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CAT rules on the proper construction of ‘electronic communications service’

16 Nov 2023

The Competition Appeal Tribunal has handed down judgment in Sky v Ofcom [2023] CAT 70.

The Tribunal upheld Ofcom’s construction of section 32(2) and (2A) of the of the Communications Act 2003, which underpinned Ofcom’s Decision that Sky’s pay TV services, which rely in whole or in part on a digital satellite transmission service, constitute an electronic communications service (“ECS”) within the meaning of that section, and that Sky was therefore required to send end-of-contract notifications to customers of its pay TV services. It found that “as a matter of construction of section 32(2) and (2A), it is necessary first to exclude the element of a service which is a “content service” before considering whether the rest of the service falls within the definition of section 32(2A)(c) as “consisting in, or having as its principal feature, the conveyance of signals”.

On that basis, the Tribunal concluded that Sky’s pay TV service is an ECS within the meaning of section 32(2) and (2A)(c) of the 2003 Act. It held that Ofcom erred in not considering in the Decision whether the element of conveyance of signals predominates over the Other Non-Content aspects of the Sky Pay TV service, but that, in any event, it does so predominate. As such, the overall conclusion in the Decision was correct.

The judgment is available here.

Meredith Pickford KC and David Gregory acted for Sky.

Josh Holmes KC, Julianne Morrison and Nikolaus Grubeck acted for Ofcom.

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