Rapture would probably not be able to afford that. Did you read in the documents submitted that Rapure thought that the EPG charge should be £10,000 - the BBCs is £30,000.
And what would be the point in paying a lower EPG charge if you don't have any viewers?.
The Rapture claim isn't really about what they can afford to pay, but about the basis on which Sky charges broadcasters and controls access to its platform, and whether Ofcom has properly done its job to ensure that the charges and controls are FAIR, REASONABLE, and NON DISCRIMINATORY.
Rapture's case is in effect a kind of class action; its outcome has huge implications for all broadcasters (and Sky). Charges are one aspect of it. Control and access are equally important (witness the entirely separate complaints from Setanta et al).
The Guardian report was based on the first part of the Appeal Tribunal proceedings, and, yes, the Rapture case was not (at the beginning) well presented. [I was there, so am not relying on the Guardian report].
What was really staggering was that neither the 3 Man/Woman Tribunal, nor the legal counsel, had the faintest understanding of what the EPG was/is. Nor did they understand the basics of the Sky platform and where it sits alongside Freeview etc... and layer on that the distinction in relationships with Sky from broadcasters and viewers... And this whole collection of learned professionals is arguing on, and sitting in judgement on, a deeply technical issue which even Ofcom senior management often barely understand.
Try explaining the Sky EPG and digibox to a pensioner who has only ever known analogue TV!!! Compound that with the person doing the explaining (the legal counsel) also never having seen a Sky EPG, but relying on a junior to tell him what to say...
The later session, and then the second day of the hearing, rather dramatically turned the tables. David Henry himself got a chance to spell out how things worked.
It will be VERY interesting to see how the final judgement turns out.
Strathclyde - I believe the Competition Commission itself is made up of top competition lawyers.
Presumably the 3 people hearing the case (from the Competition Commission Appeal Tribunal) are also top competition lawyers?
By the way do you know if this is the absolute final stage of the process? ie whatever the judgement, is there any scope for either side to appeal?
Well yes, they are all top competition lawyers...but they are not necessarily on top of the technicalities which underpin the competition concerns... And in this case, the technicalities are also complicated by the fact that the "rules" on which the legal judgement must be based were set at a time when the technology was different. There are both EC and UK law aspects - and they are open to multiple interpretation (and legal argument); and are not always consistent with each other.
This was an appeal by Rapture against Ofcom's judgement - as a regulator- on Rapture's complaint. if the appeal is won (by Rapture), Ofcom can (would) be told to go back and re-examine the original complaint. I dunno if there are further levels of appeal. The cynic in me knows that, sadly, you get the justice that you can afford.... so there is almost always a way for those with deep pockets to go further...
Well yes, they are all top competition lawyers...but they are not necessarily on top of the technicalities which underpin the competition concerns... And in this case, the technicalities are also complicated by the fact that the "rules" on which the legal judgement must be based were set at a time when the technology was different. There are both EC and UK law aspects - and they are open to multiple interpretation (and legal argument); and are not always consistent with each other.
This was an appeal by Rapture against Ofcom's judgement - as a regulator- on Rapture's complaint. if the appeal is won (by Rapture), Ofcom can (would) be told to go back and re-examine the original complaint. I dunno if there are further levels of appeal. The cynic in me knows that, sadly, you get the justice that you can afford.... so there is almost always a way for those with deep pockets to go further...
Thanks.
If the Appeal Tribunal thinks it is all incredibly complicated, will this make them more inclined to come down on the side of OFCOM?
ie they will know that OFCOM are the independent experts regulating the industry so the natural inclination (in what is effectively a dispute between Rapture and Sky) would be to support the independent experts.
Reading the article, It would seem that, Rapture wanted was the EPG Charge reduced for them because they couldnt afford it?
Surely, Does that have any grounds? Quite a few other channels probably cant afford it, But does that warrant a big huff and puff because they cant get it cheaper?
To me, It seems that Rapture TV's Business Plan wasnt correctly thought through and what they want now is a quick "cash-injection".
Rapture's ability to pay no doubt is part of the reason for all this, but I think it's also about how Sky reaches that cost and what the money is spent on, infact to quote a section of Rapture's letter in Broadcast:
There is one simply question which the broadcast industry needs to ask itself and here it is. If as a consumer you take up the Sky 'free set top box and minidish' can you get the same offer if you don't subscribe to the Sky TV Pay service?
The terms and conditions that Sky has been supplying the equipment offer under are quite clear. If you subscribe you get the fitting 'free'. If you don't subscribe you have to pay £120 for fitting. Is that the same offer to non-subscribers?
If not then the Sky set top box is a 'Tied' agreement. The regulations are clear (Oftel 2002). Tied agreements mean that only the vertically integrated supplier can be expected to pay the platform costs.
