Complaint by Education Digital Management Limited against British Sky Broadcasting Limited about the repositioning of Teachers’ TV in Sky’s EPG
Ofcom decision
Issued: 10 May 2006
1 Contents
Section Page 1 Summary 3 2 Background 4 3 Submissions and information from the parties 7 4 Scope of the investigation 15 5 Framework for assessing allegations 22 6 Assessment of allegations 24 7 Ofcom’s decision 35
2 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Section 1 Summary
1. On 15 December 2005, Educational Digital Management Limited (“EDML”) submitted a complaint to Ofcom against British Sky Broadcasting Limited (“Sky”) about the repositioning of the Teachers’ TV television channel in Sky’s electronic programme guide (EPG). The complaint alleged that Sky had infringed the Ofcom code of practice on electronic programme guides (“EPG Code”)1 by not complying with Sky’s published listing method.
2. On 11 January 2006, Ofcom opened an investigation into the complaint to consider whether Sky had complied with its obligations under paragraph 15 of the EPG Code.
3. Ofcom has investigated Sky’s conduct in repositioning the Teachers’ TV channel and has considered Sky’s conduct in light of Sky’s obligations under paragraph 15 of the EPG Code.
4. Ofcom rejects EDML’s complaint and finds that Sky has complied with its obligations under paragraph 15 of the Code.
1 http://www.ofcom.org.uk/tv/ifi/codes/EPGcode/241557
3 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Section 2 Background
The parties
1. Education Digital Management Limited (“EDML”) is a private limited liability company (company number 04934528) which has control of all editorial, programming, and channel management issues relating to the digital television channel, Teachers' TV. A separate private limited liability company, Education Digital Limited, provides financial and administrative back-up to EDML. Funding for Teachers’ TV is provided by the Department for Education and Skills (“DfES”).
2. Teachers’ TV is available on a number of broadcasting platforms using various methods to deliver broadcast content: Sky (satellite), ntl/Telewest (cable), Homechoice (TV over broadband) and Freeview (digital terrestrial television). The channel was launched on 8 February 2005.
3. British Sky Broadcasting Limited is a private limited company (company number 02906991) wholly owned by British Sky Broadcasting Group plc. British Sky Broadcasting Group plc is a publicly listed company that controls (via its subsidiaries) the Sky satellite platform. British Sky Broadcasting Limited provides the electronic programme guide (“EPG”) services for the Sky platform. British Sky Broadcasting Limited is referred to as “Sky” in this document.
Recent events
4. Teachers’ TV was made available to viewers on the Sky platform via Sky’s EPG on 8 February 2005. At launch, Sky placed the channel in the Community sub-genre of the Specialist genre. Following representations by the DfES (on 7 December 2004 and on 4 February 2005) and EDML (on 20 January 2005), Sky moved Teachers’ TV into the Documentaries sub-genre of the News and Documentaries genre, with effect from 21 February 20052.
5. At the time although as part of a separate process, Sky was already planning to make wide-ranging changes to the structure of its EPG. Sky communicated these planned changes to its EPG to EPG customers (i.e. broadcasters) by letter on 30 March 2005. At this point, it informed EPG customers of its overall plans, of its initial assessment of the relevant genre for channels, and of the intention to allocate individual channels’ EPG listings following further analysis.
2 The structure of both the Specialist and News and Documentaries genres has changed following the reorganisation of Sky’s EPG. At the launch of Teachers’ TV the Specialist genre was constituted by the Shopping, Religion, Community, Foreign, Experimental, Subscription Adult and Pay-per-view Adult sub-genres, but now contains no sub-genres. When Teachers’ TV was moved to the Documentaries sub-genre that genre formed part of the News and Documentaries genre. Following the reorganisation of Sky’s EPG, Documentaries forms its own genre.
4 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
6. The reasons stated by Sky, in its response dated 7 February 2006 to Ofcom’s information request of 27 January 2006, for making changes to its EPG were:
• to allow Sky to accommodate additional channels in each genre of the EPG; and
• to provide clearer direction for viewers, by reducing the size and varied nature of the larger genres.
7. The major features of the reorganisation, as described in Sky’s 7 February 2006 response to Ofcom’s information request, were:
• the number of genres was increased from seven to 15. Due to the larger number of genres, the top level of the TV Guide section of the EPG, which previously contained all genres on one page, was split on to two pages; and
• a significant number of channels were allocated new channel numbers, particularly in order to group channels from the same genre together.
8. Other changes included in the reorganisation, as described in Sky’s 7 February 2006 response to Ofcom’s information request and in Sky’s submission to Ofcom on 23 March 2006 were:
• a system was introduced to allow viewers to select their own ‘favourites’ menu of up to 50 channels;
• minor changes were made to the Interactive Main Menu; and
• viewers may now remove the entire Adult genre and any other channels from the EPG as seen through their set-top box.
9. On 30 March 2005, Sky wrote to EDML communicating the planned reorganisation of the EPG and Sky’s initial assessment of the appropriate genre for Teachers’ TV (the Specialist genre). On 27 April 2005, EDML made representations to Sky outlining its preference to remain in the Documentaries genre, based on assertions that Teachers’ TV remained “greater than 90% driven by documentaries” and was “not a niche channel”, and stating that moving Teachers’ TV to the Specialist genre “damages the impact and audience perception of an important public service channel”.
10. Having completed its full assessment of which genre Teachers’ TV should be in (through a process which is described below in paragraphs 12 to 14 of section 6), Sky informed EDML of its decision to move Teachers’ TV to the Specialist genre and assign it a new channel number by letter on 24 August 2005. This new channel number was initially 891, before being changed to 880 by letter on 17 November 2005. The Specialist genre appears on the second page of the EPG, between Gaming & Dating and Adult.
11. On 24 August 2005, Sky wrote to EDML communicating Sky’s intention to change Teachers’ TV’s channel number and genre. The DfES made representations to
5 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Sky in support of EDML’s position, explaining the Department’s belief that Teachers’ TV should be placed in the Documentaries genre, which appears on the first page of the EPG. Specifically, Richard Graham (Head of Communications Unit, Children, Young People and Schools) at the DfES sent a letter to Nicola Bamford (Director of Channels and Operations) on 1 September 2005. Andrew Adonis (Parliamentary Under Secretary of State for Schools) of the DfES wrote to Richard Freudenstein (Chief Operating Officer) on 12 September 2005. Among the statements made by the DfES were that Teachers’ TV’s new EPG position would be “completely inappropriate” and that Teachers’ TV had a broad reach and was therefore not a niche channel.
12. Sky responded to these letters on 3 October and 1 November respectively, confirming its intention to continue with the planned changes to Teachers’ TV’s listing number and genre and setting out its justification for the move. Sky’s letters to the DfES described Sky’s belief that Teachers’ TV was “directed towards a specific, focussed or niche group of viewers”, and, in response to the DfES’s concerns over the proximity of Teachers’ TV to adult content, described the new parental control functionality afforded by the updated EPG.
13. EDML submitted a complaint to Ofcom on December 15 2005.
14. The changes to Teachers’ TV’s genre and channel number were completed on 28 February 2006.
6 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Section 3 Submissions and information from the parties
EDML’s complaint
1. EDML submitted its complaint to Ofcom on 15 December 2005 (“the complaint”). The main elements of the complaint are set out below.
2. Paragraph 2.6 of the complaint notes EDML’s position that:
”BSkyB’s proposed listing of the Channel breaches paragraph 15(a) [of the EPG Code] because it is not fair, reasonable and non-discriminatory.”
