COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No: 23/LM/Feb07
In the matter between:
NASPERS LTD Acquiring Firm
And
ELECTRONIC MEDIA NETWORK LTD First Primary TargetFirm
SUPERSPORT INTERNATIONAL HOLDINGS LTD Second Primary TargetFirm
And
CAXTON CTP PUBLISHERS AND PRINTERS LTD Intervening Party
Panel : D Lewis (Presiding Member); Y Carrim (Tribunal Member)
and N Manoim (Tribunal Member)
Heard on : 0812 October 2007 and 08 November 2007
Order Issued : 08 October 2007
Reasons Issued : 24 January 2008
Reasons for Decision
Order
[1] On 8 October 2007 the Tribunal unconditionally approved the transaction
whereby Naspers Limited (“Naspers”) acquired sole control of Electronic Media
Network Limited (“MNet”) and SuperSport International Holdings Limited
(“SuperSport”). The reasons for this decision follow.
The parties
[2] The primary acquiring firm is Naspers Limited (“Naspers”), a public company
listed on the JSE Securities Exchange Limited. The parties submitted that Naspers
Beleggings Limited and Keeromstraat 30 Beleggings Limited are the firms that
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directly or indirectly control Naspers. 1
[3] The primary target firms are Media Network Limited (“MNet”) and SuperSport
International Holdings Limited (“SuperSport”). MNet was launched in 1986 as the
first subscription television service in South Africa. MNet currently has an array of
general entertainment and niche channels and broadcasts to more than 1.3 million
viewers in more than 40 countries across the African continent and its adjacent
islands. SuperSport’s operations include the acquisition, packaging and scheduling of
sports related franchising and merchandising, sports competitions, sports package
tours and ownership of sport related assets such as professional sports teams. M
Net is jointly controlled by Naspers and Johnnic Communications Limited
(“Johncom”). MNet controls Oracle Airtime Sales (Pty) Ltd (“Oracle“). SuperSport is
also jointly controlled by Naspers and Johncom.
[4] In terms of the proposed transaction Naspers will acquire sole control of M
Net and SuperSport. The majority direct shareholder of MNet/SuperSport is a
holding company called MNH Holdings (1998) (Pty) Ltd (“MNH”). This holding
company’s shareholding in SuperSport is currently 52.6%. MNH is currently owned
50% by Naspers, 47.5% by Johncom and 2.5% by Natal Witness Investments (Pty)
Ltd (“the Natal Witness”). The current direct shareholding in MNet/SuperSport is as
follows: MNH 52.66%; Naspers 23.33%; Johncom 13.56% and MultiChoice Africa
(Pty) Ltd (“MultiChoice”) 10.45%. The direct and indirect interests in M
Net/SuperSport are accordingly as follows: Naspers 60.12%; Johncom 38.56 and
Natal Witness 1.32%. 2 Naspers, Johncom and the Natal Witness are parties to a
shareholders’ agreement in respect of MNH (“the MNH Shareholders’ agreement”),
which also regulates their relationship in respect of MNet/SuperSport. Naspers
exercises managerial control over MNet/SuperSport, however both Naspers and
Johncom, through their respective interests and shareholding arrangements, jointly
control MNet/SuperSport. The merger results in a change from joint to sole control. 3
1 According to the Commission’s Report, page 4, Naspers controls the following firms either
directly or indirectly: Paarl Media Holdings (Pty)Ltd; Touchline Media (Pty)Ltd; Boland Koerant (Pty)Ltd;
via Afrika Limited; Educor holdings Limited; MIH Investment (Pty)Ltd; MIH Holdings; Multichoice Africa
(Pty)Ltd; MWeb Holdings (Pty)Ltd; MNH Holdings 1998 (Pty)Ltd; Electronic Media Networks Limited;
SuperSport International Holdings Limited; Multichoice Supplies (Pty)Ltd and Media 24.
2 See the Competitiveness Report page 263 of the record.
3 For a post merger shareholding structure of MNet and SuperSport please see page 6 of the
Commission’s report.
2
Therefore the proposed transaction entails the acquisition by Naspers of all
Johncom’s direct and indirect interests in MNet/SuperSport.
[5] Naspers is a multinational media company which has interests in various
formats of media including pay television, internet, newspapers and magazines.
Naspers, through its subsidiary, Media24 Ltd (“Media24”), is the largest publisher of
newspapers and magazines in South Africa. 4 MultiChoice is a wholly owned
subsidiary of Naspers and it provides subscription television (in the form of bouquets)
and subscription management services. MultiChoice describes itself as providing
television and subscriber management services inter alia in South Africa. It offers the
DStv bouquet of channels (including MNet and SuperSport) via satellite. MultiChoice
is currently the only subscription based provider of satellite television services in
South Africa. Johncom controls major interests in print media (newspapers and
magazines), music, retail, home entertainment, books and maps. Naspers and
Johncom, through their respective interests and shareholding arrangements jointly
control MNet and SuperSport.
Rationale for the transaction
[6] The parties have submitted that the rationale for the transaction is the need to
improve the empowerment shareholding in MNet/SuperSport which decreased as a
result of the unbundling of Johncom from Johnnic Holdings Limited, and a desire to
simplify the corporate structure.
Background to hearings
[7] During its investigations of the proposed transaction the Competition
Commission (“the Commission”) received objections from print media companies
alleging that Naspers would, post merger, behave in a manner which is likely to
substantially prevent or lessen competition in the market for advertising in print
media. The print media companies were Caxton and CTP Publishers and Printers Ltd
media. The print media companies were Caxton and CTP Publishers and Printers Ltd
(“Caxton”) and Independent News and Media (South Africa) (Pty) Ltd (“Independent
Group”).
[8] Caxton’s submissions to the Commission are contained in a letter received
from its attorneys dated 30 March 2007. 5 In this letter Caxton submitted that the
merger would enable Naspers to leverage its dominant position in pay TV in support
4 Naspers controls four national Sunday newspapers and a significant number of regional and
community newspapers. Naspers is also the largest publisher of paid consumer magazines,
which it distributes nationally through its wholly owned subsidiaries.
5 See pages 702706 of the Commission’s record.
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of its print media interests by engaging in the practices of cross subsidisation,
foreclosure and bundling. This would ultimately retard the ability of Naspers’
competitors in the print media market to act as an effective competitive constraint
and, so, portend a substantial lessening of competition in the print media market.
[9] Substantially similar allegations are made by the Independent Group, another
large print media interest, in a letter dated 2 nd April 2007. 6
[10] The Commission considered these submissions but ultimately recommended
that the merger be unconditionally approved.
[11] On the 2nd July 2007, Caxton brought an application before this tribunal for
leave to intervene and participate in the merger proceedings in terms of section 53(1)
(c) (v) of the Competition Act 89 of 1998 (‘the Act’) read with rule 46 of the
Competition Tribunal Rules. We were notified by the Independent Group that it did
not intend to participate further in the merger proceedings. While the application to
intervene was not opposed by the merging parties, they did contest the scope of
intervention requested by Caxton. The intervention application was accordingly set
down for hearing.
[12] Caxton is a publisher and printer of books, magazines, newspapers and
commercial print in South Africa. It controls one regional daily newspaper and many
regional and community newspapers. Caxton also publishes a number of magazines
which are distributed nationally and it also has its own distribution division. 7
[13] The merging parties did not oppose the application brought by Caxton.
However they argued that the applicant’s scope of intervention should be limited by
permitting it to raise only issues relating to vertical foreclosure and mixed bundling.
The merging parties argued that the applicant should not be permitted to raise cross
The merging parties argued that the applicant should not be permitted to raise cross
subsidisation as an additional competition issue.
6 See pages 710715 of the Commission’s record
7 See paragraph 15 of the founding affidavit of Terrence Desmond Moolman in the intervention
application.
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[14] After hearing the intervention application the Tribunal granted Caxton
intervention rights insofar as its allegations of bundling and foreclosure were
concerned, but declined to permit it to include the allegation relating to cross
subsidisation in the scope of its intervention.
