Ofcom Broadcast Code Consultation

Well, I got something.

It's certainly not everything though. There's still quite a few points I'd like to make but I'm unsure of how (and where) to make them without complicating an already complicated reply. I still have to run through the previous reply from the broadcaster to make sure theres nothing in there i could be using but haven't. I know theres stuff in there, especially regarding main stream TV being not disimilar to the chat shows in that their programs are geared towards audience PRS participation. But its all long winded and theres a huge danger of just waffling and ranting about it
There's also some very dodgy interpretations of the survey results, so dodgy, that one bit could be an out and out lie. But, they don't ask any question in the response document that I can see where I can bring it up. So, the proper place might be in the comments section, or it might be through another part of the consultation procedure where you can comment on the procedure itself...i dunno.

Anyways...the important bit...just wtf *is* this thing about...

As I see it, there was a European judgement that said that certain quiz TV shows should be treated as advertising becuase they were simply selling a product. The entire reason for the judgement was to protect viewers and make a clear distinction between advertising and editorial content of broadcasts.
Ofcom then took the underlying principles behind this judgement and argued that these principles extend to Adult chat broadcasts and the pyschic TV shiznits too. They also said that in order to properly help to identify advertising from editorial content, such broadcasts must come under the advertising standards codes rather than the general broadcasting code.
The result of this reclassification would have been the immediate cessation of all unencrypted broadcasts of an adult nature.
The broadcasters argued, amongst other things, that Ofcom had no right to effectively ban these broadcasts simply as the result of a reclassification excersice and nothing more. They argued against reclassification but also argued that if they had to be reclassified, ofcom had a statutory duty to ensure the reclassification didn't result in an automatic ban and that the relevant regulations *must* be altered before the reclassification takes place.
Thus...we have this consultation document that is consulting on how the advertising standards code should be altered to accomodate these channels before reclassification.
It must be stressed that these regulations are not concerned with the level of content, just the type of content. This is not a fight for looser restrictions, only on how the channels themselves are broadcast.
Ofcom commisioned a survey into viewers attitudes towards these broadcasts and rightly identified the two 'principles' of 'control' and 'containment'. Basically, the viewing public, on the whole, respect the right for these broadcasts to exist, but do not want them rammed down their throats. Which is perfectly reasonable, in my opinion.
Ofcom have taken these two principles and identified two mechanisms which they say satisfy those principles. An 'Adult' section of an Electronic Program Guide and parental PIN control.
They then draw up proposed rule changes that only allow Adult chat broadcast on dedicated channels on broadcast systems that have an Adult section in an existing EPG. They then say that since the freeview platform has no such EPG, babeshows will be banned from freeview.
The specific set of rules are as follows...

Quote:Proposal for revised rule on PRS of a sexual nature in Advertising Code (to replace current rule 11.1.2)
Telecommunications-based sexual entertainment services are voice, text, image or video services of a sexual nature that are made available to consumers via a direct-response mechanism and are delivered over electronic communication networks.

1) Advertising for telecommunications-based sexual entertainment services is only acceptable on:
i) Encrypted elements of adult entertainment channels, or
ii) Channels that are licensed for the purpose of the promotion of the services and are appropriately positioned and labelled within an “Adult” or similar section of an Electronic Programme Guide.

2) Advertising for telecommunications-based sexual entertainment services must not be broadcast before 9pm or after 5:30am.

...and they've given us the oportunity to respond, which was nice.

Question 1a: Do you agree with Ofcom’s assessment of those stakeholders likely to be affected by changes to the regulatory framework for Adult Chat and Psychic PTV
No. Given the abundant methods available to viewers to avoid this material, our opinion is that, of the general public, only consumers and viewers of the specific broadcasts will be affected by any changes and only they should be consulted about those changes. General viewers are simply not affected by these programs to the extent they or Ofcom suggest and they should have no input into the regulations of these broadcasts.

Section 6.10 states “The complexity and relative unfamiliarity of the subject matter necessitated a semi-deliberative approach…”
The fact that the subject matter was relatively unfamiliar to the survey participants supports our view that they generally avoid these programs and should have no input upon their regulation.

