Scope Determination
Service: Telegraph TV
Service provider: Telegraph Media Group Limited
The Determination set out below was made on 29th March 2011. This Determination was withdrawn on 21 December 2011.
DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368D(3)(ZA) (REQUIREMENT TO PAY A FEE) OF THE COMMUNICATIONS ACT 2003:
Re: Telegraph TV (http://www.telegraph.co.uk/telegraphtv/)
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 1 November 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.
On 30th November 2010 the service provider sent a completed notification form to ATVOD in relation to the video content displayed on the website and an invoice was issued requiring payment of a regulatory fee of £2900. Having notified ATVOD of this service, on 18th January 2011 the service provider wrote to ATVOD requesting a withdrawal of this notification. Having applied the statutory criteria to the Service, we wrote to the service provider on 17th February to inform them that we had come to a preliminary view that the Service is an ODPS in respect of which a fee has not been paid, and that our preliminary view was that you are in contravention of section 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 25 February 2011, the service provider stated that:
- ‘The service does not have as its “principal purpose” 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”.’
Articles are either embedded in text, linked, or if stand-alone (rare) chiefly journalistic as per newspaper readers’ expectations. The Service provides a multi-media online experience.
The conventions of contemporary video material (editing, soundtrack, etc.) are not enough to establish video content as fairly comparable to the form and content of TV channel programmes.
- ‘The Service is not an ODPS as it does not compete for the same audiences’
The Service is accessed via online newspaper website - evidence that the experience sought is not ‘television-like’. The Telegraph has an innovative partnership with BBC iPlayer and directs readers to that service – not ‘the customary behaviour of competitors’.
- ‘The Service’s programmes are interwoven into the online newspaper pages as an integral and ancillary element of the broader offering, forming part of a content service predominantly featuring a range of non-video material’.
It is not a coherent consumer destination in its own right and is aggregated only for ‘the convenience of our users’. ‘All indexing is completed in the same way as our news articles and news images’. ‘No access to the catalogue of videos is provided from the home webpage or any other tabbed page’. ‘Users can only access videos as they go through the news articles, through the tabs by topic, or search for content specifically’. ‘The main index page for the Service is within the ‘culture’ tab, and not in a standalone ‘Telegraph TV’ page’.
- ‘In making its determination [ATVOD has] applied the wrong legal test’
Even if some small proportion of the video elements is comparable to TV services, the provision of such TV channel programming is not the ‘principal purpose’ of the Service. An informal estimate of content suggests that about 95% is embedded in written news stories; about 98% links directly to/from news articles; about 95% is free from credits and presenters; and a small percentage consists of audio and slideshow only.
ATVOD’s Final Determination
The Service
Telegraph TV is available at the URL http://www.telegraph.co.uk/telegraphtv/. At the time of ATVOD’s initial investigations this was reached via the ‘Culture’ tab from the Home page (www.telegraph.co.uk), which brought up a bar of options including ‘Telegraph TV’. Currently this bar of options does not include ‘Telegraph TV’ but includes only a ‘Video’ tab which brings up ‘Culture Videos’ rather than the full range of video. The full range available at www.telegraph.co.uk/telegraphtv can now be accessed by clicking on the ‘A to Z’ menu which appears at the bottom of the home page, and then clicking on ‘Telegraph TV’. For the purposes of the regulated period 18th March 2010 to 31st March 2011 ATVOD bases its view on the service as originally accessed. Given the changes made to the service since our original assessment, we may need to make a fresh determination in respect of the year beginning 1st April 2011.
The service as originally investigated, and as now reached at the www.telegraph.co.uk/telegraphtv, provides a stand-alone aggregated listing of video items organised by category eg. ‘Sport Video’, ‘Lifestyle Video’, ‘Culture Video’, ‘Travel Video’. A single website or domain may contain more than one service, and this 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. In being aggregated for the convenience of users, a distinct service is created for those users.
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;
Programmes on the Telegraph TV service are often branded with a ‘Telegraph TV’ logo, and with or without this logo are often comparable in form and content to programmes normally included in television programme services, and go beyond the most basic conventions of video editing.
For example, ‘Sights, camera, action: Meribel’s highlights’, begins with a ‘Telegraph’ logo and the URL ‘Telegraph.co.uk/video’ on screen (which redirects to www.telegraph.co.uk/telegraphtv). The content of the video is travel information of the sort commonly found in broadcast television travel programmes. Although only 1 minute 44 seconds long, it is a self-contained programme, and includes the following combination of ‘TV-like’ features: an opening title sequence with graphics (‘Sights. Camera. Action.’) common to others in a broader series of similar travel guide programmes; on-screen title particular to this programme, ‘Meribel’; on-screen captions (eg. ‘Apres Ski – Rondpoint & Beyond’); on-screen text giving names of on-screen presenter (‘Felix Milns – Travel Writer’) and interviewees (eg. ‘Julie Pomagalski – Ex Snowboard World Champion); Intercut images of the slopes and surrounding area; music soundtrack.
The programme ‘Normal Rockwell at Dulwich Picture Gallery’ runs at 4 minutes 46 seconds, is preceded by an advert, and again uses the Telegraph logo and reference to ‘telegraph.co.uk/video’. Its content is comparable to that of arts information and discussion programmes. Again it involves a combination of TV-like features which include: an opening sequence of images of paintings with music soundtrack; on-screen text to identify interviewer / presenter (‘Alastair Sooke – Arts Critic’) and interviewee (‘Ian Dejardin – Director, Dulwich Picture Gallery’); images of gallery and paintings intercut with interview / discussion.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of the Telegraph TV service. It is true that some of the videos on the service are not ‘TV-like’, but it is ATVOD’s view that a significant proportion of the content is ‘TV-like’ in the terms described above. Stand-alone items do not appear to be ‘rare’ (as stated in your representations). Textual accompaniment is often limited to a brief description of the video, and where associated articles / text features are linked they are presented as a minor accompaniment to the video content, which is not necessary for its enjoyment. For example, in the case of the ‘Meribel’ video described above there is two sentence text introduction above the video and a short ‘Related Content’ list below it including ‘Where to stay in Meribel’. The principal purpose of the service however appears to ATVOD to be the provision of TV-like programming, with the possibility offered of subsidiary text information.
(b) access to it is on-demand;
Telegraph TV 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 Telegraph 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
Telegraph TV is made available on the open internet. Anyone with access to the internet can view the programmes on Telegraph TV.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Telegraph TV is provided by Telegraph Media Group Limited, the registered office of which is 111 Buckingham Palace Road, London SW1W 0DT.
In coming to this determination, ATVOD has taken note of Recital 21 of the Directive, which is not binding, and has concluded that Telegraph TV is a service 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 368D(3)(za) (Requirement to pay a fee) has occurred because on the basis of the information available (a) the Service is an ODPS; and (b) 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.