The appeal was brought against the regulator Ofcom after a long running dispute with Sky. It argued that new entrant or small broadcasters should be entitled to a lower EPG charge when compared with the more established channels on the platform. Rapture had submitted that the cost of the initial set-top box subsidy should not be bound in with the EPG charges. It said the regulator had not properly investigated its claims against Sky.
In their ruling Ms Marion Simmons QC, Professor Paul Stoneman and David Summers said that being a smaller company was not a reason for Rapture to pay a lesser charge. “The fact that Rapture’s programming appeals only to a limited proportion of those television viewers is a matter for Rapture and its choice of business plan, rather than a matter for Sky. In any case, Rapture’s assertion that it benefits to a lesser extent than other channels has not been substantiated by any evidence before us.”
“In our judgment, for Rapture to make out this ground of complaint it would be necessary for it to have provided some evidence that it was in a different position to other broadcasters so that the charge to it should be different. Rapture has not done so.”