In recent months the competition authorities have continued to focus on digital markets, with several proposals for new ex ante regulation and enforcement tools (see more on this here, here and here). It is in this wider context that Ofcom has revisited its existing ex ante regulatory powers in another area, the provision of on-screen TV guides (known as electronic programme guides or EPGs) which act as a gateway for consumers to find and select TV content. Ofcom has concluded that those rules, which have been in place since 2004, are working well to ensure fair and effective competition in the provision of EPGs (see full report here).

The first question that Ofcom considers is whether ex ante regulation remains appropriate or whether the general competition law regime alone could be sufficient to deal with any issues that arise. The report concludes that ex ante regulation is appropriate noting that an alternative approach would likely result in any harm sustained by unfair, unreasonable or discriminatory treatment crystallising before Ofcom could seek remedies under the general competition law regime. This is the same rationale that underlies the efforts of the European Commission and the CMA to introduce ex ante regulation in digital markets; arguing the need for a swift response is critical in markets which develop at such a fast pace. Indeed, there are a number of parallels between the regime in place for EPGs and the proposals put forward by the competition authorities for digital platforms (in particular see the proposal for a code of conduct for online platforms with strategic market status under consideration by the UK Digital Markets Taskforce).

Ofcom then goes on to consider whether the existing rules themselves remain appropriate. The rules take the form of a code of practice which includes a requirement for EPG providers to engage with television channels in a fair, reasonable and non-discriminatory (FRAND) way. The issue of what constitutes “FRAND terms” or “FRAND conduct” most commonly arises in the telecommunications sector where holders of patents for use in mobile phones and networks (known as standard essential patents or SEPs) are required to license that technology on FRAND terms. There has been a significant number of disputes in this sector, including the Unwired Planet case which the UK Supreme Court is due to rule on next week (sign up for our webinar on this here). Ofcom’s review of the FRAND obligation in the context of EPGs is a timely reminder that the FRAND obligation is used outside of the telecoms sector. In this context, OFCOM reports that stakeholders were supportive of the regime which provides an important framework for engagement between EPG providers and channel providers. For this reason OFCOM concludes that the existing regulation (including the FRAND obligation) should remain in place subject to only very minor amendments.