Scope Determination
Service: FT Video
Service provider: The Financial Times Limited
The Determination set out below was made on 30th June 2011. This Determination was withdrawn on 21 December 2011.
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: FT Video (http://video.ft.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 1st November 2010 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 (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 may be eligible for a reduced concessionary fee for the period to 31 March 2011. Fees for the year to 31 March 2012 follow a banded structure based on service provider revenue, with concessionary rates for non-commercial and small scale providers. Please see our website for details.
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 February 2011 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 dated 17th March 2011 the service provider stated that:
- Online versions of newspapers are clearly outside of the scope of the AVMS Directive
- FT Video is not a separate service in its own right.
- The viewer is invited to consider the content as subsidiary / ancillary to the online newspaper.
- Content is in almost all cases directly linked to text and included within a text page.
- The principal purpose of FT.com is not the provision of audiovisual material.
- The videos are not ‘TV-like’ – they are ad hoc short-form video content.
- The videos therefore do not compete with television services.
ATVOD’s Final Determination
The Service
FT Video is accessed via the internet at http://video.ft.com/. On the FT home page (http://www.ft.com/home/uk) the ‘video’ tab is one of nine listed across the top of the page under the title of ‘Home’. One clicked on it takes the user to http://video.ft.com/ which is titled ft.com/video.
A single website or domain may contain more than one service, and FT Video does appear to ATVOD to constitute a service in its own right, with programmes that can be viewed, enjoyed and made sense of without reference to the broader offering. In your letter of 17th March you suggest that ‘the video aggregation webpage is not a consumer destination in its own right and could not and does not exist independently from the remainder of FT.com as a coherent video on demand consumer offering’ and that only a small proportion of users watch videos on the video.ft.com webpage. Regardless of how the service is currently used, ATVOD believes that it constitutes a stand-alone service which is not integral to the online newspaper. We acknowledge that tabs across the top of the FT Video page lead back to sections of the online newspaper, and at the bottom right various links are displayed in small text to FT webpages and other websites. However, the page is dominated by video content, providing various sections which sort the content in various ways, eg. ‘Markets’, ‘Life & Arts’, ‘Featured’, with a large viewing window and multiple thumbnail images linking to videos.
ATVOD believes that a significant number of videos do not link directly to text articles, or are not ancillary to them. Annex 1 gives examples of a lack of integration between individual videos and the online newspaper. The ‘Derivatives’ video contains only a general thematic link, to the ‘FT Trading Room’ page. ‘The Aldeburgh Festival’ does sit alongside links to text articles on the Aldeburgh Festival and the Arts in general, but there is no clear sense in which it is ancillary to those articles – in the case of the Aldeburgh Festival reviews article, The Aldeburgh Festival video repeats and expands on the text article’s background information in a different, alternative, format.
The service provider’s letter suggests that ‘[i]f ATVOD’s analysis of the FT.com site is correct then Financial Times Limited could simply avoid regulation by removing the video aggregator webpage, which cannot be correct’. However, it is indeed ATVOD’s view that by aggregating this content on a discrete section of the website in the manner described, a service has been created.
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;
We note the service provider’s contention that the videos on FT Video are not television-like as they are short-form content of the sort which ‘when it is included on scheduled television services is normally grouped together under common themes to create long form programming which also includes interstitials and links’. However, stand-alone shorter programmes are regularly found on broadcast television services (for example music videos, news bulletins, drama shorts) and ATVOD does not believe that brevity necessarily precludes a programme being considered ‘TV-like’. We would also point out that the programmes on FT Video automatically run into each other after a particular video is chosen, creating the appearance of a longer-form programme akin to a rolling news programme.
The programmes described below are relatively short in duration but nevertheless maintain an editorial integrity and coherence of form typical of television programmes, with content (in these examples) reflecting that of finance and arts programmes
1) Derivatives: The clearing battle mounts (6 mins 28 secs)
Television-like features include: Opening music sequence, on-screen presenter; on-screen text (to introduce presenter and interviewees, eg. ‘Kim Taylor – President, CME Clearing’); interviews; edited footage from expo including stylised images of expo stalls, and musical playout.
2) From Britten to Bones: The Aldeburgh Festival (8 mins 52 secs).
Television-like features include: opening montage of images with accompanying music sound track; on-screen presenter Jan Dalley; talking heads interviews; on-screen text eg. introducing interviewees (eg. “Jonathan Reekie – Chief Executive, Aldeburgh Music”; intercut images of various artworks forming montage with music soundtrack.
ATVOD considers that the principal purpose of FT Video is to provide these TV-like programmes. As described above, the FT Video page is dominated by links to this content. When a particular video is accessed, it can appear alongside links to text articles: however, these links are presented as secondary to the provision of the programmes: they appear in small text, equal in prominence to the filmmaker / producer credits for the programme which appear alongside them. The rest of the page is again dominated by thumbnail picture links to other programmes.
(b) access to it is on-demand;
FT 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 FT 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
FT Video is made available on the open internet. Anyone with access to the internet can view the programmes on FT Video.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
FT Video is provided by The Financial Times Limited which has its registered office at Number One, Southwark Bridge, London SE1 9HL
In coming to this determination, ATVOD has taken note of Recital 28 of the Directive, which is not binding, and has concluded as above that FT Video is a service in its own right which is distinct from the online version of the newspaper and which has as its principal purpose the provision of programmes which are comparable to the form and content of programmes normally included in television programme services.
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) as 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.