3. Paragraph 3.1 of the complaint noted that:
”EDML’s key submission is that listing the Channel in the ‘Specialist’ genre is clearly not consistent with BSkyB’s own published rules on its EPG listing methodology . . . As such, BSkyB’s proposed EPG listing for the Channel is not fair and reasonable.”
4. Paragraph 3.2 of the complaint noted that:
”EDML also submits that the Channel has been treated differently from other channels whose audiences are as or more focussed than the Channel’s, but which have been placed in the more general and prominent categories of ‘Documentaries’ and ‘Lifestyle & Culture’.”
5. Paragraph 3.3 of the complaint noted that:
”BSkyB’s proposed change to the Channel’s genre also does not comply with the rules in the Sky Listing Method determining when a change can properly be made.”
6. Paragraph 3.4 of the complaint noted that:
”Finally, the inappropriate positioning of the Channel is brought into particular focus by the proximity of the Channel (dealing with children’s education) to other channels that are clearly unsuitable for children. This reinforces the points made above.”
7. Paragraph 3.5 of the complaint concluded, on the basis of these points, that:
”For all of the above reasons, BSkyB is in breach of conditions 1 and 11 of the EPG Conditions3 and paragraph 15 of the EPG Code.”
3 Schedule 1 to the continuation notice to a class of persons defined as the licensee for the purposes of the provision of electronic programme guide services under paragraph 9 of Schedule
7 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
8. EDML’s reasoning was set out in the following terms in the complaint:
“The Channel is wrongly categorised as ‘Specialist’
(a) The Channel’s programming is almost exclusively documentaries (b) The Channel’s programming is not directed towards a ‘specific, focussed or niche group of viewers’ (c) Its target audience is not ‘niche’ (d) Its potential audience is not ‘niche’ (e) Its potential and target audience is broader than other channels in the genre (f) Its actual audience is not ‘niche’
[paragraph 3.20] Figures collated by the DfES and shared with BSkyB show that 56% of the Channel audience were from outside of the teaching profession in July 2005 and the Channel’s 0.9% weekly reach was greater than that of ‘BBC Parliament’.
The Channel has been treated differently from other channels
[paragraph 3.22] The closest analogous channel listed on the Sky EPG would appear to be ‘The Baby Channel’. According to its website, this channel is aimed at parents and professionals involved with pre-school children, just as the Channel predominantly targets parents and professionals involved with school children. The Baby Channel is listed in the ‘Lifestyle’ genre not the ‘Specialist’ genre. Other examples of channels in the ‘Lifestyle’ genre aimed at particular target audiences are Travel Channel, Wine TV and Real Estate TV. The point is that none of these are treated as ‘Specialist’.
A change in categorisation is not justified
[paragraph 3.23-3.24] The methodology specifies that the only reason for a move is if another genre is ‘more appropriate’ . . . The Channel content has not changed and BSkyB’s listing criteria for the Channel’s current ‘Documentaries’ genre have remained identical.
The Channel’s proposed new positioning is entirely inappropriate
[paragraph 3.25] Being sandwiched between dating channels . . . on one side and explicitly pornographic channels on the other side, is a totally inappropriate position for a government funded channel aimed at informing the public on children’s
18 to the Communications Act 2003. Condition 1.1 states that “Where a Third Party requires the provision of an Electronic Programme Guide Service in respect of decoders administered by the Licensee, the Licensee shall offer that Service to that person on a fair reasonable and non- discriminatory basis”. Condition 11.1 states that: “The Licensee shall not (whether in respect of the charges or other terms or conditions applied or otherwise) show undue preference to or exercise undue discrimination against particular persons or persons of any class or description as respects (a) the provision of any Electronic Programme Guide Services . . .”
8 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
education . . . The Channel has a morning school programmes slot intended to be capable of being shown live in classrooms . . . Although EDML understands that it is theoretically possible for a user to display only selected channels in the EPG menu, it doubts that the practical implementation of this is sufficiently widespread to be of use, especially in schools.”
9. The complaint also requested that Ofcom take action to prevent Sky carrying out its planned changes to Teachers’ TV EPG position and genre until the investigation had been concluded. It requested that Ofcom issue directions to Sky to “move the Channel to a more appropriate genre, which, given that 90% of its programming is documentaries, EDML believes to be the ‘Documentaries’ genre.”
10. On 13 January 2006, Ofcom wrote to EDML explaining that it was opening an investigation into the allegations contained in EDML’s complaint and setting out the basis on which it was proposing to conduct that investigation. In that letter, Ofcom noted its intention to consider the allegations relating to the EPG Code but not, based on the evidence before it, allegations relating to the EPG Conditions. The basis for Ofcom’s decision was an assessment of the evidence provided by EDML.
EDML’s second submission
11. EDML made a second submission on 23 January 2006. This submission focussed on two areas relevant to the complaint: first, what EDML considered to be “[a]dditional evidence of discrimination”, and second, EDML’s position regarding the “[r]equirement for urgent action”.
12. Under “additional evidence of discrimination”, EDML included the following paragraphs:
“ . . . the re-categorisation of the Channel in the ‘Specialist’ category is inappropriate and illogical . . . this re-categorisation amounts to prima facie discrimination against the Channel by Sky, given the Channel’s reasonable and detailed protests against such a move prior to Sky’s final decision.”
“It is noted that the Home Office supported ‘Community Channel’ has managed to retain its position in ‘Documentaries’, and in many respects it is analogous to Teachers’ TV in terms of its nature, programming and funding. It is therefore discriminatory for Sky to have treated the Channel differently.”
“Other ‘themed’ channels have been included at the end of the ‘Lifestyle and Culture’ category in the proposed EPG listing (e.g. Real Estate TV, Wine TV, Performance, the Baby Channel). The legally themed ‘Legal TV’, that is due to launch on 20th February 2006, we understand is to be included within the ‘Entertainment’ genre (see www.legaltv.co.uk). That Teachers’ TV is ‘teaching and learning themed’, does not therefore in itself warrant its inclusion within ‘Specialist’ and the other themed channels mentioned have not been so treated.”
13. EDML also submitted that in a comparison of significant movements in EPG positions of other channels, no other channel had been similarly or so adversely
9 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
treated and that this was also evidence of discriminatory treatment by Sky of EDML.
14. EDML further stated that the proportion of Sky branded channels which had an EPG re-listing and number change was small compared to the proportion of non- Sky branded channels which had been changed. EDML submitted that this was an illustration of Sky’s propensity to discriminate within its re-listing methodology to suit its own commercial purposes.
15. Under “requirement for urgent action”, EDML included the following paragraphs:
“I believe that this is a clear cut case where contravention of a condition does create an immediate risk of “serious economic or operational problems for communications providers.” Attached as Annex 4 is a confidential schedule of the potential financial loss for EDML in the event of it not achieving certain audience related target figures.”
“Sky’s proposed move of EPG position is likely to lose not only existing viewers – which we appreciate is a risk for all channels that are being moved – but far more importantly, its browsing traffic.”
EDML’s third submission
16. EDML made a further submission on 6 March, which made the following points:
“I believe that Ofcom should consider issues of fairness and reasonableness equally and disjunctively with that of discrimination.”
