Scope Determination
Service: Formula 1 Video
Service provider: Formula 1 Management Ltd
The Determination set out below was made on 29th March 2011.
A notification was subsequently made 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: Formula 1 Video (http://www.formula1.com/video/)
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 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 16 August 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 14th February 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. In a response dated 25th February 2011, the service provider stated that:
- The programmes on Formula One Video do not resemble television programmes.
- They do not resemble sports programmes. ‘Sports programming normally consists of live or delayed coverage of sporting events in full or in the form of highlights which in all cases are presenter-led, with expert analysis and live interviews, usually with additional video excerpts of interviews and/or archive footage. I cannot conceive how the edits on the Service could be said to be similar in content when the make-up of such sports programmes is so different (not even considering the short length of the edits), the only connections seems to be a link to sport but that cannot be enough to make them comparable “programmes”’.
- ‘for the Service to constitute a ODPS, it would have to be the case that the edits were in competition with and therefore comparable to, mainstream sports coverage. It would have to be the case that someone would see the edits on the Service as an alternative to a full-length highlights programme. It is my view that this is clearly not the case and accordingly that the Act was not intended to be applicable to the Service as provided by FOM’.
- ‘the relevant news programme as a whole is the “programme” that is part of the television service, I do not see that a two minute clip from within a news programme could be isolated and categorised as a programme for the purposes of claiming that it was comparable in form to the edits included on the Service’.
In an earlier Declaration to ATVOD, the service provider stated that ‘all audio-visual content in the service is short…edits which are promotional in nature, contain no voice-over element and are to showcase Formula One events and not provide editorial reviews of them’.
ATVOD’s Final Determination
The Service
From the main website (http://www.formula1.com/default.html) the video section is accessed via a tab entitled ‘video’. Clicking on this tab requires entry of username and password and then takes the user to a collection of ‘Race Edit’ videos, appearing under their own tab. Clicking on a second tab ‘Onboard’ takes the user to another collection of videos.
A single website or domain may contain more than one service, and the video section of the Formula One website 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 offering.
Application of s368A(1)
Taking all the relevant considerations into account, including 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 programmes under the ‘Race Edit’ tab resemble programmes normally included in television programme services, in terms of content and form. Their content is similar to that found in many sports highlights programmes. Their form resembles a self-contained narrative feature. For example, the ‘Monaco’ race edit, although 3 minutes 27 seconds long, contains: an edited opening montage setting the scene for the Monaco race (including girls dancing and a brief clip of comment from Mick Jagger in the crowd); music soundtrack; clips from the race giving a narrative progression of the course of the race; a fade-out ending. It is part of a series of programmes covering different races. The season ‘Summary’ is 5 minutes 38 seconds long, and contains: an opening sequence including highly stylised shots of cars at rest, making way for clips from races intercut with archive footage; music soundtrack; stylised clips from commentary and a voice-over commentary specific to this programme; opening section ending on shot of car with Red Bull logo on side; progresses to further montage sequences presumably from different races throughout the season.
These ‘TV-like’ programmes are considered to be the principal purpose of the Formula One Video service. Although the videos under the ‘Onboard’ tab are not considered ‘TV-like’, the ‘Race Edit’ section is the first that comes up when the home page ‘Video’ tab is clicked on, and offers only these TV-like videos. The prominence of this TV-like content convinces us that their provision is the principal purpose of the service. This conclusion is supported by the more general appeal of the ‘Race Edit’ videos.
Although the representations of the service provider suggest that these videos are entirely promotional in purpose, they are constructed so as to give an overview of each race / season in an entertaining fashion.
(b) access to it is on-demand;
Formula One Video 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 Formula One Video 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
Formula One Video is made available on the open internet. Anyone with access to the internet who obtains the necessary registration can view the programmes.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Formula One Video is provided by Formula One Management Limited, which has its registered office at 6 Princes Gate, London SW7 1QJ.
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.