The vertically integrated supplier in this instance is BSkyB. Therefore all broadcasters - including public service broadcasters like the BBC and ITV - have been paying Sky platform costs when they shouldn't have.
I did hear Rapture got off to a poor start on the first morning of the hearing, but successfully turned things around in the afternoon and the second day.
I'm looking forward to reading the case transcripts.
I've been following all of this stuff and must confess to finding it all a bit confusing. Just reading the quoted bits from David Henry's letter in broadcast,
The terms and conditions that Sky has been supplying the equipment offer under are quite clear. If you subscribe you get the fitting 'free'. If you don't subscribe you have to pay £120 for fitting. Is that the same offer to non-subscribers?
If not then the Sky set top box is a 'Tied' agreement. The regulations are clear (Oftel 2002). Tied agreements mean that only the vertically integrated supplier can be expected to pay the platform costs.
But Ofcom's judgment says that Sky doesn't recover the installation costs for Sky subscribers from other broadcasters. So if that's right then is there a problem? Can someone explain if I'm missing something?
I've been following all of this stuff and must confess to finding it all a bit confusing. Just reading the quoted bits from David Henry's letter in broadcast,
But Ofcom's judgment says that Sky doesn't recover the installation costs for Sky subscribers from other broadcasters. So if that's right then is there a problem? Can someone explain if I'm missing something?
Sky's accounting for these things, with multiple companies involved, defies understanding, either by Ofcom or lawyers. Their arguments are more than mildly inconsistent. Of course they don't fully recover settop box costs from other broadcasters (who typically don't get a share of Sky's subscription revenues). But the question is about the basis on which Sky decides to charge broadcasters for being on the EPG (which, arguably, is as benefit to Sky also).
Sky has been arguing that its subsidised supply of settop boxes is something which broadcasters have benefitted from, and which they should therefore pay a contribution towards, regardless of the real cost to Sky of providing EPG services to the broadcasters.... but their accounting for the 'cost' to Sky of this subsidy is not declared, nor has the basis of assessment of 'benefit' to broadcasters... and therefore has to be suspect, if it's not transparent. Sky of course can happily charge itself (in the sense of its own broadcast channels) full whack, and so claim it is not being discriminatory. But nobody (including Ofcom) is privvy to the numbers.
And Henry's letter to Broadcast adds the serious (for Sky) wrinkle, that if the supply of the boxes to consumers constitutes a "tied" agreement, it's illegal for Sky to recover any associated costs from the other broadcasters.
So the issue is that Sky doesn't explain how it calculates the cost of the boxes and merely asserts that broadcasters benefit from being on Sky without doing any maths to explain how much they actually benefit.
I take it that the rules about this are very messy. In which case you have to wonder if this case is actually going to resolve anything.
So the issue is that Sky doesn't explain how it calculates the cost of the boxes and merely asserts that broadcasters benefit from being on Sky without doing any maths to explain how much they actually benefit.
I take it that the rules about this are very messy. In which case you have to wonder if this case is actually going to resolve anything.
Oh, I'm sure Sky does its sums...but it doesn't share them with anyone (not even Ofcom).
One of the arguments put - I think correctly - by Rapture's Counsel was that Ofcom merely (and wrongly) accepts that because Sky charges "somewhere between the true marginal cost of providing the EPG for a channel, and the stand-alone cost", then the charges Sky makes are OK.
Sky sets a basic EPG charge of £14K per year and a separate "platform contribution" charge, based on Sky's assessment of the benefit the channel receives from being on the platform. Again, the maths are not disclosed.
For BBC1 the annual platform contribution charge is £3.9M. For Sky One (where of course it's the left hand charging the right hand), the contribution charge is £6.3M. (Don't ask me to try explain the logic!).
The BBC has also to pay a separate listing charge of £13K for EACH regional variant, or £25K per channel where they share the same EPG #.
Sky sets a basic EPG charge of £14K per year and a separate "platform contribution" charge, based on Sky's assessment of the benefit the channel receives from being on the platform. Again, the maths are not disclosed.
And which ignores the benefit Sky get from the channel being on the platform, in selling packages to those that don't realise that FTA channels exist - I could see the News and Music mixes in particular being heavily denuded if all FTA channels ceased to exist with immediate effect (not that this would ever happen!)
In fact do they not list a number of free channels under the News mix in their adverts?
And which ignores the benefit Sky get from the channel being on the platform, in selling packages to those that don't realise that FTA channels exist - I could see the News and Music mixes in particular being heavily denuded if all FTA channels ceased to exist with immediate effect (not that this would ever happen!)
In fact do they not list a number of free channels under the News mix in their adverts?
While the more channels on sky the better inmho, they need to be quality channels and I think David Henry & yourself think Rapture is better than it actually was.
