Scope Determination
Service: Arsenal TV
Service Provider: Arsenal Boradband Limited
The Determination set out below was made on 26th April 2011. A notification and fee was subsequently received with regard to this service.
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: Arsenal TV (http://tv.arsenal.com)
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 12th August 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 3rd February 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. To date, no such representations have been received.
ATVOD's Final Determination
The Service
The service is accessed via the internet at the URL http://tv.arsenal.com. It can also be accessed via the homepage of the main Arsenal Football Club website (http://www.arsenal.com/home). The main Arsenal FC website offers many different sections with text based articles, still photos, match results and so on. The main Arsenal FC website links to the Arsenal TV service by two key means – an ‘Arsenal TV online’ tab in a list of ten such links down the left hand side of the page, and a larger box advert for / link to the service on the right hand side which includes a still photo and the logo ‘Arsenal TV online’. When the user clicks on this box, the Arsenal TV service opens in a new window with the following URL:
(http://tv.arsenal.com/default.aspx?p=channels/C4_S1&a=78358)
A single website or domain may contain more than one service, and Arsenal TV does appear to ATVOD to constitute a service in its own right, presented as a consumer destination in its own right with programmes that can be viewed, enjoyed and made sense of without reference to the broader Arsenal website.
Application of s368A(1)
Taking all the relevant considerations into account, 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 form and content of the programmes on Arsenal TV are comparable to sports programmes shown on linear television. Examples include:
“4/3/11 Arsenal 360”
This is 35 mins 15 secs long and follows the form of a weekly sports news roundup programme. Programmes in the “Arsenal 360” series are typically 25-35 minutes long. Television-like features include: A stylised opening sequence generic to the series, including intercut footage, music soundtrack and ending on the “Arsenal 360” on screen title; voice-over commentary directly comparing the programme to other available football programmes (“the only show that gives you the week at Arsenal from every angle”); edited match footage and strategic analysis; on-screen graphics illustrating statistics; on-screen captions introducing interviewees (eg. “Jack Wilshere – midfielder”); interviews intercut with match footage; distinct sections of the programme eg. “Wenger’s Word”; end sequence which repeats edited opening sequence and Arsenal 360 logo.
“26/11/10 Arsenal Live”
This is 56 mins 53 secs long. It is preceded by a link / introduction by on-screen presenter and includes the following television-like features: fully edited stylised generic (to series) opening sequence with black and white rapid cut images, music soundtrack and on-screen title “Arsenal Live”; studio presenter who introduces sections of programme; on-screen graphics giving details of competitions; on-screen reporter with microphone, introduced with on-screen caption (“Nigel Mitchell”); reportage intercut with match and press conference footage; two studio guests; a studio discussion intercut with match footage; an advert break (at 23 minutes) introduced verbally with ‘don’t go away’ and then ‘welcome back’, bookended by the Arsenal TV Logo and consisting of a ‘Paddy Power’ ad; on-screen schedule giving details of future programmes on Arsenal TV Online; End sequence as per opening sequence; ‘Input Media’ logo.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of Arsenal TV. Tabs at the top of the page categorise content into ‘Best Of’, ‘Highlights’, ‘Match Centre’, ‘Talk’, ‘Gold’, ‘The Club’, ‘TV’ and ‘Free Video’. Although one of these tabs (‘Match Centre’) does not contain audio visual material, the other tabs all contain programmes many of which are TV-like and offered to either ‘play’ or ‘download’.
(b) access to it is on-demand;
Arsenal TV 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 Arsenal TV have been selected and 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
Arsenal TV is made available on the open internet. Anyone with access to the internet and who obtains the necessary subscription can view the programmes.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Arsenal TV is provided by Arsenal Broadband Limited, which has its registered office at Highbury House, 75 Drayton Park, London N5 1BU
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.