Competition Law in Broadcasting Tower Access Discrimination in China

Introduction

Broadcasting tower access discrimination arises where an operator controlling a broadcasting, telecommunications, radio, television, or communications tower gives competing users or service providers different access conditions without objective justification.

Examples include:

charging one broadcaster a higher tower-access fee than another;

giving an affiliated broadcaster better antenna positions;

providing competitors with inferior transmission capacity;

delaying installation for rival broadcasters;

granting preferred maintenance or technical support to affiliated operators;

refusing access to available tower capacity;

requiring competitors to purchase unnecessary bundled services;

imposing different technical standards on similarly situated broadcasters;

giving an affiliated operator priority during peak transmission periods; or

using ownership or control of a strategically important tower to disadvantage downstream competitors.

Under China's 2022 Anti-Monopoly Law (AML), this can potentially constitute abuse of market dominance, particularly discriminatory treatment under Article 22(6), refusal to deal under Article 22(3), exclusive dealing under Article 22(4), or tying/unreasonable conditions under Article 22(5). The AML also expressly prevents dominant undertakings from using technology, data, algorithms or platform rules to implement such abuses. (SAMR)

A particularly important point is that Chinese courts have already developed substantial antitrust doctrine involving broadcasting networks, telecommunications operators and public utilities, even though reported cases specifically concerning broadcasting-tower access are comparatively limited.

I. Meaning of Broadcasting Tower Access

A broadcasting tower is infrastructure used to transmit or relay:

television signals;

radio signals;

mobile communications;

wireless communications;

emergency communications;

digital broadcasting;

satellite-related communications; and

other electronic communications.

A tower operator may provide:

tower-space rental;

antenna installation;

transmission facilities;

power supply;

maintenance;

backhaul;

signal transmission;

technical testing;

monitoring;

site access; and

related infrastructure services.

Where a single undertaking controls an important tower or network of towers, competitors may become economically dependent upon it.

That is where competition law becomes relevant.

II. Relevant Chinese Competition-Law Provisions

1. Article 22 — Abuse of Dominance

Article 22 prohibits a dominant undertaking from, without legitimate justification:

refusing to deal;

restricting trading partners to dealing only with it or designated parties;

tying products or imposing unreasonable conditions;

applying discriminatory prices or other transaction conditions to equivalent trading partners; and

engaging in other forms of abusive conduct recognized under the AML.

The provision expressly states that dominant undertakings may not use data, algorithms, technology or platform rules to implement these abuses. (SAMR)

For broadcasting towers, the most important category is:

different treatment of equivalent tower users without an objective justification.

III. What Is Access Discrimination?

Access discrimination exists where:

Comparable broadcasters or communications operators receive materially different access terms from a dominant tower operator, and the difference cannot be justified by legitimate objective factors.

For example:

The critical comparison is not simply whether two customers pay different prices.

The court must ask whether they are similarly situated and whether there is an objective explanation for the difference.

IV. Relevant Market

Market definition is fundamental.

Possible relevant markets include:

1. Broadcasting tower access services

A narrow market involving:

tower space;

antenna installation;

transmission access;

tower maintenance.

2. Radio and television transmission infrastructure

A broader market including:

towers;

transmission stations;

relay infrastructure;

signal transmission facilities.

3. Telecommunications tower services

Where the tower is used primarily for wireless communications, the relevant market may encompass:

tower sites;

antenna space;

supporting infrastructure;

power;

maintenance;

backhaul.

4. Geographic market

The geographic market may be:

national;

provincial;

municipal;

regional; or

site-specific.

A particularly important issue is whether alternative towers actually exist.

If a broadcaster cannot reasonably substitute another tower because of:

geographic coverage;

transmission radius;

frequency requirements;

terrain;

regulatory approvals;

network design; or

cost,

the tower operator may possess considerable market power even if it owns only a small percentage of China's total towers.

V. Establishing Market Dominance

Article 23 requires consideration of:

market share;

competitive conditions;

control over sales or procurement markets;

financial and technological capabilities;

dependence of trading partners; and

barriers to entry. (SAMR)

For tower access, dependency can be especially important.

