Judgment on an application by Real Digital EPG Services Limited (“REAL”) to vary the interim order dated 29 April 2010.
On 29 April 2010 the President ordered that OFCOM’s decision (“Decision”) to insert the “wholesale must offer” obligation (“WMO”) into Sky’s broadcasting licences must be implemented (subject to certain conditions) in relation to BT, Top-Up TV and Virgin Media, but the Decision would otherwise be suspended.
Real intends to launch a new digital satellite TV platform in January 2011 and applied for the interim order to be varied so that it can take advantage of the WMO.
The proposed variation of the interim order would enable the reasonableness or otherwise of any “minimum qualifying criteria” stipulated by Sky, and any issue as to whether those criteria are or are not satisfied by REAL, to be decided, at least in the first instance, by OFCOM. This is the procedure envisaged by the Decision. By contrast, the negotiations and discussions between Sky and REAL have, of necessity, been conducted outside the framework of the Decision. REAL has no obvious means of requiring OFCOM to take a formal decision as to these matters so long as the Decision remains suspended in relation to REAL.
The President proposed to exercise his discretion to vary the interim order by lifting the suspension of the Decision in respect of REAL. The President reached the conclusion that if the balance of convenience or balance of injustice or balance of interests is applied, in all the circumstances the balance would lie strongly in favour of varying the interim order so as to put REAL in the same position mutatis mutandis as the other three companies who have been brought within the exception to the general suspension of the Decision.
