The UK’s Competition Appeal Tribunal has ruled in favour of satellite broadcaster BSkyB’s appeal against Ofcom’s decision to modify Sky’s licences in respect of supplying its core premium sports channels (CPSCs) to other platforms such as BT and Virgin Media. The new licence conditions required Sky to offer to wholesale its CPSCs to retailers on other broadcasting platforms and, in the case of the standard definition (“SD”) versions of the channels, offer them at wholesale prices set by Ofcom.
While the Tribunal agreed with elements of Ofcom’s analysis, it concluded that Ofcom’s decisions that Sky’s conduct was such as to prejudice fair and effective competition in the retail supply of the CPSCs was wrong.
BSkyB said: “Sky notes today’s announcement by the Competition Appeal Tribunal (CAT) of its judgment on the various appeals of Ofcom’s decision to impose a Wholesale Must Offer obligation in respect of Sky Sports 1 and Sky Sports 2.
“We welcome the CAT’s confirmation that Ofcom’s competition concerns in relation to the wholesale supply of Sky Sports are unfounded and that, contrary to Ofcom’s analysis, the evidence shows that Sky has engaged constructively with other distributors over the supply of its premium channels. This finding supports the argument that Sky has been making consistently over the last five years.
“We also welcome the CAT’s conclusion that the existing commercial terms of supply, particularly in relation to Sky’s wholesale rate card, do not obstruct fair and effective competition in the retailing of Sky Sports across platforms. At present, Sky has access only to the CAT’s summary of its principal findings and conclusions. Sky will give careful consideration to the full judgment when it is made available.”
Virgin Media reacted angrily: “It’s simply not credible that the Competition Appeal Tribunal has concluded there are no problems in a market which Ofcom spent three years investigating and which the Competition Commission as recently as last week concluded is not working in the interests of consumers. They have not even acknowledged the importance of increased choice and availability so, after five years of exhaustive investigations, TV viewers continue to lose out. We await the full judgment and will pursue all available options to get a better deal for consumers.”