BSkyB v Ofcom, BT and others (interim relief) [2014] CAT 17

05 Nov 2014

The Competition Appeal Tribunal (CAT) has allowed an application by BT to vary the terms of the interim relief in the long-running Pay TV dispute. The effect is to require Sky to wholesale its sports channels Sky Sports 1 and 2 to BT for distribution on BT’s ‘Cardinal’ and ‘YouView’ Pay TV platforms pending the final determination of the appeals.

In 2012 the CAT allowed Sky’s challenge to Ofcom’s 2010 Pay TV Statement, which had imposed conditions requiring Sky to offer its channels Sky Sports 1 and 2 to other pay TV providers on a wholesale basis, at a price fixed by Ofcom (‘the WMO remedy). In 2010, the CAT had suspended the effect of Ofcom’s decision on an interim basis, except in relation to BT, Virgin and Top-up TV (and subsequently Real Digital), who were permitted to benefit from the WMO remedy during the appeals subject to certain conditions and undertakings. The interim relief provided that the WMO remedy was to have effect in relation to certain ‘Qualifying Platforms’, which in BT’s case was defined to mean ‘digital terrestrial television’.

The CAT’s 2012 Order allowing Sky’s appeal was set aside by the Court of Appeal in February 2014 (see case note here) and the case was remitted to the CAT for further consideration. On 31 October 2014 the Supreme Court refused Sky’s application for permission to appeal. The appeals are therefore once again before the CAT.

By its judgment this week the CAT granted BT’s application to vary the terms of the original interim relief so as to require Sky to comply with the WMO remedy in respect of BT’s current Internet Protocol TV platforms, ‘Cardinal’ and ‘Youview’. The CAT President, Roth J., observed that the technical developments that had occurred over the ‘wholly exceptional time’ the appeals had taken meant that the original interim relief order was now largely ineffective as regards BT. He held that the interim relief should therefore be varied to cover BT’s current TV platforms, in particular having regard to the need to protect the public interest in achieving a competitive market, which the WMO remedy was designed to secure, and on the basis that BT has undertaken to continue to retail its own sports channels to Sky’s satellite customers while the interim relief remains in effect.

Jon Turner QC and Gerry Facenna are acting for BT, Josh Holmes acts for Ofcom, and Meredith Pickford acts for BSkyB. Ben Lask also acted for Ofcom in the original CAT appeal proceedings.

Pleas click here to view the CAT’s recent judgment in BSkyB v Ofcom, BT and others (interim relief) [2014] CAT 17