Competition

Section 316 of the Communications Act 2003 allowed Ofcom to impose conditions so as to ensure fair and effective competition in the wholesale and retail provision of licensed services to consumers generally. “Licensed services” in s 316(1) of the 2003 Act meant the services licensed by a licence issued under the Broadcasting Act 1990 (s 316(4)). Such licences related to the content of the services. The types of service that could be the subject of a BA licence included television licensable content services (TLCSs). When determining the scope of Ofcom’s jurisdiction to impose conditions in such licences, the fundamental question was “what is the scope of the words ‘in the provision of’ licensed services?” Given that it was Ofcom’s statutory duty to promote the interests of consumers in relevant markets and given that one of those relevant markets had to be pay TV (because that market was the subject of regulation under the Act) then it followed that the words “in