[15] On 7 August 2007 Caxton launched an urgent review application before the
Competition Appeal Court (“CAC”). Caxton argued that the Tribunal had committed a
reviewable irregularity by placing limits on the scope and ambit of intervention. The
review application was heard on 10 September 2007 and on 4 October 2007 the
CAC dismissed Caxton’s application on the basis that Caxton failed to show that the
Tribunal, in making the aforesaid order, acted ultra vires , exceeded its jurisdiction or
that it improperly exercised its discretion. 8
COMPETITION ANALYSIS
Introduction
[16] This transaction involves the acquisition by Naspers of sole control of MNet
and SuperSport. As elaborated above, while, premerger, the target firms, MNet and
SuperSport, were managed by Naspers, control of the companies was shared
between Naspers and Johncom. The transaction effects a change from joint control
by Naspers and Johncom to sole control by Naspers. At the risk of stating the
obvious, in examining the impact of this merger on competition our task is to
establish whether any likely change in competitive conditions, in particular a likely
substantial lessening of competition, is attributable to the removal of Johncom from
the joint control structure. That is, the predicted change in the competitive landscape
must be merger specific; it must be shown to have emanated from the transaction.
[17] From the perspective of pay TV, or, indeed, TV generally, there are no
horizontal competition issues at stake in this transaction. The acquiring firm,
Naspers, is, as already stated, simply increasing its stake in the two target
companies, MNet and SuperSport, and, in the process, moving from a position of
shared control to sole control. There are no additional pay TV assets or any other
media assets that are being acquired. Indeed to the extent that there are any
8 See paragraph 33 of Case No 72/CAC/Aug 2007.
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horizontal issues implicated in this merger at all, these would ordinarily be grounds
for celebration in the ranks of those charged with promoting competition. This is
because both Naspers and Johncom do separately own a powerful stable of
competing assets in the magazines and newspaper segments of the broad media
market. Moreover, Johncom holds a significant stake in Caxton, another powerful
participant in printing and in the publication of newspapers and magazines. In other
words this transaction effects the structural separation of Naspers from two of its
most significant competitors in print media, namely Johncom and Caxton. Nor does
the transaction give rise to any vertical integration. 9 However, far from celebrate, we
are asked to prohibit the transaction.
[18] The reason why this apparently counterintuitive response is urged upon us
arises precisely from the potential combination of, on the one hand, Naspers’ print
media assets and, on the other, the unrestrained control of the pay TV assets, MNet
and SuperSport, that it will acquire in consequence of the transaction. It is argued
that whereas in the premerger joint control structure Johncom’s presence will have
restrained Naspers from deploying the TV assets to support its print media assets,
postmerger Naspers will be at large to deploy its powerful and newly unrestrained
position in pay TV to bolster its already powerful competitive position in the print
media market and, particularly, in the magazine market. 10
[19] Why would Johncom have restrained Naspers in this way? The only
inference that can be drawn from this apprehension, is that an unrestrained Naspers
will be prepared, temporarily at least, to compromise profit maximizing behaviour in
its management of its pay TV assets (in which Johncom has a substantial economic
its management of its pay TV assets (in which Johncom has a substantial economic
interest) in order to bolster its print division (in which Johncom has no interest
whatsoever except qua competitor). An unrestrained Naspers would, the argument
must logically assume, do this, would be prepared to sacrifice profit maximization in
pay TV, in the interests of the greater Naspers group. On the other hand, Johncom,
9 Caxton has alleged a vertical relationship insofar as M—Net and SuperSport provides an
input, the advertising of magazines, to Caxton. Caxton then alleges the likelihood of
foreclosure. This foreclosure claim is briefly examined below.
10 ‘ Johncom, through its joint control of MNet and SuperSport currently acts as a restraining influence
and prevents the group from leveraging the market power that MNet and SuperSport currently enjoy. If
the merger is approved this restraint will selfevidently disappear, and Naspers will have the ability to
bundle advertising on paytelevision and in magazines’. Caxton HOA paragraph 7.3.
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as a rational profit maximiser and with no interest in the fortunes of the Naspers
group beyond their shared interest in MNet and SuperSport, would not support the
deployment of its TV assets in this way and so, it is argued, its removal from the
control structure in consequence of the transaction enhances the strategic
possibilities available to an unfettered Naspers. These new strategic possibilities, it
is further contended, are likely to be deployed to undermine the competitive structure
of the magazine market and would ultimately give rise to anticompetitive outcomes
in that market.
[20] The Commission’s report reveals that it has been alive to these concerns.
However, as noted above, it does not envisage that they give rise to the likelihood of
a substantial lessening of competition. It concludes that postmerger Naspers has
neither the incentive nor the ability to utilize its pay TV assets in a manner that will
compromise the competitive structure of, or competitive outcomes in, the magazine
market. Caxton, a significant player in the magazine market, thinks differently. It
apprehends that the merger will sorely affect its magazine interests, to the extent of
possibly driving it from the market, and so it has intervened in the determination of
this matter.
[21] There are, as we have said, no horizontal issues at stake in this transaction.
A rather lame attempt has been made to construct some semblance of a vertical
issue but, although we deal with this briefly, we think that it has so little merit that
even Caxton, who is responsible for placing this issue before us, does not seem to
have persisted with it. We are then left with the potential ‘portfolio effects’, with the
prospect that a firm – Naspers – involved in multiple media markets, will deploy its
assets in one of those markets, the pay TV market, to advance its position in a
second market, that for the publication of magazines. It is common cause that these
– pay TV and print media – constitute separate markets although both sell
advertising frequently to the same advertisers. 11
11 ‘ Within the context of economic analysis, it is helpful to examine the problem as a
manifestation of portfolio power. Portfolio power arises in those mergers where customers
typically purchase a range of affected products. Against the backdrop of the requirement of
diversity of voice, we say that here the ‘affected product’ is advertising slots in different markets
(such as print media and TV, suitably segmentalised’. (Caxton HOA paragraphs 7 and 7.1)
7
[22] As already noted, Caxton was permitted to intervene in respect of its
allegation that Naspers will utilise its postmerger position in pay TV to engage in the
practices of foreclosure and bundling in order to bolster its position in the print media
market. We will confine ourselves to an examination of these theories of harm. With
respect to foreclosure, it is alleged that MNet/SuperSport will refuse to make
available advertising slots for magazines to Caxton and, presumably, to other print
media groups that are in competition with Naspers. With respect to bundling and,
particularly, mixed bundling, Caxton alleges that MNet/SuperSport and Media24, the
Naspers print media division, will make available bundles comprising TV advertising
slots and advertising space in their magazines to prospective advertisers. We will
focus on these allegations and particularly that of mixed bundling which was the only
anticompetitive prospect seriously pursued by the intervener and in other
submissions made to the Commission. 12
Relevant Markets
[23] Media markets are appropriately characterized as twosided markets. That is
to say there are, on the one hand, markets for the sale of the media products, for
sales of magazines and newspapers and for the sale of viewership subscriptions for
pay TV. For those whose television viewing is confined to the freetoair (FTA)
channels there is the payment of a license fee. Those consumers who choose to
purchase a pay TV subscription are effectively obliged to pay a public TV license
and, hence, to ‘purchase’ access to FTA TV. That is to say, while all of those who
have access to FTA do not necessarily have access to pay TV because of the
additional subscription and dedicated equipment that is required, those who have
access to pay TV necessarily have access to FTA TV.
access to pay TV necessarily have access to FTA TV.
[24] Then there are the markets for the sale of advertising space on these varying
12 A third possible source of anticompetitive harm alleged by Caxton in its intervention
application is the enhanced prospect of Naspers crosssubsidising its print media activities by
utilizing the massive revenues generated in MNet/SuperSport. The panel’s decision in the
intervention application denied Caxton’s request to pursue their allegations of possible cross
subsidisation of Naspers’ print media activities by the revenues that accrue to it through its
interests in pay TV. We do not need to decide the role – if any – that the enhanced
opportunity for crosssubsidisation should play in merger analysis. Suffice to say that
Naspers has, even in the absence of the merger, ample opportunity to utilize its pay TV
revenues for crosssubsidising the activities of other divisions in the group. The prospects of
crosssubsidisation are, in other words, not mergerspecific.
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media. There is an interface between the two sides of the market to the extent that
the volume, price and content of advertising are powerfully influenced by the number
and the demographic character of viewers and readers of the various media.
[25] There are two broad media markets implicated in this transaction. These are
the print media markets which comprise magazines and newspapers. And there is
the television market which is populated by FTA channels and pay channels. The
acquiring firm – Naspers – is active in both broad markets. It owns a significant
stable of magazine and newspaper titles. And it shares control, with Johncom, of M
Net and SuperSport and also of Oracle, the company which sells advertising slots on
MNet and SuperSport as well as on certain of the other channels that are part of the
Dstv pay satellite bouquet provided by Multichoice. The transaction will, as already
noted, result in Naspers acquiring sole control over MNet and SuperSport.
