Public interest mergers: BSkyB and ITV

On 21 January, the Court of Appeal (CA) decided BSkyB's appeal against the decision of the CAT upholding certain findings of the Competition Commission (CC) in its report on BSkyB's acquisition of a 17.9% share in ITV. The CC had found that the acquisition would have led to a substantial lessening of competition (SLC), although it would not have had an adverse effect on media plurality. To remedy the SLC, the CC recommended that BSkyB be required to reduce its shareholding to below 7.5%. The CAT upheld the CC's findings on the SLC and the remedy, but disagreed with it on the media plurality issue. Since it found that the remedies were unaffected by this conclusion, they remained.

In front of the CA BSkyB argued that the CAT should have applied a greater intensity of review to the CC's report than in normal judicial review proceedings and, if it had, it would have set aside the CC's analysis on key points. As regards media plurality, BSkyB argued that the CC had been correct and was joined in this by the Secretary of State and, unsurprisingly, the CC. This argument was opposed by Virgin Media.

On the judicial review point, BSkyB's argument was that the CAT should conduct its review with greater intensity because it was a specialist tribunal or, as he put it, "hyper-competent". The CA seemed unimpressed with this argument and, after pointing out that the application and intensity of review varies from case to case, relying on OFT v IBA Health [2004] EWCA Civ 142 and concluding by saying that the argument flew "in the face of the words" of the statute. Of course this is not the same as saying that the practice of the CAT is the same as the High Court in judicial review cases and there seems to be some evidence that the CAT is less deferential to the CC and the OFT than the High Court is when faced with challenges to analogous regulatory bodies (and yes, I know reasoning by analogy is dangerous).

Once this point fell, BSkyB's other arguments were in some difficulty. BSkyB made submissions on the standard of proof applied by the CC and the counter-factual analysis. After dissecting these, the CA concluded that, "this is not really a point of law, but an attempt to re-assess the evidence and to produce a different conclusion" and so rejected them. On the question of alternative remedies offered by BSkyB, notably a voting trust, the CA agreed with the CAT that the CC had not been irrational in rejecting these.

That left the media plurality point which, although it was not necessary for the case, everyone wanted decided. The problem here arose because s. 58 2C (a) of the Enterprise Act provided that there was a need to take into account whether or not there was a sufficient plurality of persons with control of media enterprises, while s. 58A (5) said that where two or more media enterprises would fall to be treated as under common ownership or control for the purposes of deciding whether or not they have ceased to be distinct enterprises, then they should be treated as under the control of one person. The problem this created in this case was that although BSkyB's shareholding was enough to ensure that this meant it and ITV were no longer distinct enterprises, in reality that level of shareholding only gave BSkyB control or influence over a limited range of issues. The CC took the view that it should take into account the quality of control, what it called "internal plurality" which meant that there was not a problem here, because BSkyB had only a limited influence. The CAT disagreed, saying that, in effect, BSkyB and ITV had to be treated as one because of s. 58 (5) and therefore there was a problem because the number of persons had been reduced. The CA regarded this as a finally balanced point of statutory construction, but ultimately came down on the CC's side saying that, "whereas in reckoning the number of controllers of media enterprises for the purposes of section 58(2C)(a) only one controller is to be counted in respect of both or all of the relevant enterprises (here Sky and ITV), nevertheless, when it comes to assessing the plurality of the aggregate number of relevant controllers and to considering the sufficiency of that plurality, the Commission may, and should, take into account the actual extent of the control exercised and exercisable over a relevant enterprise by another, whether it is a case of deemed control resulting from material influence under section 26 or rather one of actual common ownership or control."

The Court of Appeal's judgment is here: http://www.bailii.org/ew/cases/EWCA/Civ/2010/2.html

The CC's report is here: http://www.competition-commission.org.uk/inquiries/ref2007/itv/index.htm

CAT proceedings are here: http://www.catribunal.org.uk/238-656/1095-4-8-08-British-Sky-Broadcasting-Group-plc.html