“The Community Channel . . . is the Channel in that category [Documentaries] that is most similar in feel to Teachers’ TV . . . Approximately 60% of the channel’s programming is documentary, 40% entertainment / news. This statistic is itself also clear evidence of discrimination. Why is this channel in ‘Documentaries’ when only 60% of its programming fits into that category when Teachers’ TV, with approximately 92% of documentary programming, has been moved? In addition, at least 30% of the programming is by, for, or about children, and at least 30% relevant to young people in their later teens . . . Even programmes not specifically about children had a similar feel to much of Teachers’ TV programming . . . It is all programming with an agenda. It is perhaps this which makes the channel feel similar to Teachers’ TV, which also has diverse programming that all shares an agenda – in its case education. The Community Channel is owned by the Media Trust, a charity funded by the Home Office.”
“Wine TV consists entirely of documentaries or entertainment programmes about wine, aimed at the end consumer rather than retailer . . . Although there are a lot of wine-drinkers in the country, how many of them really want a channel dedicated to the subject? Notwithstanding that, it has been moved not to ‘Specialist’ but to ‘Lifestyle and Culture’.
“The Baby Channel . . . Three of the six hours of programming are dedicated to medical issues . . . The format of expert advice or answers to questions posed by
10 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
viewers and the mix of studio and location-based features, is found in a great many of the programmes on Teachers’ TV . . . The general feel of all this programming is not exactly ‘training’ – rather ‘advice – but it is not far from the sort of programming found on Teachers’ TV, where it is aimed at both teachers and parents. Despite these clear similarities to Teachers’ TV, the Baby Channel now finds itself in ‘Lifestyle and Culture’, again evidence of discriminatory treatment of my client.”
“Musicians’ Channel is about 60% music - but this is mostly through the night and early morning. At night it specialises in death metal and shows the odd erotic vampire movie. During the day it shows 5 hours of music tuition programmes, and three hours of teleshopping . . . It is these tuition programmes that give the channel its raison d’être and differentiate it from the other channels in its former category of “Music and Radio”. But these programmes are obviously of limited appeal, and for a very specific audience . . . Its specific audience could have warranted a move to “Specialist”. But presumably because two thirds of its output is music, the “Specialist” category was not deemed more suitable than the Music category. The same type of guidelines were not applied to Teachers’ TV.”
“The above examples equally provide clear evidence that my client has suffered unfair and unreasonable treatment, leaving to one side the far narrower issue of discrimination.”
“Compared with these four channels [The Pub Channel, Open Access, Legal TV, The Audi Channel – the other channels in the Specialist genre], only 10% of Teachers’ TV is directly targeted at specific groups . . . A further 80% of programmes . . . though intended mainly as advice to teachers, are of interest to anyone who wonders what goes on in a modern classroom . . . anyone wishing to be reminded of a bit of basic maths, language etc., or interested in debating the arts or science, may also find these programmes useful. The remaining 10% of programmes are intended to be shown in the classroom, but are again of general interest.”
“The second point relates to the new position of Teachers’ TV in between the categories of “Gaming and Dating” and “Adult”. It seems highly inappropriate in light of Ofcom’s publicly stated aims, and given the nature of the channel, it is unreasonable and unfair for it to be placed there.”
“The protection of children is something that appears to be very high on Ofcom’s agenda.”
“It is very hard indeed to see how BSkyB’s redesignation of category and number can be justified in its new position where young viewers may easily be able to stumble upon the adjacent non child-friendly categories.”
EDML’s comments on Ofcom’s draft decision
17. Ofcom supplied a copy of its draft decision to EDML on 24 April 2006.
18. EDML responded with comments on 8 May 2006.
11 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
19. EDML did not provide any additional evidence, but rather either reiterated points made in previous submissions or in some cases elaborated on earlier points. EDML’s main points made in its response are set out below:
[paragraph 1 of EDML’s comments on Ofcom’s draft decision] “There was absolutely no need or any good reason for the Channel [i.e. Teachers’ TV] to be moved notwithstanding the reorganisation of Sky’s EPG. Its former EPG number remains unused . . . a second move was both unnecessary and inequitable.”
[paragraph 3] “Teachers’ TV is completely out of place in “Specialist” . . . on a quality threshold. There is, frankly, no comparison between the high production values of the programming for Teachers’ TV which stand in stark contrast to the programming on the other channels in “Specialist”.”
[paragraph 4] “Neither BSkyB nor Ofcom has provided any clear rationale as to why either Baby TV or the Wine Channel should not have been moved at the same time as Teachers’ TV to “Specialist”. Baby TV and Wine TV . . . [are] targeted towards niche audiences.”
[paragraph 5] “We believe that Ofcom should have properly asked BSkyB for such information [relating to levels of browsing traffic on the two EPG front pages].”
[paragraph 7] “The link between the Community Channel and Teachers’ TV . . . is that they are both concerned with social welfare.”
[paragraph 8] “BSkyB has argued that it doesn’t have to give a reason for the move of the Channel provided that it can establish that it is not out of place within “Specialist”. This argument in itself is crystal clear evidence of unfair treatment of EDML as opposed to the other channels . . . which equally could have been moved to “Specialist” but weren’t.”
[paragraph 9] “[I]t is difficult to see how placing a channel dedicated to public welfare and education between dating channels and the pub channel could be considered more appropriate than leaving it within the Documentaries genre.”
[paragraph 10] “[T]he actual audience figures are correlative evidence of the Channel’s target audience and are therefore highly relevant.”
These points are all addressed in this decision.
Sky’s first submission
20. Sky made a submission on 23 March, rebutting the allegations made by EDML. The main points of this submission were that:
• EDML’s claim that Teachers’ TV is more than 90% documentary programming is incorrect;
12 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
• even if the programming were predominantly documentaries, Sky could still list Teachers’ TV in Specialist because it is predominantly directed towards a specific, focussed or niche group of viewers;
• there are a number of channels which could be said to fit the criteria for more than one genre;
• when Sky moved Teachers’ TV from the Community sub-genre of the Specialist genre to the Documentaries sub-genre of the News and Documentaries genre, a clause was inserted into the amendment to the EPG services agreement between Sky and EDML to indicate that Sky could move Teachers’ TV to another genre if that genre were suitable for channels predominantly directed towards a specific, focussed or niche group of viewers;
• there is a vast amount of publicly available information which indicates that Teachers’ TV’s target audience is people who work in schools, including in the Teachers’ TV Board of Governors 2005 annual report and Teachers’ TV’s website;
• EDML did not provide meaningful statistical evidence of the actual audience for Teachers’ TV (in reference to the statistics provided by EDML at paragraph 3.20 of its complaint cited at paragraph 8 above);
• Sky complied with the part of its listings method relating to timing of changes to EPG listings because although the criteria for Teachers’ TV’s previous genre had not changed, the criteria did change for the Specialist genre, into which Teachers’ TV was moved; and
• increased user control over the EPG means that children can be protected against harmful content, and material broadcast during school hours is subject to pre-watershed restrictions anyway.
Sky’s comments on Ofcom’s draft decision
21. Ofcom supplied a copy of its draft decision to Sky on 24 April 2006.
22. Sky responded with comments on 27 April 2006, clarifying a small number of points in Ofcom’s draft decision. These comments are reflected in this document.
Ofcom information request to Sky
23. Ofcom sent Sky a notice on 27 January 2006 under Condition 12 of the Television Licensable Content Service Licence granted to British Sky Broadcasting Limited on 10 June 1998 (TLCS Licence No. 243), requiring it to provide the following information:
• copies of EPG-related agreements between Sky and EDML;
13 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
• copies of all correspondence between Sky and EDML related to Teachers’ TV’s EPG genre and channel number;
• copies of any internal documents used to make the assessment as to which genre and channel number Teachers’ TV should be given;
• a description of the rationale for, and features of, Sky’s reorganised EPG;
• details of the timetable of planned changes to the EPG; and
• details of the old and new channel line-ups on the EPG.