Section 6.16 states, “Overall, there was a high level of awareness of participation services on TV, largely driven by Reality TV voting. Awareness of entire PTV channels such as Quiz, Gambling or Adult Chat or Psychic was lower.”

A7.19 goes further…”In the 2009 viewer research approximately half of the participants claimed to be unaware of Adult Chat PTV services. Of those who are aware of them, only half claim to have ever seen one of the channels…“
How can general viewers be affected by broadcasts that they are not even aware of?

Can't help feel this answer is a bit flippant. But it's a valid point and I can't think of a better way of saying it :/

Question 1b: Do you agree with our understanding of the industry and operators?
Absolutely not. Anyone who, whilst acknowledging the need for a sexual service, imposes such restrictions as the presenters of that service having to wear two pairs of knickers clearly has no clue about the service or the industry that supplies it.

I feel i need to say more here but I also feel I don't completely understand the question...

Question 2a: Do you agree with our analysis of the options available for regulation of the promotion of premium rate services of a sexual nature, and a) that on the basis of options, a change to the existing rules appears merited?
We do not agree that a reclassification of these broadcasts is merited.
We do not agree with the range of options presented.
We certainly don’t agree that the requirements for changes should result in the cessation of broadcasts simply because a change has occurred, as appears to be the case.

A bit of waffle (not sure an 'awareness campaign' is within ofcoms remit, but the purpose it serves certinly is)...

Question 2b: of the options presented, Option 4 meets the regulatory duties and suggests least potential impact on stakeholders?
Of the options presented yes, but the options presented, in themselves, fall far short of the requirements of the stakeholders most concerned. In short, We do not agree with any of Ofcom’s proposals. None of them offer a reasonable conclusion to this affair.

Far from reaching regulatory duties, We feel that in promoting option 4, Ofcom fails in an alarming number of its duties, specifically…
They fail to further the interests of the consumers of these products because the removal of Freeview Adult PRS services reduces competition across all platforms to all providers of all genres and types of programming.
They fail to further the interests of citizens by making proposals involving the broadcasting of potentially offensive material on unscrambled channels using relatively new and unfamiliar technology, without proposing any sort of awareness campaign in an effort to save citizens from potential offence.
This proposal actively works against Ofcom’s statutory duty to maintain the availability throughout the UK of a wide range of television services that appeal to a wide variety of tastes and interests as well as their duty to provide sufficient plurality of providers of different services.
In promoting this option, Ofcom fails to show regard for the principles that regulatory activities be proportionate, consistent and targeted only at cases where action is needed. They fail to show regard for the desirability of promoting competition and, in using debatable conclusions from their own survey results, they fail to show sufficient regard for the opinions of the consumers of these products and of members of the public generally.
By recommending option 4, Ofcom fails to show regard for the interests of consumers of Adult Freeview PRS in respect of choice, price, quality of service and value for money and are proposing to impose burdens that are unnecessary.

These proposals result in changes that directly contravene the Human Rights Act and thus, Ofcom’s statutory duties in that regard. Freeview Adult PRS broadcasters are exercising their right to freedom of expression in a commercial context that is deemed protected speech under article 10 of the European convention of human rights. Banning such broadcasts amounts to a serious infringement of previously and currently expressed free speech rights.
Ofcom have failed to show that their reasons for proposing restrictions be placed upon Freeview adult PRS broadcasters meet any of the criteria required for doing so that are specified in article 10 of the convention for human rights and thus, can provide no justification for restricting the rights to free speech of the broadcasters of Freeview adult PRS.

Even more waffle...anyone got any honey?

Question 2c: that the scheduling restrictions of 9pm to 5.30am and requirements for labelling and EPG position under option 4 offer appropriate protection for viewers?

No, We feel that the pre-show warnings, an on-screen warning icon, the channel numbering, the channel organisation facilities of digital receivers, the ability to delete channels from the listings of such receivers and the PIN protection that comes as standard on such receivers are more than adequate enough.

