Monday, July 16, 2012

Ofcom Refers Sky And Viacom UK Dispute Back To The UK's Authority For Television On Demand (ATVOD)

From DigitalTVEurope.net:
Ofcom refers Sky and Viacom dispute back to VOD regulator

The UK's Authority for Television on Demand (ATVOD) must decide whether content owners or service providers offering on-demand services have 'general control' over the selection and organisation of the programmes that comprise the service.

An appeal by BSkyB against an ATVOD determination that it was providing an on-demand service which included content from three Viacom companies (MTV, Nickelodeon and Comedy Central), has resulted in Ofcom referring the matter back to ATVOD for reconsideration.

According to statutory criteria, regulatory responsibility for such a service lies with the entity, which has 'editorial responsibility' for the service, which is defined as the exercise of "general control" over the selection and organisation of the programmes comprising the relevant video on demand service. Both BSkyB and the Viacom companies claimed that editorial responsibility lay with the other party. ATVOD said its decision had been taken on the basis of contractual evidence provided by the parties.

ATVOD CEO Pete Johnson said, “Where two parties are involved in making video on demand content available to the public, the question of which party has ‘general control’ over the selection and organisation of the programmes that comprise the service can be finely balanced, especially where this is a dispute between the parties involved. We will now reconsider the issue of the Viacom content on the Sky Anytime platform, taking into account the appeal decision.”

Tags: ATVOD, News, Ofcom, UK
Also, from Rapid tv news:
ATVOD to adjudicate on BSkyB Viacom VOD appeal

UK broadcasting regulator Ofcom has sent back to the Authority for Television On Demand (ATVOD) an appeal by BSkyB against its initial ruling that the pay-TV operator was providing an on demand programme service which included content from three Viacom companies.

The independent co-regulator for the editorial content of UK video on demand services will now judge as to whether the inclusion of MTV, Nickelodeon and Comedy Central among the Viacom channels available on the Sky Anytime service satisfies a number of statutory criteria, as set out in section 368A of the Communications Act 2003.

That is to say, with whom rested regulatory responsibility for the content. Both BSkyB and the Viacom companies claimed that editorial responsibility lay with the other party. Regulation defines editorial responsibility as the exercise of “general control” over the selection and organisation of the programmes comprising the relevant video on demand service.

Ofcom’s decision made it clear as that it was appropriate for ATVOD to re-consider the application of the Act to the Service. The regulator noted that ATVOD’s reconsideration should follow the approach set out in Ofcom’s Decision on the BBC Worldwide appeal in May 2012, a decision made some months after the original ATVOD Determination regarding Viacom content on Sky Anytime.

Commenting on the decision, ATVOD Chief Executive Pete Johnson said: “Where two parties are involved in making video on demand content available to the public, the question of which party has ‘general control’ over the selection and organisation of the programmes that comprise the service can be finely balanced, especially where this is a dispute between the parties involved. We will now reconsider the issue of the Viacom content on the Sky Anytime platform, taking into account the appeal decision.”

Tags: united kingdombroadcastingregulatorofcomauthority for television on demandatvodbskybpay-tvon demandviacomon demandmtvnickelodeoncomedycommunications actregulationregulatoryeditorialresponsibilitybbc worldwidesky anytime
Also, from Register:
Sky's TV-on-demand registers with regulator just hours before opening

Took that long to work out who the regulator was

Sky today launched its Now TV vid-on-demand service, but only managed to notify the right regulator hours before the off as it's getting harder to remember who controls what.

Video-on-demand services in the UK are regulated by ATVOD (the Authority for Television On Demand), and on-demand services are required to notify the regulator before launch. Yesterday morning Sky still hadn't yet coughed up the £10,000 membership fee for TV Now, and there were concerns at ATVOD that it might decide not to bother given the way Ofcom has been awarding responsibility lately. However we gather that Sky finally decided to cough up the fee and register with just hours to go before opening day at TV Now.

Last week Ofcom, which outranks ATVOD in the regulator hierarchy, told ATVOD to take another look at who has editorial responsibility for Viacom channels syndicated by Sky on its existing IPTV service Anytime+.

ATVOD had decided, on checking out the contracts between Sky and Viacom, that Sky was editorially responsible for Anytime+ content and thus subject to ATVOD regulation. But Sky appealed to Ofcom, and on Friday last week Ofcom asked ATVOD to take another look (pdf, dry and hard to read). Ofcom went out of its way to avoid criticising ATVOD, but claimed the situation had changed in the light of new precedent set by Ofcom in the case of BBC Worldwide and Mediaset in April (pdf, dryer and even harder to read).