The viewing figures on Sky's platform we're never that great and can't have been that great from people with a proper sat receiver or Rapture would have still been on Astra.
Now don't get me wrong I'm all for the small boys taking on the big boys.
But the important thing in this case is the Sky subcriber, Rapture needs access to all 8 million of us, but thinks it should get it on the cheap because it's special.
I don't work for Rapture or Sky and also own other receivers besides so I look at this as if you want something you have to pay.
Maybe Rapture should have looked at costs in their business case and factored these in the costs have always been there
While the more channels on sky the better inmho, they need to be quality channels and I think David Henry & yourself think Rapture is better than it actually was.
Did you watch it? Granted the first relaunch in 2003 wasn't great, but this time round it was vastly improved. Their own productions such as the gaming/film review shows were very well produced given the limited budget and resources available. They also had a BBC drama series on there, a few Animes, and some great dance tunes.
It was also refreshing to see a small FTA channel that wasn't full of premium rate/Babecast/Psychic/preaching and so on.
The sad thing is viewing figures, and therefore advertising, where steadily increasing until they dropped out of BARB presumably due to financial reasons.
Rapture was light years ahead of MKTV/My Channel et al - but they survive by filling their airtime with psychic interactive etc and spending next to nothing on real content.
For BBC1 the annual platform contribution charge is £3.9M. For Sky One (where of course it's the left hand charging the right hand), the contribution charge is £6.3M. (Don't ask me to try explain the logic!).
The logic is that if it wasn't on the Sky platform, Sky One would lose virtually all of its viewers, whereas the BBC would only lose a few, even most Sky viewers would still watch it via other means.
On the other hand, I've never understood quite the reason why they can levy such a charge - it's not related to their costs.
Comments
And is the duty of the courts to speculate for the future? Eh, no.
Certain to be taken into account by any courts!
And what would be the point in paying a lower EPG charge if you don't have any viewers?.
Rapture's case is in effect a kind of class action; its outcome has huge implications for all broadcasters (and Sky). Charges are one aspect of it. Control and access are equally important (witness the entirely separate complaints from Setanta et al).
The Guardian report was based on the first part of the Appeal Tribunal proceedings, and, yes, the Rapture case was not (at the beginning) well presented. [I was there, so am not relying on the Guardian report].
What was really staggering was that neither the 3 Man/Woman Tribunal, nor the legal counsel, had the faintest understanding of what the EPG was/is. Nor did they understand the basics of the Sky platform and where it sits alongside Freeview etc... and layer on that the distinction in relationships with Sky from broadcasters and viewers... And this whole collection of learned professionals is arguing on, and sitting in judgement on, a deeply technical issue which even Ofcom senior management often barely understand.
Try explaining the Sky EPG and digibox to a pensioner who has only ever known analogue TV!!! Compound that with the person doing the explaining (the legal counsel) also never having seen a Sky EPG, but relying on a junior to tell him what to say...
The later session, and then the second day of the hearing, rather dramatically turned the tables. David Henry himself got a chance to spell out how things worked.
It will be VERY interesting to see how the final judgement turns out.
Presumably the 3 people hearing the case (from the Competition Commission Appeal Tribunal) are also top competition lawyers?
By the way do you know if this is the absolute final stage of the process? ie whatever the judgement, is there any scope for either side to appeal?
Still irrelevant. Does the Freesat platform exist right now? No.
Well yes, they are all top competition lawyers...but they are not necessarily on top of the technicalities which underpin the competition concerns... And in this case, the technicalities are also complicated by the fact that the "rules" on which the legal judgement must be based were set at a time when the technology was different. There are both EC and UK law aspects - and they are open to multiple interpretation (and legal argument); and are not always consistent with each other.
This was an appeal by Rapture against Ofcom's judgement - as a regulator- on Rapture's complaint. if the appeal is won (by Rapture), Ofcom can (would) be told to go back and re-examine the original complaint. I dunno if there are further levels of appeal. The cynic in me knows that, sadly, you get the justice that you can afford.... so there is almost always a way for those with deep pockets to go further...
Absolutely correct. As was stated at the Tribunal several times, the Commission must consider the position at the time of the Complaint.
Thanks.
If the Appeal Tribunal thinks it is all incredibly complicated, will this make them more inclined to come down on the side of OFCOM?
ie they will know that OFCOM are the independent experts regulating the industry so the natural inclination (in what is effectively a dispute between Rapture and Sky) would be to support the independent experts.
http://www.guardian.co.uk/media/2007/dec/20/bskyb.ofcom?gusrc=rss&feed=media
Reading the article, It would seem that, Rapture wanted was the EPG Charge reduced for them because they couldnt afford it?
