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Rapture in court against Sky & Ofcom (merged)


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Old 14-11-2007, 06:32
Strathclyde
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Interesting story seems to have been broken by Rapid TV News here (registration required) re Rapture's battle against Sky.

Rapture used Ofcom's formal complaints process a year ago to bring an action against Sky for its failure to properly apply the FRND rules in running the EPG, and for grossly overcharging broadcasters for EPG listing. Ofcom found against Rapture, and as a result Rapture was removed from the EPG.

Now Rapture is in court again, appealing against Ofcom itself, alleging that they failed in their statutory duty by approving Sky's approach to managing and charging for EPG listings; and also against Sky, who Rapture is saying are overcharging FTA broadcasters to the tune of around £30M.

The appeal comes to the Competition Commission on Dec 18th.

Rapture has clearly gained some pretty good legal support, who must feel it has a case, to go to the expense of taking this to appeal.

Could become quite messy - but unlikely to have a quick result.
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Old 14-11-2007, 08:30
Rab C
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This is a bit like the Virgin Media threats of legal action.

It is nothing to with Sky and more to do with a companies own failing business model/lack of cash flow and attempts to get publicity.

BTW registration is not required to read your link
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Old 14-11-2007, 08:33
ian-d
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Yep, rapture will get crushed again, i suspect once they have to pay out the legal fee's (again) that will be the end of them!
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Old 14-11-2007, 08:38
Sat.Deelay
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Some of the transcripts of the previous appeals can be found here on the Rapture website.
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Old 14-11-2007, 08:40
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Unless of course their action has been funded elsewhere as some sort of early test case. i wish them well.
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Old 14-11-2007, 08:51
Strathclyde
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Yep, rapture will get crushed again, i suspect once they have to pay out the legal fee's (again) that will be the end of them!
I'd guess Rapture hasn't got the resources to fund an appeal at this level. More likely a lawyer is doing it on a no-win no-fee basis... with an eye also on the kudos resulting from winning a legal battle against either Sky or Ofcom.

It comes at a bad time for Sky, as there's now a flurry of cases, all of which are based one way or another on their competitive/market power... and can only focus even more attention on their ambitions to expand horizontally across platforms as well as vertically.
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Old 14-11-2007, 10:58
omnidirectional
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This is being done on a pro-bono basis, according to one of the Case Management transcripts available on the Rapture website. Rapture are being represented by US law firm Orrick, Herrington and Sutcliffe.

I look forward to the appeal in December as it's a very interesting case, and to be honest, I hope Rapture win. Whatever happens the transcripts should make for very interesting reading!
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Old 14-11-2007, 12:10
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This is being done on a pro-bono basis, according to one of the Case Management transcripts available on the Rapture website. Rapture are being represented by US law firm Orrick, Herrington and Sutcliffe.

I look forward to the appeal in December as it's a very interesting case, and to be honest, I hope Rapture win. Whatever happens the transcripts should make for very interesting reading!
I to agree, I hope Rapture TV win.
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Old 14-11-2007, 12:26
Rab C
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They are not getting off to a good start with the appeal! Read the first part of the PDF document posted at:

http://www.rapturetv.com/news_article.php?News=7

THE CHAIRMAN: Good morning. Can I just begin by thanking everyone for all the submissions, although we should say because of the late arrival of Rapture’s latest submissions at 17.52 last evening we have not had an opportunity properly to consider the contents or the documents attached and that is rather unfortunate. We hope it is not going to be the precedent, which so far it appears to have become that documents from Rapture are delivered so late, which is not very useful to the parties or to the Tribunal.
and goes down hill from there.... They are peeved off big time that Rapture submitted appeal paper very late. The appeal is doomed on these grounds alone....
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Old 14-11-2007, 12:45
omnidirectional
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While it is isn't very professional that documents got submitted late, I hope/expect the outcome will be decided based on the arguments and evidence presented in court on the 18th of December.
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Old 14-11-2007, 12:55
Rab C
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While it is isn't very professional that documents got submitted late, I hope/expect the outcome will be decided based on the arguments and evidence presented in court on the 18th of December.
Have a read of the document, it does not read at all well for Rapture as they are not sure on what grounds they are appealling...
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Old 14-11-2007, 13:16
omnidirectional
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Have a read of the document, it does not read at all well for Rapture as they are not sure on what grounds they are appealling...
If that was the case surely the case would have been thrown out by now, and wouldn't be listed to be heard on the 18th December?
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Old 23-11-2007, 16:47
omnidirectional
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There's a lengthy document from the Competition Appeal Tribunal available at http://www.rapturetv.com/news_article.php?News=9 but basically they appear to have given Rapture permission to amend their notice of appeal and include further evidence.

Not long to go now, it looks set to be an interesting case.
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Old 23-11-2007, 17:23
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There's a lengthy document from the Competition Appeal Tribunal available at http://www.rapturetv.com/news_article.php?News=9 but basically they appear to have given Rapture permission to amend their notice of appeal and include further evidence.

Not long to go now, it looks set to be an interesting case.
Also agreed that the changes will mean an amendment in Ofcom's and Sky's response to the case on certain parts. Sky & Ofcom have stated most of their amendments bring nothing new to the case.

