The UK’s biggest broadcasters have expressed unhappiness at Ofcom’s proposals for how streaming sticks and smart TVs should display their apps, while device makers have accused the regulator of exceeding Parliament’s intent.
Public Service Broadcasters (PSBs) including the BBC, ITV Channel 4, and 5 spent years lobbying MPs, Parliament and Ministers for new rules which would guarantee them “prominence” within the app and content menus found on connected TV devices.
The broadcasters were keen to ensure that the advantages they hold on platforms such as Freeview, Sky and Virgin Media, where their presence in the first few slots of the programme guide is guaranteed, was copied over to the new world of streaming.
In addition to those EPG rules, the PSBs benefitted from owning Freeview Play, Freesat, YouView and Freely, all of which gifted their streaming apps greater visibility than those from smaller broadcasters or subscription streaming services.
None of the PSB owned platforms allow users to move their apps or channels outside the default placements.
Despite these advantages, the broadcasters have seen a sustained drop-off in audiences and UK households have proven willing to pay the likes of Netflix, Prime Video and Disney+ for their entertainment.
Their lobbying paid off with a new requirement ensuring “appropriate prominence” for PSBs on the most popular platforms – referred to as Regulated Television Selection Services or RTSS – being included in the 2024 Media Bill.
Final details on how that requirement should be fulfilled was left to media regulator Ofcom which set out draft proposals for ‘Prominence and accessibility on connected TV platforms’ earlier this year.
These include allocating up to six spaces within the first 9 slots in any app menu to broadcaster services such as iPlayer, ITVX and the Channel 4 app (known as ‘designated internet programme services’ or DIPS), and ensuring content (referred to as Public Service Media or PSM) from these services is clearly displayed in search results alongside content from subscription apps.
Broadcasters, industry groups and members of the public responded to a consultation on those proposals and those responses have now been published on the Ofcom website.
Broadcaster objections
Ofcom’s proposals for prominence still allow users to re-arrange apps into their preferred order where this is a feature of their chosen streaming device or TV, something multiple broadcasters have raised concerns about.
While not objecting to users being able to choose their own order, the BBC says platforms should not be allowed to “proactively prompt users” to do so.
It’s also concluded that the rules it helped lobby for might deliver less prominence than it currently enjoys through negotiations with device makers, writing: “Today, the BBC is in position one, two or three on the app menu in almost all third-party platforms.
“We consider Ofcom’s proposals will weaken the BBC’s negotiating position and is likely to lead to BBC iPlayer being ‘demoted’ to the fourth slot, as RTSS pursue the commercially rational incentives to monetise the top spots at the expense of making PSB content easily discoverable as the legislation intended.”
ITV, the UK’s biggest commercial broadcaster, wrote: “Whilst we can understand that some degree of user customisation might be allowed, this appears to open the door to RTSS providers to find ways to undermine the wider intent of the rules”.
Questioning whether an RTSS could “periodically present users with an option to remove PSB apps from key areas” it said “Ofcom must make clear that the deployment of such features should not be allowed if the effect is to reduce PSB prominence.”
In its response, Channel 4 went further, saying: “Whilst some individual users may prefer to rearrange their apps to suit their own preferences, Ofcom must carefully weigh up the individual value that this offers to some against the impact of lessening of prominence protections for UK PSM and the value that these protections deliver to UK society.”
It also called for users’ existing ordering of their apps to be undone and their apps presented in compliance with Ofcom’s rules once they come into effect, leaving users to then put them back in their preferred order.
Everyone TV, a company jointly owned by the BBC, ITV, Channel 4 and 5 which operates the Freely, Freesat and Freeview Play platforms for them, also raised concerns on behalf of its shareholders.
It wrote: “We foresee a likely scenario where RTSS providers prompt users to rearrange apps to an order the provider suggests or to accept an entirely rearranged homepage, either based on viewing behaviour or immediately after set-up, and would like to see this explicitly addressed.
