ATVOD

The Association for Television on Demand

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  10 August 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.

 

In a response dated 13 August 2010 the service provider stated that  Elite TV / Prime Time TV does not provide any service which allows users to view video content and did not provide such a service on 18 March 2010.

 

Taking those representations and 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 Service located at http://www.elitetvonline.com/ offers ‘adult’ programmes to view on a ‘streaming’ basis. 

The Service comprises a website offering a range of ‘adult’ content, including live streaming, still photographs, and webcams but the provision of  programmes is a principal purpose of the Service. On demand video content can be accessed via both the ‘Girls’ and ‘Videos’ tabs on the main navigation bar which both provide access to catalogues of video content. The ‘Video’ tab alone offers access to at least 160 programmes. Profiles of the female performers/models are displayed under the ‘Girls’ tab and the overwhelming majority of  profiles offer access to ‘videos’. ‘New videos’ are also prominently promoted on the home page.

The ‘adult’ programmes or ‘videos’ included in the Service are generally ‘short form’ programmes in which women pose and strip. Although some programmes are 30 seconds long, many run for several minutes. Typical examples include ‘Danielle Maye – Frisky Terrace’ which has a running time of 5 minutes 16 seconds  and  ‘Sammie Pennington – The Red Room’ which has a running time of 4 minutes 12 seconds. Despite their relative brevity, the programmes are comparable in form and content to ‘adult’ programmes normally included as programmes in television programme services.

Each programme is accessed by the user clicking on the required content after paying the required fee (monthly subscription). The programmes are therefore viewed at a time of the user’s choosing.  

 

(c)        there is a person who has editorial responsibility for it;

 

The programmes made available on the Service have been selected and organised to form a coherent consumer offering with a distinct editorial proposition.

  (d)      it is made available by that person for use by members of the public; and

 

Access to the Service is not restricted in any way and the programmes are made available for use by members of the general public who pay the required subscription

(e)        that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.

 

The Service is under the control of Prime Time TV Ltd whose registered office is 201 Haverstock Hill, London,NW3 4QG. The service is operated by James McCann, Head of Production who operates from Elite TV, PrimeTime TV Ltd,

The Barley Mow Centre, 10 Barley Mow Passage, Chiswick, London, W4 4PH.

 

In addition, the programmes available on the Service directly contradict your response dated 13 August 2010 in which you stated that Elite TV / Prime Time TV does not provide any service which allows users to view video content.

 

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.