Suppose Tower Company A controls the only tower capable of providing effective television coverage to a particular valley.

Even if A has only a modest national market share, broadcasters in that geographic market may have no realistic alternative.

This may create substantial market power.

VI. Forms of Broadcasting Tower Access Discrimination

A. Price Discrimination

Suppose:

Broadcaster A pays RMB 500,000 annually;

Broadcaster B pays RMB 1 million;

both occupy equivalent tower positions;

both require equivalent technical services.

If the difference is based merely on A being affiliated with the tower operator, the conduct may raise Article 22(6) concerns.

But different prices can be legitimate where they reflect:

different bandwidth;

different antenna size;

different power requirements;

different installation costs;

different maintenance requirements;

different safety risks;

different geographic locations; or

objectively different contractual commitments.

VII. Non-Price Discrimination

Discrimination does not have to involve price.

It may concern:

installation priority;

tower position;

transmission capacity;

maintenance;

repair response;

technical support;

access hours;

electricity supply;

equipment certification;

network connectivity;

upgrade schedules.

For example:

A tower operator repairs its affiliated broadcaster's transmission equipment within two hours but requires an independent broadcaster to wait seven days.

If the customers are similarly situated and there is no objective justification, this may produce a competitive disadvantage.

VIII. Refusal to Deal

Access discrimination may overlap with refusal to deal.

For example:

Tower Company A has available capacity but refuses to rent tower space to Broadcaster B because B competes with A's affiliated broadcasting company.

Article 22 prohibits unjustified refusal to deal by a dominant undertaking. (SAMR)

The 2024 Supreme People's Court judicial interpretation is particularly important.

It provides that refusal-to-deal analysis can cover refusal to make a platform or software system compatible, refusal to open technology, data or interfaces, and similar conduct.

The Court considers:

economic feasibility;

technical feasibility;

legal feasibility;

security;

substitutability;

reconstruction costs;

competitors' dependence;

effects on innovation;

legitimate interests of the dominant undertaking; and

whether competition is substantially eliminated or restricted. (Gongbao)

These principles can readily be adapted to tower infrastructure.

IX. Six Important Chinese Case Laws

1. Wu Xiaoqin v. Shaanxi Broadcast & TV Network Intermediary

SPC Guiding Case No. 79; (2016) Zui Gao Fa Min Zai No. 98

This is the most directly relevant broadcasting-sector precedent.

Shaanxi Broadcast & TV Network was the legally authorized operator of cable television transmission in the province and the centralized controller of television broadcasting.

The Supreme People's Court recognized its dominant position based on factors including:

market access;

market share;

operating position;

scale; and

regulatory authorization.

The company bundled basic digital-TV maintenance fees with paid digital-TV programming fees.

The Court held that this impaired consumer choice and disadvantaged competing providers seeking access to the digital-TV services market. (Supreme People's Court of China)

Relevance to broadcasting towers

This case demonstrates that broadcasting infrastructure operators with legally protected or practically exclusive positions can possess market dominance.

It also demonstrates that downstream competition can be harmed when the infrastructure operator uses its position to impose conditions affecting competing service providers.

Principle

Dominance in a communications infrastructure market can create antitrust responsibility when the operator uses that position to disadvantage downstream alternatives.

2. China Broadcasting Cable Network — Cable Digital-TV Signal Case

SPC, (2023) Zui Gao Fa Zhi Min Zhong No. 383

This case concerned a public-utility-type broadcasting network operator that was the only provider of cable-TV scrambled signals and broadband business signals in the relevant area.

The Supreme People's Court identified the case as involving abuse of dominance through tying and refusal to deal. (IPC Court)

Relevance to tower access

The analogy is very strong.

A broadcasting tower operator may occupy a similar infrastructure position:

tower → transmission access → broadcaster → viewers

If the infrastructure operator uses control over the essential transmission facility to restrict competing broadcasters, Article 22 concerns may arise.