Surely, Does that have any grounds? Quite a few other channels probably cant afford it, But does that warrant a big huff and puff because they cant get it cheaper?
To me, It seems that Rapture TV's Business Plan wasnt correctly thought through and what they want now is a quick "cash-injection".
I did hear Rapture got off to a poor start on the first morning of the hearing, but successfully turned things around in the afternoon and the second day.
I'm looking forward to reading the case transcripts.
If I remember correctly - it folded within weeks of the launch after taking lots of 12 month subs.
But Ofcom's judgment says that Sky doesn't recover the installation costs for Sky subscribers from other broadcasters. So if that's right then is there a problem? Can someone explain if I'm missing something?
Sky's accounting for these things, with multiple companies involved, defies understanding, either by Ofcom or lawyers. Their arguments are more than mildly inconsistent. Of course they don't fully recover settop box costs from other broadcasters (who typically don't get a share of Sky's subscription revenues). But the question is about the basis on which Sky decides to charge broadcasters for being on the EPG (which, arguably, is as benefit to Sky also).
Sky has been arguing that its subsidised supply of settop boxes is something which broadcasters have benefitted from, and which they should therefore pay a contribution towards, regardless of the real cost to Sky of providing EPG services to the broadcasters.... but their accounting for the 'cost' to Sky of this subsidy is not declared, nor has the basis of assessment of 'benefit' to broadcasters... and therefore has to be suspect, if it's not transparent. Sky of course can happily charge itself (in the sense of its own broadcast channels) full whack, and so claim it is not being discriminatory. But nobody (including Ofcom) is privvy to the numbers.
And Henry's letter to Broadcast adds the serious (for Sky) wrinkle, that if the supply of the boxes to consumers constitutes a "tied" agreement, it's illegal for Sky to recover any associated costs from the other broadcasters.
So the issue is that Sky doesn't explain how it calculates the cost of the boxes and merely asserts that broadcasters benefit from being on Sky without doing any maths to explain how much they actually benefit.
I take it that the rules about this are very messy. In which case you have to wonder if this case is actually going to resolve anything.
Looking at Sky's accounts, it only appears to make up quite a small part of Sky's revenues. But would be interesting to know the exact actual amount.
Oh, I'm sure Sky does its sums...but it doesn't share them with anyone (not even Ofcom).
One of the arguments put - I think correctly - by Rapture's Counsel was that Ofcom merely (and wrongly) accepts that because Sky charges "somewhere between the true marginal cost of providing the EPG for a channel, and the stand-alone cost", then the charges Sky makes are OK.
Sky sets a basic EPG charge of £14K per year and a separate "platform contribution" charge, based on Sky's assessment of the benefit the channel receives from being on the platform. Again, the maths are not disclosed.
For BBC1 the annual platform contribution charge is £3.9M. For Sky One (where of course it's the left hand charging the right hand), the contribution charge is £6.3M. (Don't ask me to try explain the logic!).
The BBC has also to pay a separate listing charge of £13K for EACH regional variant, or £25K per channel where they share the same EPG #.
I don't know if he's the same person, but I remember the After 12 scum, it happened round Xmas of 1991 (or 1992 maybe)!
And which ignores the benefit Sky get from the channel being on the platform, in selling packages to those that don't realise that FTA channels exist - I could see the News and Music mixes in particular being heavily denuded if all FTA channels ceased to exist with immediate effect (not that this would ever happen!)
In fact do they not list a number of free channels under the News mix in their adverts?
While the more channels on sky the better inmho, they need to be quality channels and I think David Henry & yourself think Rapture is better than it actually was.
The viewing figures on Sky's platform we're never that great and can't have been that great from people with a proper sat receiver or Rapture would have still been on Astra.
Now don't get me wrong I'm all for the small boys taking on the big boys.
But the important thing in this case is the Sky subcriber, Rapture needs access to all 8 million of us, but thinks it should get it on the cheap because it's special.
I don't work for Rapture or Sky and also own other receivers besides so I look at this as if you want something you have to pay.
Maybe Rapture should have looked at costs in their business case and factored these in the costs have always been there
Did you watch it? Granted the first relaunch in 2003 wasn't great, but this time round it was vastly improved. Their own productions such as the gaming/film review shows were very well produced given the limited budget and resources available. They also had a BBC drama series on there, a few Animes, and some great dance tunes.
It was also refreshing to see a small FTA channel that wasn't full of premium rate/Babecast/Psychic/preaching and so on.
The sad thing is viewing figures, and therefore advertising, where steadily increasing until they dropped out of BARB presumably due to financial reasons.
Rapture was light years ahead of MKTV/My Channel et al - but they survive by filling their airtime with psychic interactive etc and spending next to nothing on real content.
On the other hand, I've never understood quite the reason why they can levy such a charge - it's not related to their costs.