Service Provider: England Hockey
The Determination set out below was made on 26th April 2011. The regulatory fee was subsequently paid however the service is no longer in operation and no further enforcement action is being taken.
DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA (REQUIREMENT TO NOTIFY AN ON-DEMAND PROGRAMME SERVICE) OF THE COMMUNICATIONS ACT 2003:
Re: EHTV (www.englandhockey.co.uk/ehtv)
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) 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 8th February 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 on 17th February the service provider suggested that they had reviewed their EHTV online content and were required to notify. The service provider enclosed a cheque for £2900 with their letter but no notification form. On 28th February 2011 we wrote to the service provider confirming receipt of the cheque, informing them once again of the possibility of applying for a concessionary rate, and reminding them of the requirement to complete and return a notification form. On 22nd March 2011 we contacted the service provider by telephone to remind them once again of the requirement to notify.
ATVOD’s Final Determination
The service is accessed via the internet at the URL www.englandhockey.co.uk/ehtv. It can also be accessed via the ‘EHTV’ tab on the homepage of the main website of the England Hockey Board (http://www.englandhockey.co.uk/). This tab is one of nine such tabs displayed prominently across the top of the homepage of the main England Hockey Board website. Clicking on it takes the user to the service ‘EH TV’. On this page (http://englandhockey.co.uk/ehtv/) there is a viewing window alongside various options to select different series/types of programmes (eg. ‘EHTV Weekly, ‘International Matches’, ‘FIH Show’, ‘Indoor Hockey’). Clicking on one of these options brings up the first programme in this category, with a pictorial list to the right detailing other available programmes in this category.
A single website or domain may contain more than one service, and EHTV 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.
Application of s368A(1)
Taking all the relevant considerations into account, including the 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;
All of the videos available on EHTV have content comparable to that of programmes on broadcast television, notably in this case sports programmes. A significant number of the videos available on EHTV are also comparable in terms of form to programmes normally included in television programme services. Examples include:
World Hockey Magazine Show – December 2010
This runs at 25 mins 47 seconds and its television-like features include: An animated opening sequence generic to the series with music soundtrack, culminating in the on-screen title ‘ABN: AMBRO World Hockey’; Voice-over presenter (eg. ‘Welcome to World Hockey’); distinct sections labelled with on-screen text (eg. ‘Flashback 2010’, ‘Review’); On-screen league table graphics; Intercut footage from matches, interviews with players, with voice-over commentary; season summaries with music soundtrack; some slow motion images of victors celebrating; scene-settling image montages (eg. views of Amsterdam); a break in the programme bookended by the World Hockey series logo, before which voice-over says ‘Stay with us’ and after which says ‘welcome back’; closing graphics as in opening sequence.
EHTV Weekly – September Show Season 2010/2011
While this is a shorter programme at 5 mins 41 secs it nevertheless has a form comparable to television sports news programmes, including: Opening EHTV logo; On-screen presenter holding microphone, providing voice-over for footage from matches, and introducing ‘reporter Olly Rogers’ who has been attending key matches; structure including roundup of year’s activities; Intercut stills from matches, player interviews and match footage; banner across bottom of screen advertising other places to watch Hockey on television; Closing EHTV logo.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of the EH TV service. The ‘EHTV Weekly’ programmes are offered first in the list of available programme types and a significant number of the other programmes (including editions of the World Hockey Magazine Show) are clearly comparable in form and content to programmes normally included in television broadcast services.
(b) access to it is on-demand;
EHTV 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 EHTV 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
EHTV 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.
EHTV is provided by England Hockey which has its registered office at Bisham Abbey NSC, Bisham, Marlow, Buckinghamshire, SL7 1RR.
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 email@example.com
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.