Ofcom decision on guidelines for technical platform services

Ofcom revised guidelines on the pricing of Sky's technical platform services (conditional access, access control, electronic programme guide listings), with explanatory statement (78 pages, PDF).

As in the November 2005 consultation and April 2006 consultation, Ofcom identifies a concern that competition and "the development of new and innovative services" could be harmed by Sky's ability to charge different TPS customers different prices for the same technical services, and its ability to "discriminate" between third parties and its own retail business. The new guidelines are intended to provide Sky with less flexibility when setting prices for technical platform services, and to provide certainty and transparency to current and future TPS customers.

The guidelines envisage a requirement for detailed analysis to determine whether charges set by Sky for technical platform services are "fair, reasonable and non-discriminatory", built on the principle that "fair, reasonable and non-discriminatory" charges need to be related to the historic costs that Sky has incurred in developing its DSat platform. This approach is different from that which would (or at least should) be applied were Sky to face allegations, under Article 82 EC or Chapter II of the Competition Act 1998, of abusing a dominant position by excluding a rival channel/service provider through excessive TPS charges: in that case, the relevant costs to determine the existence of an abuse would be those of Sky's downstream retail (e.g. channel) operations, and/or the corresponding costs of rival channel/service providers.

Ofcom has proposed (16 pages, PDF) to waive the usual notice requirements to enable implementation of the new charges from 1 January 2007.

Filed under Article 82, Media, Ofcom.

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