Ofcom’s research goes to the heart of a big part of the television market in the U.K. - under what terms and conditions can the FA Premier League (FAPL) sell its television rights? In the past, Sky has been the sole buyer of this programming, helping the satellite provider garner subscribers and market share. So, while it is just football, the FAPL carriage rights mean one thing: money. Regulation–whether principled or not–often follows the money.

So periodically check here for the Ofcom research. After months of seeking this research and multiple document requests to both Ofcom and the EC, Ofcom have finally told us that publication of the research is ‘imminent’. Whatever that means!

We’re not finished asking questions, however.

As several of our recent posts have made clear, Ofcom’s behaviour concerning this research is odd if not downright suspicious. For example, we wanted to know, among other things, whether the Ofcom research was leaked to Sky’s competitors. Yetserday, Ofcom sent me correspondence (a denial of my Freedom of Information Act (FOIA) request) refusing to provide information on whether the Ofcom research was leaked to third parties. Ofcom had to turn to its Secretary, Graham Howell, for what seems like a highly unusual special exception to the FOIA. Howell wrote to me:

A consequence of disclosure would be that stakeholders would be less likely to come forward and discuss important policy issues, and be less open, with Ofcom. Ofcom would therefore be less able to gauge stakeholder’s views as to how effective its regulation is.

First, Graham Howell’s assertion is purely speculative. He says that openness inhibits the frank discussion of policy issues. But he cites nothing to show this is the case. Howell is wrong, of course. By way of comparison, the FCC requires all ex parte contacts on matters of policy to be disclosed in substance under a ‘permit but disclose’ scheme. Yet, contrary to Graham Howell’s assertion, people continue to contact the FCC on all kinds of policy matters. The FCC’s system results in a robust exchange of ideas and positions.

Second, Howell’s assertion makes no sense in the context of this research. We were told by Ofcom back in August that this was the EC’s investigation and all Ofcom did was to provide some sectoral research. Howell’s denial of my FOIA request makes it sound as if Ofcom were the entity formulating policy. So, even if you buy Howell’s argument about the need for secrecy in policy-making (which I don’t), there was no policy-making in this case.

Finally, the denial of my FOIA request strongly suggests the Ofcom research was in fact leaked. Maybe Ofcom can give us a simple and straightforward answer—yes or no—completely outside the FOIA context: Was the FAPL research leaked (or shared, if you will) with competitors to Sky?

Silence? I’ll take that as a ‘yes’ answer.

Stay tuned, folks…