A “Prominence Regime” already applies to electronic programme guides (“EPGs”) used by viewers to find and watch programming on linear television channels in the UK (e.g. the “TV Guide” usually accessible via a TV/Set-top box remote control). The regime is set out in OFCOM’s EPG Code and all EPG providers must comply with the EPG Code as a condition of their broadcasting licences. The EPG Code fulfils Ofcom’s obligation under the Communications Act to give the degree of prominence that it considers appropriate to the listing, promotion and facilities for selection of public service programming.
Under the EPG Code, providers must ensure that the five national general entertainment Public Service Broadcaster (“PSB”) channels (BBC 1, BBC 2, Channel 3, Channel 4 and Channel 5) are listed in the first five slots of the EPG. Where providers develop a different format of EPG, they must ensure that PSB channels have an equivalent level of prominence.
The existing Prominence Regime does not, however, extend to online and video-on-demand (“VOD”) services offered by PSBs and, given how ubiquitous these services now are, there have for a number of years been calls for the rules to be made consistent.
The government is seeking to achieve this through Part 2 of the Draft Media Bill, which aims to ensure that PSBs’ online services enjoy a similar privileged position on smart TVs, set-top boxes and streaming sticks to PSBs’ linear channels.
Key terms
Central to the proposals are two new concepts: “regulated television selection services” and “designated internet programme services”.
A designated internet program service (“DIPS”) is an internet programme service (meaning a service that is principally for the provision of programmes via the internet and either wholly or partially on-demand) that is provided by a designated PSB. All of the BBC’s services are designated and this designation is enshrined in the statute, whereas the other PSBs’ services will be subject to designation by OFCOM based on whether the service contributes significantly to a PSB’s public service remit (the more flexible structure for the other PSBs reflects their broader portfolio of channels including channels that are not currently classified as “public service”).
A “television selection service” is a service provided via the internet that consists of the presentation of internet programme services (as described above) and allows users to make a selection between them. Not all television selection services will be subject to the new requirements, however: the Draft Media Bill provides for the Secretary of State to issue regulations setting out which television selection services will be “regulated television selection services” (“RTSSs”) on the basis of whether they are used by “a significant number of members of the public in the UK”. The precise definition of “significant number of members of the public” is left to be determined by regulations, but is likely to be based around a minimum threshold of active users.
Must offer obligation
Under existing legislation, PSBs have an obligation to offer their licensed PSB channels for carriage to all major UK platforms (known as the “must offer” obligation). The Draft Media Bill extends this to VOD by imposing new requirements that must be included in licensed public service channel’s licence conditions. The licence conditions will be designed by OFCOM to pursue three key objectives:
- to ensure that any DIPS provided by the PSB (or an associated provider) is offered to every RTSS;
- to ensure that the PSB (or associated provider) does its best to secure that arrangements are entered into and kept in force to make sure that its DIPSs are always included in each RTSS; and
- to ensure that the PSB (or associated provider) acts consistently with certain “agreement objectives” when entering into an arrangement under (2) above with an RTSS provider. The “agreement objectives” include ensuring that DIPSs receive an appropriate level of prominence on the RTSS, that PSBs can recoup costs, and that RTSS providers aren’t unduly restricted from developing their platforms.
OFCOM will be required to publish guidance about the agreement objectives for RTSS and DIPS providers.
Must-carry obligation
In the existing linear regime the PSB "must offer” obligation is mirrored by a “must carry” obligation and, again, the Draft Media Bill carries this into the VOD world: Part 2 of the Bill imposes a “must-carry” obligation on every RTSS, which means that RTSS providers must enter into an arrangement with each DIPS provider for the inclusion of its internet programme service on its RTSS and must keep those arrangements in force.
Prominence obligation
The Draft Media Bill also requires every RTSS to secure that the manner in which internet programme services are presented on its service gives an “appropriate degree of prominence” to each DIPS included in its service. This includes public service remit content and online versions of listed channels offered through those DIPSs.
OFCOM will be required to issue a “code of practice” setting out its recommendations for complying with these obligations. There will be a consultation with the Secretary of State, PSBs and persons OFCOM considers to represent providers of RTSSs on a draft of the code of practice before it comes into force.
Dispute resolutions
Disputes about the arrangements that should be made between a DIPS provider and a RTSS provider will be referrable to OFCOM. There are detailed provisions about OFCOM’s role in the dispute process but, ultimately, it will have the power to direct terms (including financial terms) to the parties.
Enforcement
Where OFCOM has reasonable grounds for believing that a person has failed to comply with duties under this new prominence regime, the Draft Media Bill contains enforcement powers up to and including the ability to issue fines.
Fees
The draft Bill empowers OFCOM to require RTSS providers and any PSB who provides a DIP to pay a fee to OFCOM to cover the cost to OFCOM of carrying out its functions under the Part 2 of the Bill.
Next steps
Our team is monitoring the developments closely and can help affected business to understand and engage with the legislative process and key stakeholders as the Draft Media Bill progresses on its path to the statute book. Although a lot of the difficult detail has been pushed to regulation and in particular the Code of Practice for ensuring prominence, the Bill is nevertheless an important framework. Early engagement with the legislative process will therefore be critical to ensuring the new regulatory framework is proportionate, future-proofed and protects both innovation and the benefits of public service broadcasting. Get in touch to discuss your perspective and how you can engage.
Authored by Oliver Wilson, Telha Arshad, and Johari Adjei.