[26] The intervener, Caxton, is active in the print media markets. It owns
significant printing capacity as well as a wide array of magazine and newspaper
titles. It contends that Naspers will leverage its newly unrestrained control of the pay
TV businesses of MNet and SuperSport in support of its already powerful position in
the print media markets, and, particularly, in the magazine segments of the print
media market.
[27] It is common cause that the competition harm alleged to arise from this
transaction directly concerns the market for the sale of advertising on TV and the
market for the sale of advertising in the magazine segment of the print media market.
The television market
[28] Pay TV refers to subscription based television services. Currently there are
two pay TV platforms in South Africa (the MNet terrestrial platform and the
Multichoice digital satellite platform). Pay TV in South Africa started in 1986 with the
9
launch of a single terrestrial pay TV channel (MNet). 13 In 1995 a multichannel
satellite subscription service, Dstv, was launched consisting of fourteen channels,
with MNet and SuperSport as its primary content providers.
[29] MultiChoice offers premium digital bouquets consisting of some 74 video
channels, 65 audio channels and 8 data channels, as well as premium analogue
terrestrial services consisting of sport and movies. MNet produces 15 entertainment
channels for broadcast across the African continent. MNet has output deals with all
the major film and television studios, enabling it to screen quality movies, series and
miniseries. SuperSport produces nine sports channels for the DSTV platform.14
[30] There are currently two FTA operators in South Africa. These are the state
controlled South African Broadcasting Corporation (“SABC”) which broadcasts on
three domestic channels namely SABC1, SABC2 and SABC3. The SABC also
broadcasts SABCAfrica, a news and entertainment channel, to the rest of the
continent. The second FTA operator is eTV which was launched in 1998. The station
carries a mix of news, sports and entertainment. 15
[31] Caxton contends for separate markets for the sale of advertising on pay TV,
on the one hand, and FTA TV, on the other. 16 While it is not always easy to discern
the basis for Caxton’s arguments, it is fair to say that an extremely limited factual
basis is established in support of Caxton’s contention that there are two markets for
the sale of advertising on TV. While we will not make a definitive finding on the
relevant market for advertising on TV, there are strong prima facie grounds for
suspecting that the market definition is significantly more complex than that
contended for by Caxton.
contended for by Caxton.
[32] Hence we note the contention – one that appears to be common cause – that
13 When MNet was launched it jointly owned by four media houses namely: Argus Holdings Limited
(now Johncom), the South African Associated Newspapers Limited (“SAAN”), Nasionale Pers Beperk
(Naspers) and Die Pers Korporasie van Suid Afrika Beperk (“Perscor”). This was done in order to
compensate the commercial media houses for the decision to permit the SABC to compete for
advertising. It appears that Caxton, though desirous of participating in the ownership of the MNet, was
denied this opportunity.
14 See the Naspers website at http://www.naspers.co.za/English/mih.asp#paytvsa, last visited on 29
November 2007
15 See http://www.southafrica.info/ess_info/sa_glance/media/satv.htm, last visited on 29 November 2007
16 See paragraph 41 of the Oxera Expert Report on page 194 of the witness statements file bundle.
10
advertising flighted on pay TV, is directed at high income groups, who constitute the
large bulk of consumers of pay TV. It is a contention that appears to be supported by
the evidence presented to us. However in deciding the relevant market – and, in
particular in deciding whether the sale of advertising on pay TV and FTA belong in
separate markets or in the same market – we would have to consider whether it is
appropriate to treat FTA TV as homogenous from, inter alia, the perspective of the
income levels of those who view the respective FTA channels which, as we have
noted, is considered to be the defining characteristic of pay TV viewers. But this is
clearly not the case. At the most general level, language, for example, distinguishes
the three SABC FTA channels as well as the eTV channel from each other and
language coincides to a significant extent with income levels. 17
[33] Thus while a more rigorous analysis of the relevant markets may well
conclude that SABC1 and pay TV belong in separate relevant markets, it may equally
conclude that SABC3 and pay TV occupy the same market. By the same token, the
market will also clearly be impacted upon by the programming content on the
respective channels. Hence the evidence shows that the Afrikaans news programme
on SABC2 is a particularly highly sought after slot for advertising directed at high
income viewers. A rigorous examination of the markets may then conclude that while
the sale of advertising on selective programmes flighted on SABC2 belong in the
same relevant market as that occupied by pay TV and SABC3, this does not apply to
all advertising slots on SABC2. Again we may find that while the same advertisers
contend for slots during significant sports events on the pay TV channels and on
whatever FTA channel (the three SABC channels and eTV) these significant
whatever FTA channel (the three SABC channels and eTV) these significant
sporting events are flighted, this may not reflect advertising demand for, say, an
evening movie channel on pay TV and a late afternoon soap opera programme slot
on SABC1. Note the following extract from the evidence of Mr. Peter McKenzie, the
CEO of Oracle:
Adv Wallis : Right. Now what are the factors that go into the
determination of your rates in negotiating advertising rates:
Mr. McKenzie: Yeah, it is quite a long list, but without doubt top of that list is our
17 While t he evidence does indeed confirm that the audience of the payTV channels falls
predominantly into the LSM810 consumer categories, the FTA channels have a greater volume of
LSM910 viewers than does payTV. Also it appears that DSTV subscribers spend 40% of their viewing
time watching FTA TV. Merging Parties HOA Para 58
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competitors and our competitors in the first instance are SABC3 because they
compete most directly with our audiences. SABC2, particularly timeslots, particular
types of programming, particularly their Afrikaans language programming, eTV, but
even on a channel like SABC1, the window that they have created for their early
evening soaps, Bold & The Beautiful, Days of our Lives, very much create…
competes with the Pay Television audiences and in fact a lot of our subscribers I’m
sad to say are seemingly quite addicted to it and visit those programmes on a daily
basis. So we have to be very mindful first and foremost of the television competition.
Then there a multitude of other factors. It is seasonal.
A lot of our advertising, whilst the number, the cost of the spot, the
efficiency of the spot, the cost per point that we talked about
yesterday are very important, a lot of it is event driven and that is
particularly so in the case of sports. So a high profile sport event
where you have got very limited inventory, I mean you can’t stop
Sunday night’s Rugby semifinal to drop a commercial in when you
want. Yeah, that is going to mean that the price of that spot is going
to be greater. 18
[34] These issues pose major questions regarding the boundaries of the relevant
market. While the merging parties have at least addressed these complexities in the
testimony cited above, they still seem to contend for a single market for TV
advertising. Caxton, for its part, has made no attempt to confront these complexities
and so, all evidence to the contrary notwithstanding, it still insists on wholly separate
FTA and pay TV advertising markets. 19 While we cannot, on the evidence submitted
to us, definitively identify the boundaries of the relevant market, it is clear to us that
both the merging parties’ contention for a single market for advertising on pay TV and
both the merging parties’ contention for a single market for advertising on pay TV and
FTA as well as Caxton’s insistence that the sale of advertising on pay TV and the
sale of advertising on FTA TV belong in separate relevant markets, are likely to be
significant overgeneralisations that are not based on a rigorous analysis of the facts.
[35] Caxton’s argument for separate markets seems to rely wholly on the
contention that advertising on pay TV and FTA TV are complementary products and
18 Transcript pp5412
19 Although even Caxton’s conclusions are not expressed very confidently. The report of Caxton’s
economic expert concludes ‘ the evidence on there being separate markets for advertising on pay TV
and freetoair TV, when considering high LSM customers, is mixed’. Cited on p738 of the transcript in
the merging parties closing argument.
12
not substitutes. As Mr. Neil Marshall, the Caxton expert witness argues:
“Significantly, evidence on the purchasing patterns of advertisers
indicates that they have a positive correlation of valuations for
advertising on MNet and SABC, which means that they will either
purchase both or neither.” 20
[36] This view is then supplemented by the apparently unsupported, and
contradictory, assertion that advertising on pay TV is a ‘must have’, that is, that a
product directed at high income consumers and that relies on TV and print
advertising, ‘must’ purchase slots on pay TV if it is to successfully market its product.
We cannot identify the evidential basis for this assertion, which appears to be
undermined by Marshall’s insistence that advertisers will purchase ‘both or neither’.
The evidence does reveal that many of the advertisers that utilise slots on (selected)
FTA channels and programmes do indeed also purchase advertising time on pay TV
(just, indeed, as do these advertisers also appear to purchase advertising space on
the full array of competing magazine offerings).
