ATVOD

The Association for Television on Demand

The Association 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. 

 

On 4 August 2010 we wrote to inform the service provider 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.

 

In a response dated 8 September 2010 the service provider stated that:

 

“....the provision of feature films on the Website did not amount to an On-Demand Programme Service (“ODPS”) under section 368A of the Communications Act 2003, as amended (the “Act”).

The Website could only be an ODPS if “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”.  However, the principal purpose of the Website is to sell entertainment media (such as CDs, DVDs, MP3s and computer games), and as a portal for DVD rental: not to provide such programmes.

Also, the feature films on the Website were not competing for the same audience as television broadcasts, which paragraph 2.4 of the ATVOD Guidance on “Who needs to Notify” specifically states will be conclusive in determining whether or not an ODPS will be caught by the definition in section 368A of the Act.  Instead, the feature films competed with the market for the sale and/or rental of DVDs.

We also note that it is not clear that online feature films can be classified as an ODPS under the Act in any case: the only references to feature films in the Act are outside the context of ODPS regulation; and even within ODPS regulation the only references to films (not being feature films specifically) are in the context of product placement rather than the provision of an ODPS.  There is also no guidance of which we are aware that makes any reference to feature films being a type of ODPS.

In the light of these points we maintain that there was never any duty to notify ATVOD that the feature films in question were provided through the www.tescoentertainment.com website.”

Taking those representations and 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;

 

While it is true that the digital film and television service sat within a broader website, it was nevertheless a distinct service in its own right. The programmes were not integral to the wider consumer offering, were grouped together as a catalogue in a separate section of the website, and could exist as a coherent consumer offering in their own right. The ‘Guidance on who needs to notify’ makes clear that “Where relevant on-demand programmes form part of a broader consumer offering, it may be the case that those programmes comprise an on-demand programme service in their own right. For example, where a service provider offers a movie and television programme download service as part of its broader, non-audiovisual online retailing activities, then such a service may be considered to be a distinct on-demand programme service which falls within the scope of the Act.” [para 2.10].

 

Tesco’s final communication to users of the service on 18 May 2010 described the service as the “digital film and television service”. Even if the service did not include programmes made for TV, it is common ground that the service did include feature films. Feature films, even if originally made for cinema, are comparable in form and content to programmes normally included in television programme services. Feature films are very regularly shown on linear TV, indeed whole linear channels are devoted to the broadcast of feature films.

 

(b)        access to it is on-demand;

 

Each programme was accessed by the user downloading the programme after paying the required fee. The programmes were viewed at a time of the user’s choosing.

 (c)       there is a person who has editorial responsibility for it;

 

            The programmes made available on the website had been selected and organised by a person to form a coherent consumer offering with a distinct editorial proposition

 (d)       it is made available by that person for use by members of the public; and

 

Access to the website was not restricted in any way and the service was made available for use by members of the general public.

(e)        that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.

 

The service was under the general control of Tesco, New Tesco House, Delamare Road, Cheshunt, Hertfordshire, EN8 9SL  

 

In its representations the provider also argued that the feature films provided on the service were not competing for the same audience as television broadcasts but competed with the market for the sale and/or rental of DVDs instead. In making this determination, ATVOD has concluded that the feature films provided on the service were competing for the same audience as television broadcasts of feature films in addition to competing with market for the sale and/or rental of DVDs.

 

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  the 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. 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 issue an enforcement notice under section 368BB(1)(a) 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.