Scope Determination
Service: Travel Channel Player
Service provider: Travel Channel International Ltd
The Determination set out below was made on 8 October 2010.
A notification was subsequently made with regard to this service.
NOTICE OF DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA OF THE COMMUNICATIONS ACT 2003:
Re: TRAVEL CHANNEL PLAYER (http://www.travelchannelvod.com/)
ATVOD, as the appropriate regulatory authority, has determined in accordance with section 368BB(1) of the Communications Act 2003 (“the Act”) that the provider of the On-Demand Programme Service named above (the “Service”) is contravening or has contravened section 368BA of the Act (failure to notify an on-demand programme service).
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.
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 10 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.
No such representations were received.
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 ‘Travel Channel Player’ service accessed via the internet at http://www.travelchannelvod.com/ is dedicated to the provision of full length episodes of ‘The Holiday Show’, a programme shown on the television programme service ‘Travel Channel UK’ broadcast on Sky Channel 251 and 252. Apart from the offer of episodes of The Holiday Show, the service offers little other than links to details of ‘today’s show’ and ‘competitions’. Both links take the user away from the Travel Channel to completely different URLs (http://www.travelchannel.co.uk/theholidayshow/ and http://www.travelchannel.co.uk/competitions/ respectively). The principal purpose of the service is therefore to provide programmes the form and content of which are comparable to the form and content of programmes normally included in television broadcast services.
(b) access to it is on-demand;
The programmes are accessed via ‘streaming’ and begin when the user selects the required episode and clicks on the ‘play’ symbol . The programmes are viewed at a time of the user’s choosing and access is therefore ‘on-demand’.
(c) there is a person who has editorial responsibility for it;
The programmes made available on the service are professionally made and have been selected and organised 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 is not restricted in any way and the service is 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 selection and organisation of the programmes on the service is under the general control of Travel Channel International Ltd, 64 Newman Street, London W1T 3EF.
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.