[37] However, on the basis of this evidence it is not clear why pay TV is more
appropriately bestowed with a ‘must have’ status than are selected FTA channels
and programmes, or, for that matter, than are the various magazines in which they all
appear to advertise. All that is clear is that if demand for the two products is
complementary – we heard much about gin and tonic in the hearings – then neither
can acquire a ‘must have’ status that does not belong equally to its complement.
This is, by and large, what the evidence suggests although Mr. McKenzie testified
that there are many more instances of advertisers utilising only FTA TV (to the
exclusion of pay TV) than the converse. 21
exclusion of pay TV) than the converse. 21
[38] We are, in any event, not at all certain that this observation suggests that the
products are complementary or that they necessarily belong in separate markets. It
may suggest no more than that a significant portion of the considerable cost of
20 See paragraph 95 of the joint witness statement of Helen Jenkins and Neil Marshall on page 214 of
the bundle of witness statements file.
21 See McKenzie’s testimony Transcript pp5569.
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running an advertising campaign on television is in the production of the advertising
material itself and it makes basic commercial sense to then ‘sweat’ the costly product
to the fullest extent possible, to achieve, in other words, maximum coverage of the
material produced. Nor are we convinced that, despite the amount of hearing time
devoted to this issue, that anything of significance turns on it.
[39] Certainly it does not suggest – as does demand complementarity – that the
one product (advertising on pay TV) cannot be consumed, and so will not be
purchased, without the purchase and consumption of its claimed complement
(advertising on FTA TV). Indeed we have been presented with no reason or
evidence for believing that were the cost of advertising on pay TV to be increased by
a significant amount that advertisers would not move more of their TV advertising
spend to those segments of FTA TV whose viewership matched the demographic
segment that watch pay TV. Given that there is no evidence suggesting collusion
between pay TV and FTA TV, it is reasonable to interpret the proximity of the pay TV
and SABC3 advertising rates as evidence that they are substitutes for one another,
that is, that they belong in the same market.
[40] The identification of the relevant market for the sale of advertising on TV does
have bearing on the adjudication of this merger. If there is a separate market for the
sale of advertising on pay TV – that is, if an increase in the relative price of
advertising on pay TV did not cause customers to substitute this for advertising on
FTA TV – then we may justifiably conclude that MNet/SuperSport is clearly dominant
in its market and, this, as we shall outline below, may have implications for the
attractiveness of a pay TV/magazine bundle, the more so if the contention that
advertising on pay TV is a necessity, a ‘must have’, for advertising directed at high
income consumers were to be accepted.
[41] However, the evidence seems to suggest that both pay TV and FTA TV enjoy
pricing power in relation to advertisers at certain times and on certain programmes.
This is likely to derive, to some extent, from the relative scarcity of these slots, a
scarcity that is heavily influenced by the regulatory regime that lays down the
maximum time that may be devoted to advertising. We note that pay TV appears to
14
be allotted fewer advertising minutes than is FTA TV. 22 But, as mentioned above,
the tendency to advertise on both pay and FTA TV also probably derives from the
necessity to amortise the significant costs sunk in the production of TV material over
as many eyes as possible.
[42] We should emphasise that evidence of pricing behaviour indicates a close
correlation between the prices charged to advertisers by pay TV and SABC3. This
appears to bear out our suggestion that the FTA market is segmented and should not
be viewed as a homogenous entity. It also appears to indicate keen competition for
advertisers between those television platforms (such as pay TV and SABC3) with a
predominantly high income viewership.
[43] In short, on the evidence presented we are unable to arrive at a firm decision
on the relevant market. Although we are inclined to believe that there is a degree of
substitutability between advertising on pay TV and advertising on the high income
segments of FTA, the evidence presented does not permit us to make a definitive
finding on the relevant market but does rather suggest that, at least as long as their
prices are broadly comparable, advertisers will utilise both platforms. However, as
outlined below, when we proceed to examine the likely competition implications of
this transaction we will assume that Caxton’s contention that there is a separate
relevant market for pay TV in which the merging parties are dominant is correct and
we will show that, even under this highly favourable assumption, a persuasive case
for apprehending the likelihood of a significant lessening of competition postmerger
is not made out.
The magazine market
[44] Print media comprises newspaper publication as well as magazine
publication. This merger – and the market in which Caxton fears a likely substantial
lessening of competition – is concerned with the magazine segment of the market. 23
lessening of competition – is concerned with the magazine segment of the market. 23
22 See Mr. McKenzie’s evidence in chief on page 540 of the transcript. It appears that whereas FTA TV
is permitted 1012 minutes advertising time per hour, MNet is restricted to six minutes.
23 There is, in paragraph 7.5 of Caxton’s HOA, a throwaway remark to the effect that ‘ The
bundle would be equally attractive in the newspaper market’ . However the newspaper market was
15
[45] Naspers’ print media interests are housed in Media24 which is a large
publisher of magazines and newspapers as well as one of the largest printers and
distributors of magazines and related products in Africa. Media24’s main competitors
in South Africa include Caxton Printing and Publishing, the Independent Group and
Johncom.
[46] It was submitted by Ms Patricia Scholtemeyer, CEO of Media24 Magazines
that, as to frequency of publication, magazines should be placed in two broad
categories, namely weekly and monthly magazines. She indeed appeared to suggest
that these occupied distinct relevant markets. 24
[47] Ms. Scholtemeyer further contended that the other major category refers to
content and the consumer at whom this content is directed. Here the main
categories of magazines are women’s interest, men’s interest, general interest,
home, parenting, youth, sports, motoring, travel, finance and various niche categories
such as computing and agriculture. 25 She argued that a niche brand will generally
utilise a niche magazine in order for it to reach its target market. According to Ms
Scholtemeyer the main drivers of competition are content, visibility and availability.
[48] Again the relevant market has not been rigorously identified by the various
participants involved in the assessment of this merger. Hence both appear to
analyse the magazine market as though it were a single homogenous market,
despite the evidence cited above regarding distinct categories of magazines. Hence
with reference to the various consumer niches referred to it is clearly unlikely that an
increase in the price of gardening magazines would cause the readership to
never seriously canvassed in the evidence or the argument and, on Caxton’s own argument, is a
patently unsustainable proposition. As Caxton acknowledges its newspaper strength is in community
newspapers and much of its argument in relation to pay TV concerns it strength as a supplier of
advertising space to advertisers targeting high income consumers which is clearly not the target market
of community newspapers. It is accordingly difficult to discern the basis for an advertising bundle
attractive to the low income (and often time and space bound) advertisers who utilise community
newspapers and those who advertise on pay TV. Caxton adopted a scatter gun type approach, suitably
if insufficiently restrained by the limitations imposed on the scope of its intervention, in the apparent
hope that if sufficient allegations were made something would stick. We do not consider the newspaper
market further. There are clearly some newspapers that may appeal to the same advertisers and the
same campaigns as those that utilise pay TV. However, no evidence was presented in this regard.
24 See page 448 of the transcript
25 See page 112 of her witness statement
16
substitute in favour of car magazines. The segments may of course not be quite as
strongly maintained – or, at least may be significantly broader – where the sale of
advertising is concerned, although, again, common sense suggests that there is,
from the advertisers’ perspective, a strong element of segmentation between these
various magazine categories.
[49] Again we decline to make a definitive finding on the relevant market or
markets for the sale of advertising space in magazines. We do note however that if
we view the magazine market as a single market – and none of the submissions
have taken another view even though the evidence does appear to cast doubt upon it
then Naspers is clearly dominant. In the weekly magazine segment, Ms.
Scholtemeyer puts Naspers’ share at approximately 80%. 26 The question that
immediately arises is why, if Naspers/Media24 was intent on mounting a predatory
strategy in order to strengthen its position in the magazine market which it already
dominates, it would have had to turn to its pay TV business for assistance. Naspers/
Media24 seems, in other words, well placed to predate in the magazine market
without the costly and time consuming expedient of taking Johncom out of the pay
TV business and without constructing the elaborate and, as we shall see, complex,
bundles between advertising on pay TV and magazine advertising that are at the
heart of the case against the merger.
The transaction’s impact on competition
[50] As outlined above, there is no horizontal overlap in this transaction and, thus,
no likelihood that harm to the competitive structure or competitive outcomes will
emanate from that direction. There are other possible sources of harm, several of
which were urged upon the Tribunal by Caxton and these we have examined. These
which were urged upon the Tribunal by Caxton and these we have examined. These
are an allegation of likely vertical harm arising from foreclosure by MNet and
Supersport. Secondly there are alleged portfolio effects arising from the likelihood of
mixed bundling.
