ATVOD

The Association for Television on Demand
Contact

Top Gear YouTube

Scope Determination

Service: Top Gear YouTube

Service Provider: BBC Worldwide Limited


The Determination set out below was made on 3rd May 2011. It was the subject of a successful appeal to Ofcom. The appeal decision was published by Ofcom on 18 January 2013 and is available here.
 
DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA (REQUIREMENT TO NOTIFY AN ON-DEMAND PROGRAMME SERVICE) AND SECTION 368D(3)(ZA) (REQUIREMENT TO PAY A FEE) OF THE COMMUNICATIONS ACT 2003:
 
Re: Top Gear YouTube (http://www.youtube.com/topgear)
 
Background
 
ATVOD, as the appropriate regulatory authority, has determined in accordance with section 368BB(1) and section 368I(1) of the Communications Act 2003 (“the Act”) that as the provider of the On-Demand Programme Service (“ODPS”) named above (“the Service”) is contravening or has contravened section 368BA (requirement to notify an ODPS) and section 368D(3)(za) (requirement to pay a fee) of the Act.
 
The Audiovisual Media Services Regulations 2010 came into force on 18 March 2010, introducing additional provisions into the Act in relation to certain video on-demand services. Section 368BA of the Act requires that every provider of an ODPS, as defined in section 368A of the Act, must not provide an ODPS before it has given a notification to the appropriate regulatory authority of its intention to provide that service. For an ODPS which was already being provided on 18 March 2010, notification should have been given before 30 April 2010. For an ODPS beginning after 18 March 2010, notification should have been given before the service began. Section 368D(3)(za) requires that a provider of an ODPS must pay to the appropriate regulatory authority such fee as that authority may require under section 368NA of the Act.
 
The Authority for Television on-Demand (“ATVOD”) has been designated as the appropriate regulatory authority for editorial content in an ODPS and also for determining whether the provider of an ODPS has complied with its obligation to notify.  ATVOD wrote to the service provider on 21st June 2010 informing them of the statutory obligation to notify provision of an ODPS, and setting out the statutory criteria which define an ODPS. We advised the service provider to refer to ATVOD’s ‘Guidance on who needs to notify’ which is available on our website at (www.atvod.co.uk) and to seek legal advice if appropriate. This letter made clear that a fee was payable with regard to each ODPS and that the fee for the period to 31 March 2011 was £2,900 per service. Small scale providers who can demonstrate that they have or will have genuine difficulties in paying the full fee – either because: they would be inhibited from being able to provide a new OPDS or would be prevented from continuing to provide an existing one; and/or there are exceptional reasons justifying why they should not be required to pay the full fee – may be eligible for a reduced concessionary fee for the period to 31 March 2011. Fees for the year to 31 March 2012 are expected to be set shortly following a public consultation which closed on 1 April 2011.
 
Having applied the statutory criteria to the Service, and having considered any response the service provider may have made to our previous letter, we wrote to the service provider on 10th March 2011 to inform them that we had come to a preliminary view that the Service is an ODPS in respect of which a notification has not been given and in respect of which a fee has not been paid, and that our preliminary view was that the service provider is in contravention of sections 368BA (Requirement to notify an ODPS) and 368D(3)(za) (Requirement to pay a fee) of the Act.
 
In accordance with our powers under section 368BB(1) of the Act, we invited the service provider to make representations within 21 days. In a response dated 30th March 2011 the service provider stated that:
 
-       BBC Worldwide considers the duration of programmes to be a key characteristic of the form and content of programmes normally included in television programme services
 
-       The YouTube channel in question provides only short clips.
 
-       An analysis of the five main UK channels over four days demonstrates that only 3.2% of programmes were less than 10 minutes in duration. Therefore it is a key characteristic of the form and content of programmes normally included in television programme services that they last longer than a short period of time
 
-       Television programmes are consumed at home, in comfort on the sofa and the longer duration is indicative of this. Short form content is not ‘television-like’ as it is often viewed on the move or during quick breaks in the working day.
 
-       Unlike services such as 4OD and Demand Five (which include full length programming), this YouTube channel is not in competition with television for viewers.
 
ATVOD’s Final Determination
 
The Service
 
The service is accessed via the internet at http://www.youtube.com/topgear. TopGear YouTube follows the standard layout of a channel on the YouTube website. The page is branded with a BBC Worldwide and Top Gear logos at the top of the page.
 
The bulk of the page is given over to video content in the usual YouTube fashion, with a central player which can be maximised to play videos full screen. There is a picture menu to the right, broken up into the following categories: ‘Uploads’, ‘Favourites’, ‘Top Gear Challenges’, ‘Latest Top Gear Videos’ and ‘BMW Videos’. Within the ‘Uploads’ section videos can sorted by ‘date added’, ‘most viewed’ and ‘top rated’. Videos to be played can be selected from this list. Text below the viewing window offers a brief description of the video being played. At the bottom of the page appears text information on the Channel, a Channel profile, subscriber details, comments, and links to other BBC Worldwide YouTube Channels.  
 
