In this article we explore Part 2 of the draft Media Bill (“Prominence on Television Selection Services”).
The current regulatory framework
The current so-called “prominence” framework (as set out in the Communications Act and Ofcom’s code of practice on EPGs) guarantees specified PSB linear channels prime positioning in EPGs. In particular, the current framework guarantees that the first five channels the public find when they switch on (or, at least, navigate to the linear section of the TV guide on) their TVs are operated by PSBs.
This framework does not, however, extend beyond linear to PSBs’ other services, such as on-demand services nor to non-linear areas of the TV user interface or UI.
As outlined in the white paper, in response to increased competition, the increasing difficulties that PSBs face in securing prominence on global platforms, and the general trend for content to be increasingly consumed online and via different means, the UK Government is seeking to introduce a new prominence regime.
Who does it apply to?
The new prominence framework set out in the draft Media Bill applies to “designated internet programme services” being made available on “regulated television selection services”.
The draft defines:
- “internet programme services” as services with the principal purpose of providing programmes delivered by the internet. This includes services which are entirely on-demand or only partially on-demand and contain other services (for example live-streamed television programme services); and
- “designated internet programme services” (“DIPS”) are any internet programme services provided by the BBC or any other PSB (or person associated with a PSB) that Ofcom designates. This would, therefore, capture BBC iPlayer for instance and, subject to Ofcom designation, other PSB on-demand services such as All4, My5 and ITVX. Ofcom can only designate an internet programme service where it meets certain criteria; essentially that the service makes or would, if designated, be capable of making a significant contribution to the fulfilment of the PSB’s public service remit (as defined by the Communications Act 2003).
The other key definition on which the framework relies is “regulated television selection services”. The draft defines:
- “television selection services” as services, provided via the “internet and in connection with internet television equipment” (the term “internet television equipment” will be defined by the Secretary of State, but perhaps indicates the Government’s intention not to regulate mobile phone interfaces, at least initially), that present internet programme services to users and allows users to select between and access those services and/or programmes within them; and
- “regulated television selection services” (“RTSS”) are television selection services as designated by the Secretary of State. It is not, therefore, known exactly what services will fall within the scope of this definition as we await such regulations. However, the draft Media Bill does provide that designations should only capture services that the Secretary of State considers are used by a “significant number” of members of the public and the explanatory notes clarify that the Government “expects this to include popular Smart TVs and pay TV operators, as well as connected TV devices such as streaming sticks and set top boxes”.
How will this all work?
DIPS will be obliged to offer (“must offer”) their services to RTSS providers and providers of RTSS are in turn required to carry (“must carry”) DIPS. If this all sounds rather familiar, it is, and piggy backs off the existing framework that applies to PSB linear services.
The arrangements regarding how DIPS will be made available on RTSS will be negotiated between the relevant PSB and RTSS provider and the draft Media Bill provides that RTSS providers shall provide DIPS with an “appropriate” degree of prominence within the RTSS. The draft Media Bill does not specify where such apps shall be placed (e.g. which rows apps will be placed on or the order of such apps) however, as is the case for linear television, this may be a point that Ofcom would seek to address in the form of a code of practice.
Further, any arrangements made between PSBs and RTSS providers should not disproportionately restrict how the provider of a RTSS may make innovations in the ways that users may select and access DIPS. This appears to be a nod to the fact that the UI on RTSS tend to differ and are constantly developing, unlike the constant of a linear EPG. In the absence of further regulation (or a code of practice as noted above) it is easy to see how PSBs and RTSS providers may come to a different determination as to where app tiles should be placed to ensure prominence.
On the other hand, the arrangements must be “consistent with” the PSB being able to meet the costs of meeting its public service remit: does this mean that RTSS are expected to subsidise PSBs, or simply that RTSS may not impose disproportionate charges that might erode PSB programming budgets? Without further guidance (in the legislation or from Ofcom), this provision remains obscure.
Importantly, where DIPS contain “listed channels” (i.e. any BBC channel, channels 3, 4, 5 or S4C) or “public service remit content” (i.e. content from the PSBs and contributing to fulfilment of such remit) such channel or content shall also be afforded prominence and shall be made readily discoverable by RTSS providers. This introduces a new concept of “content prominence” and is not only surprising (as the Government has not previously indicated its intention to extend prominence to content) but is also likely to be the most controversial aspect of the prominence regime as further discussed below.
What is the role of Ofcom?
Ofcom will be responsible for administering and enforcing the new prominence framework. As well as designating those internet programme services that fall in scope as DIPS, Ofcom also has the right to revoke a designation where appropriate, for example, if it considers that an internet programme service no longer meets the relevant criteria.
Ofcom has a number of additional duties, including that it must: (a) maintain a published list of DIPS and RTSS and their providers; (b) publish guidance in respect of how PSBs and RTSS providers are to act; and (c) provide a code of practice setting out recommended steps for the “must carry” obligations. The draft Media Bill also sets out a process by a PSB and provider of a RTSS may refer disputes to Ofcom and the steps Ofcom must take in this regard (including deciding whether it should handle the dispute or not). Ofcom will also be given powers to levy annual fees on RTSS providers and PSBs as a contribution to cover Ofcom’s costs of administering its functions. The amount of such levy will be determined by Ofcom.
In addition, Ofcom will be granted the power to enforce non-compliance (including by levying potentially substantial fines).
The CMS view – surprise score 5 / 10
In general, the contents of this Part of the draft Media Bill is aligned with our expectations based on the Government’s white paper. Further clarity is still required as to the exact scope of the new framework, for example, with the specifics of what will be considered a regulated television selection service being a large omission in the draft Media Bill and placing significant power in the hands of the government of the day.
The other big open question, as noted above, is precisely what level of financial constraint is meant by arrangements needing to be “consistent with” the PSB being able to meet the costs of meeting its public service remit.
What will come as a shock to many in the sector, again as noted above, is that the prominence framework applies not only to services but, in some instances, to content where such content on DIPS is considered “public service remit content”. The exact scope of this obligation is not yet clear, with the draft Media Bill being very light on detail. Nevertheless, without significantly greater granularity, either in the draft Media Bill or future Ofcom Codes (contrast the recent Irish legislation which provides a number of guardrails around content prominence), this provision may have far reaching impact and engender many disputes.
We will be watching this Media Bill closely as it passes through Parliament, so keep an eye out for our updates on our dedicated CMS Media Bill webpage. If you would like to discuss any aspect of the Media Bill or how it may affect you, please get in touch.