CA-2024-002837 - [2025] EWCA Civ 1118

The Tribunal found that the Sky Pay TV service is a single, unified service, as opposed to a bundle of services provided under a single contract (in fact this appears to have been common ground before the Tribunal). There is no appeal against that finding.

The Tribunal nevertheless concluded that in determining whether the Sky Pay TV Service consists of, or has as its principal feature, the conveyance of signals, it is necessary to exclude that part of the Sky Pay TV Service that comprises content services before carrying out that determination: see §133 of the Judgment. This was based principally on the wording of the legislation (§134 to §137), the EU law context (§138 to §143), and the fact that on Sky’s approach the content exclusion was given very limited effect (§144 to §149).

The Tribunal considered that Ofcom had not clearly carried out a consideration of whether, leaving out of account the content services, the Sky Pay TV Service consists wholly or mainly in the conveyance of signals (see §167 of the Judgment). It therefore carried out that analysis itself, concluding (at §168 to §175) that the principal feature, among the 2^nd to 7^th elements listed at §‎7 above, is the conveyance of signals.