Telecom Italia Obtains Dismissal of Interim Measure Requests

Cleary Gottlieb won the dismissal of interim measure requests against an innovative offering of Telecom Italia. Through five separate actions, three of Telecom Italia’s major competitors (Fastweb, Tiscali, Wind) and two national associations of Internet providers (Associazione Italiana Internet Providers-AIIP and Assoprovider) requested that the Milan Tribunal grant an interim injunction aimed at inhibiting the advertising and the commercialization of Alice Casa, an innovative offering of Telecom Italia.

The plaintiffs claimed that Alice Casa – the first offering by Telecom Italia entirely based on Voice over Internet Protocol (VoIP) technology – was predatory and not replicable by Telecom’s competitors. They also alleged that selling together VoIP services, broadband access and IPTV constituted an abusive bundling in violation of Article 82 EC. Finally, they claimed that Alice Casa breached certain regulatory obligations with a view to locking-in end-users.

Cleary Gottlieb showed that – as also recognized by the Italian Communications Authority, AGCOM – Telecom Italia’s competitors are in a position to, and do currently, market offers which are in line with Alice Casa. Cleary Gottlieb also argued that, since competitors offer bundles similar to Alice Casa (i.e., there exists a bundle-to-bundle competition), the only relevant question in order to ascertain whether the dominant player’s offer is anticompetitive, is whether Alice Casa is predatory. Cleary Gottlieb showed that this was not the case. Finally, Cleary Gottlieb demonstrated that, through Alice Casa, Telecom has not infringed any regulatory obligation concerning number portability and the provision of carrier selection/carrier pre-selection services.

As a result of Cleary Gottlieb’s arguments, Fastweb and Wind spontaneously abandoned their claims, while the Milan civil court dismissed the requests for interim measures set forth by Tiscali, AIIP and Assoprovider.