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.