The chairman of the tribunal investigating whether Sky should be forced to offer its sports channels to rivals at a discount has agreed to step down from a rehearing of the issue, following a complaint over potential bias lodged by Ofcom and BT.
However, the other two members of the competition appeal tribunal that delivered the original scathing ruling in 2012 – which concluded that Ofcom’s decision to force Sky to make Sky Sports 1 and 2 available to rivals at a 23% discount was flawed and unfounded – will reinvestigate the case.
Last February, BT successfully challenged the 2012 ruling and the court of appeal forced the CAT to reopen the issue.
“BT and Ofcom contended that a new panel should be constituted,” the tribunal said on Wednesday. “Their objections to the original panel focused mainly on allegations of apparent bias.”
The tribunal said that the chairman of the original panel, Justice Barling, would step down from the new investigation following “specific objections” .
The complaint, made by Ofcom and supported by BT, centred on particular passages in a speech to a gathering of anti-trust lawyers made by Barling when he was still president of the tribunal in 2013.
“We agree it is appropriate for the tribunal to have a new chairman if a re-hearing of the old appeals proceeds, and we will consider today’s decision carefully,” said an Ofcom spokesman.
Barling said he felt “more comfortable” recusing himself but that it was a “borderline case” relating to comments in his speech and the timing of a Guardian article on Ofcom and competition regulation.
The tribunal added that the objections in relation to Barling “provide no basis for the recusal of the other two members of the original panel”.
The other two members of the panel are Michael Blair QC and Professor John Beath.
Sky and the Premier League unsurprisingly backed retaining the same tribunal members.
“The tribunal considered whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the panel was biased against BT and/or Ofcom or in favour of Sky/Premier League,” the tribunal said. “The ruling concludes that the objections raised by BT and Ofcom to the panel as a whole provide no grounds on which it would be appropriate for the panel to recuse themselves from hearing and determining the remitted matter”.
The case returning to the CAT is the latest move as the legal wrangle enters its fifth year.
The battle dates to 2010 when Ofcom first tried to force Sky to offer its two main sports channels at a discount to rivals to curb the broadcaster abusing its dominant position in the market.
Following the CAT’s demolition of Ofcom’s attempt to impose a new pricing structure, referred to as “wholesale must offer”, in 2012, BT turned to the court of appeal.
Last February, the court forced the CAT to reopen the issue, backing Ofcom by citing the existence of “significant competition concerns” in the pricing mechanism.
In October, the supreme court rejected BSkyB’s request to challenge Ofcom’s powers to impose wholesale must offer at all.
Then in November the CAT granted BT interim relief to broadcast the Sky Sports 1 and 2 channels via its YouView service for the first time while the wider case continues to play out.
Ofcom is reviewing the wholesale must offer remedy in light of “developments” in pay-TV, which include BT moving to spend billions of pounds to crack Sky’s stranglehold on top flight sports such as Premier League and Champion’s League football.
