Scope Determination
Service: ChannelFlip
Service Provider: ChannelFlip Media Limited
The Determination set out below was made on 26th April 2011. It is currently the subject of an appeal to Ofcom.
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: ChannelFlip (www.channelflip.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 28th January 2011 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 14th March 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, the service provider stated that:
1) ChannelFlip is not competing with broadcast television
2) Its programmes are not ‘TV-like’
3) ATVOD’s approach hamstrings small innovative entrepreneurial business
ATVOD’s Final Determination
The Service
The Service is accessed via the internet. The home page of ChannelFlip (http://www.channelflip.com/) contains a large viewer from which one of several ‘Featured Videos’ can be played. Other elements of the home page include a drop-down ‘Shows’ menu and scrolling picture menus for ‘Our Shows’ and ‘Popular Videos’. Apart from small icons linking to Facebook, Twitter, News feeds and email updates, and a text link to further information about Channelflip, the home page is entirely devoted to providing access to video on demand content.
Clicking on a ‘show’ title takes the user to a video in that series, below which there is a section for user comments and picture links to other episodes of that show and to ‘popular videos’.
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 content of the programmes is comparable to that of broadcast television programmes, most notably comedy programmes. The form too is comparable to that of programmes normally included in television programme services, as illustrated by the examples below. Programmes are typically preceded by an advert and can be enlarged to view full screen.
F.C. Dave – Episode 1 – Sex Lies and Digital Video
This runs at 10 mins 1 sec and is part of a ‘mockumentary’ series in which an amateur football team represent the ‘Dave’ TV channel in the broadcasters cup. Television-like features include: A stylised generic (to series) opening sequence with music soundtrack introducing characters with on-screen text (eg. ‘The Goalie’); On-screen title (“F.C. Dave Episode 01 Sex Lies and Digital Video”); linear narrative including on-screen text (eg. ‘six weeks earlier’); various features typical of the fly-on-the-wall documentary genre it spoofs eg. hand-held camera work, some interviews to camera; comic ‘beeps’ over strong language; end credits detailing actors, production staff, and so on; final ‘F.C. Dave’ logo (including ‘copyright UKTV Interactive 2010’ and ‘in association with Power League).
Beasthunters – Episode 1 – Archituthius Slimbus
This is slightly shorter at 6 mins 17 secs but nevertheless follows the form of a television drama, including: an edited opening sequence generic to the series of which this forms a part, including music soundtrack, voice-over background story, graphics, live action and animation, culminating in the on-screen title ‘Beasthunters’; again a deliberate following of the conventions of the scifi entertainment dramas it spoofs eg. plot involving reveal of alien creature, mobilising of team and confrontation with creature; end pictorial logo accompanied by music and followed by ChannelFlip and BBC logos.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of ChannelFlip. As noted, the programmes have clear prominence on the site and other material such as user comment is secondary to the provision of the programmes.
ATVOD notes the service provider comments on the Ofcom qualitative research report into ‘consumer views on what makes audiovisual services “TV-like”’. ATVOD has had regard to relevant views on the understanding of the phrase “TV-like”, but notes that the research in question was never intended to be determinative and was conducted before the AVMS Regulations were drafted.
(b) access to it is on-demand;
ChannelFlip 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 ChannelFlip 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
ChannelFlip 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.
ChannelFlip is provided by ChannelFlip Media Limited, which has its registered office at Clearwater House, 4-7 Manchester Street, London W1U 3AE
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 pay 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.