Investigation into Sky’s compliance with end-of-contract notifications for pay-TV customers

Ofcom has today published a non-confidential version of the Confirmation Decision issued to Sky on 19 August 2022.

Non-confidential Confirmation Decision served on Sky (PDF, 840.9 KB)

Ofcom considers end-of-contract notifications to be an important consumer protection tool to prompt consumers to shop around for the best deal for their needs. Therefore, we take compliance with the obligations to send end-of-contract notifications seriously.

Having carefully considered Sky’s representations in response to the Notification issued under Section 96A of the Communications Act 2003 on 14 May 2021 (see below), Ofcom has concluded that where Sky’s pay TV services rely on digital satellite transmission, Sky provides a public electronic communications service to its customers. As such, Sky is a ‘regulated provider’ within the meaning of General Conditions C1.21 to C1.29 and it is obliged to send end-of-contract notifications to its customers of those pay TV services.

By failing to send end-of-contract notifications to its pay TV customers, Sky has contravened, and continues to contravene, C1.21 to C1.29 of the General Conditions (and their predecessor obligations at C1.10 to C1.15 of the General Conditions) from at least 26 March 2020. Ofcom has therefore issued a Confirmation Decision to Sky under section 96C of the Communications Act 2003.

We have decided that Sky must take all necessary steps to comply with its regulatory obligations to send end-of-contract notifications to customers of its relevant pay TV services, starting no later than nine months from the date of this decision. In addition, Sky must provide Ofcom with a progress report no later than four months from the date of this decision on the steps that it will take to ensure that the remedy is fully implemented within the nine months given. If Sky brings an appeal against our decision, those directions will be suspended pending the outcome of a first instance decision of the Competition Appeal Tribunal.

Ofcom will publish a non-confidential version of its decision shortly.

Sky has now had the opportunity to make representations to Ofcom on the matters contained in the Notification issued under Section 96A of the Communications Act 2003. We are currently considering Sky’s representations.

We aim to reach a final decision in this case in early 2022 and publish our findings accordingly.

Following an investigation, Ofcom has determined that there are reasonable grounds to believe that Sky has contravened, and continues to contravene, GC C1.10 of the General Conditions from at least 26 March 2020. Ofcom has therefore issued a Notification to Sky under section 96A of the Communications Act 2003.

We have provisionally found that as a provider of pay TV services transmitted by means of satellite distribution network, Sky provides an electronic communications service. As such, we provisionally consider that Sky is a Regulated Provider within the meaning of GC C1.10 and is required to comply with that condition in respect of its pay TV services.

Sky now has the opportunity to make representations to Ofcom on the matters contained in the Notification before Ofcom makes a final decision in accordance with section 96C of the Act.

We aim to reach our final decision in this case by the end of summer 2021 and will publish our findings accordingly.

On 15 February 2020, Ofcom introduced a requirement for broadband, mobile, home phone and pay-TV companies to notify their residential and business customers when their minimum contract period is coming to an end.

GC C1.10 states that:

Regulated Providers must send an End-of-Contract Notification to a Subscriber, in the manner and form specified by Conditions C1.11 to C1.14, if each of the following requirements are met:

(a) the Subscriber has a contract with the Regulated Provider for Public Electronic Communications Services, other than machine-to-machine transmission services;

(b) the contract has a Fixed Commitment Period; and

(c) the terms of the contract provide (or governing law provides) for the contract to be automatically prolonged after the expiry of the Fixed Commitment Period.

Regulated Provider is defined as all providers of Public Electronic Communications Services for the purposes of this Condition.

Ofcom considers that, as a provider of pay-TV services transmitted by means of satellite distribution network, Sky provides an electronic communications service and, as such, is a Regulated Provider within the meaning of GC C1.10 and is required to comply with that condition in respect of its pay-TV services.

Sky does not consider that its standalone pay-TV services fall within the definition of an electronic communications service and maintains it is not required to comply with GC 1.10 for such services.

Following discussions with Sky, we accept that there is a genuine difference of opinion as to the legal interpretation and scope of the term ‘electronic communications service’. We have therefore decided to open an investigation (PDF, 307.4 KB) to examine whether there are reasonable grounds to believe that Sky has failed to comply with its obligations under C1.10.

If Ofcom considers that it has reasonable grounds to believe that Sky has contravened, or is contravening, its obligations, it will issue a notification to Sky and give Sky the opportunity to make representations on that notification. Ofcom expects to determine its next steps by January 2021.