Principle

A public-utility or infrastructure operator's control over a critical transmission facility can create significant competitive responsibilities.

3. Weihai Water Group Case

SPC, (2022) Zui Gao Fa Zhi Min Zhong No. 395

Although this case concerned water infrastructure rather than broadcasting, it is one of the most important Chinese precedents for infrastructure access discrimination and indirect exclusion.

The water utility effectively directed customers toward particular affiliated or preferred service providers.

The Supreme People's Court held that exclusive dealing can be implicit or indirect, not merely expressly contractual. (IPC Court)

Relevance

Imagine a tower operator that does not expressly prohibit competitors but:

only advertises its affiliated broadcaster;

gives its affiliate priority access;

makes rival applications unnecessarily difficult;

provides competitors with inferior technical information.

The Weihai Water reasoning indicates that the court can examine the substantive effect rather than merely the wording of the contract.

Principle

De facto exclusion can be treated as restrictive conduct even when there is no explicit exclusivity clause.

4. Ma v. Henan Mobile Communications Company

SPC, (2021) Zui Gao Fa Zhi Min Zhong No. 1977

This telecommunications case concerned alleged refusal to provide certain services to a particular category of customer and alleged discriminatory treatment.

The Supreme People's Court emphasized that determining joint or individual market dominance requires careful examination of market structure and actual competitive conditions. (IPC Court)

Relevance to tower access

The telecommunications context is highly analogous.

A tower operator should not be presumed dominant simply because it owns infrastructure.

The claimant should establish:

the relevant market;

the operator's market position;

customer dependence;

availability of alternative towers;

entry barriers; and

the competitive consequences of the discriminatory conduct.

Principle

Infrastructure ownership is evidence of market power, but dominance must still be established through market analysis.

5. 2026 Agricultural Wholesale-Market “Two-Choice” Case

SPC 2026 Antitrust Typical Case

The Supreme People's Court's September 2026 antitrust cases include a case where an operator controlling approximately 90% of the local vegetable supply required traders to choose between its market and a competing market.

A trader that also operated in the competing market faced a transaction-service fee increased to three times the normal rate.

The Court treated the conduct as a form of prohibited exclusive dealing, finding that the dominant operator had used contractual restrictions and punitive pricing to force the trader to choose one market. (Supreme People's Court)

Relevance to broadcasting towers

This is highly useful for access discrimination.

Suppose a tower operator tells a broadcaster:

“You can use our tower only if you do not use a competing transmission tower.”

Or:

“Broadcasters that use competing towers will pay three times our standard access fee.”

That could be analogous to the conduct condemned in this case.

Principle

A discriminatory financial penalty used to enforce exclusivity may be analyzed as part of the underlying exclusionary conduct rather than as an isolated pricing issue.

6. Ma v. Communications Operator — Discriminatory Treatment and Portability

The Supreme People's Court's telecommunications case involving a special-number customer is another useful precedent because it involved allegations that some customers were given rights such as portability while another category was denied them.

The Court examined whether the alleged conduct established:

market dominance;

restricted transactions; and

discriminatory treatment. (IPC Court)

Relevance

A tower operator similarly cannot simply say:

“Our affiliate receives priority access because it is our affiliate.”

The competition analysis asks whether the parties are similarly situated and whether the difference has an objective justification.

7. 2024 SPC Judicial Interpretation — Software/Infrastructure Access

Although not a single fact-specific tower case, the 2024 Supreme People's Court Anti-Monopoly Civil Dispute Judicial Interpretation is itself essential to modern access-discrimination analysis.

The Court expressly addresses:

refusal to deal;

interoperability;

technical interfaces;

data;

platform access;

IP licensing;

exclusive dealing.

For refusal-to-deal analysis, the Court examines whether dealing is economically, technically, legally and securely feasible and whether refusal substantially excludes or restricts competition. (Gongbao)

Application

A broadcasting tower operator refusing to provide:

antenna interfaces;

technical specifications;

transmission capacity;

connection facilities;

to a competitor may face analogous scrutiny.

X. Difference Between Legitimate Differentiation and Illegal Discrimination

This distinction is essential.

