Court Rejects Sky UK’s Challenge to Ofcom’s End of Contract Pay TV Notifications UPDATE

The Court of Appeal (Civil Division) has dismissed Sky UK’s (Sky TV, Sky Broadband etc.) attempt to overturn an earlier decision by the telecoms regulator, Ofcom, which back in 2022 ruled that the provider had broken consumer protection rules by failing to send End-of-Contract Notifications (ECN) to their satellite-based Pay TV customers.

This is one of those situations that requires a bit of a recap in order to get the proper context. Firstly, the purpose of ECN’s, as Ofcom states, is to ensure that all “phone, broadband and pay-TV providers” must “warn customers when their current contract is ending, and what they could save by signing up to a new deal” (usually sent between 10-40 days before the end of your contract). This also encourages switching.

However, the situation for customers of Sky’s pay-TV packages is a bit more complex, which is something that we realised after some customers of their newer broadband-based Sky Glass and Sky Stream TV services queried why they weren’t receiving ECNs. In response, Sky’s support team told some of those same users that they only issued end of contract notifications to their broadband and mobile services, which appears to contradict a 2022 ruling.

This brings us back to August 2022, when Ofcom concluded a long-running investigation into Sky, which found that they had broken consumer protection rules by failing to send ECNs to their satellite-based Pay TV customers (here). Sky’s original argument against this, which the regulator rejected, was based on the fact that the 2003 Communications Act excludes “content services” from the ECN rules, which instead only apply to “electronic communications networks” (i.e. Sky argued that their satellite TV services were “content services“).

The above context is key because Ofcom later informed ISPreview that, despite providing access to broadly the same services as their satellite-based products, Sky Stream and Sky Glass are currently classed by the regulator as over-the-top “content services” delivered through the internet, like Netflix, Disney+ etc. As above, content services are not regulated as communications services and thus fall outside the scope of Ofcom’s rules (General Conditions). Ofcom informed us that the one exception to this is if they’re delivered as part of a bundle (e.g. alongside Sky Broadband), then ECNs would still apply.

Sky then launched a legal challenge against Ofcom’s 2022 ruling and, despite losing several attempts to overturn it, the broadcasting giant then filed another application for permission to appeal with the Court of Appeal just before Christmas 2024.

A Sky spokesperson told ISPreview (March 2025):

“We’re committed to providing our customers with the best possible service across all our products and offer an extensive range of options to help them manage their Sky TV services and bills.

We do not believe that Sky’s pay-TV service is an electronic communication service under the definition in the Communications Act 2003 and continue to seek legal review to clarify what has been a long running, genuine difference of views on interpretation of the law.”

This case (CA-2024-002837) finally had its day in court at the end of last month, and the judges today ruled to dismiss Sky’s challenge (here – credits to forum member plunet for spotting).

Extract from the Case Conclusion

I therefore reject Mr Ward’s submission that Ofcom’s case is flawed because it causes a service that is mainly content to be regulated. Nor do I accept his submission that Ofcom’s case uses the content exemption to define the scope of the regulation of the rest. It simply leaves it out of account – consistent with what the parties accept is common ground, that the CRF does not regulate content. It is not (as Mr Ward put it) “the content exception that drives a service like Sky’s into the field of regulation”: that is achieved by the fact that the non-content element of the service consists wholly or mainly of the conveyance of signals. As I have observed above, in connection with the BEREC report, it is Sky’s interpretation that would cause the extent of content to be used to determine whether conveyance of signals falls within regulation. That is counter-intuitive, to say the least, when the regulatory regime as a whole is intended to keep the regulation of content and of transmission separate, given the fundamentally different aims of the two regulatory regimes.

Second, it better accords with one of the key aims of the CRF and the EECC, namely to bring the transmission element of broadcasting networks within the regulatory framework applicable to communication services. We were not presented with any evidence as to the proportion of an overall service provided by any other broadcaster as between transmission and content, but viewed (as Mr Ward accepted it must be) from the perspective of the end-user, it is not difficult to see that the element of most interest will usually be content, rather than how that content is transmitted. Sky’s approach would – to put it at its lowest – create a significant risk of thwarting that key aim. Ofcom’s approach achieves that key aim, whilst ensuring the separate regulation of content and of transmission services.

Third, and contrary to Mr Ward’s submission, the “wholly and mainly” test, on Ofcom’s interpretation, still performs a valuable function: that of ensuring the regulation is proportionate, by balancing the various technical components that make up the service and enquiring whether that which consists of conveyance of signals, by the entity to be regulated, is the principal feature. Mr Ward gave, as an example of a service that would escape regulation because the conveyance of signals element was less than the principal feature, an electricity supply service that included a smart meter. nother example is Pay TV content carried over the open internet: on a purely “tech on tech” balance, this does not qualify as an ECS.

Fourth, Ofcom’s approach also better accords with the objective of legal certainty. I have already observed that if the wholly or mainly test is applied to the service as a whole including content services, then it is likely to take most broadcasting services out of the definition of an ECS, which cannot have been the intention. Even if that is not correct, however, then seeking to balance the relative importance of content and transmission services from the end-users’ perspective involves inherently difficult value judgments. As Green LJ put it in argument, transmission services and editorial control are almost philosophically different. The test could not be answered simply by identifying the amount spent by the broadcaster on different elements.

While it is true that a value judgment is still called for if the test is to be applied to what remains after exclusion of content services, it is a much more straightforward exercise, likely to lead to greater consistency in application and thus greater legal certainty.

This would point even more strongly in Ofcom’s favour if “content service” were to be construed as extending to the provision of content by its transmission, even where that content was produced by third parties, as Mr Holmes suggested. In that case, identifying whether the content or transmission element was the main or principal element would be even more difficult. That, as I have noted above, was not the approach adopted by the ECJ in UPC Nederland and Sky did not develop any argument on the point before us. Mr Ward said that in an effort to invite the Court to decide no more than was strictly necessary it had not made submissions on that point. In those circumstances, and since my conclusion does not depend on it in any way, I need not address the point in this judgment.

For the above reasons, I consider that the Tribunal came to the correct conclusion, and I would dismiss the appeal.

At present it is not known whether Sky will continue to fight the decision. ISPreview has asked Sky to comment and will report back once they respond.

UPDATE 23rd August 2025 @ 6:54am

We’ve had a brief comment from Sky.

A Sky spokesperson told ISPreview:

“We acknowledge the judgment handed down by the Court of Appeal and will carefully review its findings.”