Scope Determination
Service: ITV Archive content on the Virgin Media platform
Service Provider: ITV Consumer Limited
The Determination set out below was made on 11th May 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. ITV Archive content on the Virgin Media platform
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.
The Service provider wrote to ATVOD on 29th April 2010 regarding various services provided by ITV Consumer Ltd, including ITV archive content on the Virgin Media platform for which they believed Virgin Media to hold ‘editorial responsibility’. As the service provider is aware, and in line with ATVOD’s published ‘Guidance on who needs to notify’, ‘editorial responsibility’ is here defined as the exercise of general control over both the selection of the individual programmes included in the range of programmes comprising the on-demand programme service, and the manner in which those programmes are organised within that range.
ATVOD wrote to the service provider on 30th June 2010 indicating that it would seek Virgin’s comments on the issue of editorial responsibility. Having received Virgin’s response, ATVOD wrote to the service provider on 10th January 2011 setting out its ‘Preliminary View’ that ITV Consumer Ltd holds editorial responsibility for this service, and that therefore 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 responses of 17th February 2011 and 21st April 2011 the service provider made detailed representations.
ATVOD’s Final Determination
It is common between the parties that the ITV archive material either constitutes or forms part of an On Demand Programme Service in the terms of s368A of the Act. The issue here is who holds editorial responsibility for that service.
ATVOD appreciates that this is not a straightforward matter. However, having considered the service provider’s representations and those of Virgin Media, and having considered relevant sections of the agreement between ITV Consumer Limited, ITV Network Limited, ITV Global Entertainment Limited and Virgin Media Limited ("the Contact"), ATVOD has determined that ITV Consumer Ltd does hold editorial responsibility for its archive service on the Virgin Media platform.
As the details of the contract are confidential, we do not set out in this summary full details of the reasoning for our decision. However an outline of our reasoning is set out below:
- Although both parties play some role in selecting programmes, the Contract gives greater control to ITV
- In addition to considering responsibility for selection, which we have concluded is a matter over which both parties have an element of control, we also considered responsibility for the manner in which the programmes are organised within the service.
- ATVOD’s published ‘Guidance on who needs to Notify’ states that ‘in determining the person with general control of the organisation of those programmes it is appropriate to consider who determines the relevant viewing information provided alongside the on-demand programme that may then be used in listing the programme in an on-demand programme service and which ensures that each individual programme is made available in a manner that secures the relevant standards requirements’
- ITV provides the metadata which accompanies programmes in the service and which determines the manner in which it is organised. ATVOD understands that this is delivered in a form specified by Virgin, but it is our understanding that this is to ensure consistency with the technical and presentational requirements of the platform.
- the ITV archive content is made available in at least one ITV-branded area. Although Virgin may make the content available from any other area of their platform in addition, for example accessed by genre or by A-Z listing, we do not consider this to constitute selection and organisation. This is in accordance with ATVOD’s published guidance on this issue which state that techniques used by aggregators to facilitate the location of content ‘would not, on their own, constitute “selection and organisation” of programmes, as these are solely presentational techniques’.
- the arrangements for the inclusion of advertising or sponsorship also imply a degree of control on behalf of ITV over the organisation of the service as a whole.
Having concluded that the Service is an ODPS for which ITV Consumer is responsible, 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 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.
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.