On 3 November 2010 News Corporation (“News Corp”) notified the European Commission of its intention to acquire the shares in British Sky Broadcasting Group plc (“Sky”) it does not already own. This would increase its holding from approximately 39.1% to 100%.
On 4 November the Secretary of State for Business, Innovation and Skills issued a European intervention notice in relation to the proposed acquisition. The notice specified the public interest consideration in section 58 of the Enterprise Act 2002 ("the Act“) concerned with the sufficiency of plurality of persons with control of media enterprises. This is:“the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience”.
He asked Ofcom to investigate and to report to him by 31 December 2010 providing advice and recommendations on the specified public interest consideration, which may be relevant to the Secretary of State“s decision on whether to refer the case to the Competition Commission.
It is not Ofcom“s role to advise on whether concerns are conclusively established but rather to advise on whether there may be concerns such that a fuller second stage investigation is warranted. In our advisory role undertaking a first stage assessment within 40 working days, the threshold to be reached for Ofcom to advise the Secretary of State that the proposed acquisition may warrant fuller consideration by the Competition Commission is fairly low. Ofcom needs to hold a reasonable belief, on the basis of the evidence available, that the propose
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