24. Sky provided its response to this information request on 8 February 2006.
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Section 4 Scope of the investigation
Ofcom’s enquiry and opening of the investigation
1. Ofcom opened an enquiry on 19 December 2005, in order to consider whether to open a full investigation. In line with Ofcom’s guidelines, the enquiry was conducted over 15 working days. On 20 December 2005, Ofcom offered Sky the opportunity to respond to the complaint.
2. On 11 January 2006, Ofcom opened an investigation into EDML’s complaint under the EPG Code.
3. Ofcom informed the parties by letter of the decision to open the investigation on 13 January 2006.
4. In its letter to EDML, Ofcom informed EDML of its decision not to take urgent action to prevent Sky making its proposed changes to Teachers’ TV’s EPG position, as EDML had not provided any evidence of serious, irreparable damage which would be suffered if urgent action was not taken. Further, Ofcom does not have any power to take urgent action under section 98 Communications Act 2003 (the “Communications Act”) in relation to breaches of the EPG code.
5. Ofcom published a Competition Bulletin entry on its website on 16 January, stating that it had opened an investigation into EDML’s complaint under the EPG Code.
Urgent action
6. Ofcom responded to EDML on the further information provided in EDML’s second submission on “requirement for urgent action” on 9 February 2006. Ofcom’s response was that EDML had not provided sufficient evidence to indicate the likely effect of the repositioning of Teachers’ TV in Sky’s EPG.
7. EDML did not provide quantitative evidence about the importance of browsing traffic in building viewing figures for Teachers’ TV, the likely effect of the repositioning on the level of browsing traffic, or the costs associated with communicating the repositioning to existing and potential viewers. Annex 4 to EDML’s submission of 23 January 2006 set out estimated financial loss to EDML in the event of it not meeting targets. However, EDML did not provide information to demonstrate why such financial losses would be directly attributable to Sky’s alleged behaviour.
8. In addition, Ofcom’s powers under section 98 of the Communications Act to treat a case as urgent do not cover enforcement of the EPG code.
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Allegation of discrimination
9. Ofcom responded to EDML in relation to EDML’s further submissions on discrimination on 17 February 2006.
10. Ofcom explained that EDML had not provided Ofcom with evidence to justify its allegation that channels alleged to be similar to Teachers’ TV had been treated differently by Sky. Such evidence might have taken the form of information on actual or target audiences, or on format or content of programmes. EDML’s submission did not provide any evidence of how any such alleged discriminatory treatment would have had a material impact on EDML’s business.
11. EDML implied that Teachers’ TV is similar to channels such as Legal TV, Real Estate TV and Wine TV. However, EDML did not explain in its submission why it considered this to be the case, and did not provide evidence to back up this assertion.
12. EDML submitted that the re-categorisation of Teacher’s TV is inappropriate and illogical which amounts to prima facie discrimination by Sky. EDML failed to provide evidence to show that Teacher’s TV was similar to any other channel and that it had suffered undue discrimination.
13. EDML submitted that based on its “Comparison of other Significant Movements in EPG Positions”, no other channel had been similarly or adversely affected. However, Ofcom notes that no evidence was provided of how the other channels referred to were similar to Teacher’s TV and how they had received more favourable treatment.
14. EDML made general reference to the number of Sky branded channels which were moved compared to non-Sky branded channels. EDML inferred that the number of Sky branded channels which were subject to EPG changes was evidence of discriminatory treatment by Sky to serve its own commercial advantage. However, no evidence was provided either of the channels referred to, or of how they were similar to Teachers’ TV.
15. Without any evidence to support EDML’s allegations of discrimination, Ofcom considered that there were no reasonable grounds for extending the scope of the investigation to include a consideration of discrimination under the EPG Code or the EPG Conditions.
16. EDML made further submissions on 6 March in relation to discrimination. In particular, EDML cited The Community Channel, Wine TV, The Baby Channel and the Musicians’ Channel as examples of where:
“[Sky] have either kept comparable channels in an equivalent position to where they were previously, or have moved them to or placed them in other more mainstream categories even though they are far more specialised than Teachers’ TV.”
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17. As a preliminary step Ofcom considered whether EDML had provided sufficient evidence to indicate that such channels are similar to Teachers’ TV and have been treated differently by Sky as set out below.
The Community Channel
18. The Community Channel is cited by EDML as being the “most similar in feel to Teachers’ TV” of channels in the Documentaries genre. EDML describes its view that “at least 30% of the programming is by, for, or about children, and at least 30% relevant to young people in their later teens”. EDML has not made clear why it considers this to be relevant. Nor has it provided evidence (for example schedules, or statements by the Community Channel) to back up its assertions of what percentages of the Community Channel’s programming are directed towards particular groups.
19. EDML seems to be basing its assertion that the Community Channel is similar to Teachers’ TV on two views: firstly that the Community Channel’s programming is all “programming with an agenda” and that Teachers’ TV “also has diverse programming that all shares an agenda – in its case education”, and secondly that the Community Channel is charity-owned and funded by the Home Office.
20. In Teachers’ TV’s case, EDML has identified a single “agenda” – education. In the case of the Community Channel, EDML identifies a wide range of subject areas – “programmes on dealing with anti-social behaviour in children . . . programmes about childhood immunisation . . . programmes examining particular issues . . . (such as organ donation, language barriers for immigrants in Derby) . . . themed weeks in association with specific charities”. EDML has not described any single “agenda” that this programming serves. On this basis, it is unclear how this “agenda” point supports the view that the Community Channel and Teachers’ TV are similar.
21. In paragraph 7 of its comments on Ofcom’s draft decision, EDML asserted that “[t]he link between the Community Channel and Teachers’ TV and reason for both receiving government funding is that they are both concerned with social welfare, which includes education”.
22. However Ofcom considers that the concept that both channels are concerned with a general notion of “social welfare” does not demonstrate similarity between the two channels. This is evidenced by the way the two channels describe themselves in the “About Us” sections of their websites, which do not demonstrate similar aims. Teachers’ TV describes itself as follows:
“Teachers' TV is a channel for everyone who works in education, from heads to NQTs, governors to support staff. Programmes take you inside classrooms and schools across the country to see how good teachers are bringing the curriculum to life and improving schools. All national curriculum subjects are covered in the Primary and Secondary Zones, where there are also programmes for headteachers, managers, newly qualified teachers and governors. In the General Zone there is a weekly half hour news programme and documentaries on the
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educational issues and controversies of the day, and lively programmes specially made for use in the classroom.”4
The Community Channel describes itself as follows:
“Community Channel makes you think again about the world around you, and inspires you to take action on the causes and issues that matter to you. Broadcasting original shows, the best of terrestrial TV and showcasing the work of new directors and community programme makers, the Channel is the place for real-life stories.”5
The Baby Channel
23. EDML provided anecdotal evidence of programmes on the Baby Channel which it believed to be similar to programmes on Teachers’ TV.
24. It said of “Baby Talk” that “in both format and content it is similar to a number of Teachers’ TV programmes”. EDML mentioned two examples from Teachers’ TV – “Parents’ Guide” and “Resource Review” – but did not provide evidence for why it considered the programmes to be similar.
