ATVOD

 

1.         Introduction

 

1.1       This determination follows an investigation by ATVOD into which entity has editorial responsibility for the On-Demand  Programme Service or Services (“ODPS”) comprising MTV, Nickelodeon and Comedy Central content on the Sky Anytime platform. The investigation followed confirmation from each of the Viacom Channel Providers that they did not consider themselves to have editorial responsibility for the services. The BSkyB Ltd (“Sky”) notification of the ‘Sky on Sky Anytime’ service was limited to Sky video on demand content only and did not include content from the Viacom Channel Providers. Neither the Viacom Channel Providers nor BSkyB disputed that provision of the content on the Sky Anytime platform constituted provision of an ODPS.

 

1.2       The Viacom Channel Providers are all part of the Viacom group, and it is appropriate to deal with all three together in one Determination as the issues raised, the Providers’ representations, and the underlying contractual arrangements between each provider and Sky are substantially similar.  Furthermore, the Viacom Channel Providers previously agreed a central point of contact for communications and correspondence, in order to provide a consistent response to ATVOD.  Communications with Sky on this matter have also dealt with the Viacom Channel Providers together rather than separately.

 

1.3       The issue of editorial responsibility also has a bearing on whether the content comprises three separate ODPS, or could be considered a single ODPS with three ‘brands’, or might be included within a broader ODPS.

 

1.4       In this Determination ATVOD refers to ATVOD’s published “Guidance on who needs to notify” (“Guidance”), to the Communications Act 2003 (“the Act”), and to extracts of distribution agreements between the Viacom Channel Providers and Sky provided to ATVOD (“The Agreements”).   

 

2.         Summary of the legal position

2.1       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.

 

2.2       The Authority for Television On Demand (“ATVOD”) has been designated pursuant to the Act 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.

 

 

2.3      A service is only an ODPS if it satisfies the defining criteria in section 368A of the Act. Key amongst these for present purposes is in sections 368A(1)(c), that,

 

 “… a service is an ODPS if –

 

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

 

2.4       The concept of “editorial responsibility” is defined in terms of “general control” by section 368A(4) which states that,

 

“A person has editorial responsibility for a service if that person has general control –

 

(a) over what programmes are included in the range of programmes offered to users; and

(b) over the manner in which the programmes are organised in that range;

 

and the person need not have control of the content of individual programmes or of the broadcasting or distribution of the service”

 

2.5       Also of relevance is section 368R(5) which states that, ―the person, and only the person, who is to be treated for the purposes of this Part as providing an on-demand programme service is the person who has editorial responsibility for the service.”

 

2.6       Where a service is an ODPS, its provider is subject to a requirement to notify ATVOD and pay a fee. The provider must also ensure that the ODPS meets a limited number of regulatory requirements designed to protect users of such services.

 

3.         Sky Representations

3.1       ATVOD wrote to Sky on 18^th January 2011 regarding the issue of editorial responsibility for the Service.

 

3.2       On 13^th June 2011 Sky responded to ATVOD stating that Sky does not have editorial responsibility for the Viacom Channel Providers’ services on Sky Anytime, either as a platform provider or as a distributor of these services.  Sky stated that Viacom select the individual programmes that comprise their VOD services and determine the manner in which the programmes are organised within their VOD services, and that Sky has control over only the presentation of the Viacom VOD content within Sky Anytime.

 

3.3       Having applied the statutory criteria to the Service, and having considered the responses from both Sky and Viacom (see below) , ATVOD wrote to Sky on 6^th July 2011 to inform Sky that it had come to  the preliminary view (“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 had not been paid, and that ATVOD’s preliminary view was that, as it is the provider of the service, Sky was in contravention of sections 368BA (Requirement to notify an ODPS) and 368D(3)(za) (Requirement to pay a fee) of the Act.

 

3.4       In accordance with section 368BB(2) of the Act, ATVOD invited Sky to make representations within 21 days. Sky’s response dated 28 July 2011 is summarised below.

