Complaint from British Telecommunications plc (“BT”) against British Sky Broadcasting Group plc (“Sky”) alleging abuse of a dominant position regarding the wholesale supply of Sky Sports 1 and 2 (“SS1&2”)

Ar gau

Complainant: BT
Complaint against: Sky
Case opened: 14 June 2013
Case closed: 16 February 2016
Issue: Alleged abuse of a dominant position regarding the wholesale supply of SS1&2
Relevant instrument: Chapter II of the Competition Act 1998 (“the Act”) and Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) (abuse of a dominant position).

BT has now obtained access to SS1&2 on a non-reciprocal basis for its YouView platform.  As this was the remedy sought by BT in the Complaint, Ofcom considers that the principal risk to the interests of the consumers identified in the Complaint has therefore been brought to an end.

Ofcom has therefore considered whether it is consistent with its administrative priorities to continue to investigate the complaint.  In light of the fact that the principal risk to the interests of consumers has been brought to an end, Ofcom considers that it is no longer appropriate to commit Ofcom’s limited resources to a continued investigation of the issues raised in the Complaint.  Ofcom has therefore decided to close the investigation with immediate effect.  In reaching this conclusion, we have not reached any conclusion as to the merits of the Complaint. 

Update note: 29 August 2013.

Ofcom has today published a public version of our decision of 31 July 2013 (see related items).

End of update note.

Update note: 1 August 2013.

On 31 July 2013, Ofcom refused BT’s application for interim measures.
We are continuing with our investigation of BT’s Complaint. In the initial phase of the investigation in summer 2013, we expect to gather further information using our powers under the Competition Act 1998, and to analyse this information. We expect this initial analysis to inform consideration of whether and how to proceed further with the investigation, during Autumn/Winter 2013. We would aim to provide an updated indicative timetable when we have concluded the initial phase described here.

End of update note.

On Friday 24 May 2013, Ofcom received a complaint from BT which alleges that the terms on which Sky offered wholesale supply of SS1&2 to BT’s YouView platform amount to an abuse of dominance. The complaint alleges that Sky is making wholesale supply of SS1&2 to BT’s YouView platform conditional on BT wholesaling BT Sport channels to Sky for retail on Sky’s satellite platform.

As set out in section 25 of the Act, Ofcom may conduct an investigation where it considers there are reasonable grounds for suspecting that the Chapter II prohibition and/or the prohibition in Article 102 TFEU have been infringed. In addition to the Chapter II prohibition in the Act, Ofcom has the power to apply Article 102 TFEU in full.

Ofcom has now opened an investigation under section 25 of the Act into the matters raised by BT’s complaint and will consider whether Sky has abused a dominant position under UK and/or EU competition law.

As part of the complaint BT has requested that Ofcom should consider whether it is necessary to act as a matter of urgency to grant interim measures relief under section 35 of the Act. We expect to issue a decision on interim measures in July 2013.

We will provide an update on timing following the decision on interim measures.

Case Leader: Lawrence Knight (e-mail: lawrence.knight@ofcom.org.uk)
Case Reference: CW/01106/05/13