Scope Determination
Service: Viva TV Music
Service Provider: MTV Networks Europe
The Determination set out below was made on 18th May 2011. It was the subject of an appeal to Ofcom which was not upheld. Ofcom published its appeal decision on 22 February 2012 and the full text of that appeal decision is available here.
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: Viva TV Music (http://uk.viva.tv/music)
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.
MTV notified the MTV service to ATVOD on 29th April 2010 (ODPS00005). We wrote to the service provider on 15th November 2010 regarding the issue of this service appearing on multiple platforms, potentially constituting separate services requiring notification to ATVOD. In a meeting with MTV staff on 2nd December 2010, advice was requested on the Viva TV website. In subsequent correspondence (dated 14th December 2010) the service provider stated that they do not intend to make a further notification of this service as they do not believe it to be an ODPS.
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 30th March 2011 to inform them 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. In a response dated 27th April 2011 the service provider stated that:
- The service is www.viva.tv and the music section is only a small proportion of the overall site.
- The principal purpose of www.viva.tv is not the provision of television-like programmes.
- Individual music videos are not comparable to programmes normally included in television programme services.
ATVOD’s Final Determination
The Service
The service is accessed via the Internet at the URL http://uk.viva.tv/music. The Viva home page ((http://uk.viva.tv/) includes a bar at the top on which contains links titled ‘Viva’, ‘TV Guide’, ‘Shows’, ‘Music’, ‘Best Bits’ and ‘Downloads’. Clicking on the ‘Music’ link takes the viewer to http://uk.viva.tv/music. The Viva TV Music service comprises: “The Viva Playlist”; “Viva online chart”, “Suck My Pop Performances”, “Viva Top 20”; “The Official UK Top 40” and “Official Chart Update”.
A single website or domain may contain more than one service, and Viva TV Music 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 on the Viva website. It offers a distinct aggregated collection of video material on a discrete section of the website. The home page also prominently displays links to several of these music elements -The Official Top 40 and Viva Top 20 are advertised at the top of the page, and further down the page there is an advert for / link to the Viva Playlist and the Viva Online Chart shown in full.
Application of s368A(1)
Taking all the relevant considerations into account, including your representations, 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;
Each element of the service, as listed above, contains programmes the form and content of which is comparable to that normally included in television programme services. All of them are preceded by adverts and the music videos follow the conventions of music videos found on broadcast music TV channels and also on general entertainment channels. Indeed, many of the videos will themselves have been shown on broadcast television. ATVOD’s published ‘Guidance on who needs to notify’ states that music videos are likely to be viewed as ‘TV-like’ programmes.
Examples here include:
Music video for ‘Kidz’ by Take That (included in The Viva Playlist and Viva Top 20). This runs at 4 minutes 55 seconds and in addition to following the broader conventions of music videos, involves the dramatic conceit of a scifi adventure in which Take That pay a visit to earth in their spaceship. We follow the plot as their arrival is filmed and shown on various earth TV screens, they land, soldiers surround them but they win over the crowd and then leave.
Music video for ‘S&M’ by Rihanna (included in Viva Online Chart and The Official UK Top 40). This runs at 4 minutes 2 seconds and again follows the broad conventions of music videos. It also includes intercut visual imagery combining to tell a short story about Rihanna’s fondness for SM sex, beginning with a mocked up press conference in which Rihanna, stuck to the wall wrapped in plastic, is watched by journalists all of which have ball gags in their mouths. Other imagery includes: Rihanna leading a man around on a lead like a dog, holding a whip; a party scene including a blow up doll; a scene in which men are shown taped up and struggling as Rihanna approaches with a whip, and then tapes a woman’s mouth shut.
‘Suck My Pop’ performance ‘McFly Live’. At 3 minutes long this features a live performance intercut with staged posing from the band. In itself this again follows the broad conventions of music videos, plus is part of a series of similarly constructed programmes in the ‘Suck My Pop’ strand.
The provision of these ‘TV-like’ programmes is considered by ATVOD to be the principal purpose of Viva TV Music. The sections of the website mentioned (which contain TV-like programmes) constitute the bulk of the Music service. The only other content is a scrollable tab giving current TV listing for the Viva channel, an insert advert for a film (‘Beastly’) and an additional menu at the bottom of the page. The principal purpose of this service is the provision of music videos in the knowledge of their chart positions.
It is ATVOD’s opinion that single music videos are comparable to broadcast television programmes. Music videos can appear on broadcast television services as single short programmes. When music videos appear alongside other music videos it is not always the case that there is a clearly defined longer programme within which the videos are bundled. Rather the music videos appear to constitute individual programmes in their own right, albeit ones for which individual television listings are impractical.
(b) access to it is on-demand;
Viva TV Music 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 Viva TV Music 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
Viva TV Music is made available on the open internet. Anyone with access to the internet can view the programmes on Viva TV Music.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Viva TV Music is provided by MTV Networks Europe which has its principal place of business at 180 Oxford Street, London W1D 1DS.
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 pay 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.