Ofcom’s electronic programme guide (EPG) Code, requiring “appropriate prominence” to be given to public service television channels in EPGs, has been a key regulatory measure in the multichannel linear television environment. With UK household subscriptions to on-demand platforms Netflix, Amazon, Disney Life and NOW TV alone reaching 19.1 million in Q1 2019, many households accessing TV content through connected TVs, and linear viewing time declining, Ofcom is clear that the current regulatory regime requires updating if prominence for public service television is to be preserved in the rapidly-changing environment.
Ofcom intends to engage with government and industry over the summer to discuss its recommendations and next steps.
Ofcom’s recommendations
New legislation is required to keep public service broadcasting (PSB) prominent and support the sustainability of public service broadcasters (PSBs).
- These new rules should specify what PSB content is given prominence, and on what platforms.
- The initial focus of legislation should be connected TVs (e.g., smart TVs and those connected by a set-top box or streaming stick).
- Viewers should be able to find PSB content easily on the homepage of connected TVs, including both traditional PSB channels and their on-demand services, e.g. via a single PSB “portal”.
- An on-demand service should only receive prominence if it is clearly delivering PSB content, based on whether the service meets new requirements regarding the range and amount of high-quality, UK-tailored content and content in specific genres (e.g., children’s current affairs and factual).
- PSB content should be given “protected prominence” within TV platforms’ recommendations and search results, ensuring viewers can still find such content when selecting individual programmes directly.
- New legislation should protect the prominence of PSB content available either without charge or via new, different routes.
- New obligations, equivalent to “must offer” and “must carry” for linear PSB channels, may be needed to ensure the continued availability of PSB on-demand content.
From prominence to discoverability?
Ofcom’s recommendations are clearly aimed at ensuring the spirit of existing PSB prominence is preserved even as the means of achieving this changes. In an online, digital and increasingly fragmented content environment, driven by search engines, algorithms and recommendations, Ofcom has recognised that the key focus, for both PSBs and other participants, needs to be on regulation of discoverability, not prominence alone.
Conclusion
Ofcom’s recommendations for extension of the legislation covering PSB prominence to non-linear services will, if adopted, potentially significantly alter the regulatory environment in an area previously only lightly regulated. The precise effect of this, and of the move towards discoverability, remains to be seen, but with Ofcom seemingly adopting a carrot and stick approach – suggesting PSBs may need to improve their on-demand offerings to qualify for the benefits of the new legislation – it will be intriguing to see how and with what degree of success the PSBs respond.
Client Alert 2019-206
