Scope Determination
Service: Audio: Tube
Service provider: Audio: Tube Ltd
The Determination set out below was made on 16th March 2011.
An Enforcement Notice requiring notification within 14 days was issued to the service provider on 27 April 2011.
Failure to comply with the Enforcement Notice resulted in this breach being referred to Ofcom for consideration of the imposition of a sanction. As at 13 October 2011 this service was no longer in operation.
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: Audio:Tube (www.audiotube.com)
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 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 Association 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 25th October 2010 informing the service provider 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.
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 24th January 2011 to inform the service provider 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. No such representations have been received.
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 site’s principal purpose is the provision of music videos, comparable in form and content to those played on music television programme services. According to the site’s text description, ‘Audiotube operates in the fast growing video-on-demand (“VOD”) segment’.
(b) access to it is on-demand;
Videos can be played at a time of the viewer’s choosing.
(c) there is a person who has editorial responsibility for it;
The programmes on Audio:Tube 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
Any member of the public with access to the Internet can access the service.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Audio:Tube is provided by Audiotube Ltd which has its registered office at Open Studios, County Hall, Belvedere Road, London SE1 7PB
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 provider has not paid the regulatory fee for the current financial period ending 31 March 2011, as required by ATVOD under section 368NA of the Act.
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. Appeals must be made according to Ofcom’s current procedures. These may be found at: http://stakeholders.ofcom.org.uk/consultations/on-demand-programme-services/.
If no appeal is made or if any appeal to Ofcom is unsuccessful or if 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.