On 17 November 2006, British Sky Broadcasting Group plc (“BSkyB”) acquired 17.9% of the shareholding of ITV plc. Following reports from the OFT, the Secretary of State referred the acquisition to the CC which concluded in December 2007 that the merger was likely to result in a substantial lessening of competition due to the loss of rivalry between ITV and BSKyB in the market for "all TV”. It was recommended that BSkyB reduce its shareholding to less than 7.5%, combined with an undertaking not to be represented on the ITV Board. They also concluded that, having regard only to the relevant media public interest consideration, the merger may not be expected to operate against the public interest.
On 29 January 2008, the Secretary of State confirmed the CC’s decision that the transaction is likely to result in a substantial lessening of competition and confirmed that BSkyB divest its shares in ITV to a level below 7.5%. However, the Secretary of State also concluded that the transaction does not have an adverse effect on the relevant specified media public interest consideration (media plurality). Subsequently, BSkyB appealed to the Competition Appeal Tribunal (“CAT”) claiming that the CC committed errors of law and material errors and Virgin Media (“Virgin”) appealed in relation to media plurality. The CAT had dismissed BSkyB's appeal but upheld Virgin's application and set aside the CC’s conclusion that the merger would not adversely affect media plurality. BSkyB then appealed to the Court of Appeal.
On 21 January 2010, the Court of Appeal had dismissed BSkyB's challenges in relation to the CC’s competition assessment. They concluded that the CAT had not erred in its intensity of review and that the approach taken by the CC and CAT was correct. However, the Court of Appeal has overturned the CAT's ruling that the CC misdirected itself in relation to the media plurality public interest consideration and concluded that the CC’s initial approach was correct.
21 January 2010