Scope Determination
Service: Community Channel Videos
Service provider: Community Channel Ltd
The Determination set out below was made on 19 October 2010
A notification was subsequently made with regard to this service.
NOTICE OF DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA OF THE COMMUNICATIONS ACT 2003:
Re: COMMUNITY CHANNEL VIDEOS (http://communitychannel.mediatrust.org/video/)
ATVOD, as the appropriate regulatory authority, has determined in accordance with section 368BB(1) of the Communications Act 2003 (“the Act”) that the provider of the On-Demand Programme Service named above (the “Service”) is contravening or has contravened section 368BA of the Act (failure to notify an on-demand programme service).
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.
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.
On 28 July 2010 we wrote to inform the service provider that ATVOD had considered the Service and had formed a preliminary view that the Service may be an ODPS in respect of which a notification has not been given. However, before ATVOD reached a determination that a contravention of section 368BA had occurred in accordance with its powers under section 368BB(1) of the Act, we invited the service provider to make representations about that apparent contravention within 21 days.
No such representations have been received. An e mail on 16 September 2010 did state that a notification form would be submitted shortly, however no such notification has 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 Community Channel Video service available at http://communitychannel.mediatrust.org/video/ provides access to over 400 programmes. The programmes are a mix of short form and long form content (e.g. ‘You Could Go Far’ – 35 minutes, Hot Cities Episode 1 – 45 minutes) and typically match the form and content of documentaries or current affairs programmes normally shown on linear television programme services, including on the Community Channel television programme service.
Although the video section of the website sits within a broader website, it is a major part of the website (video on demand content is offered on 36 pages) and the programmes are grouped together into a catalogue of viewing options which could exist as a coherent consumer offering if removed from the broader website. The video section is not an integral or ancillary element of the broader offering and is therefore considered to be a service in its own right. This service has as its principal purpose 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.
(b) access to it is on-demand;
From the catalogue of programmes provided, the user selects the programme to be viewed and clicks on the ‘play’ icon to begin the programme which then plays by means of ‘streaming’.
(c) there is a person who has editorial responsibility for it;
The catalogue of programmes has clearly been selected and organised to form a coherent and distinct editorial proposition.
(d) it is made available by that person for use by members of the public; and
The service is made available on website which is open to all; access is not restricted in any way.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
The programmes are accessed via the Community Channel website and are identified as being ‘posted by Community Channel TV’. Community Channel TV is controlled by Community Channel Ltd, Media Trust, 2nd Floor Riverwalk House, 157-161 Millbank, London, SW1P 4RR
Having made the determination that the Service is an ODPS, ATVOD has concluded that there are reasonable grounds for believing that a contravention of section 368BA has occurred because on the basis of the information available (a) the Service is an ODPS, and (b) the provider of the Service has not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of the 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.
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 issue an enforcement notice under section 368BB(1)(a) 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.