Foreclosure
26 See Scholtemeyer’s evidence on page 450 of the transcript line 24
17
[51] Caxton presented evidence and argument in respect of its claimed fear of
possible postmerger foreclosure. 27 It argued that advertising on pay TV played an
important role in promoting magazine sales and, particularly, in the promotion of new
titles. Caxton averred that Naspers would deny its competitor’s access to its pay TV
platform for the purpose of advertising their publications. Although it attempted to
make something of these allegations in its initial submissions to the Tribunal, Caxton
does not, in the end, appear to have persisted with these inasmuch as they merited
no mention in its final argument. This is not surprising because none of the evidence
presented bears out the contention that Caxton has made much use of TV
advertising in general, much less pay TV in particular, to promote the sale of its
magazines. Even if we assume that Caxton’s contention that there is a separate
relevant market for advertising on pay TV is correct, there is no evidence that
advertising on pay TV constitutes an important input in the market for magazine
publication.
[52] In its analysis of the foreclosure theory of harm the Commission requested
Caxton to provide it with its advertising revenues figures. From the responses it
emerged that 91% of the Caxton group’s advertising spend was in the print media,
2.8% of its spend was accounted for by radio advertising, while television media
accounted for 5.6% of its advertising spend. It is clear then, as is borne out from the
table below; that the total advertising spend of Caxton on television is very small. The
evidence shows that Caxton’s spend on MNet, the target firm, is less than 1% of its
total advertising budget. 28
Table 1
Television 2006
Rand Percentage of total
Advertising spend
Rand Percentage of total
Advertising spend
SABC 1 326 100 3.5%
Etv 350 000 0.9%
MNet 309 450 0.8%
DStv 145 350 0.4%
Source: Competition Commission
27 In its founding affidavit (Intervention Application) on paragraph 36.1 Caxton submits: “ In fact, the
applicant’s concern is not primarily that Naspers will favour its own publications by providing preferential
pricing, but rather that it will foreclose the applicant’s access, in particular to prime time slots, and
therefore disadvantage the applicant in competition .”
28 See page 15 of the Commission’s recommendations.
18
[53] On the basis of this data alone we would have to conclude that advertising
on pay TV represents a relatively insignificant part of Caxton’s advertising effort. We
have no reason to believe that these data do not accurately reflect the promotional
activities of other magazine publishers. Accordingly even if this advertising platform
were to be foreclosed it would have little, if any discernible effect, on the magazine
market. The foreclosure argument is devoid of all merit.
Bundling
[54] A potential consequence of this merger that has received considerable
attention is the prospect that the removal of Johncom from the control structure will
provide Naspers with the incentive and ability to offer bundles of pay TV advertising
slots and magazine advertising space at a price lower than the sum of the individual
components of the bundle. 29 It is alleged by Caxton that this package will be so
attractive to advertisers and, in consequence, so weaken the competitive position of
Caxton’s magazine interests and, presumably, of other participants in the magazine
market, that their ability to act as a competitive restraint on Naspers’ magazine
interests will be fatally undermined thus ultimately enabling the latter to exercise
unconstrained market power. This view is essentially supported by the Independent
Group in its written submission to the Commission. We note in passing that
Johncom’s print media interests are also potential victims of the same attack
although it is content to rely on the enforcement powers of the competition authorities
to prevent anticompetitive conduct on the part of the merged entity. 30
[55] Caxton avers that it is not feasible for it to replicate the bundle, that is, that it
will not be able to offer its advertisers a similar bundle. In its heads of arguments,
Caxton submits:
Caxton submits:
“The bundle, which will obviously be attractive to advertisers, cannot
be realistically replicated by Caxton since it cannot itself enter the
paytelevision market, cannot partner effectively with any of the
existing operators to replicate the bundle, and cannot satisfactorily
29 See paragraph 3.1 of the Intervening Party’s heads of argument.
30 See page 20 of the Commission’s recommendations
19
respond to the bundle within the magazine market .” 31
[56] Mr Gordon Utian (“Utian”), MD of Caxton, also raised a similar concern in his
witness statement.
“ Another factor in this transaction is the inability of Caxton to
duplicate what Naspers is doing. Caxton is precluded from entering
the radio, television and other media as a result of restrictions on
crossmedia ownership. This means that no other party would be able
duplicate what Naspers’ ability to bundle crossmedia” 32
[57] In his oral evidence Mr. Utian submitted:
“…We would be in a situation that we cannot respond on television.
We’re not able to go along to SABC 3 or any of the SABC channels
and do a deal with them of a similar nature, because from the point of
view of Naspers, whether they make the money out of the internet or
out of the MNet or out of magazine publishing and newspaper
publishing, it belongs and it’s the same part, it’s all consolidated. In
our situation we have no means of competing against that particular
aspect.”33
[58] We note the imminent entry of new competitors into pay TV. These entrants
will be hard pressed to develop innovative strategies in order to compete effectively
against the incumbent pay TV operator, and this may well enhance Caxton’s
prospects of constructing a bundled offering in cooperation with one or more of the
new entrants. However, we will not make a definitive finding on this but will again
assume, in Caxton’s favour, that it is not possible for Naspers’ print media
competitors to construct a bundle with the new pay TV entrants. Because we have
assumed, with Caxton, that pay TV constitutes a separate relevant market, it is not
pertinent to consider the prospect of a bundle comprising Naspers’ print media
competitors and one of the FTA TV operators.
31 See paragraph 7.5 of Caxton’s heads of argument
31 See paragraph 7.5 of Caxton’s heads of argument
32 See paragraph 27 of Utian’s witness statement on page 139 of the witness statement file.
33 See Mr. Utian’s evidence on page 81 of the transcript.
20
[59] The forms of bundling that attract the attention of competition authorities are
pure bundling and mixed bundling. 34 A pure bundle is one where two goods, A and
B, are only sold together. They are not available for individual purchase.
Furthermore, in a pure bundle the goods A and B are offered only in some fixed
proportion, such as one steering wheel and four tyres as part of a car. 35
[60] In mixed bundling, on the other hand, goods A and B are sold as an AB
package in addition to being sold individually. The package is sold at a discount to
the sum of the individual prices. (If the price of the AB package simply equals the
individual prices of A and B then this is not classified as bundling). 36
[61] Bundling attracts no end of sophisticated theorization, not least because of
the thin line between pro and anticompetitive bundling. This is why, leaving aside
the question of whether identical standards and tests should be applied to bundling
and to ‘ordinary’ price predation, what is clear is that, at the very least, the bundling
strategy must be sufficiently powerful to weaken competitive constraints to a degree
that enables the offeror of the mixed bundle to exercise market power that it would
not have been able to exercise in the absence of the bundling strategy. Hence we do
not have to take a view on whether the tests of anticompetitive bundling requires
that the bundle or a component thereof has to be offered at a price below some or
other measure of cost, nor do we have to decide whether the costs of the strategy
must be capable of recoupment. But it is necessary, though possibly not sufficient, to
decide whether the bundle will ultimately exclude competition and thus ultimately
permit the exercise of market power by the offeror of the bundle.
[62] We say that this may not be a sufficient condition to establish anticompetitive
[62] We say that this may not be a sufficient condition to establish anticompetitive
bundling precisely because, in the short run at least, the bundle itself, like predation,
presumably enhances consumer welfare and that is why, in the case of predation, a
showing of pricing below cost and eventual recoupment is generally necessary. In
other words, if pricing below cost and recoupment are not elements of a bundling
34 See dti Economics paper No 1 “ Bundling Tying and Portfolio effects ” Yale University February
2003
35 See paragraph 2.1 page 13 of the paper mentioned in footnote 23
36 See paragraph 2.2 page 14 of the paper mentioned in footnote 23
21
strategy, we cannot ignore the possibility that the bundled offering may be pro
competitive.
[63] We do not, however, have to concern ourselves with many of these complex
debates now. We are not dealing with an actual allegation of bundling. We are
rather being asked to decide whether the merger will likely lead to the offer of a
bundled advertising product. Only if we decide that it will do so, will we be required
to examine whether the bundle that is likely to emanate from the transaction is likely
to lessen competition. However, as we shall elaborate below, in our view the
argument falls at the first hurdle: that is we do not accept that the merged entity will
have either the incentive or the ability to supply the bundle in question. 37
[64] The bundle feared by the opponents of the merger is a mixed bundle
comprised of advertising on pay TV and advertising in Naspers’ stable of magazines.
