Sky UK Limited v The Office of Communications

For classification as an electronic communications service under the Communications Act 2003, any content-service element must be left out before applying the wholly-or-mainly or principal-feature test to conveyance of signals. This construction is consistent with the European Electronic Communications Code. It preserves separate regulation of content and transmission, supports proportionate regulation, brings broadcasting transmission within the communications framework, and promotes legal certainty. The wholly-or-mainly test remains significant because it balances the technical components left after excluding content. The Sky Pay TV Service therefore qualified as an electronic communications service.

Sky supplied pay television services using satellite transmission, set-top boxes and, for some services, internet connections. Ofcom required Sky to provide end-of-contract notifications to certain customers, considering the services to be electronic communications services under sections 32(2) and 32(2A) of the Communications Act 2003.

The Competition Appeal Tribunal held that the Sky Pay TV Service was a single unified service, but that its content-service elements had to be excluded before applying the principal-feature test. It dismissed Sky’s appeal in [2023] CAT 70 and dealt with relief in [2024] CAT 54. The central issue before the Court of Appeal was the correct sequence of the content exclusion and the conveyance-of-signals test.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Zacaroli gave the judgment, with Lord Justices Popplewell and Green agreeing.

1. The court applied the ordinary principle that statutory interpretation seeks the objective meaning of words in their statutory, historical and purposive context, as explained in R (Quintavalle) v Secretary of State for Health [2003] UKHL 13. The communications regime was EU-derived domestic legislation and the domestic definition had to be construed consistently with the European Electronic Communications Code.
2. Article 2(4) of that Code clearly required content services to be excluded before asking whether the remaining service consisted wholly or mainly in the conveyance of signals. The wording of sections 32(2) and 32(2A) was, at most, ambiguous. Neither the original domestic wording nor the earlier EU legislation required Sky’s preferred sequence.
3. The construction was reinforced by the separate and parallel regulation of transmission and content. Sky’s interpretation could leave the transmission element of mixed services outside communications regulation whenever content predominated. Ofcom’s interpretation better secured effective and proportionate regulation, the inclusion of broadcasting transmission, and legal certainty.
4. The wholly-or-mainly test continued to perform a valuable function after content was excluded. It required the relative importance of the remaining technical components to be assessed, asking whether conveyance of signals was the principal feature. The Tribunal had correctly concluded that it was so for the Sky Pay TV Service. The resulting classification as an electronic communications service supported Ofcom’s power to impose the end-of-contract notification requirement.

• Court of Appeal (Civil Division) — dismissed Sky’s appeal from the Tribunal’s decision: [2025] EWCA Civ 1118.
• Competition Appeal Tribunal — dismissed Sky’s appeal from Ofcom’s confirmation decision in [2023] CAT 70; a subsequent relief judgment was given in [2024] CAT 54.