Sky Anytime+ provides access to programmes made by Viacom, including those broadcast on Nickelodeon, MTV and Comedy Central. Viacom supplies the programmes to Sky, so Sky says it's not editorially responsible, but Viacom contends that the programmes are dropped into the Sky Anytime+ interface and Sky could decide not to do that, so responsibility lies with Sky.

ATVOD looked at the contractual agreement between the two companies, and noted they disagree factually on the process by which programmes are selected. In January ATVOD announced that Sky who would have to shoulder the burden of policing the content. Sky went running to Ofcom who has now kicked the ball back to ATVOD.

Ofcom, the government quango, can always override ATVOD. Ofcom is ultimately responsible for policing broadcast all UK media, ensuing that standards of decency and fairness are adhered to and levying fines when they're not, but only covers broadcast-like services.

ATVOD is a private company, and was tasked by Ofcom with regulating on-demand content. So ATVOD ensures that children are protected, advertising is marked as such and programmes don't promote violence, drug taking and the like. IPTV providers operating in the UK are required to join ATVOD, and pay a sliding-scale membership rate starting at just under a hundred quid and rising to £10,000 based on the provider's revenue and commercial nature.

Deciding which media falls under ATVOD's remit isn't always obvious. On the Freeview platform, for example, Sports Tonight (channel 112) does not come under ATVOD as it has scheduled programmes despite being delivered over IP, but The Space (117) does come under ATVOD as it's an on-demand service providing Shakespeare in Urdu and similarly-gripping content (actually the John Peel stuff is worth watching, but some Shakespeare in English would be good).

But even when a service is clearly on-demand, such as Sky Anytime+ or the about-to-be-launched Now TV, ATVOD still has to identify who is editorially responsible for the content. It's notable that several content providers including ITV Archive and the Viacom channels are registered with ATVOD for their own services, but listing Sky's Anytime+ as a supported platform, so could well end up being responsible for the programmes they provide.

Now TV isn't listed anywhere in the ATVOD system, but ATVOD has confirmed to us that it received notification from Now TV yesterday: just in the nick of time.

Television is fundamentally changing: Sky's launch of Now TV isn't an addition to its satellite service, in the long term it’s a replacement for it. The very concept of broadcast TV could disappear within a handful of decades, and Sky is making ready for that, so the way in which we decide to regulate the replacement is extremely important. ®
Also, from PaidContent:
VOD liability in flux as UK regulators disagree

Distributors are passing the buck and regulators are openly contradicting each other. UK VOD services may take heart as another regulator decision is overturned. But the rulings and counter-rulings leave liability for internet video in flux.

UK online publishers will take further hope that the VOD regulatory regime against which they have campaigned will be dismantled, after another of its decisions was overturned by its own overseer.

The Authority for Television On Demand (ATVOD) had earlier ruled that, by allowing its satellite TV subscribers to watch MTV, Nickelodeon and Comedy Central shows on-demand via its Sky Anytime internet TV service, BSkyB should be held editorially responsible for those shows.

But Ofcom on Tuesday highlighted a counter-ruling in which it said it is quashing that decision. It is instructing ATVOD to reconsider the case because, since the original ruling, Ofcom has given new guidance on how ATVOD should interpret matters.

ATVOD was established in 2010 because the UK consented to implement the European Commission’s 2007 Audio-Visual Media Services directive - legislation which compels “TV-like” services (including online) to protect minors from harmful content, to comply with sponsorship requirements and not to incite hatred. Ofcom, which adopted the directive, handed implementation to ATVOD under its oversight.

But ATVOD’s implementation has riled online publishers. Many, like newspaper website publishers, object to being classified for ATVOD’s regulation in the first place, protesting that they are not primarily video suppliers. Those companies which are regulated by ATVOD must pay it membership fees running to thousands of pounds per year to finance the group. Some smaller publishers protested the fees made sustainability impossible.

ATVOD has agreed to reduce fees by 3.58 pecent and not to classify newspaper websites as video operators, following appeals against its decisions brought by News International and others.

But, this May, Ofcom launched an inquiry to learn whether the body it appointed is “an appropriate regulatory authority” at all. That means Ofcom may loosen what some see as the conservative approach which ATVOD has taken to internet video.

Ofcom overturned ATVOD’s BSkyB decision in July. BSkyB successfully appealed to Ofcom that its content suppliers MTV, Nickelodeon and Comedy Central determine which shows get carried on Sky Anytime; it merely curates their on-screen appearance.

Those suppliers had, in fact, protested the opposite. Ofcom’s decision, at least in this case, would appear to make producers, not distributors of online video editorially responsible for it.