As already elaborated Caxton’s argument is that Johncom’s departure from the M
Net/SuperSport control structure will enable Naspers to use its alleged market power
in pay TV to support its magazine interests or, conversely, to undermine its
competitors’ magazine interests. This would then so damage the competitive
structure of the magazine market that Naspers would be able to exploit the market
power accrued in consequence of its bundled offering with consumer welfare the
ultimate victim. In short, Caxton’s theory is that the pay TV market is the instrument
whereby Naspers leverages its dominance from one media market – pay TV – to
another – magazines.
[65] Caxton has ultimately chosen to focus its argument on a bundle that
combines hitherto unused advertising slots on pay TV with advertising in Naspers’
stable of magazine. It is not surprising that these unused slots should have made a
stable of magazine. It is not surprising that these unused slots should have made a
belated appearance on centre stage because, absent the inclusion of the unused
slots in the bundle, the opponents of the merger would, at the very least, have to
identify the incentive for Naspers’ pay TV operator, or its print media operator, or
both, to discount their offerings in order to offer a discounted mixed bundle. This
37 This approach is broadly consistent with the test proposed by Caxton in which the ability and
incentive to engage in bundling precedes an analysis of the likely effect on competition of the bundling
strategy. See Caxton’s HOA Para 15.4
22
they have failed to do. 38
[66] We, for our part, cannot discern any conceivable incentive for Naspers to
reduce prices on any of its prime time or nearprime time pay TV advertising slots
(that is, on its currently used slots) in order to promote advertising sales on its
magazines, when, it appears, that the margins it earns on the former significantly
exceed those earned on the sale of advertising in its magazines. 39 The likelihood of
Naspers following this approach is further reduced if one accepts, with Caxton, that
MNet and SuperSport have pricing power in the sale of prime time and near prime
time advertising slots which, moreover, on Caxton’s version, are ‘must have’ products
for advertisers. Mr. Peter McKenzie, the CEO of Oracle Airtime Sales, testifies:
“I fail to see the motivation and in the last few days a lot of people
have been talking about demand. Mr. Patterson talked about it
yesterday. The lack of inventory, and I stress most particularly on the
most significant channels in the primetime. He was quite correct in
saying that on a lot of the lower demand, smaller channels in DSTV,
there was ample inventory. But advertisers naturally flock to the most
attractive channels and most attractive spots. So as far as we’re
concerned keeping discounts to a minimum is a key dynamic in the
business in that if you’re going to improve your yields per spot by one
or two or 3 percent, at the end of the year you’re making an enormous
difference to the value of your inventory.
At times in fact, we have incentivised our sales force to reduce
discounts as an additional incentive. Part of their remuneration
38 This is what Caxton has said: ‘Naspers will be able to put together a bundle without incurring
significant additional costs and without necessarily forgoing significant profits. It can use the warehouse
of unsold TV slots that MNet/Supersport currently has in its inventory and it can, if it wishes to, forgo
some of the returns on the filled slots in order to bolster its market power in the publications market’.
Caxton’s HOA Para 7.4
39 When questioned on this very point by the Tribunal, counsel for Caxton could put Naspers incentive
to bundle no higher than the following: ‘ Plainly they would have to make that evaluation from time to
time and it might be a very nuanced evaluation and they might use this strategy only to a limited extent.
I accept that. How much they would use it and how determined they might be to seek to attenuate
Caxton or the other competitors’ market power within the magazine markets or even to the extent of
driving them out, is a matter that is very difficult to evaluate.’ ( Transcript p781)
23
package, we set targets for them and if they bring in discounts lower
than those targets, there’s a cash incentive for them. So where you’ve
got a situation where inventory is limited, there is overdemand for it,
why would you want to bundle.” 40
[67] Nor is it easy to discern the incentives to lower the prices of the magazine
component of the bundle. 41 Ms. Scholtemeyer, the CEO of Media24’s magazine
division, observed that both Oracle and Media24 are, by and large, achieving their
rate card rates and as result there is no incentive for either company to bundle and
forego revenue. 42 At very least, given Naspers’ apparent dominance of the
magazine market, we remain to be persuaded that a predatory strategy, or, even,
merely a strategy that involved robust price competition, could not be mounted by the
magazine division acting on its own, that is without the necessity of a bundled
product that involved a pay TV component. In short, Naspers’ putative ability to
predate or engage in robust competition in the magazine market derives from its
dominance in magazines; it does not derive from the merger before us.
[68] And so those who purport to fear a mixed bundle are forced to rely on the
likelihood of a package that comprises magazine space and hitherto unused pay TV
advertising slots. This is a notionally conceivable bundle (although as we shall show
later one that would be extremely difficult to actually construct). However it doesn’t
appear to be particularly attractive. It certainly doesn’t appear to be sufficiently
attractive to herald Caxton’s near demise and that of other competitors in the
magazine market, or, at least, a sufficient weakening of the competitive structure of
the market so as to enable Naspers’ magazine division to achieve a greater degree
the market so as to enable Naspers’ magazine division to achieve a greater degree
of market power postmerger than it already possesses. In short we cannot
understand why throwing in an unused slot in what is graphically referred to as ‘dog
time’ will significantly enhance the attractiveness of Naspers’ magazine advertising
or, conversely, significantly reduce the relative attractiveness of Caxton’s magazine
40 See t transcript page 554. McKenzie later explained that there is a degree of discounting for prime
time advertising slots but that usually occurs because certain large advertisers commit to significant
expenditure in advance and, in exchange for the certainty that their upfront commitment gives to Oracle
and its clients, the pay TV channels, they frequently receive an effective discount over and above the
fee that may be able to be earned on a spot sale. Transcript p568
41 Nor is it Caxton’s theory but we will briefly examine it for the sake of completeness.
42 See her evidence on page 467 of the transcript. She also submitted on page 471 of the transcript
that she saw no commercial value in bundling.
24
advertising.
[69] After all, it was presumably not without reason that, despite the attraction of
prime and near prime time slots on pay TV and despite, on Caxton’s version, the
‘must have’ nature of pay TV advertising, these slots remained unused. Counsel for
Caxton argued that the reason why these slots were not utilized is because
technology to accurately measure the ‘dog time’ audience was not available and
hence the time could not be priced. Caxton then grasped at testimony by Mr.
McKenzie, the MD of Oracle, to the effect that improved technology for measuring
audience participation was being developed. 43 However the argument that this was
the critical missing factor that would enable pay TV and the advertisers to price this
offering is thoroughly unpersuasive.
[70] We cannot accept that, had those slots possessed any commercial value at
all, advertisers desperate for greater access to time on the allegedly ‘must have’ pay
TV and profit maximizing pay TV managers would not have found each other in the
market. Indeed the unused slots seem at most to possess the attraction of the free
toy that MacDonald’s gives away with its kiddies’ hamburger pack. It’s a ploy that
may momentarily attract some children, but the beef, so to speak, remains in the
hamburger and that’s what the adult pays for, that’s what the paying customer
purchases. In this vein, if Naspers were to construct a bundle designed to enhance
its magazine offering relative to those of its competitors, it is difficult to conceive of
the cheap toys that are the unused slots making the material difference to advertising
decisions in the magazine market, the more so when there are no irrational children
to influence the purchase decision.
[71] Mr. McKenzie conceded that advertisers on pay TV were, on occasion,
[71] Mr. McKenzie conceded that advertisers on pay TV were, on occasion,
offered free access to these unwanted slots. Caxton’s counsel presented a
hypothetical in which the SABC made a bundled offering to advertisers – a bundle,
that is, across the SABC’s various FTA TV channels and asked McKenzie how
Oracle would respond. While the fact that the intercession of a ‘fairy godmother’
replete with magic wand was necessary to construct this hypothetical made it
43 See McKenzie’s evidence on page 536 of the transcript. See also Patterson’s evidence on page 375
of the transcript
25
somewhat less instructive than may have been intended, McKenzie nevertheless
conceded that:
“What I would probably do is utilise to a greater extent the on sold
(sic, read ‘unsold’) inventory that you know I have access to on the
lesser popular DSTV channels and that is the luxury we have because
we live in a multi channel television worlds, as opposed to the SABC
who have three analogue B red (sic) channels. They don’t have the
unsold inventory that we have. 44
[72] While the possibility of bundling advertising on a number of television
platforms is consistent with evidence concerning the bundling of advertising space in
a number of magazines belonging to a broad category, McKenzie firmly rejected the
contention that a bundle comprising these slots and space in Naspers’ magazines
could be used to induce advertisers away from Naspers’ print media competitors.
