Pay TV phase three document - Stakeholders - Ofcom

Pay TV phase three document – non-confidential version
2.6 In the Second Pay TV Consultation we analysed pay TV markets, identified some
particular concerns relating to access to premium content, and consulted on the
possible broad forms of remedy that Ofcom could use to address those concerns.
2.7 Instead of making a reference to the CC, we proposed to meet our concerns over
access to content by putting in place a wholesale must-offer condition using our
sectoral competition powers under section 316 (“s316”) of the Communications Act
2003 (“CA03”).
2.8 The framework we used in the Second Pay TV Consultation reflected the fact that we
were conducting a broad analysis of the sector in order to inform an assessment of
what form of action (if any) it might be relevant to take. In general respondents did
not consider that we should make a reference to the CC in preference to taking
action under s316. This is consistent with the OFT Guidelines on market investigation
references 8 , which require us to consider action under sectoral or CA98 powers
before making any reference.
2.9 In light of responses to our Second Pay TV Consultation we now focus directly on
considering the case for an intervention under our sectoral competition powers,
contained principally in sections 316 to 318 CA03. We therefore set out below our
legal framework for considering an intervention under s316, taking into account
consultation responses.
Section 316
2.10 Section 316 provides:
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“(1) The regulatory regime for every licensed service includes
the conditions (if any) that OFCOM consider appropriate for ensuring
fair and effective competition in the provision of licensed services or
of connected services.
(2) Those conditions must include the conditions (if any) that
OFCOM consider appropriate for securing that the provider of the
service does not—
(a) enter into or maintain any arrangements, or
(b) engage in any practice,
which OFCOM consider, or would consider, to be prejudicial to fair
and effective competition in the provision of licensed services or of
connected services.
(3) A condition imposed under this section may require a
licence holder to comply with one or both of the following—
(a) a code for the time being approved by OFCOM for the
purposes of the conditions; and
(b) directions given to him by OFCOM for those purposes.
8 OFT 511: Market investigation references (March 2006)