Judgment in respect of an appeal by Independent Media Support Limited (“IMS”) against a decision of OFCOM finding that an agreement between BBC Broadcast Limited (“BBCB”) and Channel 4 for the provision of television access services (“the Channel 4 Contract”) had not infringed Articles 81 or 82 of the EC Treaty or the equivalent provisions of the Competition Act 1998.
The Tribunal held that OFCOM was correct to determine whether or not BBCB was dominant by considering its market position in the first half of 2004. In determining whether BBCB was dominant in the first half of 2004, the Tribunal upheld OFCOM’s view that market developments occurring at some point in the future were irrelevant. A finding of dominance must be based on the evidence available at the appropriate time.
The Tribunal concluded that OFCOM did not make a material error of assessment when it found that BBCB did not hold a dominant position on the market for the supply of access services to UK broadcasters in the first half of 2004.
The Tribunal also found that OFCOM’s conclusion that the Channel 4 Contract did not infringe Article 81(1) or the Chapter I prohibition after 1 January 2007 was correct.