“Whilst Ofcom should not prevent RTSS providers from providing viewers with the functionality to change the order themselves, such prompted changes would undermine the aims of the prominence regime.”
Welsh broadcaster S4C wants Ofcom to ensure its rules prevent “prominent or repeated prompts encouraging users to rearrange app tiles”.
Pushback from device makers
Amazon, whose Fire TV range is one of the UK’s most popular streaming platforms, used its response to the consultation to argue for greater user choice.
It wrote: “If a user does not select or engage with a DIPS during their out-of-box set-up journey, it would be incongruous – and arguably contrary to the user-centric ethos of the Code – to subsequently present that user with public service content from that DIPS.
“Where a user chooses not to download a DIPS as part of their set-up journey, their choice should be respected.”
It was also one of a number of respondents to argue that Ofcom’s proposals exceeded the provisions of the Media Act, expressing concern “that elements of Ofcom’s draft Code are more prescriptive than Parliament intended as regards the obligation on regulated television selection services (“RTSS”) to afford designated internet programme services (“DIPS”) “appropriate prominence” for PSB content, channels and services.”
This argument was also reflected in Sky’s response which states: “Ofcom’s proposals, if implemented, would not reflect Ministers’ statements in Parliament during the passage of the Media Act that the aim was for the regime to be proportionate and allow for flexibility and operability across different RTSSs”
While “broadly” supporting Ofcom’s proposals, Roku warned “there is a risk that, in its current form, the draft Code and Guidance lean toward a more expansive conception of prominence than the “appropriate” standard ultimately adopted by Parliament.
“During debates preceding passage of the Media Act, Parliament expressly considered – and declined – to establish a standard of ‘significant’ prominence, instead opting for ‘appropriate’ prominence as a compromise intended to ensure that PSB content is easy to discover without unduly constraining audience choice or platform innovation.”
Users’ right to delete apps
Roku also noted that while Ofcom had referred to users being able to rearrange PSB apps, its proposals were “silent” on their ability to delete them.
In light of this omission, it called for Ofcom’s rules to be “amended to state explicitly that RTSS providers remain free to allow users to customise their home screens and to rearrange and delete/uninstall PSB apps if they choose.
“Such an amendment would maintain the effectiveness of the prominence regime, while ensuring that users retain meaningful control over the composition and ordering of their app grids.”
TV maker LG says it already supports the biggest four PSBs and that some of Ofcom’s proposals are “practically equivalent to making the operation of our platform business impossible.”
It goes on to say: “In order to maintain its TV business in the UK, LG undertakes a significant number of activities that require cost investment, including hardware development, testing, and validation.
“From a software perspective as well, LG must maintain business viability through various commercial areas. In seeing that LG is now required to provide commercial areas free of charge to Public Service Broadcasters (PSBs) and others, however, the resulting damage would be strikingly significant.”
“For LG’s UK TV streaming business model to be sustainable, there must be an appropriate balance struck between the rights of public service broadcasters and the interests of TV manufacturers.
“Under the current proposed structure, however, the damage that would be incurred by the latter in continuing the business would be critically large.”
It also highlights how the same broadcasters demanding prominence are failing to make streamed versions of their Freeview channels available to TV makers on the same terms that they provide them to their jointly owned Freely service.
If that practice was reversed, LG says it “could consider granting DTT IP channels a more prominent placement than other IP channels delivered via the LG Channels service”.
Samsung raised concerns about Ofcom’s proposals for how to treat apps from regional PSBs such as STV and S4C.
Noting that it operates the same user interface across the whole UK and cannot selectively target apps to users in specific regions, it says Ofcom’s proposals would therefore require it to display such apps within the first nine spots on all UK TVs, giving them “a level of prominence far beyond the audiences they are intended to serve.”
It adds: “In our view, such an outcome would go beyond the intention of the legislation and would not constitute “appropriate” prominence. Instead, it would require manufacturers to provide prime placement for services that most viewers cannot meaningfully use or want access to.”
Ofcom will set out its final code of practice and guidance after fully assessing all consultation responses.