FA Premier League to Ofcom: ‘and the horse you rode in on!’
Some snippets from the FA Premier League’s scathing response (via DLA Piper) to the Ofcom Pay TV Consultation (available here):
‘However, it is unclear, throughout the Consultation, what evidence Ofcom relies on and what the full basis of its case is as it has redacted large parts of the Consultation and its Annexes making it largely impossible to respond to key aspects of Ofcom’s workings and conclusions.’
‘[T]o the extent that Ofcom’s concerns simply relate to platform choice for consumers this is easily capable of resolution by allowing Sky to continue with its Picnic proposals and to retail on DTT. The expansion of the DTT platform is being blocked, not by Sky’s activities, but by Ofcom’s refusal to allow Sky to continue with its Picnic proposal in light of the Consultation.’
‘The majority of Ofcom’s findings are all based on theoretical possibilities or apparent “likely effects”. The whole of section 7 is littered with weak assumptions, conjecture and unsubstantiated predictions which do not explain how consumers are suffering as a result of any actual harm that requires remedying; let alone in such a drastic way.’
‘[T]he idea that the existence of the wholesale remedy will somehow create a competitive utopia in which undertakings such as Virgin Media and BT Vision suddenly consider that they should reverse their historic strategy and start to bid for rights is self-evidently misguided. Indeed, Virgin Media’s CEO has recently stated that the developments on the regulatory front have vindicated the company’s strategy of not bidding for premium content rights. With the rights to retail Sky’s Core Premium channels handed to them on a plate by the regulator, any incentive they once might have had to bid competitively for rights is effectively gone forever.’
‘It is for the PL to determine its future packaging in compliance with competition law. The PL will not countenance any attempt by Ofcom, or any of the potential bidders for the rights, to try and determine its future rights packaging.’
My take:
I have a few thoughts –
1. DLA Piper did an excellent job. I’ve excerpted some of the more quotable nuggets above, but overall the firm’s economic analysis, presentation and point-by-point arguments are top-notch. As I have said before, this is a forthcoming litigation-fest. I don’t see Ofcom climbing down at this late stage, but the regulator is pushing some very esoteric ‘what if’ arguments to justify its massive intervention into the market. It’s hard to imagine how Ofcom will prevail before a reviewing court.
2. It’s interesting that the FAPL have picked up on the unfairness of Ofcom’s use of redacted evidence. No surprise there, of course. There is a footnote that says such a lack of transparency should cause a court to negate Ofcom’s entire plan.
3. I wonder how the discussion of this matter before the Ofcom board is going? The idea that consumers will see a meaningful benefit from Ofcom’s proposals seems far-fetched. It’s not helping, I think, that BT and Virgin Media promote the notion of a ‘ladder of investment’ and are still not really committing to putting skin in the game. So we are on the bottom rung still?
