BT v Sky, Ofcom and others [2014] EWCA Civ 133 – Pay TV goes back to the CAT

25 Feb 2014

The Court of Appeal has allowed an appeal by BT against the 2012 pay TV judgment of the Competition Appeal Tribunal (“CAT”). The CATs judgment upheld a challenge by Sky to Ofcom’s 2010 Pay TV Statement, which imposed conditions on Sky’s broadcasting licences, requiring it to supply Sky Sports 1 and 2 to other pay TV providers on a wholesale basis.

The Court of Appeal found that the CAT had misconstrued Ofcom’s Pay TV Statement by failing to appreciate the importance of Ofcom’s separate competition concern about price and the effect of certain discounts which the CAT had found Sky was willing to offer.  The Court concluded that, even if the CAT disagreed with Ofcom’s conclusions as to the reasons for the breakdown of negotiations between pay TV providers, Ofcom had in any event expressed an independent competition concern about the price at which supply of the channels might be obtained, which the CAT had failed properly to address in its judgment.  The Court therefore concluded that the CAT’s Order allowing Sky’s appeal and dismissing appeals by BT, Virgin and others, should be set aside, and the matter remitted for further consideration.

The Court of Appeal also rejected a cross-appeal by Sky and the FA Premier League, which challenged  the CAT’s conclusion that Ofcom had jurisdiction to impose the relevant conditions in Sky’s broadcasting licences under section 316 of the Communications Act 2003, in order to ensure “fair and effective competition”.  The Court found that section 316 was not concerned only with competition between providers of content for TV services, but allowed Ofcom to impose licence conditions so as to ensure fair and effective competition in the wholesale and retail provision of licensed services to consumers generally.

Jon Turner QC and Gerry Facenna acted for BT in the appeal, Meredith Pickford acted for Sky and Josh Holmes acted for Ofcom. Ben Lask also acted for Ofcom in the CAT

A copy of the judgment is available here.