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DCMS consulting on PSB EPG listings and carriage rules

Under consideration: the listing of PSB channels on digital TV
Should a Public Service Broadcaster be free to negotiate carriage on satellite or cable services? Must these channels be carried on all platforms? Should the high definition version of a channel be given due prominence in the channel listings?

These are some of the issues currently being considered by the Department for Media, Culture and Sport (DCMS) in a consultation that spans the Election period and is set to become one of the first tasks on the agenda of the next Government. The consultation primarily focuses on commercial Public Service Broadcasters, such as ITV.

Broadcasters argue that the current rules influence free commercial negotiations between platforms and PSBs by "reducing parties’ leverage in discussions, as PSBs are not permitted to remove services from pay platforms." This follows recent public disagreements, notably between ITV, Channel 4 and Sky over the cost of being listed on Sky's electronic programme guide (EPG).

The DCMS wants to review must offer/must carry rules, which sees Public Service Broadcasters (PSBs) obligated to offer their main channels to TV platform operators, and TV platform operators obligated to take the channels. In the consultation, the DCMS confirms that it is looking at keeping the rules in tact for Freeview and Freesat, but deregulating the rules for pay TV platforms. It would allow commercial PSBs (e.g. ITV, Channel 4) to withhold their main channels from platforms such as Sky if the organisations can't agree on a carriage deal.

Commercial offshoot channels from these broadcasters, such as ITV Encore and E4 HD are already distributed on a commercial basis to platform operators outside of the must carry/must offer framework.

The consultation says that the PSBs believe that:
"must offer requirements prevent them from achieving a fair price for the value of their content. They argue that under a different regulatory framework, such as one in which they could credibly threaten to withhold their channel (and in particular, where a backstop of carriage for zero net fees was guaranteed) money could flow positively to them."

Citing ITV Encore as an example, the DCMS says:
"There is also a risk that must offer requirements mean commercial PSBs may seek increasingly to maximise returns for more expensive new run programming on pay rather than free-to-view channels."

Under the proposals, the DCMS wants to remove section 73 of the Copyright, Design and Patents Act 1988. The section says that in certain circumstances the retransmission on cable of certain broadcasts is not an infringement of the copyright in the broadcast itself. Section 73 is increasingly used by online providers as a reason to permit PSB streaming over the internet without the broadcaster's or copyright owners consent.

The DCMS has also confirmed it wants to update the rules governing the prominence given to the main PSBs, which dictate where they can be found on the channel list,  so as to include video-on-demand services (including catch-up) and HD channels.

It says:
"We are concerned that the lack of visibility of HD services in EPGs is holding up take up, and that for those households that use the HD menu as their main menu, PSB content is less prominent. Today most programmes are offered as a SD and as a HD service. We do not think that SD and HD services should be listed next to each other on the EPG but we do think that there should be a consumer friendly way of accessing PSB programmes in the best quality that the consumer’s TV-set can receive.

"[The] Government is aware that there are some services, such as BBC1, which are not perfect simulcasts in SD and HD as they offer local news and local TV. If there is no feasible technological solution for accessing these channels or programmes in HD and SD from the same slot by the consumer an alternative solution is that Ofcom has the discretion to determine what appropriate prominence is in this case." 

The consultation closes midnight, 16th June 2015.


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