Judgment of the Tribunal on the appropriate final order to be made following the Tribunal’s judgment in [2023] CAT 70 (the “Main Judgment”) in respect of Sky UK Limited’s ("Sky") appeal under section 192 of the Communications Act 2003 (“the 2003 Act”) contending that the Office of Communications ("Ofcom") had erred in law in its application of section 32 of the 2003 Act in a confirmation decision dated 19 August 2022 entitled “Investigation into Sky’s compliance with the obligation to provide end-of-contract notifications” (the “Decision”).
The Tribunal found in the Main Judgment that Ofcom did not err in its construction of section 32(2) and (2A) of the 2003 Act. The Tribunal found that Ofcom erred in not considering in the Decision whether the element of conveyance of signals predominates over the other non-content aspects of the Sky Pay TV service, but that the Sky Pay TV service is an electronic communications service (“ECS”) within the meaning of those sections and the overall conclusion in the Decision was correct.
The Tribunal noted that it had a discretion as to remedy. It unanimously declined to quash the Decision, and dismissed the appeal. This was based on the following:
- It was common ground that it was a matter of applying the legal principles found in the Main Judgment to the undisputed facts relating to the Sky Pay TV service.
- The Tribunal carried out its own analysis, applying the law to the facts, to find that the Sky Pay TV service was an ECS. Nevertheless, in principle, it would be open to Ofcom to reach a different evaluative judgment, and this evaluative assessment is a matter for Ofcom.
- However, the Tribunal could see no possible basis for Ofcom reaching a different conclusion on a fresh evaluation. Sky had not given the Tribunal any indication of the basis on which Ofcom could reach a different decision, noting the relevant facts had not changed.
In these circumstances, even if in principle a different result were “legally open”, the Tribunal concluded there was no reason to consider the outcome would not be the same and there was no purpose in remitting the matter to Ofcom to take a fresh decision.