It has also agreed not to allow quite a bit of the amendment because it would change the whole shape of the appeal.
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Old 23-11-2007, 18:34
Strathclyde
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I can imagine all these DS types seeing each other there and wondering which pseudonym we hide under.

It should be interesting. Rapture was inadequately represented last time round, and made a lousy case. They've got now decent representation, and all credit to them that they've won leave to appeal at all.

You gotta admire David Henry's tenacity. I wouldn't be in his shoes (unless he's playing the approach that most people that try to take on Sky and look threatening then get acquired for an obscene amount of money....)

This is an important case for all smaller channels, and we and others interested in development of the platforms should be there in force, both to show support and better understand what's going on.
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Old 14-12-2007, 18:29
omnidirectional
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With the case now just 4 days away Rapture have published some new documents on their website

BSkyB Company Accounts

NDS Presentation
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Old 17-12-2007, 07:57
Sat.Deelay
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Yep, the date for the court case is almost here... Fingers crossed for tomorrow!!

I think that although the trial is tomorrow, (and possibly rolled over to Wednesday) the actual outcome won't be decided and revealed until the new year. Yet more waiting for us...
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Old 18-12-2007, 20:10
omnidirectional
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Article on today's proceedings -
http://www.guardian.co.uk/media/2007...com.television
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Old 19-12-2007, 00:02
bignoise
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Rapture come across as not being the most co-ordinated of litigants but they do certainly make with some interesting documents.

From what I can see, though, Rapture's case seems to be "we don't have any money so we should get it for cheap". Which is a nice idea, but is unlikely to fly with.. well, pretty much anyone who sells anything. You wonder if Rapture would sue anyone who actually said "I'm sorry, but this is what it costs."

"How can Ferrari charge £100,000 for a Testarossa when we want one but can't afford it? It's unfair and they should change the law!", etc...
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Old 19-12-2007, 17:14
KianD
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Rapture come across as not being the most co-ordinated of litigants but they do certainly make with some interesting documents.

From what I can see, though, Rapture's case seems to be "we don't have any money so we should get it for cheap". Which is a nice idea, but is unlikely to fly with.. well, pretty much anyone who sells anything. You wonder if Rapture would sue anyone who actually said "I'm sorry, but this is what it costs."

"How can Ferrari charge £100,000 for a Testarossa when we want one but can't afford it? It's unfair and they should change the law!", etc...
Except the point here is that Sky have the sole satellite platform targetting the UK, are required to make it open, and are charging far more than can be justified for costs + a reasonable profit.

There are many other car vendors than Ferrari. Theres no other platform than Sky, due to constant abuse of a dominant position - just look at the brewing issue of refusing conditional access to third party HD services (Setanta) for another example.
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Old 19-12-2007, 17:41
BKM
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Except the point here is that Sky have the sole satellite platform targetting the UK, are required to make it open, and are charging far more than can be justified for costs + a reasonable profit.
Except that, for months, the Freesat enthusiasts have been saying that EPG inclusion there would have neglible costs in comparison to Sky's outrageous charges. It has actually turned out to be a large fraction - so perhaps Sky are not as far from a reasonable figure as they seem!

There are many other car vendors than Ferrari. Theres no other platform than Sky, due to constant abuse of a dominant position - just look at the brewing issue of refusing conditional access to third party HD services (Setanta) for another example.
Setanta claim this. Sky deny it - and have forwarded their documentation on this issue in a (confidental) annexe to their latest submission to Ofcom.
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Old 19-12-2007, 19:18
Scalper Jack
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They pay for all this EPG charges to keep it all up to date but it's now apparently buggered due to the amount of channels on it. So what are they doing with all this money? The phone section of the EPG hadn't been updated in years last time I looked. Don't seem to be doing much developments with the EPG at all.
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Old 19-12-2007, 20:29
KianD
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Except that, for months, the Freesat enthusiasts have been saying that EPG inclusion there would have neglible costs in comparison to Sky's outrageous charges. It has actually turned out to be a large fraction - so perhaps Sky are not as far from a reasonable figure as they seem!


Setanta claim this. Sky deny it - and have forwarded their documentation on this issue in a (confidental) annexe to their latest submission to Ofcom.
Freesat have to develop a full EPG system, Sky have already done so and the costs should have been written off over a reasonable timescale. Its now 109 months since Sky Digital launched, I'd expect software development costs to be written off across 24...

Sky have also got immense benefit for their subscription services from the EPG system, logically this would reduce how much of its cost should be transferred on to other users of it.

Also, since when has 35% been a large fraction? And its a fixed fee, whereas currently some FTA channels have to pay significantly higher rates to Sky.

And do you really expect Sky to publicly say "yeah, we're stopped Setanta getting a HD channel". Of course they'll deny it up front.
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Old 19-12-2007, 20:32
Nigel Goodwin
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Also, since when has 35% been a large fraction?.
When it's 35% for a VASTLY smaller number of viewers!.
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Old 19-12-2007, 20:58
ProDave
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Except the point here is that Sky have the sole satellite platform targetting the UK, are required to make it open, and are charging far more than can be justified for costs + a reasonable profit.
AT the moment.

From next March, there will be Freesat. They could choose to pay the lower EPG fee to be included on Freesat, and not be on Sky then if they wish.
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