Supreme Court settles consultation on audience measurement services
On Friday, June 14, 2024, the Supreme Court rejected the appeals filed by TV Más SpA (“TV+”), Compañía Chilena de Televisión S.A. (“La Red”), and Exacta Digital Media Research S.A. (“Exacta”) against Resolution No. 76 of the Tribunal de Defensa de la Libre Competencia (“TDLC”), dated December 29, 2022. Said resolution ruled on the consultation process initiated by Exacta in 2021, declaring that the agreement consisting in the joint contracting of audience measurement and television content census services that, at that time, open television channels planned to carry out (“Agreement”), as well as the procedure implemented to select the provider of such services (“Procedure”), were in accordance with Decree Law No. 211, under the condition of complying with four specific measures. During the consultation process, the television channels participating in the Agreement selected as the provider of the services the company Kantar Ibope Media Chile SpA (“Kantar”).
The measures imposed by the TDLC, in summary, were as follows: (i) the entity that is awarded the audience measurement and television content census service that is the subject of the consultation, as long as it is the only one providing the services, must offer them to all types of clients under general, objective and non-discriminatory criteria; (ii) the revenue sharing modality may not be included in the contracts signed by the selected audience measurement provider with the broadcast television channels; (iii) the contracting channels of the service must strictly comply with the free competition protocol related to the execution of the contract and must incorporate a compliance officer; and (iv) the contracting channels of the service must strictly comply with the free competition protocol related to the execution of the contract and must incorporate a compliance officer. (iv) the contracts signed by broadcast television channels with the selected audience measurement provider may not include a clause or “new client fee”, or any other similar mechanism that implies a higher cost in the future for those contracting the same services.
In their appeals, Tv+ and La Red urged the incorporation, within the conditions or measures imposed by the Agreement, of a form of payment for the audience measurement service proportional to the market share of the channels. Regarding this claim, the Supreme Court argued that “the cost of the essential input under study does not constitute a relevant portion of the claimants’ income”. For this reason, it concluded that “under the aforementioned conditions, it is not possible to consider that there is any anti-competitive risk in the contract consulted, derived from the equal cost of the measurement service called rating overnight, in such a way that […] it is forbidden for the competitive institutionality to impose measures or conditions that restrict the freedom to exercise the economic activity in question”.
In its appeal, Exacta questioned a series of aspects of the Agreement and the Procedure, among which the following stand out: (i) the need for an analysis of the
future contracting model for the audience measurement service and, in particular, the adoption of a “JIC” model; (ii) the persistence of a risk of extraction of monopolistic rents by the provider of the audience measurement service; and (iii) the persistence of unilateral risks due to the exclusion of small clients. All these claims were dismissed by the Supreme Court, arguing mainly, as to the first of them, the unnecessaryness of adopting a measure to modify the service contracting model, as well as the inexistence of a concrete anticompetitive risk to be mitigated; and, as to the other claims, the sufficiency of the obligation to provide audience measurement services “to all types of clients under general, objective and non-discriminatory criteria”.
Thus, Resolution No. 76 of the TDLC was fully confirmed by the highest court.
*Estudio Lizana represented and advised Kantar during this proceeding.