McKenzie explained:
“But there is no attraction for me to bundle it with print, because if I do
that the only attraction in a bundle in the sense I think that you are
talking about is that I would delivery (sic) prime inventory. You
cannot bundle just with off peak down time. Those advertisers are
going to want you to bundle all of your advertising. So that will
include the prime time, then I am back to my problem of having to
discount what is high demand airtime and I incur a greater discount, it
doesn’t make sense. 45
[73] In summary we cannot discern the incentive that would cause Naspers to
offer discounted Pay TV advertising slots in prime time or nearprime time as a
mechanism for leveraging its market position in the relatively low margin magazine
market. And the notion that this bundle would focus on the unutilized ‘dog time’ slots
is certainly a case of barking up the wrong tree – bear in mind that we are asked to
is certainly a case of barking up the wrong tree – bear in mind that we are asked to
accept that, for the privilege of advertising on pay TV’s ‘dog time’ slots, advertisers
44 Transcript p 594
45 Transcript p 5945
26
will forego advertising in major magazines which they have willingly supported for
years. Nor do we see why Naspers, with its dominant position in the magazine
market itself, would have to turn to the pay TV market to employ a predatory or even
merely an aggressively competitive strategy in magazines.
[74] Nor do we believe that Naspers could easily construct the bundle that Caxton
apprehends. It is, of course, notionally possible for Naspers’ pay TV and magazine
divisions to construct a bundle. However the evidence of Ms. Scholtemeyer and Mr.
McKenzie persuades us that it would, in the real world, be extraordinarily difficult to
actually construct such a bundle. Mr. Brassey, Caxton’s counsel, derided the
evidence of Ms. Scholtemeyer and Mr. Mackenzie, which went to the practical
difficulties in creating a mixed bundle. They were disparaged as mere ‘functionaries’
incapable of seeing the strategic opportunity in bundling and with insufficient
authority and insight to take the decisions necessary to pursue a bundling strategy.
We by contrast found their evidence persuasive precisely because they clearly
outlined the practical difficulties in constructing a bundle of pay TV slots, much less
unused pay TV slots, and magazine space.
[75] Indeed even if there had been evidence that the strategic leaders of Naspers
were contemplating a bundling strategy (and there is scant evidence of this), on the
basis of the evidence of Scholtemeyer and Mackenzie we may well have concluded
that it was the strategists who had their heads firmly in the clouds and whose grand
plans would ultimately have been defeated by the operational difficulties attested to
by the respective operational managers responsible for Naspers magazine interests
and for the sale of advertising on pay TV.
[76] It is worth recounting at some length Ms. Scholtemeyer’s persuasive
[76] It is worth recounting at some length Ms. Scholtemeyer’s persuasive
assessment of the difficulties entailed in bundling magazine and TV advertising:
“Well the logistics would be quite difficult, I would think. First of all
we would have to look at each of the clients that advertise both in
magazines and on television. So, we would have to find the common
denominator. What we would then have to do is to try to find good
reason as to why we could approach those clients to offer them a
27
bundle and no doubt….I think what would make life difficult is you
would not be able to offer it to one client. You would have to offer it
to all clients that would advertise across both or try and entice people
to advertise across both.
So, you would then run into the difficulty with your television advertisers where they
want a specific slot at a specific time, be it prime time or whatever and in the
magazine they want a specific slot. Let’s say they want the inside front cover or they
want the back cover. So you would now have multiple clients where you are trying to
juggle multiple positionings and trying to keep them all happy. I think it would make
the management of those clients’ wants and needs quite difficult.
I think already, as it stands with television and magazines being separate, we find
those things quite difficult as it is, because clients are always jostling for which
position they want in the magazine and I assume on television it’s exactly the same.
So that in itself would be very difficult and, as I say, you wouldn’t be able to offer it to
one client or two. You would have to offer it to all your clients. So, that would be
difficult.
You would then have an administrative difficulty in that you would probably have to
restructure your sales teams completely as to how to call on clients, how they sell,
what their offer is. You would have to retrain all of them, because magazine people
have never worked in television or, if they have, some have perhaps, but they don’t
know television and vice versa. I mean I have certainly never worked in television.
So I don’t understand the television business.
So there would be restructuring, retraining, there would be the cost of
administration. You would have to look at how you incentivise them.
As has already been pointed out, the cost of television advertising far
outweighs magazine costs advertising, so it would just…I think it
outweighs magazine costs advertising, so it would just…I think it
would become an administrative and logistical nightmare.” 46
[77] Ms. Scholtemeyer also noted that the structure of remuneration differed as
between the magazine and television advertising sales staff and that, were bundling
to be introduced, these structures would have to be revisited. 47
[78] The difficulties in bundling from the perspective of television advertising sales
are also clearly outlined by Mr. McKenzie:
46 Transcript pp 4678
47 Transcript pp 46970
28
“…the deal, the overall arching deal is done at the beginning of the
year, but thereafter there is a very detailed programme of handling that
business campaignbycampaign, brandbybrand. And I think its
maybe one of the essential differences between print and television. It
is, and I don’t mean to be derogatory, but its more dynamic in the
sense that a lot happens on a daily basis. We don’t plan a campaign, as
happens in print, you book it and by and large it runs fairly smoothly.
We are moving, trafficking as we call it, between 30 and 40 000 spots
a month. There are daily cancellations, rebookings, the duration of
spots change from 15 seconds to 30 seconds and back to 45, the
programme lineup changes, just managing it is a monumental task in
itself and very sophisticated software has to be developed to do so.
And it is perhaps another reason why in a practical sense, this
concept of bundling, whilst theoretically it sounds great, but at a
practical level is pretty impossible, I believe. 48
[79] The practical difficulties entailed in constructing a bundled print and TV
advertising offering were reinforced by Mr. McKenzie under crossexamination and
are worth citing at length. McKenzie prefaces his comments as follows:
“Let me make a point upfront we do not see any motivation to bundle,
because it simply would dilute the yield that we would get from our
advertising, sold advertising particularly the prime time slots. 49
[80] He continues:
…I have already stated that we do our best to keep our discounts down,
but on a practical level the time lines and the process of buying
advertising differ hugely between print, particularly monthly
magazines and television. If we were interested in bundling, it would
48 Transcript p554
49 Transcript p592
29
most likely be with the upmarket glossy magazines in the Naspers
stable they happen, as we heard this morning to be monthly hence the
time lines happen to be longer.
The deadlines for material, the deadlines for booking you are talking
weeks if not months. I have also mentioned that in our case we
release our red (sic, read ‘rate’) card three months in advance, but
similarly I said that on a daily basis we are changing spots literally we
will be changing spots today for broadcast tonight. So the whole
process of planning and buying advertising in those two environments
are not only hugely different, but in a way there is a degree of conflict
between them. So that is a second reason.
The third thing is advertisers want to know about content on channels.
We have a frontline sales team that deals with each of these media
agencies, but behind them there is a second tier sales force who are
dealing with the channels on a daily basis to find out what the content
is, what the spikes are in those schedules, what is the most attractive
programming, what is going to the most attractive advertising content.
It is a huge amount of information as you can imagine across 35
channels. They prepare the ammunition for the frontline sales team.
So that is complicated enough as it is.
Could you imagine if we had to transfer that bulk of information from
our television environment to 12 different print sales teams and try
and get them not only to understand the television business, which
Mrs. Scholtemeyer was worried about this morning, but to give them a
level of understanding of what is happening in each of those 35
channels it is just not a practical proposition. 50
[81] The operational difficulties confronting the construction of a mixed bundled
offering that were identified appear daunting to say the least even Caxton’s counsel
offering that were identified appear daunting to say the least even Caxton’s counsel
50 Transcript pp 5934
30
was forced to concede that ‘ it sounds a terrible prospect.’ 51 This is possibly why the
evidence from South Africa suggests only one shortlived and unsuccessful attempt
at mixed bundling, 52 and why Caxton’s international expert was unable to identify a
single instance of mixed bundling in the international markets of which he had
experience.53 McKenzie also testified that:
“…in my fourteen years within the group never once, not once has
either my director manager, or anyone else in the organisation had any
influence or tried to affect our pricing or our pricing strategy not once.