Legitimate differentiation

Different prices or access conditions may be justified by:

different tower heights;

different antenna weights;

different frequencies;

different transmission power;

different safety risks;

different bandwidth;

different installation costs;

different maintenance requirements;

congestion;

objectively different contractual commitments.

Potentially unlawful discrimination

The concern becomes stronger where:

the parties are equivalent;

the costs are substantially identical;

the operator has dominance;

the difference benefits an affiliated broadcaster;

the difference harms a rival;

there is no objective explanation;

the practice is systematic; and

the effect is to foreclose competition.

XI. Competitive Effects

Chinese antitrust analysis should focus on actual or potential competitive harm.

Access discrimination can produce:

1. Raising rivals' costs

A competitor pays more for the same tower access.

2. Quality degradation

A rival receives inferior tower positions or lower technical quality.

3. Foreclosure

A competitor cannot obtain adequate transmission capacity.

4. Entry barriers

New broadcasters cannot obtain commercially viable tower access.

5. Reduced innovation

New broadcasting technologies may be unable to obtain infrastructure access.

6. Consumer harm

Consumers may experience:

fewer broadcasters;

poorer programming;

higher prices;

reduced service quality;

less technological innovation.

XII. Affiliate Discrimination

This is one of the highest-risk scenarios.

Suppose TowerCo owns:

40% of a broadcasting network;

several strategically located towers;

transmission infrastructure.

It provides:

Such a pattern could provide powerful evidence of discriminatory treatment.

The question would be whether the differences reflect genuine cost or technical differences or whether they are designed to favour the affiliate.

XIII. Refusal to Provide Tower Access

Consider:

TowerCo controls the only commercially viable tower in a particular region. Broadcaster B requests access. TowerCo refuses, although sufficient capacity exists. TowerCo simultaneously operates its own broadcasting service.

This raises three issues:

1. Dominance

Does TowerCo control the relevant market?

2. Refusal to deal

Is access economically, technically, legally and safely feasible?

3. Competitive foreclosure

Does refusal prevent B from effectively competing?

These questions correspond closely with the 2024 SPC framework for refusal to deal. (Gongbao)

XIV. Technical Discrimination

Modern broadcasting towers increasingly rely upon:

digital signal processors;

software-defined radio;

automated antenna systems;

spectrum-management software;

remote monitoring;

cloud management;

digital transmission systems.

Discrimination can therefore occur technologically.

For example:

TowerCo provides Broadcaster A with full API access but denies Broadcaster B the interface necessary to monitor its own equipment.

This can be more subtle than charging different prices.

Article 22 specifically recognizes that technology, data and platform rules can be instruments of abusive conduct. (SAMR)

XV. Government and Administrative Discrimination

A separate issue arises where the discrimination is caused not by the tower operator alone but by a government or public authority.

For example:

A local authority permits only one broadcasting company to use publicly controlled towers and excludes qualified competitors.

This may raise administrative-monopoly concerns rather than simply private abuse of dominance.

Chinese courts have emphasized that where alleged anticompetitive conduct results from an administrative authority's exercise of administrative power, the relationship between the administrative act and the competition claim must be carefully examined. (IPC Court)

Thus, a case may involve:

private abuse + administrative exclusion

or

pure administrative restriction of competition.

The legal route can differ significantly.

XVI. Defences and Legitimate Justifications

A tower operator may defend differential treatment by showing:

1. Safety

Certain antennas may impose greater structural risks.

2. Spectrum compatibility

Different frequencies may require different technical configurations.

3. Capacity limitations

There may genuinely be insufficient tower capacity.

4. Security

Critical communications infrastructure may require restricted access.

5. Regulatory requirements

Certain broadcasters may have different regulatory obligations.

6. Intellectual property

Technical information may be protected by legitimate IP rights.

7. Investment protection

Special contractual arrangements may protect substantial customer-specific investments.

But the justification should be objective, necessary and proportionate.

A general assertion such as:

“We prefer our affiliated broadcaster”

would obviously be much weaker than a documented structural-safety or spectrum-compatibility justification.