25. Of the programmes on the Baby Channel devoted to medical issues, EDML stated: “the format of expert advice or answers to questions posed by viewers, and the mix of studio and location-based features, is found in a great many of the programmes on Teachers’ TV”. The same features could be seen in many programmes on any number of channels. This does not represent evidence of similarity between the two channels.
26. EDML went on to state that “even the subject matter – the welfare of children – is often similar”. This seems to take a very loose definition of “welfare of children”. Teachers’ TV’s focus is education – as EDML itself stated in its submission on 6 March, Teachers’ TV’s programming all “shares an agenda . . . education”. The focus of the Baby Channel, on the other hand, is on health-related and practical parenting issues – its website states in the “About Us” section that:
”The Baby Channel is the world's first television channel exclusively for pregnant women and parents of pre-school children aged 0-5 years old. Our programmes are for grown-ups not kids, and include topics like pregnancy, child health, early learning, first aid, safety and cooking for children. Having a baby is tough enough; we want to make learning about it as easy as possible.”6
The mention of “early learning” seems to represent the closest common ground with Teachers’ TV, but according to the Baby Channel’s published schedule7, this topic represents only two of eight parts of one of the Baby Channel’s programmes, “Baby Talk”.
4 http://www.teachers.tv/aboutUs.do 5 http://www.communitychannel.org/content/blogcategory/13/12/ 6 http://www.babychanneltv.com/tbc/info/aboutus.jsp 7 http://www.babychanneltv.com/tbc/info/tv-schedules.jsp
18 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
27. Of other programmes on the Baby Channel, a cookery programme and exercise videos for new mothers, EDML said “the general feel [of the programmes] . . . is not far from the sort of programming found on Teachers’ TV”. Ofcom does not consider that this represents any evidence of similarities between the Baby Channel and Teachers’ TV.
Wine TV and Musicians’ Channel
28. EDML cited both of these as examples of channels which it regards as having specific audiences, which could therefore be moved into the Specialist genre.
29. They do not represent examples of channels which are similar to Teachers’ TV but have been treated differently.
Conclusion on EDML’s allegations of discimination
30. Ofcom considers that EDML did not provide it with examples of channels, supported by evidence, that are similar to Teachers’ TV and have been treated differently by Sky. Ofcom has therefore concluded that there are no reasonable grounds for it to extend the scope of its investigation to include an assessment of discrimination by Sky under either the EPG Code or the EPG Conditions.
Fairness and reasonableness
EDML’s complaint
31. EDML has alleged that it is “unreasonable and unfair” to place Teachers’ TV in the Specialist genre. In its letter of 6 March, EDML also alleged that:
“Ofcom is focusing too specifically on the question of alleged discriminatory treatment, whilst not considering sufficiently its equally valid complaints that BSkyB has acted both unfairly and unreasonably.”
Ofcom has understood this as a reference to paragraph 15(a) of the EPG Code, which states that EPG licensees are required:
“to ensure that any agreement with broadcasters for the provision of an EPG service is made on fair, reasonable and non-discriminatory terms”.
Ofcom’s response
32. As stated above at paragraphs 9 to 30, Ofcom does not consider that EDML has provided evidence to cause it to consider the allegation of discrimination against Teachers’ TV for the provision of EPG services.
33. The allegation that EDML is making about Sky’s “unfairness” and “unreasonableness” relates to how Sky has selected a genre and number for Teachers’ TV. The requirements which define the way Sky should select genres and numbers for channels to which it provides EPG services are laid out in paragraph 15(b) of the EPG Code. Ofcom therefore considers that there is no
19 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
relevant assessment of “fairness” and “reasonableness” beyond an assessment of Sky’s compliance or non-compliance with paragraph 15(b) of the EPG Code, which Ofcom has considered in this investigation.
Other information
34. EDML, in a letter to Ofcom on 13 March 2006, described additional information which it believed Ofcom should seek from Sky as part of its investigation:
“BSkyB has apparently carried out detailed research as to the importance of EPG positioning, and in order for Ofcom to be able to adjudicate on my client’s complaint, we suggest that it would be appropriate to request a copy of their findings. There may well be evidence germane or relevant to my client’s complaint in any such findings and if so, they could be of direct importance to Ofcom’s conclusions in this matter.”
35. In making this same point verbally to Ofcom, EDML described its opinion that such information would demonstrate the level of browsing traffic experienced by channels in different genres.
36. After giving due consideration to the submissions made by EDML, Ofcom has not requested this information from Sky. The only requirements in respect of positioning in the EPG relate to appropriate prominence to be provided for public service channels (of which Teachers’ TV is not one, as defined by section 310(4) of the Communications Act). The only requirements beyond that which relate to positioning in the EPG are contained in Sky’s listings method which is subject to the EPG Code. As described in the following section, the listings method makes allocations based on definitions of programme types and considerations of target audience. The level of browsing traffic is therefore not relevant to this assessment, although Ofcom does not dispute that there may be a link between EPG location and levels of traffic.
Programming quality
37. EDML, in its comments on Ofcom’s draft decision, asserted that:
“Teachers’ TV is completely out of place in “Specialist” . . . on a quality threshold. There is, frankly, no comparison between the high production values of the programming for Teachers’ TV which stand in stark contrast to the programming on the other channels in “Specialist”.”
38. Neither the EPG Code nor Sky’s listing method contain any provisions for listing channels based on quality. Ofcom has therefore made no such assessment in its decision.
20 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Summary of scope of the investigation
39. Ofcom considers that EDML has not provided it with reasonable grounds for considering its allegation of discrimination. Ofcom also considers that EDML’s allegations of unfairness and unreasonableness are best considered as being part of an assessment of Sky’s compliance or non-compliance with paragraph 15(b) of the EPG Code, which governs the allocation of EPG listings.
40. On this basis, Ofcom’s assessment is focussed on paragraph 15(b) of the EPG Code.
21 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Section 5 Framework for assessing allegations
The legislative framework
1. Section 310 of the Communications Act states at paragraph 1:
“It shall be the duty of OFCOM to draw up, and from time to time to review and revise, a code giving guidance as to the practices to be followed in the provision of electronic programme guides.”
The definition of an electronic programme guide, as defined at paragraph 8 of section 310 is as follows:
“A service which consists of –
(a) the listing or promotion, or both the listing and promotion, of some or all of the programmes included in any one or more programme service the providers of which are or include persons other than the provider of the guide; and (b) a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide.”
2. The first such code was published in February 20048 – the “Code of practice on electronic programme guides”.
3. Condition 10 of the Television Licensable Content Service Licence granted to British Sky Broadcasting Limited on 10 June 1998 (TLCS Licence No. 243) states that, pursuant to Section 311(1) of the Communications Act:
”To the extent that the Licensed Service consists in or includes an EPG the Licensee shall ensure that the provisions of the Code on Electronic Programme Guides are observed in the provision of the Licensed Service.”
The requirements of the Code
4. In response to EDML’s allegation that Sky has not complied with its published listings method, Ofcom’s investigation of EDML’s complaint has focussed on paragraph 15(b) of the EPG Code:
“EPG licensees are required . . . to publish and comply with an objectively justifiable method of allocating listings. This does not preclude different methods – for example, objectively justifiable methods could include ‘first come, first served’, alphabetical listings, and those based on audience shares.”
8 http://www.ofcom.org.uk/tv/ifi/codes/EPGcode/241557
22 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Sky’s listings method
5. Sky’s current method of allocating listings was published on its website in August 20059.
6. Paragraphs 4.1.6 and 4.1.14 of the listings method define what types of channels will be placed in the Documentaries and Specialist genres respectively.