Application of s368A(1)
 
Taking all the relevant considerations into account, including the representations made by the service provider, ATVOD has concluded that the Service is an ODPS. This is because the Service fulfils each of the relevant criteria set out in section 368A(1) of the Act as follows:
 
(a)       its principal purpose is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services;
 
The programmes themselves are relatively short, appearing to range from approximately 2 minutes to 8 minutes long. In your representations you suggest that because of this they are not ‘TV-like’ and give evidence from the TV schedules regarding the frequency of short form content.  However, it is ATVOD’s view that this evidence, taking as it does a random four day period, demonstrates the significant presence of short form programming on broadcast television. Such programming forms a small part of the television schedule (as does longer programming eg. over two hours) but nonetheless is ‘normally included’, constituting nearly one in every thirty programmes on the five main channels.  
 
Looking at the particular form and content of the programmes on Top Gear YouTube, it is ATVOD’s opinion that in these regards the programmes resemble linear television programmes.  For example:
 
“Collection of Lancias” 
 
At 8 mins 5 secs long, this is preceded by an advert and its television-like features include: Subject matter familiar from broadcast motoring shows including Top Gear itself; a distinct opening sequence over filtered images of Lancia cars, with Jeremy Clarkson providing a voice-over introduction; Clarkson as on-screen presenter introducing a number of different models of this car, along with Richard Hammond doing the same; their chat is intercut with footage of the cars being driven, with music soundtrack; rapid cut images separate distinct sections of the programme; programmes culminates in a race between Clarkson and Hammond ending with one car breaking down and a piano falling on it.
 
“David Tennant Interview & Speed Lap”
 
This is 8 mins 53 secs long and its television-like features include: An opening introduction (‘Ladies and gentlemen, David Tennant’); an interview (Jeremy Clarkson interviewing David Tennant) in front of a studio audience; intercut footage of Tennant driving car around track (including long shot footage of car on track and footage from a camera inside the car); ending with studio applause.
 
It is ATVOD’s opinion that the provision of these ‘TV-like’ programmes is the principal purpose of Top Gear YouTube, with the provision of other material eg. text descriptions playing a secondary role.
 
(b)       access to it is on-demand;
 
Top Gear YouTube can be watched at a time of the viewer’s choosing.
 
(c)       there is a person who has editorial responsibility for it;
 
The programmes on Top Gear YouTube have been selected and thereby organised into a coherent catalogue of viewing options with a distinct editorial proposition.
 
(d)       it is made available by that person for use by members of the public; and
 
Top Gear YouTube is made available on the open internet. Anyone with access to the internet can view the programmes
 
(e)       that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
 
Top Gear YouTube is provided by BBC Worldwide Limited, which has its registered office at Media Centre, 201 Wood Lane, London W12 7TQ.
 
Having concluded that the Service is an ODPS,  ATVOD has determined that a contravention of section 368BA (Requirement to notify an ODPS) and section 368D(3)(za) (Requirement to pay a fee) has occurred because on the basis of the information available (a) the Service is an ODPS; (b) the provider of the Service, has not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of an intention to provide that service or, if the Service was already being provided on 18 March 2010, did not give a notification before 30 April 2010; and (c) the service provider has not paid the regulatory fee for the financial period ending 31 March 2011, as required by ATVOD under section 368NA of the Act.
 
If the service provider notifies this service within 14 days, and pays the subsequent invoice within 14 days of its issue, no further enforcement action will be taken.
 
Alternatively, the service provider may request an appeal by Ofcom of ATVOD’s decision that the Service is an ODPS or that it is the provider of the ODPS.  Ofcom requires appeals to be made in writing within 10 working days of the date of the relevant decision. In urgent cases a shorter period may apply. If the service provider wishes to request an appeal of this determination to Ofcom, it should consult Ofcom’s current procedures as soon as possible. These may be found at: http://stakeholders.ofcom.org.uk/consultations/on-demand-programme-services/ Requests for appeal should be sent to: Tony Close at Ofcom, Riverside House, 2a Southwark Bridge Road, London, SE1 9HA or via email to tony.close@ofcom.org.uk
 
If no notification is made and/or no fee paid within the specified times, and no appeal to Ofcom is made, or any appeal made to Ofcom is unsuccessful or Ofcom determines that the request has been made out of time, ATVOD may proceed to issue an Enforcement Notification under section 368BB(1)(a) or section 368I(1) of the Act following consultation with Ofcom.  ATVOD may also refer the matter to Ofcom for consideration of the imposition of a financial penalty under section 368BB(1)(b) of the Act or of suspension or restriction of the service under section 368K of the Act.