British Sky Broadcasting Ltd v Office Of Communications, Court of Appeal - United Kingdom Competition Appeals Tribunal, December 29, 2009, [2009] CAT 37

Resolution Date:December 29, 2009
Issuing Organization:United Kingdom Competition Appeals Tribunal
Actores:British Sky Broadcasting Ltd v Office Of Communications
 
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Neutral citation [2009] CAT 37

Before:

Sitting as a Tribunal in England and Wales

BETWEEN:

THE CARPHONE WAREHOUSE GROUP PLC

Appellant

- supported by -

BRITISH SKY BROADCASTING LIMITED

Intervener

- v -

OFFICE OF COMMUNICATIONS

Respondent

- supported by -

BRITISH TELECOMMUNICATIONS PLC

Intervener

_____________________________________________________________________

RULING

_____________________________________________________________________

APPEARANCES

Mr. Meredith Pickford (instructed by Osborne Clarke LLP) appeared for the Appellant.

Mr. Rob Williams (instructed by BT Legal) appeared for British Telecommunications Plc.10

  1. In this appeal, the Appellant (``CPW'') challenges a decision adopted by the Respondent (``OFCOM'') setting a price control for various services offered by Openreach which is part of British Telecommunications plc (``BT''). The services are those which Openreach's customers, such as CPW, must buy from Openreach in order to gain access to the BT local loop. The price control is based on a complex model created by OFCOM during the course of its investigation into the provision of these services. That model is in turn based on, and incorporates, a large amount of information provided to OFCOM by BT.

  2. At the start of this appeal, the Tribunal established a confidentiality ring which includes the legal advisers and external economic and other expert advisers to the parties. The entire model has been disclosed to that ring. CPW now applies to the Tribunal for an order allowing disclosure of the OFCOM model to Mr Andrew Heaney. Mr Heaney is the Executive Director, Strategy and Regulation at TalkTalk Group (``TTG''). TTG is a wholly owned subsidiary of CPW and is the part of the CPW undertaking which is most closely involved with the services which are the subject of this appeal. In both of his witness statements he states that in this role he is:

    ``responsible for developing TTG's strategy and approach in key areas of regulation and public policy such as local loop unbundling (``LLU''), the undertakings given by [BT], next generation access (``NGA'') and illegal filesharing''.

  3. CPW argue that because the substance of the appeal includes alleged defects in the model, or alleged inconsistencies between the model and the statements in the OFCOM decision, it is seriously hampered in the conduct of the appeal by the fact that Mr Heaney cannot see this information. BT opposes the disclosure of this information to Mr Heaney. It argues that this information is commercially sensitive and that CPW is an actual or potential competitor to Openreach. It argues that CPW has not established that there are good reasons in this case for the Tribunal to depart from its usual practice of ensuring that confidential information is restricted to the ring of the parties' external advisers.

    Is the information confidential?

  4. The first matter on which the parties differ is whether the information is really confidential at all. The model comprises seven linked spreadsheets. These consist of four large spreadsheets developed by Openreach and three smaller spreadsheets developed by OFCOM. Each of the seven spreadsheets is made up of numerous individual worksheets. In relation to two of the seven (the Price Calculations and the Ancillary Pricing spreadsheets), BT has already accepted that there is no confidentiality issue and these have been disclosed beyond the confidentiality ring. In relation to the other five, CPW only accepts that one of them, the CF Final spreadsheet, contains truly confidential information.

  5. As to the four spreadsheets whose confidentiality is disputed (the Final RAV, the Oak Final, the Oak Final Ancillary and the Outputs 2003 spreadsheets), CPW says that on closer analysis there is no commercial value in this information and no reason not to disclose it to Mr Heaney.

  6. Information about the content of the models was provided on behalf of BT in the witness statement of Ms Anne Heal. She explains that the Oak Final and Oak Final Ancillary spreadsheets provide a detailed breakdown of the cost stacks for the range of products supplied by Openreach, including products which are the subject of the appeal and products which are outside the scope of the appeal. These spreadsheets also provide a profit and loss account based on more up to date information than is in the public domain. This is not simply historic information but a forecast of the profit and loss over the coming four years. Ms Heal describes this information as strategically important and highly confidential. As to the Final RAV model, Ms Heal says that this contains detailed information relating to copper and duct access and costs. If disclosed this would...

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