7. Paragraph 4.1.6 of the listings method states that:
“A channel will be allocated a programme number in the Documentaries genre if its programming is predominantly documentaries.”
8. Paragraph 4.1.14 of the listings method states that:
“A channel will be allocated a programme number in the Specialist genre if its programming is predominantly directed towards a specific, focussed or niche group of viewers. This may include programming that offers a service to viewers (e.g. information about job vacancies) or programming about a special interest. A channel will also be allocated a programme number in the Specialist genre if it comprises programming which is not appropriate to any other genre or sub-genre.”
Two key questions for assessing against paragraph 15(b) of the EPG Code
9. In order to assess whether Sky has breached its obligations under the EPG Code, Ofcom has considered the various elements of paragraph 15(b) of the Code, and has considered two key questions.
10. The first question is whether Sky’s listings method is “objectively justifiable”. As described above in paragraph 3 of this section, objectively justifiable methods might include “‘first come, first served’, alphabetical listings, and those based on audience shares”.
11. The second question is whether Sky complied with its own listings method in its treatment of Teachers’ TV. In order to answer this question, Ofcom must address two further questions, based on paragraphs 4.1.6 and 4.1.14 of Sky’s listing method as set out above:
• Is Teachers’ TV’s programming predominantly documentaries? And/or
• Is Teachers’ TV’s programming predominantly directed towards a “specific, focussed or niche group of viewers”?
9 http://media.corporate-ir.net/media_files/lse/bsy.uk/Augepg1.pdf
23 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Section 6 Assessment of allegations
1. In this section, Ofcom addresses each allegation in turn, taking EDML’s allegation and Sky’s response, before turning to Ofcom’s assessment.
Compliance with listings method – nature of change to Teachers’ TV’s listing
EDML’s complaint
2. The complaint stated at paragraph 3.1 that:
“Listing the Channel in the ‘Specialist’ genre is clearly not consistent with BSkyB’s own published rules on its EPG listing methodology.”
3. The complaint also stated in the heading before paragraph 3.9 that:
“The Channel’s programming is almost exclusively documentaries”; and at paragraph 3.9:
”Its programming is 90% documentaries”.
4. The complaint stated at paragraph 3.16 and 3.17:
“There has been a major marketing campaign aimed at the schools’ workforce, but there has also been a lot of marketing, PR and press publicity aimed at a far wider target audience, including parents.”
“In targeting parents, the Channel is clearly “predominantly directed towards” a significant proportion of the adult population.”
5. The complaint stated at paragraph 3.19 and 3.20:
“Actual audience statistics should be taken into account in considering to whom the Channel is directed, whatever its marketing strategy may be . . . Figures collated by the DfES and shared with BSkyB show that 56% of the Channel audience were from outside of the teaching profession in July 2005 and the Channel’s weekly reach was greater than that of ‘BBC Parliament’ . . . Other figures illustrate that at least 17% of the Channel’s audience are parents and without any other ties to the teaching profession.”
Sky’s response
6. Sky’s submission of 23 March 2006 contained the following points:
[paragraph 2.4] “Sky contends that even if the programming on the channel were
24 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
predominantly documentaries (which we do not consider to be the case based on any commonly understood concept of what constitutes a “documentary”), Sky is nevertheless entitled to list the Channel in the Specialist genre because Sky has determined that the Channel is “predominantly directed towards a specific, focussed or niche group of viewers”.
[paragraph 2.5] “There are many instances of channels which could be said to fit the criteria for more than one EPG genre. In listing these channels in the EPG Sky is required to exercise a degree of judgement in determining the EPG genre in which they are listed . . . Providing that Sky could have rationally concluded that the Channel is most appropriately listed in the Specialist genre, such decision should not be open to challenge.”
[paragraph 2.18 (ii)] “All of the marketing and advertising material included in parts 1, 2, 3 and 4 of Annex 3 which EDML has included as evidence of the Channel being targeted at parents relates exclusively to a block of programmes, referred to as “Parents’ Evening”, broadcast on the Channel only on Wednesday evenings . . . The inclusion of one weekly audience segment targeted at parents will clearly have little impact on the analysis of target audience as a whole.”
[paragraph 2.19] “There is a vast amount of publicly available information which clearly and unequivocally demonstrates that the target audience of the Channel is people who work in schools, belying the small selection of material provided by EDML in Annexes 3 and 4 of the Complaint.”
[paragraph 2.22] “We have had great difficulty reconciling the figures EDML quotes in paragraph 3.20 of the Complaint with the statistics in Annex 6 of the Complaint or any other statistics which EDML has provided to Sky . . . EDML states that statistics it has shared with Sky show that “56% of the Channel audience were from outside of the teaching profession in July 2005 and the Channel’s weekly reach was greater than that of ‘BBC Parliament’”. However, we cannot locate any statistics at all which have been provided to Sky which relate specifically to the month of July 2005. EDML references IPSOS Mori research for its claim that “[a]lmost 400,000 had watched the Channel between its launch and October 2005, 3% of all digital viewers”. These figures are different, and relate to a different period, to the IPSOS Mori statistics quoted in Annex 6, and do not correlate with any other information provided to Sky; and EDML states that “other figures illustrate that at least 17% of the Channel’s audience are parents without any other ties to the teaching profession”. EDML does not give a source for this statistic, but Sky notes that it does not tally with any figures in Annex 6 or with any other information provided to Sky.”
7. In a meeting with Ofcom on 24 February 2006, Sky provided insight as to what it believed to be the correct definition of a “documentary”. Nicola Bamford (Director of Channels and Operations) described a documentary as being a factual programme of general interest to most people.
Ofcom’s assessment
Is Sky’s listings method objectively justifiable?
25 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
8. Paragraph 15(b) of the EPG Code states:
”EPG licensees are required . . . to publish and comply with an objectively justifiable method of allocating listings. This does not preclude different methods – for example, objectively justifiable methods could include ‘first come, first served’, alphabetical listings, and those based on audience shares.”
9. The EPG Code explicitly allows for a number of different methods, and does not specify a recommended method.
10. In this context, Sky’s listings method provides a significant amount of information on how it intends to allocate EPG listings. This information includes:
• a method for allocating genres upon launch of a channel into the EPG (section 3);
• detailed descriptions of what types of programme will be included in each genre (section 4);
• a method for allocating numbers to channels (section 5);
• an approach to “multiplexed”10 channels (section 6);
• an approach to listing of public service channels (section 7); and
• provision for moving channels between genres (section 8).
11. By including all these elements, Sky’s method is not arbitrary, and does not of itself favour any one channel over another channel or type of channel. This may not be the only type of method that an EPG services provider could conceivably put in place, but the method set out by Sky is objectively justifiable. From an analysis of Sky’s listings method, Ofcom concludes that in publishing this method, Sky has complied with the requirement to publish an objectively justifiable method of allocating listings.
Is Teachers’ TV’s programming predominantly documentaries?
Background
12. At this point, it is useful to describe the process that Sky went through in reallocating genres when it was in the process of deciding in 2005 how to reorganise its EPG, and how this applied to Teachers’ TV.
13. Sky assessed all channels on its platform, to determine how to allocate EPG listings. According to an email from Emma McCormack, Legal and Regulatory Advisor at Sky, to Ofcom on 21 April 2006:
”The channels on the platform were analysed in three groups:
10 For example, timeshifted channels such as E4+1, or channels that are “manifestly linked by theme to the principal channel (e.g. Paramount and Paramount 2)”.