We feel that the scheduling restrictions are unmerited when applied to broadcasts on specific channels, an opinion that is shared by the survey participants.
Not one single person who agreed with broadcasts on dedicated channels added the requirement of ‘must not be broadcast before certain times’, despite it clearly being offered as an option.
The only people that wanted scheduling restrictions, applied that requirement to broadcasts on mainstream or none dedicated channels ONLY, not to dedicated channels, as Ofcom are suggesting.
There is no need for, and no consumer requirement for, broadcasts on dedicated channels to be subject to a ‘watershed’, especially the current, sliding watershed that Ofcom made up.

The survey conducted by Ofcom suggested very strongly that the overwhelming view of the participants was of ‘live and let live’ with the majority understanding that there was a requirement for these services. Ofcom has itself acknowledged the need for these services to be broadcast and identified the two principles of control and containment that should guide any service restrictions. The proposed EPG requirements would mean, on their own, the cessation of Adult Freeview broadcasts, which would leave only those able to afford satellite systems able to access the services. This is inherently unfair, favours the more affluent sectors of society, is unnecessary, fails to understand the views clearly expressed by the majority of survey participants and misunderstands the principles of control and containment when applied to digital broadcasts.

The options presented to the survey participants, “Must only be on a dedicated TV channel in the Adult section of the EPG” and
“Must not be carried on Freeview “, were, in our opinion, chosen by the participants because they reflect the view that these broadcasts should be available to those that want them, but they should not be thrust upon those that don’t want them.
There is evidence to support this view when you see that, when the option ‘Must not be carried on Freeview’ was chosen, the participants offered, unprompted, the addition conditions that this should be the case only if there wasn’t a genre driven EPG and parental PIN controls weren’t available.
We believe the essence of these additional requirements is that viewers wish to be able to separate this content from their normal channels and have the option of removing access to them altogether. This is ultimately to ensure that any viewing of these channels is desired and not accidental. We believe the reason why these two mechanisms were mentioned and no alternatives were offered was due to pre-prompting. Specifically, these mechanisms had been discussed and so were prominent in the participants minds. Certainly, no other mechanism or options for separating content based upon genre were discussed. We believe that if other control methods were discussed, these methods might well have been offered by the survey participants as valid methods of control and thus, would have removed any objections they have about Freeview broadcasts.

We believe Ofcom has made the mistake of assuming that ONLY an Adult section of an EPG can achieve the essential viewers requirement for the separation of genres. In that…
The separation of genres is easily and readily achieved by the use of channel sorting mechanisms, such as the ‘favorites’ list, which come as standard with all DVB-T receivers. Indeed, it might be argued that the normal order in which these channels are delivered, the number of channels and the diversity of their contents would necessitate their ordering before the viewer could expect a comfortable viewing experience. Normal viewing habits in the digital environment, combined with the new channel numbers, ensures control and containment of these channels. They simply won’t be on the surfing list of those that don’t want to view them. This is the situation that exists today, as witnessed and acknowledged by the survey participants and highlighted by the insignificant amount of complaints Ofcom has received regarding the current broadcasts.
All digital receivers allow for individual channels to be permanently deleted from the stored channel line up. Ensuring these channels can NEVER be accessed, if so desired by the viewer. Minors and the vulnerable simply have no reason to be concerned over adult Freeview PRS broadcasts. The ability to delete channels, in itself, satisfies Ofcom’s identified principles for the regulation of Adult entertainment PRS broadcasts, namely, control and containment.

Each of these two mechanisms negate the need for a specific adult section of an EPG and, together with the PIN controls available on all digital receivers, enable Ofcom to fulfill it’s obligations with regard to harm and offence without the need to impose unnecessary restrictions that ultimately mean the cessation of broadcasts of this nature on the Freeview platform.

All of question 3 is regarding the bullshit channels only and doesn't concern our lovely babeshows.
This fucking pisses me off this does, they rabbit on all the way through about 'short form' advertising and 'long form' advertising. It complicates matters to a great degree all the way through the survey and they bring it up and number of times in the consultation itself, including identifying short form advertising in one of their 'principles'...

...they then draw up regulations that make NO distinction between the two!
I had a go at what they said over the short form version anyway, even though it makes no difference...

Question 4a: Do you agree with the principles identified for changes to the Advertising Code rules on promotion of PRS of a sexual nature (rule 11.1.2) and psychic practices (rule 15.5)?