XVII. Hypothetical Example

Assume China Tower Broadcasting Services Co. operates 70% of strategically located broadcasting towers in Province X.

It also owns a broadcasting subsidiary.

Independent Broadcaster A requests tower access.

The tower company:

charges A 60% more than its affiliate;

gives its affiliate prime antenna locations;

gives A lower transmission capacity;

delays A's installation;

refuses to disclose technical specifications;

requires A to purchase unnecessary maintenance services;

and gives its affiliate priority during repairs.

Antitrust analysis

Market: broadcasting tower access services in Province X.

Dominance: potentially established through market share, infrastructure control, customer dependence and entry barriers.

Discrimination: equivalent users receive materially different conditions.

Refusal to deal: technical specifications and access are withheld.

Tying: maintenance may be forced as a condition of tower access.

Foreclosure: A may be unable to compete effectively in downstream broadcasting.

Justification: TowerCo must demonstrate legitimate technical, safety, regulatory or commercial reasons.

Likely risk

If the differences cannot be objectively justified, the conduct presents a high competition-law risk.

XVIII. Compliance Measures for Broadcasting Tower Operators

A tower operator should implement:

1. Standard access tariffs

Create transparent criteria for:

tower rent;

installation;

maintenance;

power;

bandwidth;

technical support.

2. Objective access criteria

Use the same eligibility standards for equivalent customers.

3. Non-discrimination policy

Affiliates should not automatically receive preferential treatment.

4. Independent technical certification

Technical decisions should be based on:

safety;

spectrum;

capacity;

engineering criteria.

5. Record keeping

Maintain written reasons for:

refusal;

delay;

different pricing;

capacity allocation;

technical restrictions.

6. Firewalls

Where the tower operator has an affiliated broadcaster, sensitive competitor information should not be shared with that affiliate.

7. Competition compliance training

Commercial and engineering teams should understand that technical decisions can have antitrust consequences.

XIX. Comparative Case-Law Table

XX. Key Legal Test

For an examination or legal memorandum, the issue can be expressed as:

Where a broadcasting tower operator possesses market dominance, does it provide equivalent access to similarly situated broadcasters on equivalent terms, or does it use discriminatory pricing, capacity allocation, technical access, installation priority, maintenance, or contractual conditions to favour an affiliate or foreclose competing broadcasters without legitimate justification?

The analysis should proceed through:

Relevant Market
↓
Dominance
↓
Comparable Trading Partners
↓
Different Access Conditions
↓
Objective Justification?
↓
Foreclosure / Competitive Harm
↓
Article 22 Abuse?

XXI. Conclusion

Broadcasting tower access discrimination in China can constitute a serious competition-law issue where the tower operator possesses market dominance and uses unequal access conditions to disadvantage competing broadcasters.

The strongest legal routes are:

Article 22(6) — discriminatory treatment;

Article 22(3) — refusal to deal;

Article 22(4) — exclusive dealing;

Article 22(5) — tying or unreasonable trading conditions;

administrative-monopoly provisions where government power causes the exclusion.

The broadcasting cases are particularly important. Wu Xiaoqin establishes that a legally authorized broadcasting network with substantial infrastructure and market-access advantages can possess dominance, while the later cable-digital-TV case demonstrates that a public broadcasting operator can face both tying and refusal-to-deal scrutiny. (Supreme People's Court)

The Weihai Water case adds an important infrastructure principle: discriminatory or exclusionary conduct can be indirect rather than expressly contractual. (IPC Court) The 2024 SPC interpretation further modernizes the doctrine by expressly addressing compatibility, technical interfaces, data and software access. (Gongbao)

Accordingly, the central Chinese competition-law principle is:

A broadcasting tower operator is not required to treat every customer identically, but where similarly situated broadcasters receive materially different access, pricing, capacity or technical conditions, the operator must be able to demonstrate an objective and legitimate justification; otherwise, discriminatory access may become an abuse of market dominance when it substantially excludes or restricts downstream broadcasting competition.