UK Media Act 2024: Implementing PSB Prominence

Prominence under the Media Act 

Prominence of PSB content was perhaps the most significant policy impetus behind the Act, with strong cross-party support for establishing legal backing for PSB prominence in the streaming age. The Act achieves this through the following structure: 

• DIPS: qualifying PSB services (e.g. BBC IPlayer, ITVX and other PSB apps and content) will be designated as “Designated Internet Programme Services” (or “DIPS”)
• RTSS: certain television selection services (ie connected TV platforms used by viewers to select TV content and apps) will be designated as “Regulated Television Selection Services” (or “RTSS”) most likely based, amongst other factors, on the number of active users (see more below) 
• Must offer / must carry: The PSBs will have an obligation to offer their DIPS (“must offer”), whilst RTSS have an obligation to carry each DIPS (“must carry”). This sits alongside a duty on the RTSS to give an appropriate degree of prominence to any DIPS that it carries. 
• Agreement objectives: Bringing the must offer and must carry obligations together, the PSBs and RTSS will have to negotiate the carriage of DIPS to achieve what are called “agreement objectives”. These agreement objectives are defined as: 
  1. ensuring an appropriate degree of prominence for the DIPS; 
  2. not adversely affecting the PSBs’ ability to achieve their public service remit; and 
  3. not disproportionately restricting the RTSS’ ability to innovate. 

To support this, Ofcom will publish guidance for how the “agreement objectives” may be achieved, as well as a code of practice setting out recommendations for how RTSS should comply with the duty to achieve an appropriate degree of prominence. These are not mandatory as such – a failure to comply with the code of practice does not necessarily mean a breach of the prominence duty – but compliance with the code means that the RTSS is deemed to comply with the Act’s prominence duty. 

Selecting the selectors 

A television selection service will be designated as an RTSS by regulations issued by the Secretary of State. However, there are two preceding steps:

• first, Ofcom must set out the principles and methods that it will use to recommend the scope for designation of a service; 
• second, based on these principles and methods, Ofcom must issue a report to the Secretary of State setting out its recommendations. Ofcom can update this report from time to time, or be requested to do so by the Secretary of State. 

Ofcom’s first published statement set out the principles and methods that it will use, with the number of active users the key criterion. The exact threshold has not yet been proposed, however, and will be subject to a further consultation that will also look at Ofcom’s specific recommendations for designation. 

Pending confirmation of this threshold, another question is how to define what constitutes a “service,” which is at the root of what can be considered to be a television selection service under the Act. 

Defining “service” has been a challenge for commercial lawyers ever since the advent of on-demand TV and internet distribution: certainty and clarity need to be balanced against the need for flexibility to adapt for changes in technology, branding, and distribution. 

This issue is also relevant in regulation. Ofcom’s consultation acknowledges potential uncertainties, for example when an operating system is licensed to multiple hardware vendors or available in different versions. Will the different versions each constitute a separate service, or will they all form part of the same service? This could make a big difference to whether a “service” has crossed the active user threshold for becoming a regulated TSS. There could also be issues about whether a section of a different service (such as a programme service) itself qualifies as a TSS. 

It's unlikely to be possible to give a clear-cut view on this in advance, meaning that there is potential for challenge and debate between providers and Ofcom (and/or the Secretary of State) when determining which services will be regulated. 

How prominent is prominent? 

More broadly, there are two key inter-linking questions about what “prominence” will actually look like: 

1. How prescriptive will Ofcom be in defining prominence? 
2. What is the interaction between Ofcom’s view and the must offer/must carry negotiation between PSBs and TSSs? 

As outlined above, the Code of Practice acts as a safe harbour, giving assurance for TSS providers seeking certainty in compliance; it can also be updated by Ofcom over time. These features of the Act’s structure give Ofcom the opportunity to design the Code practically, for example by considering how (if at all) prominence should apply in recommendation functions or genre rails. 

In contrast, the “agreement objectives” seem likely to remain as higher-level principles. The Act envisions substantive must offer/must carry negotiations, allowing PSBs and TSS providers to negotiate bespoke arrangements without being constrained by overly-prescriptive objectives. Ideally this flexibility would leave the room for PSBs and TSS providers to find win-win arrangements without being too constrained by the threat of regulatory intervention.

A less prescriptive approach to the agreement objectives does of course leave a risk that parties might not reach agreement. However, the Act includes extensive dispute resolution provisions, with Ofcom ultimately having the power to impose terms and conditions. Ofcom’s guidance on exercising these backstop powers (which Ofcom has said it will consult on towards the end of 2025) will therefore be the final piece in understanding the regulatory framework.

Authored by Oliver Wilson.