We have complete discretion over it. My brief is to maximise to the
best of my ability the advertising income onto the platform and to
optimises the value of that and to increase our market share. 54
[82] Note too, the following exchange between the Tribunal and Mr. McKenzie:
Mr. Manoim: Are you aware whether overseas on a channel say like
Sky there is bundling, cross media between subscription television
and print media?
Mr. McKenzie: We have a close working relationship (with) the Sky and Media sales
team on a number of levels. I mentioned that we are emanating (sic) their research
methodology. The short answer to that is no, I don’t. We have also studied how
they go about packaging, pricing, marketing their airtime and at no stage have they
even mentioned print or their access to print within a greater news core stable. 55
[83] This absence of any evidence, anywhere of print and television advertising
bundles is, on its own, sufficient to cast significant doubt on the salience of a mixed
bundling strategy. It is also telling that while Ms. Scholtemeyer readily conceded that
discounted bundles are offered to advertisers utilising more than one magazine in the
same category, there has not even been any bundling of magazine advertising and
newspaper advertising. 56
51 Transcript p 594
newspaper advertising. 56
51 Transcript p 594
52 See page 606 of the transcript. See also transcript on page 547 [CONFIDENTIAL]
53 See Marshall’s evidence on page 225226 of the transcript
54 Transcript p 597
55 Transcript p 604
56 Transcript p 471
31
[84] Nor was a real attempt made to controvert the evidence of Scholtemeyer and
McKenzie. Counsel for Caxton relied on his efforts to shoot the messenger, to
question the expertise of the witnesses, and, particularly, to disparage the notion that
their little ‘administrative’ difficulties would disturb a grand strategy decided upon in
the higher reaches of the Naspers empire. 57 These efforts by Caxton stand in
marked contrast to our assessment of the witnesses. McKenzie’s testimony was well
informed and candid, and Scholtemeyer, despite attempts to use the recent scandal
involving the falsification of circulation numbers in Media24 to discredit her, was a
persuasive witness.
[85] Caxton attempted to make something of Scholtemeyer’s admission that she
knew little about the market for the sale of advertising on pay TV. 58 In our view, this
reinforces our conclusion that a mixed bundling strategy is unlikely – surely, if it were
being seriously contemplated, then at least we would have expected the Naspers
strategic leaders to have ensured that the head of their magazine interests
possessed the knowledge required to construct and manage the bundles.
Order
[86] The merger before us is unlikely to lead to a substantial lessening of
competition. Nor does the transaction raise any public interest concerns. It is
accordingly approved unconditionally.
Costs
[87] It has not been our practice to order costs in a merger hearing. However in
this instance we have been asked by the merging parties to order the intervener to
57 See Caxton’s heads paragraph 10.3.2 the last sentence where it is submitted that “ It is hardly likely
that Naspers would surrender its strategic objectives in favour of established systems or logistic
convenience”
58 See the transcript page 465 lines 13
32
pay the costs incurred by the merging parties in meeting the allegations made by the
intervener.
[88] On the facts of this case, it is, in considering a costs award, of some
pertinence that neither the intervention itself, nor the scope of intervention ultimately
permitted by the Tribunal (those surrounding allegations of likely foreclosure and
bundling), was opposed by the merging parties. Indeed the grounds for intervention
that were opposed by the merging parties – notably the question of cross
subsidisation – were refused by the Tribunal.
[89] However this is not dispositive of the question of costs. Because of the
prospect of protracted litigation it is rarely in the merging parties’ interest to oppose
intervention. Indeed the attempt by the merging parties to limit the scope of
intervention, gave rise to a hearing before the Tribunal and a review in the
Competition Appeal Court. This prolonged the decision making period and raised its
already significant costs. And this, let it not be forgotten, arose from a limited request
by the merging parties around the scope of intervention, a request that was upheld
by the Tribunal. It is not difficult to imagine that outright opposition to intervention
would have occasioned even lengthier and more costly litigation, including,
doubtlessly, the ventilation of constitutional issues. Thus the decision not to oppose
the intervention should not count against the merging parties in deciding their
application for costs – it is as likely to have arisen from a pragmatic evaluation of the
prospect of prolonged and costly litigation as from a view that the grounds of
intervention were legitimate.
[90] There are compelling general public policy grounds for permitting intervention,
[90] There are compelling general public policy grounds for permitting intervention,
for adopting, as we have consistently done, a permissive approach towards
applications for intervention. Not only does this approach encourage widespread
participation in matters of considerable public moment, but the intervention process
frequently contributes significantly to the quantum of information and quality of
argument submitted to the Tribunal. For these reasons we would be reluctant to
discourage intervention by the threat of an adverse costs order imposed on the
prospective intervener.
[91] However, there are equally important public policy grounds for approaching
intervention applications with a degree of scepticism. They are heaven sent
opportunities for competitors of the merging parties to harass and delay the conduct
of legitimate business on the part of prospective merging parties, and, assiduous
33
efforts to protect confidential information notwithstanding; they offer significant
opportunities for gathering information, which for a variety of reasons may even
prove inimical to competition let alone narrow commercial interests. For example, it
is clear that a rigorous examination of the likelihood of crosssubsidisation would
have afforded a golden opportunity for trawling through the inner workings of the
merging parties.
[92] When deciding on an application for intervention we must then exercise our
discretion by balancing the considerations outlined above.
[93] In this matter, we limited the scope of intervention by excluding the issue of
crosssubsidisation principally because it was absolutely clear that the prospect of
crosssubsidisation, even if it were a legitimate general concern arising from the
merger process (and there are solid grounds for doubting this), could not, in this
instance, have been merger specific. That is, Naspers’ ability to use its pay TV
revenues to bolster one of its other divisions does not depend on the merger – if it
wished to cross subsidise its magazine division it could do so by utilising its existing
revenues including those that derive from its pay TV interests.
[94] While in this matter it proved relatively easy to discern that the cross
subsidisation allegation could not possibly be mergerspecific, it is frequently not
possible to decide whether there is any substance in an allegation of likely harm to
competition without a full hearing on the merits. And so we adopt a generally
permissive approach to intervention, trusting that considerations of good faith will
limit the filing of intervention applications that are devoid of any merit on competition
limit the filing of intervention applications that are devoid of any merit on competition
or public interest grounds, but that are rather designed simply as fishing expeditions
or as instruments of delay.
[95] We have found against the intervener both on the allegations relating to
bundling and those related to foreclosure. This, in itself, is of course not grounds for
arguing that the intervention should not have been made. The bundling issue was
examined by the Commission and there is little doubt that the Tribunal would have
conducted a detailed analysis of it – it did not require the intervention to alert the
authorities, including the Tribunal, to the necessity to examine the bundling. That it
ultimately proved to be of no concern from a competition perspective is neither here
nor there – the very character of the acquiring firm defined bundling as an area for
examination.
34
[96] The foreclosure issue is quite another matter. It could not have been obvious
that this was an issue that warranted examination; indeed that it even reared its head
as a potential implication of this transaction. It was placed before us by the
intervener who was, unlike the Commission or, certainly, the Tribunal, wellpositioned
to know whether there was any merit whatsoever in this ground for intervention. In
the event it proved to be thoroughly devoid of substance. This much became clear as
soon as the miniscule role that pay TV played in the promotion of magazine sales
was revealed. This is information that the intervener possessed in advance of the
hearing and yet it chose to persist with the intervention on these grounds and,
indeed, persisted in this until final argument. In other words, the merging parties
were obliged to incur the costs of dealing with a thoroughly spurious argument.
[97] In our estimation this comes as close to a bad faith intervention as we are
prepared to permit. The panel has engaged in lengthy debate on the question of
awarding the merging party the costs entailed in defending the foreclosure allegation.
Although we have ultimately decided not to award costs on this occasion, we take
this opportunity to signal our willingness, in principle, to make such awards in future.
An intervener who predicates its intervention on nothing other than envy of a
competitor’s success, or on the opportunity it affords for derailing a legitimate
business decision and, in the process, garnering sensitive competitive information,
should, at very least, thereby make itself vulnerable to an adverse costs order.
____________________ 24 January 2008
D Lewis Date
Y Carrim and N Manoim concurring.
Tribunal Researcher : J Ngobeni
For Naspers : Adv MJD Wallis SC with Adv NH Maenetjie instructed
by Werksmans
For Naspers : Adv MJD Wallis SC with Adv NH Maenetjie instructed
by Werksmans
For the Intervener : Adv MSM Brassey SC, Adv Symon SC and Adv M
Wesley instructed by Deneys Reitz Attorneys
For the Commission : Dumisani Motsamai
35