The Competition Appeals Tribunal (CAT) has unanimously dismissed the appeal by Rapture against a ruling by Ofcom, which concluded that charges levied by BSkyB for the provision of electronic programme guide (EPG) services between November 2005 and November 2006 were fair, reasonable and non-discriminatory. Rapture claimed that Ofcom did not conduct a thorough investigation; erred in treating the Set Top Box (STB) subsidy as a common cost; failed to take its particular circumstances into account and had defined the scope of the dispute too narrowly.

This doesn’t make pleasant reading for Rapture. In dismissing most of Raptures claims as ‘ill-founded’ the CAT also described Rapture’s Notice of Appeal as lacking in ‘clarity, precision, and particularisation’

The CAT found:

• Evidence showed that paying the £76,800 EPG charge was ‘affordable’ by Rapture, based on their own figures and future projections.
• There is no duty on Sky to discriminate in favour of start-ups
• STB subsidy ‘is a common cost to all providers of programmes which are listed or promoted in the guide and Ofcom was correct in treating it as a common cost’. It describes Rapture’s submissions as being ‘founded on Rapture’s misconception that the STB is not part of the EPG service but is part of a separate and distich service which Sky provides to its subscribers…we consider Rapture’s submissions in this regard to be clearly ill-founded and we accordingly reject them’
• Whilst Ofcom has a power under section 191 of the Comms Act to require person to provide information for the purpose of considering a dispute, it is not a duty to request information.The CAT noted that the appeal raised some important points of principle with regards to theinterpretations of the 2002 Conditional Access Guidelines (now replaced by 2006 Guidelines) and the dispute resolution procedure set out in sections 185-191 of the Communications Act 2003