Scope Determination
Service: The Business Channel
Service Provider: Greystone Media Limited
The Determination set out below was made on 26th April 2011. A notification was subsequently received for 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: The Business Channel (www.the businesschannel.tv)
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 16th August 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 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 the service provider may have made to our previous letter, we wrote to the service provider on 17th March 2011 to inform you 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. To date, no such representations have been received.
ATVOD's Final Determination
The Service
The service is accessed via the internet. The URL of this service is www.thebusinesschannel.tv. Arriving at the home page a programme automatically starts playing in a central viewing window. The seven main navigation tabs across the top of the page (’Homepage’ ‘Community’, ‘Environment’, ‘Marketplace’, ‘Workplace’, ‘Business Excelence’, ‘Programmes’ ) all link to selections of programmes on different themes. The ‘Programmes’ tab links to a collection of programmes from what appear to be key series broadcast on Sky and Freesat. Upon clicking on any of these tabs, the first video in the collection begins to play in a viewing window. A banner at the top of the page contains the logos of Sky, ITV, BBC and Freesat.
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;
The programmes on The Business Channel are comparable in form and content to business news and documentary features normally broadcast on linear television. Indeed, many of these programmes have themselves been broadcast on linear television – text on the homepage states that ‘The Business Channel will be broadcasting programmes on SKY DIGITAL and BBC/ITV Freesat television networks’.
Examples:
“Building A Greener Britain: Episode 8”
This runs at 21 minutes 10 seconds long, and is part of a series which according to on-screen text airs on Mondays at 8.30pm on Sky 166 and Freesat 402. Its television-like features include: Initial logo of ‘TheBusinessChannel.tv’ with on-screen tagline ‘Business Class Programmes for Directors and Executives’; an on-screen guest presenter who occasionally talks to screen, introducing next section; talking heads interviews with on-screen text identifying interviewees (eg. ‘Maria McCaffery Chief Executive, RenewableUK’); other interviewers with on-screen interviewer; intercut footage of, eg. company headquarters, installing environmentally friendly equipment, etc.; a list of contributors and their websites; end credits to production staff; logos of Greystone Media and Interfusion films; final advert for The Business Channel including various figures stating ‘you’re watching The Business Channel’ and voice-over stating ‘for more information on our programmes, our video on demand service…you can visit us online…’.
“Reviving Uk Manufacturing – Episode 1”
This is 20 mins 13 seconds long and according to on-screen text airs ‘Thursdays at 8.30pm on Sky 166 and Freesat 402”. Its television-like features include: On-screen title (“Reviving UK Manufacturing”); on-screen presenter; talking heads interviews with on-screen captions identifying interviewees (eg. ‘Matthew Wright Development Director Invar Systems’); intercut footage of eg. manufacturing processes; end credits to production staff; list of websites of featured companies; logo of The Business Channel.tv.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of the service. Every tab on the home page introduces a set of programmes and other elements such as text descriptions are minimal and secondary to the audio-visual offering.
(b) access to it is on-demand;
The Business Channel 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 The Business Channel 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
The Business Channel is made available on the open internet. Anyone with access to the internet can view the programmes.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
The Business Channel is provided by Greystone Media Ltd which according to the website is based at Unit A3, Building A, Atlas Business Centre, Oxgate Lane, London NW2 7HJ.
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) 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 pays 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.