Scope Determination
Service: Golfbug.TV
Service Provider: Webfire Media Limited
The Determination set out below was made on 18th May 2011. Company subsequently placed in liquidation.
DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA (REQUIREMENT TO NOTIFY AN ON-DEMAND PROGRAMME SERVICE) OF THE COMMUNICATIONS ACT 2003:
Re: GolfBug.TV (www.golfbug.tv)
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 named above (the “Service”) is contravening or has contravened section 368BA of the Act (failure to notify an on-demand programme service).
Background
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 On-Demand Programme Service (“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 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 18th August 2010 informing you 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 you may have made to our previous letter, we wrote to the service provider on 1st November 2010 to inform them 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. To date, no such representations have been received.
ATVOD’s Final Determination
The Service
The Service is accessed via the Internet at the URL http://www.golfbug.tv. Down the left hand side of the home page are tabs / links to the following sections: Latest News, The Back 9, European Tour, Player Profiles, Other Tours, Techniques, Equipment & Attire, Destinations, and Amateur. All contain video material. A large viewing window in the centre of the home page plays programmes which can be selected by clicking on one of these tabs and then choosing from thumbnail programme options displayed down the right hand side of the page. Further down the home page there is other material such as news headlines linking to other sites, a leader board, weather forecast, and advertisements.
Application of s368A(1)
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;
Golfbug TV advertises itself using the notation ‘TV’ both in its URL and the title on its home page. The content of the available programmes is comparable to sports magazine programmes and golf coverage on broadcast television. Their form too is comparable to broadcast television programmes, for example:
“The Back 9 – The Season round up 2010”
This is part of a series of programmes ‘The Back 9’ and this episode runs at 7 minutes. It resembles a magazine programme in form and its television-like features include: An animated opening sequence with music soundtrack culminating in title ‘The Back 9’; voice-over commentary including introduction to what is coming up in this programme; footage from golf games; a section on golf technique; captions advertising a competition; end montage of best shots of season accompanied by music soundtrack and followed by repeat of opening graphics sequence and series title ‘The Back 9’.
“1985 Dunhill British Masters”
Found under the ‘European Tour’ section this runs at 6 mins 1 second. It is part of a sequence of programmes which run on to each other automatically and together form a longer programme which has presumably been broadcast on linear television. Television-like features of Part 1 include: Opening sequence with theme music and on-screen title ‘The Dunhill British Masters’; on-screen presenter Harry Carpenter; on-screen graphics eg. giving name of presenter, showing leader board; intercut footage from game. Part 9 of this series ends with end credits to production crew and the BBC logo.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of the site. Again, the notion of ‘TV’ is prominent in the site’s name and presentation. Other elements such as text news headlines appear to be secondary to the provision of the golfing programmes.
(b) access to it is on-demand;
Golfbug TV programmes 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 Golfbug TV 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
Golfbug TV is made available on the open internet and any member of the public with access to the internet can view the programmes on Golfbug TV.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Golfbug TV is provided by Webfire Media Limited which has its registered office at 2 A C Court, High Street, Thames Ditton, Surrey, KT7 0SR.
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 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.
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 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.