Court of Appeal Sends Ofcom and Sky Sports TV Competition Case Back to CAT

The tennis match over wholesale access and prices for Sky TV’s (Sky Broadband) premium sports channels (Sky Sports 1 / 2 etc.) looks set to erupt again. The UK Court of Appeal has today ruled that the Competition Appeal Tribunal (CAT) needs to look again at its rejection of Ofcom’s pay TV measures.

The case originally kicked off in 2010 after Ofcom imposed an obligation upon BSkyB that required the TV operator to offer wholesale access to its Sky Sports 1 and Sky Sports 2 channels (aka – ‘Wholesale Must Offer’) and at prices set by the regulator.

At the time Ofcom ruled that Sky had market power in the wholesale provision of premium channels, although last year the Competition Appeal Tribunal (CAT) overruled this and suggested that Sky’s prices were fair, which meant that Ofcom’s obligation was not required.

However Ofcom disagreed and argued that the CAT’s ruling had failed to correctly consider the regulators findings concerning competition in the market, which was enough for the case to go back to the Court of Appeal.. until today.

Ofcoms Statement

Ofcom welcomes the Court of Appeal’s decision that the judgment of the Competition Appeal Tribunal failed properly to consider Ofcom’s findings that there was ineffective competition in the market.

Ensuring fair and effective competition in the pay TV market has always been Ofcom’s objective. Ofcom’s 2010 decision that Sky must offer premium sports channels to other providers was designed to deliver choice and innovation to consumers through greater competition.

The ruling doesn’t alter CAT’s findings but it does mean that the case will have to be given a second look, with Ofcom clearly hoping for a favourable change in position and Sky opposing it. On the other hand a lot has changed since 2010, with BT in particular winning a substantial quantity of premium sports content for its BTSport channels (these are offered for free to their broadband subscribers).

Separately the Government is mulling over new measures that would stop big telecoms and broadband providers from harming pro-consumer measures by tying the regulator up with long and costly legal challenges (here). But others argue that such cases are necessary to help stop bad regulation.