26 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
• a limited review was undertaken by Sky of the radio and movies channels, as the most appropriate genre for these channels was manifestly obvious, deeming a detailed review unnecessary;
• most other channels on the platform were monitored and reviewed by a dedicated team in-house at Sky. The channels in this category were those with little variation in the type of content broadcast (e.g. some of the music and sports channels), or where there was little or no question as to the appropriate genre for the channel; and
• iBurbia [an external consulting firm11] monitored and analysed approximately 50 channels nominated by Sky. These were selected on the basis that a detailed analysis of the content on these channels was required in order for Sky to determine the most appropriate genre.”
14. Teachers’ TV fell into the third of these categories. Sky engaged iBurbia to review schedules and view six hours of programming per week over a five-week period (13 June to 15 July 2005).
15. Sky provided 41 possible types of programme to iBurbia. Of those, Teachers’ TV’s programmes fell into only five types. These types, with their definitions as specified to iBurbia by Sky, are described below.
• Instructional: “factual programmes consisting of educational material for adults (whether work-related or otherwise) and other work-related material such as industry awards and trade shows that are not Lifestyle and not Adult: Factual.”
• Documentaries: “programmes consisting of documentaries that are not Lifestyle, not Travel, not Reality, not Arts, not Music, not Instructional, not Adult: Factual.”
• News and current affairs: “programmes consisting of news and/or current affairs-related topics. Include broadcasts of parliament, government proceedings and similar and factual programmes about politics, current affairs, and issues currently in the news.”
• Unspecified factual: “programmes of a factual nature that are not Music, not Lifestyle, not Travel, not News and current affairs, not Biography, not Chat- shows, not Stand-up comedy, not Kids, not Adult: Factual. This category is likely to include many magazine style shows about topics not covered under the bullet points above.”
• Reality: “factual programmes about the fortunes of contemporary real people in real situations, or about the interaction of individuals who have come together for the purpose of the programme, that are not Sports, not Travel, not Lifestyle, not Kids, not Adult: Factual. Include presenter-led programmes connected thematically with a reality show (e.g. Big Brother’s Little Brother).”
11 http://www.iburbia.co.uk/
27 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Assessment
16. According to iBurbia’s analysis of schedules, 72% of Teachers’ TV’s programming over the period in question was instructional, 15% documentaries, 5% news and current affairs, 5% unspecified factual, and 3% reality. These numbers are based on the documents provided by Sky to Ofcom in response to Ofcom’s formal information request, which show the output of iBurbia’s work. According to iBurbia’s summary of its analysis of Teachers’ TV, the review of 34 hours of programmes revealed that 58% of the programming was instructional, and 29% documentary, “although all on very specialised subjects”.
17. Also as part of the summary of its analysis on Teachers’ TV, iBurbia concluded that Teachers’ TV was a “truly specialist channel”.
18. Ofcom considers that an assessment of the nature of programmes, and indeed the definition of different types of programming, is a subjective judgment, and there is therefore no absolute test to determine whether a channel’s programming is predominantly of one type or another. In this context, Ofcom considers that the approach that Sky has taken is appropriate and objectively justified. The use of external consultants to carry out the actual assessment in particular indicates Sky’s intention to ensure that the assessment was objectively justified.
19. Ofcom notes Sky’s contention in its submission on 23 March that:
“Even if the programming on the channel were predominantly documentaries (which we do not consider to be the case based on any commonly understood concept of what constitutes a “documentary”), Sky is nevertheless entitled to list the Channel in the Specialist genre because Sky has determined that the Channel is “predominantly directed towards a specific, focussed or niche group of viewers . . . Even if much of the programming on the Channel could be classified as “documentaries”, this does not mean that Sky is required to list the channel in the Documentaries genre of the EPG if the Specialist genre is the most appropriate genre for the Channel.”
20. Given the element of subjectivity involved in any assessment of programming types, and in the context of considering that Sky’s approach to assessing Teachers’ TV’s programming was objectively justified, Ofcom has not made its own definitive judgment as to whether Teachers’ TV’s programming is predominantly documentaries. Instead, it must now consider whether Teachers’ TV’s programming is predominantly directed towards a “specific, focussed or niche group of viewers”.
Is Teachers’ TV’s programming predominantly directed towards a “specific, focussed or niche group of viewers”?
21. Teachers’ TV is primarily directed towards the schools workforce. There are a number of sources that indicate this; these are described in the following paragraphs.
28 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
22. The first line of the “Introduction” section of “About Us” on the Teachers’ TV website states that:
“Teachers' TV is a channel for everyone who works in education, from heads to NQTs, governors to support staff.”
Further, the title of the website’s home page reads as follows:
“Teachers’ TV :: the TV channel for everyone who works in schools”.
23. As Sky noted in its submission to Ofcom of 23 March 2006, Teachers’ TV’s Statement of Programming Policy, included at Annex 5 of the Teachers’ TV Board of Governors Annual Report for 200512, states that:
“Teachers’ TV aims to meet the specific professional needs of a clearly targeted audience made up of the following groups working in primary, secondary and special schools in England:
• Teachers • Teaching assistants • Governors • Head teachers.”
24. On Freeview, Teachers’ TV is broadcast between 12:00 midnight and 6:00am. For the remaining 18 hours of the day, a holding page is displayed, carrying the words:
12 http://www.ttvboard.org/pages/docstore/TTV%20annual%20report%20(for%20web)1.pdf
29 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
“Teachers’ TV – it’s for everyone who works in schools.”
25. Ofcom notes Sky’s point that much of the evidence provided by EDML as evidence of marketing to parents relates to one evening per week of parent-focussed programming, and Ofcom therefore agrees that this is not representative of Teachers’ TV’s entire schedule.
26. EDML made the argument, at paragraph 3.17 of the complaint, that Teachers’ TV has a much wider potential audience than just the schools workforce – for example, that parents or children might watch it.
27. As Sky’s listings method states at paragraph 4.1.14, the test as to whether a channel should be listed in the Specialist genre does not relate to the channel’s potential audience, but rather to whether “its programming is predominantly directed towards a specific, focussed or niche group of viewers”.
28. The various publicly available sources quoted above indicate that Teachers’ TV is targeted towards the schools workforce. Indeed, EDML itself, in its letter to Ofcom on 6 March, stated that:
“10% of Teachers’ TV’s output is directly targeted at specific groups – e.g. programmes such as Just for Governors, Parents’ Guide, or Resource Review . . . 80% of programmes . . . [are] intended mainly as advice to teachers . . . [the] remaining 10% of programmes are intended to be shown in the classroom”.
Therefore even based on EDML’s own assessment, at least 90% of Teachers’ TV’s programming is targeted primarily at teachers, whether for use in the classroom or not.
29. Ofcom does not consider it necessary to verify or otherwise the audience figures provided by EDML in support of Teachers’ TV’s actual audience. As already stated, the relevant assessment is whether “its programming is predominantly directed towards a specific, focussed or niche group of viewers”, not whether people outside that group actually watch the channel.
30. EDML stated in paragraph 10 of its comments on Ofcom’s draft decision that “the actual audience figures are correlative evidence of the Channel’s target audience and are therefore highly relevant”.
31. However notwithstanding actual audience figures, as described in paragraphs 21 to 28 above, there is a significant body of evidence, including evidence from EDML’s own marketing materials, which Ofcom considers indicates the nature of Teachers’ TV’s target audience.
