BT has succeeded in its bid to have the competition tribunal to re-examine its decision to stop Sky Sports 1 and 2 being offered to competitors under more favourable terms.
In Summer 2012 the tribunal concluded in a scathing report that Ofcom’s core competition concern that Sky had deliberately withheld from other retailers the supply of its premium channels to be unfounded.
Lord Justice Aikens of the Court of Appeal said he was satisfied that the CAT misconstrued the Statement by failing to appreciate the importance of Ofcom’s conclusion that the rate-card price and the effect of the penetration discounts that were proposed by Sky themselves gave rise to “competition concerns”.
“The failure of the CAT correctly to interpret the Statement or to deal with the rate-card price and penetration discount issues has the consequence that it is unclear whether, despite the findings of fact that the CAT has made in favour of Sky, there remain significant, independent, competition concerns based on the rate-card price and penetration discount, as found by Ofcom in the Statement.”
In a statement, Ofcom said: Ofcom welcomes the Court of Appeal’s decision that the judgment of the Competition Appeal Tribunal failed properly to consider Ofcom’s findings that there was ineffective competition in the market.
“Ensuring fair and effective competition in the pay-TV market has always been Ofcom’s objective. Ofcom’s 2010 decision that Sky must offer premium sports channels to other providers was designed to deliver choice and innovation to consumers through greater competition.”
A BT spokesperson meanwhile said: “BT welcomes today’s judgment from the Court of Appeal. We are glad that this issue will now be considered afresh and are hopeful that the outcome will finally deliver increased competition in pay TV which would be in the best interests of consumers.
Ofcom was correct to impose the wholesale must offer (“WMO”) on Sky and this remains essential to address the significant competition concerns with Sky’s supply of its channels.
BT remains unable to offer Sky Sports 1 and 2 on its most important TV service YouView. Sky’s refusal to offer access to these channels on reasonable terms causes serious harm to consumers and must be resolved urgently.”
