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Ofcom published a draft Code on Electronic Programme Guides on 16 January 2004, setting out its proposals for giving effect to the requirements under section 310 of the Communications Act 2003 and for securing fair and effective competition in accordance with section 317.

A significant number of bodies and individuals responded to the consultation, and we considered all the comments carefully before finalising the Code at Annex 1 (in PDF copy). Those comments which were not confidential have been posted at http://www.ofcom.org.uk/consultations/responses/epc/?a=87101. Ofcom's response to those comments is summarised in Annex 2 (in PDF copy). We have also supplemented the regulatory impact assessment in the light of additional and updated information, and this is set out in Annex 3 (in PDF copy).

The Code sets out requirements on EPG providers to provide information for viewers with hearing and / or visual impairments on how to use the EPG, and to promote awareness amongst such viewers of the information and facilities available on the EPG relevant to them. EPG providers are expected to work with disability groups, broadcasters and set top box manufacturers on ways of improving the usability of their EPGs by viewers with hearing and / or visual impairments over time, and to this end, to publish annual statements of what they are doing, and what plans they have for further improvements.

The Code also requires EPG providers to devise arrangements for giving appropriate prominence to public service broadcasters that are objectively justifiable, and to publish them. They are also required to publish and comply with an objectively justifiable method of allocating listings for other channels, as part of broader obligations to deal with channels listed on their EPGs in a fair, reasonable and non-discriminatory way.

Fair, reasonable and non-discriminatory treatment

Ofcom explained in the consultation document that almost all Broadcasting Act licences include a condition requiring licensees to ensure fair and effective competition (imposed under section 316 of the Act). The condition requires licensees (amongst other things) to abide by any code published by Ofcom for the purposes of the condition. The section of the code entitled 'Fair, reasonable and non-discriminatory treatment' at paragraphs 14 to 16 is such a code for the purposes of the condition and includes rules that require licensed EPG providers to deal with television channels included on the EPG in a fair, reasonable and non-discriminatory (FRND) way. The reason for this, as presented in the consultation document, is that discriminatory treatment of a channel in terms of listings or presentation would constrain its ability to compete effectively with other channels for audience share and advertising revenue, and would thus be prejudicial to fair and effective competition.

As required by section 317(2) of the Act, before exercising its Broadcasting Act powers for a competition purpose Ofcom considered whether it would be more appropriate to deal with any unfair, unreasonable or discriminatory treatment that did arise under the Competition Act 1998.

In particular Ofcom considered that ex ante rules would be more appropriate, for the following reasons:

(a) the code would provide continuity, given the ITC's EPG code (applying to most EPGs before 29 December 2003). This is consistent with the policy objectives made clear to Parliament, that Ofcom should have the same flexibility to ensure fair and effective competition as its predecessors;
(b) the code would provide clarity both to EPG providers and channels of the practices to be followed, in the absence of a body of precedents in competition law in the broadcasting sector. This is a significant point given the likely entry of new EPG providers on the digital terrestrial platform;
(c) the code would allow Ofcom to issue directions to cease behaviour that would be prejudicial to fair and effective competition without the necessity to demonstrate abuse of a dominant position. By contrast, reliance upon ex post Competition Act powers would require Ofcom to demonstrate abuse of a dominant position before it could seek remedies; and
(d) licensees would retain the right of appeal to the Competition Appeals Tribunal against a decision made by Ofcom under those rules relating to fair and effective competition.

Exercise of Broadcasting Act powers for a competition purpose

Having considered in the consultation document whether it would be more appropriate to deal with any unfair, unreasonable or discriminatory treatment that did arise under the Competition Act 1998, and having given careful consideration to the representations made in relation to the FRND requirements of the code, Ofcom maintains its view that broadcasting licensees should be required to comply with the FRND requirements set out in the code.

Imposing these requirements amounts to an exercise by Ofcom of its Broadcasting Act power set out in section 317(1)(b) of the Act, to give an approval to a code for the purposes of the licence condition made under section 316 of the Act.

Ofcom is exercising its Broadcasting Act powers for a competition purpose in that the only or main reason for imposing the FRND requirements of the code is to secure that licensees do not enter into or maintain arrangements or engage in a practice which Ofcom would consider to be prejudicial to fair and effective competition in the provision of EPGs.

As Ofcom has decided to exercise its Broadcasting Act powers for a competition purpose Ofcom hereby gives notice of its decision (as required by section 317(4) of the Act). Further, as required by section 317(5) of the Act, Ofcom wishes to draw attention to the right of those affected by this decision to appeal against this decision to the Competition Appeal Tribunal.

Alternative formats

A copy of this document in a format suitable for use by screen readers has been posted on Ofcom's website. Ofcom can provide consultation documents to individuals in alternative formats (e.g. Braille, audiotape or large print) on request. We may also provide translations of documents into languages other than English. 'To request a non-standard version of this document, please contact the Ofcom Contact Centre at contact@ofcom.org.uk, or by telephone on 0845 456 3000 or by textphone at 0845 456 3003.. Please note that the time needed to produce an alternative format document will depend on the length of the document.

26 July 2004

STATEMENT: Code on Electronic Programme Guides - RTF

• Statement on Code on Electronic Programme Guides [pdf]

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