This consultation invites stakeholders to comment on Ofcom’s proposal to set access-related conditions (the “Conditions”) pursuant to section 75(2) of the Communications Act 2003 (the “Act”) on Top Up TV 1 Limited, Top Up TV 2 Limited and Top Up TV 3 Limited, (“TUTV”) requiring TUTV to provide, amongst other things, fair, reasonable and non-discriminatory (“FRND”) access to its conditional access services on regulated terms.
Section 75(2) of the Act, which implements Article 6 of, and Part 1 to Annex 1 of, the Directive 2002/19/EC (the “Access Directive”), imposes a duty on Ofcom to impose access-related conditions on persons who provide a conditional access system in relation to a protected programme service.
To date, access-related conditions have been imposed upon Sky Subscribers Services Limited (“SSSL”) and any SSSL subsidiary or holding company, or any subsidiary of that holding company, which require it to provide, among other things, regulated access to its conditional access system.
Conditions set under section 75(2) of the Act cannot be amended or revoked until Ofcom has conducted a relevant market review. If the market review determines that a person to whom access-related conditions apply does not have significant market power, the access-related conditions may be amended or revoked, provided the provisions of section 76 of the Act are met.
In July 2006, Ofcom commenced a market review of wholesale digital television broadcasting platforms . Ofcom expects that the review will, among other things, determine which persons, if any, have significant market power in relation to access to digital television platforms. It is envisaged that the market review will be completed during the course of 2007 and a final statement made in or around December 2007.