32. In its various submissions, EDML has provided Ofcom with examples of channels which, it believes, support its allegation that Teachers’ TV has been incorrectly categorised. As described above at paragraphs 9 to 30 of section 4, EDML did not present Ofcom with sufficient grounds to include discrimination in the scope of the investigation. In the context of any assessment of discrimination, consideration of such other channels would have been relevant. However, in the context of
30 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
considering whether Sky has complied with an objectively justifiable listings method, such channels are not relevant. Ofcom has assessed Sky’s allocation of a genre to Teachers’ TV on its own merits.
33. Notwithstanding the fact that Ofcom has not carried out an analysis of Sky’s assessment of channels such as the Community Channel (Documentaries genre), the Baby Channel, Wine TV (both Lifestyle and Culture) or the Musicians’ Channel (Music), Ofcom notes that the definition of channels that should be included in the relevant genres as provided for by Sky’s listings method are as follows, where not already mentioned:
• Music: “A channel will be allocated a programme number in the Music sub- genre if its programming is predominantly music and music related programming.”
• Lifestyle and Culture: “A channel will be allocated a programme number in the Lifestyle & Culture genre if its programming is predominantly related to lifestyle and culture, including, without limitation, programming related to the arts, travel, design, the home, gardens, property, health, food or fashion.”
34. Ofcom agrees with Sky’s assessment that Teachers’ TV is “predominantly directed towards a specific, focussed or niche group of viewers”.
Summary of Ofcom’s assessment
35. Ofcom considers that Sky’s published method of allocating EPG listings is objectively justifiable. It also considers that Sky has complied with its listings method in allocating an EPG listing to Teachers’ TV.
36. While it would be possible to make arguments to dispute some subjective elements of the interpretation of the listings method, such as the precise definition of “documentaries” or the exact balance between channel content and target audience, Ofcom has not found Sky to have incorrectly applied its published listings method.
Compliance with listings method – timing of change to Teachers’ TV’s listing
37. Paragraph 8 of Sky’s listings method states:
“Where it becomes apparent to Sky at any time after the launch of a channel into the EPG that a different genre, sub-genre or category is more appropriate, Sky may, after consulting with the broadcaster, move the channel to the more appropriate genre, sub-genre or category. This may happen if the content on a channel changes or if Sky changes the criteria for listing channels in particular genres, sub-genres or categories. Where a channel is moved in this way, it will generally be allocated the next available programme number at the end of the more appropriate genre, sub-genre or category, regardless of when it originally launched into the EPG.”
31 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
EDML’s complaint
38. Paragraph 3.3 of EDML’s complaint states that:
“BSkyB’s change to the Channel’s genre also does not comply with the rules in the Sky Listing Method determining when a change can properly be made.”
39. Paragraph 1 of EDML’s comments on Ofcom’s draft decision states that:
“There was absolutely no need or any good reason for the Channel to be moved notwithstanding the reorganisation of Sky’s EPG. Its former EPG number remains unused . . . a second move was both unnecessary and inequitable.”
Sky’s response
40. Sky stated in its submission of 23 March 2006 that whereas the listing criteria for the Documentaries may not have changed, as stated by EDML, the criteria for listing in Specialist have changed.
Ofcom’s assessment
41. Although the listing criteria for the Documentaries genre may not have changed, Sky’s listings method more generally had changed. In particular, the Specialist genre changed from being a collection of assorted sub-genres to having its own listing criteria, as described above in footnote 2. It was therefore within the terms of section 8 of the listings method to make changes to Teachers’ TV’s EPG listing at this point. This was within Sky’s reorganisation of the whole EPG, as part of which it reconsidered the most appropriate location of the majority of channels.
Impact on children
EDML’s complaint
42. In its original complaint to Ofcom, EDML made the following points:
[paragraph 3.25] “Being sandwiched between dating channels such as Gay Date TV, Look4 Love TV and Gay Network on one side and explicitly pornographic channels on the other side, is a totally inappropriate position for a government funded channel aimed at informing the public on children’s education.”
[paragraph 3.26] “The category definition also offers no protection that channels potentially offensive to a teaching/ parental audience will not be added to this genre [Specialist] in the future.“
43. In its submission to Ofcom on 6 March, EDML made the following points:
“The second point relates to the new position of Teachers’ TV in between the categories of “Gaming and Dating” and “Adult”. It seems highly inappropriate in light of Ofcom’s publicly stated aims, and given the nature of the channel, it is
32 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
unreasonable and unfair for it to be placed there.”
“The protection of children is something that appears to be very high on Ofcom’s agenda.”
“It is very hard indeed to see how BSkyB’s redesignation of category and number can be justified in its new position where young viewers may easily be able to stumble upon the adjacent non child-friendly categories.”
Sky’s response
44. In Sky’s submission to Ofcom on 23 March, it made the following points:
“Sky contends that there is nothing inappropriate about the listing of the Channel because . . . Viewers may . . . remove the entire Adult genre, and any other channels, from the EPG seen via their set top box. Thus, in Sky’s view, there is less risk than ever before of viewers inadvertently viewing adult or other unsuitable material.”
“Sky also notes that any material broadcast on the adult and dating channels during school hours is subject to the requirements in the Broadcasting Code; thus material not suitable for broadcast pre-watershed will not be available.”
“EDML states that it is concerned that “the [Specialist] category definition offers no protection that channels potentially offensive to a teaching/ parental audience will not be added to this genre in the future.” While we have difficulty imagining what kind of channels EDML is contemplating, we note that no channel in any genre is offered the kind of “protection” that EDML seems to request. This issue would not be overcome by a move to the Documentaries genre of the EPG.”
Ofcom’s assessment
45. As discussed in the previous section, Ofcom sees no evidence for children being a particular target audience of Teachers’ TV. In addition, it has not been provided with any information to indicate that children are an important actual audience of the channel.
46. Irrespective of the number of children that may actually be watching, or seeking to watch Teachers’ TV, Ofcom notes the information that Sky has provided in response to Ofcom’s information request related to the new functionality offered by the new EPG. This indicates that where parents (or teachers, for televisions in schools) have concerns over exposure of children to inappropriate material, they have the possibility to remove the option to view those channels through the EPG visible through the set-top box.
47. On EDML’s point related to protection against particular types of channels being added to the Specialist genre in future which may be offensive to a teaching / parental audience, Ofcom notes Sky’s comments that no channel anywhere in the EPG is offered such protection.
33 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
48. In conclusion, Ofcom sees no reason why regard for children should alter its assessment of Sky’s compliance with paragraph 15(b) of the EPG Code as outlined above.
34 Decision on complaint by EDML against Sky about repositioning of Teachers’ TV in Sky’s EPG
Section 7 Ofcom’s decision
1. Sky has published an EPG listings method which is objectively justifiable, based on detailed descriptions of what types of channels will be placed in each genre.
2. While it will always be possible to argue the subjective points of an assessment of content, Ofcom considers that Sky’s assessment of Teachers’ TV’s programming and target audience was done appropriately. In this regard, Ofcom notes that Sky used an external independent consultant to evaluate certain channels, including Teachers’ TV, and their appropriate EPG listing category.
3. On the basis of these two points, Ofcom considers that Sky has complied with paragraph 15(b) of the EPG Code.
4. Given Teachers’ TV’s target audience and the advanced parental controls afforded by the new EPG, Ofcom considers that EDML’s concerns over the risks to children from Teachers’ TV’s new position are not material.
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