Rapture TV appeals Ofcom's Sky ruling
Digital channel Rapture TV has claimed that Ofcom did not fully investigate its complaint that BSkyB overcharged for its electronic programme guide listing in an appeal against the regulator's ruling today.
Rapture, which airs a mix of entertainment and extreme sports programming, originally complained to Ofcom that its annual EPG bill of £76,500 from Sky was "unduly high", given that its annual turnover was under £150,000.
The channel, run by chief executive David Henry, claimed Sky had breached its regulatory obligations by offering unfair listing terms.
However, Ofcom cleared Sky of overcharging in February, saying the price had been "fair, reasonable and non-discriminatory".
Today at the Competition Appeal Tribunal in London, Michael Bowsher QC, acting for Rapture, said: "The question for the tribunal is whether Ofcom did enough. Our ending point is that Ofcom did not do enough.
"It was happy to accept Sky's position without drilling down on what was being said."
Bowsher added that just because the price Sky had charged Rapture fell between the satellite broadcaster's two unidentified cost bands, it did not make it "fair, reasonable or non-discriminatory".
"It seems that Ofcom have taken undue comfort from the charge being between the floor and the ceiling [of the two price bands] but it doesn't mean that any price between the floor and the ceiling is fair, reasonable or non-discriminatory," he said.
"That is the core of our case. It seems that Ofcom's position has been that as long as it is between the floor and the ceiling it is fine."
Bowsher said the EPG charges should be "about treating broadcasters properly with regard to their circumstances".
He also argued that Rapture should not have to pay for EPG services it did not use and questioned the amount of subsidy channels should pay for Sky's set-top boxes.
"We say this decision should be remitted with appropriate guidance from the tribunal as to where errors have been made," Bowsher said. "We say a number of errors have been made."
The appeal is being seen by some industry insiders as a test case, because if Rapture wins it could throw open the doors for other channels to challenge their EPG charges from Sky. Ofcom would also have to look again at how it investigates such as cases.
Rapture was broadcast on Sky between June and August 2002, and from May 2003 and July 2004, before relaunching once again in November 2005. It was removed by Sky in March this year following the current dispute.
Sky charges for EPG listings to recover the costs associated with developing and running both the EPG and its digital satellite TV service.
Ofcom and Sky will outline their positions tomorrow when the case continues.
Rapture, which airs a mix of entertainment and extreme sports programming, originally complained to Ofcom that its annual EPG bill of £76,500 from Sky was "unduly high", given that its annual turnover was under £150,000.
The channel, run by chief executive David Henry, claimed Sky had breached its regulatory obligations by offering unfair listing terms.
However, Ofcom cleared Sky of overcharging in February, saying the price had been "fair, reasonable and non-discriminatory".
Today at the Competition Appeal Tribunal in London, Michael Bowsher QC, acting for Rapture, said: "The question for the tribunal is whether Ofcom did enough. Our ending point is that Ofcom did not do enough.
"It was happy to accept Sky's position without drilling down on what was being said."
Bowsher added that just because the price Sky had charged Rapture fell between the satellite broadcaster's two unidentified cost bands, it did not make it "fair, reasonable or non-discriminatory".
"It seems that Ofcom have taken undue comfort from the charge being between the floor and the ceiling [of the two price bands] but it doesn't mean that any price between the floor and the ceiling is fair, reasonable or non-discriminatory," he said.
"That is the core of our case. It seems that Ofcom's position has been that as long as it is between the floor and the ceiling it is fine."
Bowsher said the EPG charges should be "about treating broadcasters properly with regard to their circumstances".
He also argued that Rapture should not have to pay for EPG services it did not use and questioned the amount of subsidy channels should pay for Sky's set-top boxes.
"We say this decision should be remitted with appropriate guidance from the tribunal as to where errors have been made," Bowsher said. "We say a number of errors have been made."
The appeal is being seen by some industry insiders as a test case, because if Rapture wins it could throw open the doors for other channels to challenge their EPG charges from Sky. Ofcom would also have to look again at how it investigates such as cases.
Rapture was broadcast on Sky between June and August 2002, and from May 2003 and July 2004, before relaunching once again in November 2005. It was removed by Sky in March this year following the current dispute.
Sky charges for EPG listings to recover the costs associated with developing and running both the EPG and its digital satellite TV service.
Ofcom and Sky will outline their positions tomorrow when the case continues.
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