 

The process for selecting the programmes to appear on the platform  is as follows, for each of the Viacom Channel Providers:

 

On a monthly basis, each of the Viacom Channel Providers provides Sky Anytime with a list of programmes in order of priority, indicating the order in which it wishes Sky to accommodate its selections within the capacity constrained service. The Viacom Channel Providers also determine how many days the content should be made available for, subject to a 45 day maximum ‘delete date’.  
 
The capacity which Sky makes available to the Viacom Channel Providers may vary, depending on the amount of content offered by other content providers (since certain providers including the Viacom Channel Providers have the right not to make any content available on Sky Anytime and to vary the amount of content they make available).
 
Sky notifies the Viacom Channel Providers of the available capacity and therefore the programmes that can be accommodated (based on the Viacom Channel Providers’ order of priority).
 
The Viacom Channel Providers then provide the necessary master tapes and relevant metadata which are ingested into Sky’s technical playout system for broadcast on a hidden channel for recording by the relevant set top boxes.
 
The service is ancillary to the linear Pay TV service distributed by Sky and is intended to drive viewing for the linear channels whose content it features. The close connection between a channel provider’s linear channel and its on-demand content available through Sky Anytime is a clear indication that a single entity (namely, the channel provider) has editorial control over the content available within both services.  From a contractual perspective, the right to include a content provider’s on-demand content within Sky Anytime is achieved through an extension of the agreement under which Sky is entitled to distribute the channel provider’s linear channel(s) as part of a Sky Pay TV package. In respect of both Sky is acting as distributor.
 
Sky does not agree that it has the ‘final say’ over selection. Decisions not to include Viacom content are questions of capacity management rather than editorial decisions, as Sky has the right to include only some or none of the on-demand content provided by any of the Viacom Channel Providers only if there is insufficient capacity available on the Sky set top box to store this content. In order to ensure that the Viacom Channel Providers retain control over the selection of programmes to be included in the Sky Anytime service, the Viacom Channel Providers rank the list of programmes which it provides to Sky in order of priority, also stating when and for how long they want the programme to be made available via Sky Anytime. 
 
Each Agreement states that the Viacom Channel Provider has no obligation to make any on demand content available via Sky Anytime.
 
Sky does not agree that on balance it exercises a greater degree of control over organisation.  Sky does not have the right to amend the Viacom Channel Provider’s metadata at Sky’s sole discretion. In practice Sky on occasion needs to slightly amend the metadata, eg. to ensure it fits on screen, and advises the Viacom Channel Provider of such changes in advance. The only occasion where Viacom would not be informed is the abbreviation of a common word.
 
Sky does not agree that its control of the placement and positioning of each of the Viacom VOD services implies control over organisation. It is necessary for a content aggregator to maintain control over the placement and positioning of content from different providers, to ensure that content can be easily located by viewers.  This is nothing more that the “techniques used by aggregators to facilitate the location of content” which ATVOD’s Guidance states “would not, on their own constitute selection and organisation of programmes as these are solely presentational techniques”.

4.         Viacom Channel Providers’ representations


4.1       On the 4 May 2011, each of the Viacom Channel Providers submitted representations regarding the issue of ‘editorial responsibility’ for its content on the Sky Anytime platform.  These representations were considered alongside the Sky representations of 13^th June 2011 before ATVOD issued its Preliminary View on 6^th July 2011.  The representations from the Viacom Channel Providers were substantially similar, and therefore are subject to a single summary below:
 
There is no discrete service within the Sky Anytime platform attributable to the Viacom Channel Providers. Content appears with Sky’s distinctive blue EPG livery and is branded Anytime.  The Viacom Channel Providers’ names are cited only alongside the programmes they have supplied, without logos or other branding devices.
 
While the Viacom Channel Providers choose programmes that will make available and prioritise these in a list, it is Sky who has the ‘final say’ whether any of those programmes are included on the Anytime service at all and if so, which ones.
 
