Antitrust: FiberCop and Tim commitments accepted, proceedings concluded

The Authority for Competition and the Market has accepted the commitments proposed by FiberCop and Tim and has therefore concluded the proceedings relating to the so-called Master Service Agreement (Msa), signed by the two companies following the network spin-off in July 2024. This was announced by the Antitrust Authority in a note. "The commitments were accepted after an extensive consultation process," it reads, "which involved all stakeholders in the sector on several occasions, also as part of a market test, and also the Communications Guarantee Authority (Agcom), in order to identify the best solution that would guarantee the unfolding of competition in the retail and wholesale markets and at the same time preserve the necessary incentives for future investments by companies present in the markets.

The preliminary investigation, launched on 17 December 2024, concerned certain clauses of the agreement relating to exclusivity bonds between Tim and FiberCop for network access services; to the discounts envisaged by FiberCop on access prices to its network; and to the terms and conditions for the transfer of the so-called indefeasible right of use (Iru) relating to fibre-optic bindings dedicated to corporate customers. The Authority's concerns, at the time the investigation was launched, were related to the risk of possible restrictive effects on competition in both the wholesale and retail markets, a disincentive to future investments by network operators in fibre optic (Ftth) infrastructures, and the switching of Tim's customers from the copper network to the fibre network.

In this context, characterised by different scenarios of network development in the various areas of the country, in terms of the technologies present and thus the level of infrastructural competition, the Authority wanted to incentivise static and dynamic competition, both in areas where there is already a significant presence of networks for the offer of Ftth services as an alternative to those of the incumbent, and in areas where infrastructural competition is less dynamic and it is necessary to incentivise new investments, without limiting the mobility of demand among the various operators.

In this perspective, the commitments presented significantly reduce the duration of exclusivity and, in areas where the Ftth network is still underdeveloped, link exclusivity to the realisation of new investments. Furthermore, the parties undertook to make substantial changes to a mechanism, initially present in the Msa, of FiberCop's intermediation in the migration choices of Tim's customers, guaranteeing the latter the necessary autonomy and eliminating the doubt that this mechanism might discourage migration choices. The Authority also considered the commitments concerning the modalities for applying discounts to be decisive.

FiberCop 'welcomed' the Antitrust Authority's decision, which 'took into account the need to proceed with the development of Italy's most advanced and widespread network, an essential asset for the country's digitalisation'. The authority - which 'accepted the commitments presented by FiberCop and Tim, closing the case without finding any antitrust violations or acknowledgements of liability', the company controlled by a consortium headed by Kkr also recalls - 'recognised that the agreements signed with Tim are in line with national and EU regulations' and with regard to the offers, FiberCop confirms that 'those addressed to Tim are available to the entire market in accordance with the principle of non-discrimination and has undertaken to make available to operators an offer parallel to the Msa, which combines passive and active elements, further widening opportunities for choice and promoting greater competitive openness'.