"Qualifying platform means via DTT in the case of BT, Virgin and Top-Up TV and via its existing cable platform in the case of Virgin, with all parties having liberty to apply."
"60. Accordingly, I consider that the starting point is that the WMO remedy was imposed by OFCOM in order to ensure fair and effective competition pursuant to s.316 of the 2003 Act, in the public interest. Unless suspended, the WMO remedy covers any form of delivery of Sky's core premium sports channels, including via IPTV. 61. A decision by OFCOM under s.316 regarding a licence condition will very often, if not always, be adverse to the commercial interest of the party on whom the condition is imposed. 62. If such a decision is appealed, the decision is only suspended if the CAT so orders. Such decisions by OFCOM are usually complex, and an appeal is therefore likely to involve complex issues and will frequently involve several parties, as was the case here. Although it is hoped that such appeals would not usually take anything like as long as the present case, final resolution of such an appeal may often take at least a year, and longer if the case proceeds to a second level appeal. 63. The complexity of such appeals means that it will usually be impossible for the Tribunal on an interim hearing to arrive at even a provisional view as to the prospect of the appeal succeeding. Certainly in the present case, it would be wholly inappropriate for me to reach any view as to the likely outcome of remittal to the Tribunal, as ordered by the Court of Appeal. 64. Accordingly, although there will no doubt be appropriate cases for suspension, the Tribunal should be cautious before suspending a decision regarding a licence condition pending appeal. Broadcasting markets, like telecommunications markets, are developing rapidly so that any suspension will potentially impair the effectiveness of the decision, and if such a decision could readily be suspended there would be an incentive to appeal simply to secure the benefit of delay. 65. In the present case, although the WMO remedy has been suspended by consent, I consider that the terms of the IRO, with the incorporated undertakings, were designed to ensure that meaningful use of SS1&2 could be made by other parties supplying pay TV services in the interim. This is supported by the submission from OFCOM on the present appeal, stating as follows: "
"94. The CAT had to deal with Sky's appeal "on the merits" of OFCOM's conclusions on what its competition concerns were and why those had led it to setting the WMO remedy and to setting specific prices for wholesaling the CPSCs to competitors of Sky in the standard definition versions. On my analysis, there can be no doubt that the rate-card price and penetration discount issues were part of OFCOM's competition concerns, even if they were not its "key" concern. The issues of rate-card price and penetration discounts were before the CAT on the parties' Notice of Appeal and Defence. As already noted, there were 18 reports or statements relevant to the level of price fixed by the WMO remedy before the CAT. The fact that the CAT stated, at [821] of the judgment, that it did not find it necessary or appropriate to consider the rate-card price issue demonstrates that these were live issues before the tribunal at the hearing. 95. The CAT's conclusion that OFCOM was wrong, on the facts, to find that Sky was not prepared to negotiate for the wholesale of the CPSCs left open the issue of the price at which these channels could or would be supplied wholesale to competitors. Even though at [821] the CAT found, albeit in very general terms only, that Sky was open to agreeing discounts with competitors from the rate-card prices for the purpose of wholesale supply "referable to penetration rates achieved by the retailer", the CAT does not indicate what those prices might have been or, more importantly, what their effect might have been on competition. Indeed it emphasised that there was no way of knowing what the outcome of genuine commercial negotiations might be and regarded this as a good reason for it being unnecessary to make further conclusions on this issue. But the very fact that the CAT did not find what actual prices might have been agreed meant that it could not conclude whether or not the prices that might have been agreed would have impeded "fair and effective" competition 96. Thus, in my view, the CAT has not dealt with OFCOM's finding that the rate-card price is, in itself, an impediment to "fair and effective" competition. Furthermore, the CAT did not address at all the issue of whether OFCOM was right to conclude that the penetration discount method of lowering the price for the wholesale supply of CPSCs to competitors by Sky raised a "competition concern"
"…we consider that the following principles should inform our approach to disputed questions upon which Ofcom has exercised a judgment of the kind under discussion: (a) Since the Tribunal is exercising a jurisdiction "on the merits", its assessment is not limited to the classic heads of judicial review, and in particular it is not restricted to an investigation of whether Ofcom's determination of the particular issue was what is known as Wednesbury unreasonable or irrational or outside the range of reasonable responses. (b) Rather the Tribunal is called upon to consider whether, in the light of the grounds of appeal and the evidence before it, the determination was wrong. For this purpose it is not sufficient for the Tribunal simply to conclude that it would have reached a different decision had it been the designated decision-maker. (c) In considering whether the regulator's decision on the specific issue is wrong, the Tribunal should consider the decision carefully, and attach due weight to it, and to the reasons underlying it. This follows not least from the fact that this is an appeal from an administrative decision not a de novo rehearing of the matter, and from the fact that Parliament has chosen to place responsibility for making the decision on Ofcom." (d) When considering how much weight to place upon those matters, the specific language of section 316 to which we have referred, and the duration and intensity of the investigation carried out by Ofcom as a specialist regulator, are clearly important factors, along with the nature of the particular issue and decision, the fullness and clarity of the reasoning and the evidence given on appeal. Whether or not it is helpful to encapsulate the appropriate approach in the proposition that Ofcom enjoys a margin of appreciation on issues which entail the exercise of its judgment, the fact is that the Tribunal should apply appropriate restraint and should not interfere with Ofcom's exercise of a judgment unless satisfied that it was wrong."
"(1) The regulatory regime for every licensed service includes the conditions (if any) that OFCOM considers appropriate for ensuring fair and effective competition in the provision of licensed services. (2) Those conditions must include the conditions (if any) that OFCOM consider appropriate for securing that the provider of the service does not – (a) enter into or maintain any arrangements, or (b) engage in any practice, which OFCOM consider, or would consider, to be prejudicial to fair and effective competition in the provision of licensed services or connected services"
"What is the likelihood of content holders engaging in the practices identified, taking into account their incentives and current supply arrangements?"
"However, we have further considered the relevance of existing supply arrangements for Sky's key content in assessing whether Sky is engaging in a practice of non-supply."
"This evidence suggests that whilst, in principle, there may be circumstances in which Sky has incentives to withhold supply, it is not currently engaging in such a practice."
"…the measure: (1) must be effective to achieve the legitimate aim in question (appropriate), (2) must be no more onerous than is required to achieve that aim (necessary), (3) must be the least onerous, if there is a choice of equally effective measures, and (4) in any event must not produce adverse effects which are disproportionate to the aim pursued."
"In the absence of the regulatory obligation the supply arrangements might have been different or not concluded at all" and, at paragraph 7.35: "
"Whilst we recognise that there may be concerns in principle given Sky's strong position in the market, in practice the evidence shows that Sky is supplying widely…"