participants, assessments do not set out all of the issues and information considered by the ACCC, nor all of the analysis and reasons of the ACCC. Page 2 of 18 Review timeline 8. The following table outlines the timeline of key events in this matter. Date Event 25 June 2015 ACCC commenced review under the Merger Process Guidelines. 24 July 2015 Closing date for submissions from interested parties. 19 August 2015 ACCC requested further information from the merger parties. 3 September 2015 ACCC received further information from the merger parties. 9 September 2015 Former proposed decision date of 10 September 2015 delayed by ACCC to allow additional time to consider the proposed acquisitions. 14 September 2015 ACCC published a Statement of Issues outlining preliminary competition concerns. 28 September 2015 Closing date for submissions relating to Statement of Issues. 22 October 2015 ACCC announced it would not oppose the proposed acquisitions. 9. The total elapsed time from start to finish was approximately four months. The total period net of time taken by the parties to submit information or documents was 74 business days. Market inquiries 10. Submissions were received from, and market inquiries were conducted with, a wide range of industry participants, including competitors, potential competitors, advertising agencies, audio-visual content producers, other regulatory agencies and other interested parties during the course of the investigation. Statement of Issues 11. The ACCC published a Statement of Issues on 14 September 2015. In the Statement of Issues, the ACCC expressed the preliminary view that the proposed acquisition had the potential to substantially lessen competition for the supply of FTA television services in Australia, particularly in the broadcasting of sports content, and reduce or even eliminate competition between Foxtel and Ten for the supply of advertising services. 12. The ACCC also expressed the preliminary view that the proposed acquisition was unlikely to result in a substantial lessening of competition in the supply of SVOD services to consumers. Page 3 of 18 The parties Foxtel 13. Foxtel is agent for (and manager of) the Foxtel Partnership. The partners in the Foxtel Partnership are Telstra Media Pty Limited (a wholly owned subsidiary of Telstra Corporation Limited) (Telstra) and Sky Cable Pty Limited (which is indirectly a wholly owned subsidiary of News Corporation) (News Corp). 14. Foxtel is Australia’s largest STV provider. It delivers television content to over 2.6 million Australian subscribers. It also operates the Foxtel Play multiplatform subscription audio-visual content service (which allows subscribers to view Foxtel’s television stations online via a tablet or smartphone device) and the Presto SVOD service (see below). 15. News Corp and Telstra each have the right to appoint one-half of the board of directors of Foxtel. In addition, News Corp has the right to appoint the Chief Executive Officer and Chief Financial Officer of Foxtel; Telstra has the right to terminate these officers.1 16. Foxtel stated that the proposed acquisitions will deliver synergies and improved advertiser access through the MCN arrangement, and “represents the best long- term solution for a revitalised, competitive and profitable Ten”. Ten 17. Ten is an ASX-listed commercial broadcaster that operates three FTA television channels in Australia (Ten, Eleven and One). It also operates Tenplay, a multiplatform online catch-up service. Ten’s five largest shareholders and their shareholdings at 16 October 20142 were: . Birketu Pty Ltd (a company controlled by Bruce Gordon) 12.62%, with a further 1.82% held by Birketu Investments Pty Ltd (also controlled by Bruce Gordon) . Hanrine Investments Pty Ltd (a company controlled by Gina Rinehart) 9.45% . HSBC Custody Nominees (Australia) 9.40% . Illyria Nominees Television Pty Limited (Illyria) (a company controlled by Lachlan Murdoch) 8.52% . Aidem Holdings Pty Limited (a company controlled by James Packer) 8.52%. Multi Channel Network (MCN) 18. MCN is an advertising business that sells advertising services across a number of subscription television channel suppliers whose channels appear on the Foxtel platform and on other subscription platforms (e.g. Fetch TV). It also sells on-line advertising space for Telstra Media Pty Ltd. 1 New Corp Annual Report (Form 10K) filed 13 August 2015. 2 According to Ten’s 2014 Annual Review. Page 4 of 18 19. Foxtel holds 75% of the shares in MCN and the remaining 25% are held by Fox Sports Australia Pty Ltd (owned by News Corporation). As part of the proposed acquisitions, Ten will acquire a 24.99% interest in MCN. 20. On 1 September 2015, MCN commenced acting as Ten's advertising sales representative pursuant to a sales representation agreement entered into by Ten and MCN in June 2015.3 Presto TV Pty Ltd (Presto) 21. Presto is an SVOD service that enables subscribers to stream audio-visual content from an online library via the internet when purchased with a monthly subscription. This content can be streamed on a range of devices, including televisions, tablets and smartphones. 22. Presto is a joint venture between Seven West Media Limited (Seven) and Foxtel. 23. The ACCC notes that Ten had entered into a supply arrangement with Presto. This arrangement is not subject to section 50, but may be subject to other provisions of Part IV of the Act. Other industry participants News Corporation (News Corp) 24. News Corp is the ultimate parent company of News Corp Australia Pty Limited (formerly News Limited), which is the owner of The Australian, The Herald Sun, and numerous other newspapers. 25. News Corp is one of the owners of Foxtel through its indirect ownership of Sky Cable Pty Limited. 26. News Corp is also the owner of Fox Sports Australia Pty Limited (Fox Sports), which supplies an Australian group of sports channels that is broadcast on Foxtel. 27. Rupert Murdoch is the Executive Chairman and Lachlan Murdoch is the Executive Co-Chairman of News Corp. The Murdoch Family Trust holds 38.4% of the voting B class common stock in News Corporation (with Rupert Murdoch holding a further 1% interest).4 Fox Sports Australia (Fox Sports) 28. Fox Sports compiles and produces the FOX SPORTS 1, FOX SPORTS 2, FOX SPORTS 3, FOX SPORTS 4, FOX SPORTS 5, FOX FOOTY and FOX SPORTS NEWS STV channels, available via the Foxtel platform. It also produces sporting coverage and broadcasts sporting content on Foxtel’s internet TV service Foxtel Play, Foxtel on T-box, and Foxtel Go App.