Herbies scoops key BSkyB mandate for Ofcom probe

BSkyB has returned to longstanding adviser Herbert Smith to help the satellite broadcaster navigate around its latest regulatory hurdle.

BSkyB is just one player in the pay-TV market that media regulator Ofcom yesterday announced it would be investigating, with the potential to refer to the Competition Commission.

The matter is mainly being handled in-house, by BSkyB’s general counsel James Conyers, but the company is taking advice from a Herbert Smith team led by competition partner Elizabeth McKnight.

The probe follows a separate, unprecedented ministerial intervention to Ofcom by secretary of State Alistair Darling (see The Lawyer, 5 March), in which he requested that Ofcom examine whether or not BSkyB’s 17.9 per cent stake in ITV represents a threat to public interest. For that, BSkyB turned to Allen & Overy (A&O). Darling will have to decide by 27 April whether or not to clear BSkyB’s stake or refer the matter to the Competition Commission.

As exclusively reported in The Lawyer (27 November), a series of conflicts at Herbert Smith gifted A&O the instruction on the original £940m purchase of the ITV stake, but at the time BSkyB confirmed to The Lawyer that Herbert Smith remained the broadcaster’s primary external counsel.

Ofcom will look into wide-ranging issues in the pay-tv market, including content control and distribution platforms, after receiving a joint submission from BSkyB archrival Virgin Media, together with Setanta Sports, Top Up TV and BT.

Virgin Media, which combined NTL and Virgin Mobile, has turned to legacy NTL advisers Ashurst and Fried Frank Harris Shriver & Jacobson to advise on the inquiry.