We do not. These principles include ‘Spot advertising or short form promotion of adult sexual entertainment PRS and live psychic services should not be available on any open access TV channel.’
Ofcom have provided no justification for this stance. The viewers survey showed the majority of people to be unconcerned about this material being broadcast on dedicated channels. They expressed similar attitudes towards short form as they did towards long-form. It is unclear why this principle effectively allows one form but not the other.

Section 1.4 states…”We consider that, in order to protect against the risk of offence, the revised rules should reflect the principles identified under option 4: that promotion should only be allowed on channels that are licensed for the purpose of promotion of the relevant PRS service and appropriately positioned and labeled within the relevant section of an Electronic Program Guide (EPG).”
How does a total ban on short form advertising fit in with the principles laid down under option 4? Just where in fact does the proposed ban on short form advertising on dedicated channels come from?
Section 6.25 states…”Most participants were against the idea of short form promotion of adult sexual entertainment PRS in spot advertising, primarily because it would directly conflict with their desire for control and containment of promotion. The vast majority of participants did not want any short form promotion on Channel 3, Channel 4 or Five or other general entertainment channels. By far the most acceptable route for short form promotion on TV was promotion on a dedicated Adult TV channel in the ‘Adult’ section of the Electronic Programme Guide (EPG). “
So people are not against spot promotion on dedicated channels, they just don’t want it rammed down their throats when they’re watvhing main stream television, exactly the same sentiments they expressed over long-term promotion.
We cannot see a reason why short form promotion should be treated any differently than the long form type. We cannot see why this principle has been identified, when the resulting rule change makes no distinction between long and short form advertising.

“The scheduling of adult-sex content post watershed “ Is identified as an existing rule that needs to be considered for the new rules. Yet, the survey showed that this was not a concern for people, as long as the two principles of control and containment are met. We believe that there are sufficient mechanism for control and containment without the need for scheduling restrictions.

“Teleshopping or long form promotion of these premium rate services should be available only on dedicated Adult chat PTV and Psychic PTV channels that are clearly labelled and positioned in an appropriate EPG section.”
We do not agree that an appropriate EPG section is necessary to satisfy the principles of control and containment specified by the British public.
Section 8.8 goes on to state “These restrictions are to limit the risk of offence to general viewers, and particularly minors, from promotion of these services and their accompanying promotional content where there is no prior expectation, context or warning of them and where they cannot be reliably avoided, controlled or blocked by viewers. “
The key phrase we would like to point out is….”Where they cannot be reliably avoided, controlled or blocked”
Digital receivers allow users to delete channels from the listing and therefore, the very fact these products are broadcast using digital technology allows them to be reliably blocked, controlled and thus, easily avoided.
The EPG requirements are simply not necessary.

Question 4b: Do you agree with the wording of the proposed rules? If not, please suggest alternative wording.

We would change rule 1 to :

Quote:1) Advertising for telecommunications-based sexual entertainment services is only acceptable on:
i) Encrypted elements of adult entertainment channels, or
ii) Channels that are licensed for the purpose of the promotion of the services and are appropriately positioned in the channel listing.

We would omit rule 2 altogether.

Simples

Thanks to the Dark Night for the detailed comments and model answers to the consultation. It'll take a while to digest them. When replying to consultations like this, where possible I try and cross-reference specific sections of the enabling legislation (the Broadcasting Act and/or EU regs), which makes it harder for Ofcom to wriggle out of a point. Measured, well argued points like yours are far more likely to be taken seriously than emotional and sometimes abusive responses like the religious replies to Broadcast Code Consultation.

(09-11-2009 00:43 )TheDarkKnight Wrote:  More importantly...

"if a country objects to the content in a foreign television broadcast which is wholly or mostly directed to it, it can use a consultation procedure (cooperation procedure) to address the country of origin.
...
So, all the broadcasters have to do to get the issue into the European courts is to get naughty on freeview, then sit back as Ofcom takes the issue to the European commission at the taxpayers expense?

Er, no. The word "Court" is not used. The Commission decides - civil servants who may bend to the political expediencies of the day and who are headed up by non-elected politicians on fixed term contracts who don't have an automatic job lined up.