Evolving technology and viewing habits lead Ofcom to review qualifying services for ‘listed events’

In light of developments in how viewers access television, in particular the increase in viewing via Internet Protocol television (IPTV) – such as through Video On Demand (VOD), Live TV and Interactive TV – and the use of devices other than TVs to do so, Ofcom considers it appropriate to publish an updated list of qualifying services in relation to ‘listed events’.

A ‘listed event’ is an event of national interest, such as a major sporting event, that under the Broadcasting Act 1996 must be available to view live, for free and by the widest possible audience. The Secretary of State publishes a list of events, divided into two categories, to which the regime applies and the latest version of ‘listed events’ was last revised in 1998.

Category A listed events, which have to be shown live on television channels available to 95% of the UK population include: Olympic Games, FIFA World Cup (all matches), FA Cup Final, The Grand National, Wimbledon (Finals), UEFA European Championships and the Rugby World Cup Final.

Category B listed events, for which highlights must be made available to the same channels, include: England home cricket test matches, Wimbledon (Non-Finals), Six Nations (involving Home Countries), Commonwealth Games, World Athletic Championships and the Ryder Cup.

The right to broadcast ‘listed events’ must be offered to qualifying services and it is Ofcom’s role, as the UK’s communication regulator, to maintain a list of television channels that are free-to-view and widely available. Currently, television channels which meet these two qualifying conditions are referred to as “qualifying services”.

Ofcom’s consultation on qualifying services for ‘listed events’ is seeking input on an updated methodology that will be adopted to assess which media services qualify for inclusion in order to reflect evolving media viewing habits.

Ofcom’s forward-thinking approach in view of lessons learnt from the past

The current list of qualifying services was published in 2008 and the ways people now watch TV, in particular the increase in online viewing using IPTV and through internet connected devices, in addition to the use of devices other than TVs, have changed considerably. For example, connected TVs, tablets, smartphones and streaming devices – allow access to linear TV services, related catch-up content, and non-catch-up on-demand content.

IPTV services can be received in any home that has broadband or other internet protocol connectivity with the ability to watch television programme services. Consequently, many viewers nowadays use multiple screens and platforms to watch television services. For example, a household may have a main TV which receives services via satellite, a secondary set which receives services via DTT, and multiple internet-connected devices (such as tablets and smartphones) to access IPTV.

An increasing proportion of UK households now connect their main TV to the internet as well as to a satellite, cable, or DTT broadcast platform. A growing proportion of viewers also exclusively use IPTV so to exclude IPTV from Ofcom’s calculations would prevent Ofcom from truly understanding the proportion of the population that receive such services.

Ofcom’s consultation on its proposed methodology centres around two key aspects which are:

• whether a channel meets the 95% reception threshold taking into account all television platforms including IPTV, not just broadcast platforms only as was the criteria previously; and
• how this reception is received on a household’s “main screen” for watching television channels, whether this is on a TV, computer or tablet, not just on TVs as was the criteria previously.

Applying this methodology, a television channel will only meet the qualifying conditions if:

• it is available on satellite and cable platforms, can be viewed by all DTT viewers, and is also streamed on IPTV; and
• it is provided either without charge or in a “basic” subscription package.

What does the future look like for qualifying services?

Based on this proposed methodology, Ofcom considers that the following channels would meet the conditions: BBC1, BBC2, Channel 3 Network (broadcast as ITV, STV, UTV), Channel 4, ITV2, ITV3, BBC4, More 4, Film 4, ITV4, CBBC, CBeebies, BBC News and BBC Parliament.

Ofcom has made clear that it recognises the importance of keeping the list of qualifying services up to date beyond this review in order to provide a degree of certainty to the industry when negotiating commercial agreements for broadcasting listed events.

Services that do not currently satisfy the proposed qualifying conditions may do so in the future and, equally, services that currently satisfy the qualifying criteria may cease to do so. As a result, Ofcom feels that there are two principal ways in which it can keep the list of qualifying channels up to date beyond this review:

1. in instances that broadcasters believe that, on the basis of Ofcom’s published methodology following this consultation period, the status of services it offers has changed then it should submit the appropriate evidence to enable Ofcom to consider updating the list; and

2. conducting periodic reviews of the list to identify whether more general updates should be made (for example, to reflect changes in viewing habits or further technological changes). No timescales will be set in advance but Ofcom welcomes any evidence that a stakeholder deems relevant.

Ofcom intends to publish a statement in 2019 once the consultation period ends but this period is still live – the deadline to respond is 5pm on Friday 18 January 2019.

Overall, this is a positive and encouraging step taken by Ofcom as it recognises the dynamic and ever-changing nature of the broadcast industry from both a technological and viewer perspective.

For more information please contact Razzak Mirjan on +44 (0)20 7438 2286 or at razzak.mirjan@crsblaw.com.