In practice, what content Sky takes for its service varies at its sole discretion.
 
The Push VOD Trailer Specifications issued by Sky (Schedule 6) are further evidence of the fact that Sky controls the content on the Anytime service as well as how it is organised and presented to the viewer.
 
Sky has complete unfettered editorial freedom in relation to the creation and exhibition of preview material (including excerpts from the VOD content) on Anytime.
 
The Viacom Channel Providers have no control or rights of approval over how their content is organised, listed, catalogued and presented to viewers. 
 
In practice, the Viacom Channel Providers provide Sky with information about programmes and compliance forms setting out restrictions on content and whether a PIN is required. However, Sky chooses what to do with this information in its sole discretion and it does not necessarily follow the Viacom Channel Providers’ recommendations in relation to how programmes are described or treated on the Anytime service.
 

4.2       On 20 and 21 October 2011, in response to a request for information from ATVOD regarding the process of selecting programmes for the Service, the Viacom Channel Providers stated that in practice there is no ‘priority ranking’ given in relation to the content offered for the Sky Anytime service.

 

5.         Application of section 368A(1)(c)

5.1       It is not in dispute that the relevant content as made available on the Sky Anytime platform constitutes an ODPS or a number of ODPS. The issue is simply: who is the provider under the Act. ATVOD considers that the key question is which party holds ‘editorial responsibility’ under section 368(1)(c) of the Act, ie which party holds general control over selection and organisation of the programmes in the service.  Below ATVOD addresses separately these tests of ‘selection’ and ‘organisation’. In doing so, ATVOD acknowledges that the assignation of general control to one party is not straightforward, and that two or more parties may take some share in the processes of selection and organisation, but section 368(R)(5) of the Act makes clear that only one person can have editorial responsibility. Any ambiguity must therefore be settled one way or another. ATVOD’s approach in such circumstances is to consider which party on balance holds control.  

 

5.2       ATVOD does not agree that the close connection between a channel provider’s linear channel and its content on Sky Anytime is a clear indication that the channel provider has editorial control over the content available within both services (as argued in Sky’s representations of 28 July 2011).   The definition of ‘editorial responsibility’ in the Act depends on general control over selection and organisation of the programmes in a service, and does not rest on any thematic or contractual link between that service and another service.

 

Selection

5.3       ATVOD’s Guidance states that ‘Selection of individual programmes may, in this context include, for example, choosing a programme or a range of programmes from a larger catalogue of programmes or commissioning or producing programmes for inclusion in the service. None of these factors is definitive, and each assessment will require consideration of all relevant factors…. it is unlikely to be the case that the platform operator will have general control, and therefore be the provider of the service, if it merely indicates some high level parameters, (for example, the type or amount of programming to be offered), provided this does not prevent the content provider maintaining general control over which programmes are selected (i.e. having the “final say‟)

5.4       ATVOD notes that Sky reserves the right to decide to show only some, or indeed none, of the content offered by the Viacom Channels.

 

5.5       ATVOD recognises that platform capacity limitations may play an important role in Sky’s decisions in this area. However, we view Sky as exercising control over selection notwithstanding the reasons for exercising that control.  Sky are not bound by the Agreements to accept programmes in the order of priority presented by the Viacom Channel Providers.

 

5.6       ATVOD also notes that there are some discrepancies in the accounts it has received of how these arrangements work in practice.  The Viacom Channel Providers suggest that in practice they do not arrange the lists of available content in any order of priority and that Sky is free to include programmes at its own discretion and in practice makes those programmes available for a timescale which is at Sky’s discretion. Comedy Central stated that “In practice what content Sky takes for its service varies at its sole discretion. For example, there have been occasions when Comedy Central has specifically requested that Sky take certain programmes but Sky has declined. Further, in one instance Sky declined to take a particular programme” for reasons relating to whether it had previously been broadcast on a terrestrial channel. Nickelodeon pointed to an occasion when Sky requested an episode that wasn’t offered on that month’s content list. As evidence that selection by Sky does occur, Comedy Central and Nickelodeon provided figures on the number of programmes offered to Sky in the year preceding October 2011 (20 and 48, respectively) compared with the number chosen by Sky (16 and 39 respectively).

