Its the latest chapter in the rulebook for wholesale distribution of core premium channels Sky Sports 1 and Sky Sports 2. In March 2010 Ofcom varied the broadcasting licences of the two channels to ensure carriage on rival platforms.
However, the Wholesale Must Offer did not take into account distribution over IPTV, so when BT launched on the YouView platform Sky initially refused to grant carriage for the two channels. The matter was compounded when BT dropped the terrestrial channels it had used for the carriage of Sky Sports in favour of its own BT Sport. These had been used by both BT’s ‘Cardinal’ boxes on the former BT Vision.
Welcoming the ruling Ed Richards, Ofcom Chief Executive, said: “After more than four years of litigation and legal challenges, Ofcom’s 2010 pay TV decision continues to serve the interests of UK consumers and this ruling is consistent with our original decision. Ofcom is now focused on reviewing the ‘wholesale must offer’ remedy in light of developments in pay TV.”
Ofcom’s original decision was challenged at the Competition Appeal Tribunal, which said that the wholesale must offer should not stand.
However, in February 2014, the Court of Appeal judgment found that the Tribunal failed properly to consider Ofcom’s findings that there was ineffective competition in the market. It concluded that errors of law in the Tribunal decision meant that its judgment could not be upheld and remitted to the Tribunal to reconsider its decision.
The regulator plans to publish a consultation on the wholesale must offer in the coming months, which will review the wholesale must offer in light of how the pay-TV market has developed since Ofcom’s original decision in March 2010.
The Tribunal granted permission after BT agreed to maintain BT Sport on the Sky platform until the conclusion of Sky’s appeal or any further order.