 

5.7       ATVOD notes that according to of the Agreements, the Viacom Channel Providers are not obliged to make any content available on the Sky Anytime service. However, this does not appear to be a deciding factor in assigning editorial responsibility, as Sky is similarly not obliged to make any of the Viacom content available.  Where content is made available, it is ATVOD’s view that on balance, Sky has a greater degree of control over selection than the Viacom Channel Providers because it has “final say” over the programmes which are selected from the list offered.

 

Organisation

5.8       ATVOD’s Guidance 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: such information might include, for example, whether or not access to a particular programme must be restricted; and what content information should be attached to it (e.g. the programme synopsis, rating information and other content warnings). This will typically be the person who selects the individual programmes to be included within a service. (In other words, organisation may be controlled by a service provider through the supply of relevant programme information accompanying each content asset to a platform operator or distributor)”.

5.9       ATVOD acknowledges that the Viacom Channel Providers each have an obligation to deliver the relevant viewing information alongside the selected programmes, and that Sky cannot alter this material without the agreement of the Channel Provider.  

 

5.10     However, ATVOD notes that the provision of metadata cannot be determinative in that the entity with access to the information will by definition be the one who provides it.  ATVOD must also consider all of the other relevant factors in determining who holds general control over ‘organisation’ of the programmes.

 

5.11     The Agreements give Sky control over the marketing of each Viacom service within Sky Anytime, including the positioning of each Viacom service.  

 

5.12     ATVOD acknowledges that its Guidance states that ‘[t]he fact that a platform operator may be responsible for the design or look and feel of the catalogue; or that a platform operator or technical services provider may provide appropriate protection mechanisms allowing access to some content to be restricted; or specify how potentially harmful or offensive content should be indicated, for example, with an age-rating and/or a specific text warning (“sexually explicit”) and/or a logo, does not mean that they necessarily control the organisation of the content. Techniques used by aggregators to facilitate the location of content (such as alphabetical or genre indexing), would not, on their own, constitute „selection and organisation‟ of programmes, as these are solely presentational technique”.

 

5.13     However, we do not agree with Sky’s representations (of 28 July 2011) that their responsibilities in this regard  amount to solely presentational techniques.  It is of course clear, as Sky says in its representations of 28 July, that a content aggregator must be able to maintain some control over the presentation of content and its location via search functions and so on.  However, the Viacom content on Sky Anytime is not organised in any respect other than the placement given to it by Sky.  It appears to the consumer as part of the Sky Anytime service with ‘Anytime’ branding more prominent than the display of the Channel from which the content was drawn (see Annex 1).

 

 6          Conclusion

6.1       ATVOD acknowledges that this is a finely balanced decision and that as described above both parties have a role in organising the programmes in the range.  However, ATVOD has concluded that on the matter of selection, on balance it is Sky that holds general control by virtue of it having ‘final say’ over the selection of programmes that appear.  On the matter of organisation, both parties hold some degree of control. Therefore on balance, ATVOD is of the view that Sky holds ‘editorial responsibility’ for the Viacom content on Sky Anytime according to the criteria set out in the Act.

 

6.2       Having concluded that Sky holds editorial responsibility for this content, 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) as the provider of the Service, Sky has not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of their intention to provide that service or, if the Service was already being provided on 18 March 2010, Sky did not give a notification before 30 April 2010; and (c) Sky has not paid the regulatory fee for the financial periods ending 31 March 2011 and 31 March 2012, as required by ATVOD under section 368NA of the Act.  If the service was to be included within the existing Sky Anytime notification, rather than as a separate service or services, no additional fee would be due.