Closed consultation

Regulation of additional electronic programme guides: consultation document

Updated 10 November 2023

This was published under the 2022 to 2024 Sunak Conservative government

Executive summary

The UK’s creative industries are a global success, with thriving broadcasting and production sectors and UK content in high demand. UK audiences are able to enjoy a huge amount of high-quality programming from a range of providers, including our world-renowned public service broadcasters that deliver distinctive yet instantly recognisable British content, and also increasingly from international providers and distributors.

The government is committed to ensuring that this ecology continues to thrive, including by considering how policy should evolve given a backdrop of rapid technological change and shifts in the way that audiences access television content.

Broadcast television in the UK is subject to a system of regulation overseen by the independent communications regulator Ofcom, which is key to ensuring protections for audiences. This regulation ensures that regulated television channels available in the UK abide by a common set of rules and standards in relation to the programmes they show. This protects audiences from potentially harmful material and allows them to have confidence that they, and those that they are responsible for, can enjoy linear television safely.

Over the last century, the number of channels available in the UK has increased significantly – from a single channel in 1922 to several hundred today. This trend has been recently accelerated by the increasing availability of internet-delivered linear television, known as internet protocol (IP) delivered television. For example, Sky’s newest product Sky Stream delivers content via the internet, compared to Sky Q that delivers its services via satellite.

Under the amended Communications Act 2003, in general only channels that appear on regulated electronic programme guides (EPGs) are subject to UK regulation. Which EPGs are regulated in the UK is described in legislation and under this description these currently are Freeview, Freesat, Sky, Virgin Media, and YouView. This list of regulated EPGs means that many of the newer EPGs and channels utilising IP technology are unregulated and can be easily accessed by audiences on their television sets. While millions of people still choose to watch television through the traditional regulated EPGs, there are increasingly significant numbers of UK viewers accessing linear television channels and content via television sets that can be connected to the internet. Data suggests that the UK has a high proportion of these kinds of televisions, with smart televisions already in as many as 74% of UK households.

This shift is transforming the way that audiences access television, with many new services now delivered via the internet. This evolution of distribution means that there is greater choice for consumers in how they access linear television content and that there is more competition within the market for delivering services, allowing for new and innovative services to emerge.

Many of the larger providers of unregulated EPGs have voluntarily put in place terms and procedures to protect audiences from harmful content, which may result in some comparable levels of protection as the regulated EPGs while incurring lower administrative costs for the providers.

However, the introduction of these newer unregulated and self-regulated guides has resulted in a clear regulatory gap within the existing statutory regime, which could result in inconsistent protections for audiences and limited options for independent complaints handling. This also means that guides do not have to ensure other benefits for audiences like prominence for public service channels and accessibility for people with disabilities.

The government is therefore concerned that the combination of the defined set of regulated EPGs and the growth of new, IP delivered services means that there is increasingly a lack of regulation. UK audiences being able to access unregulated EPGs means there is an increasing number of linear television channels and services that are not regulated by Ofcom and to the standards audiences in the UK expect. This has the potential to cause harm, especially for children and vulnerable audiences, with no statutory protections on these unregulated services.

The lack of protections in place for these unregulated services mean that there is a range of potentially harmful content that could be shown on television with no independent recourse for action to be taken. This includes content that would be unsuitable for younger audiences that are available during the day, that would need to be shown after the watershed if regulated, such as those that include swearing, violence, and sexual content.

Moreover, an inconsistent application of statutory regulation means that EPGs delivering similar – and often competing – services do not currently have to comply with the same statutory requirements. This means that there is not currently a fair competitive environment between providers.

Given the landscape of changing technology and the increasing risk to audiences of unregulated content appearing on television, the government believes that legislation is required to update the EPGs that are regulated in the UK. The government is therefore consulting on whether and how to use existing powers that allow it to update which EPGs are regulated in the UK.

Any regulatory change will need to be proportionate to ensure freedom of speech is not stifled. This country has a long and proud tradition of striking the balance between protecting people - particularly the young and vulnerable – while protecting freedom of expression and the UK’s independent and free media. This consultation will be carried out in the same spirit. As we take this work forward we will therefore ensure that any new framework must effectively balance the need to protect audiences, the need to ensure that regulation is not unduly burdensome on industry, that ongoing regulation must respect media freedoms, and that it must not discourage competition and innovation.

This consultation seeks views on whether and how the Secretary of State should exercise this power, and seeks views on a proposed approach.

In summary, the government is consulting on:

1. The impact of regulating EPGs.

2. The proposed approach for defining which EPGs should be regulated.

Responses from all individuals or organisations on the specific consultation questions and content of the consultation document are welcome.

The consultation will close on 29 November 2023 at 23:45 BST.

This consultation does not include wider considerations about the future of television distribution and does not seek responses on existing broadcasting standards themselves, nor on changes to how television or public service broadcasters are funded or regulated, including proposed changes under the draft Media Bill. This consultation will also not cover advertising standards or the regulation of video-on-demand services. Responses on these issues will not be considered as part of this consultation.

A summary of in-scope responses submitted to this consultation and the government’s response will be published in due course, following the closure of the consultation.

1. Changing television landscape

1.1 Delivery and consumption of television content

In recent years there have been significant shifts in the way that audiences consume television content, with rapid changes in technology and the entrance of global players to the UK market. This has resulted in more competition and innovation, and consumers now have more choice than ever when deciding how and what to watch. While consumers have welcomed the arrival of video-on-demand services in the UK and the convenience it offers, linear television remains extremely popular for millions of households in search of news, entertainment, or something new to watch. In 2022, live broadcast television made up the largest proportion of the time that people spend watching video content, accounting for 44% of total video viewing across all devices.

Audiences can access linear television content through an ‘electronic programme guide’ (EPG).

Box 1: Definition of an electronic programme guide

‘Electronic programme guide’ is the legal term for any service that both:

• lists and/or promotes the television programmes of one or more third party channels, and

• provides a way to access those channels^{[footnote 1]}

Traditionally, EPGs have taken the form of numerical channel listings that viewers can select between. To allow the viewer to make a choice about which channel to watch, these guides generally provide information about programmes ‘on now’ or ‘up next’.

In recent years, guides have started providing more sophisticated features, such as search and recommendations, either alongside or instead of channel listings.

Increasingly, user interfaces may provide access to programmes available on-demand as well as linear, combining their function as an EPG providing access to linear content with that of a video-on-demand service. Examples of these kinds of combined services include Freevee or Pluto TV.

As the market and technology changes, there are an increasing number of EPGs available and easily accessible to UK consumers on their television sets. Desk research has identified at least 24 EPGs that UK audiences can access or download via their television sets and use to watch linear television. The vast majority of these offer access to more than fifty channels. Some services are platform specific and can only be used on certain hardware, while others can be used on a range of devices. The majority of these EPGs are recently established, unregulated services, but they are still accessed collectively by millions of viewers.

Some of the more traditional EPGs are delivered over digital terrestrial television (DTT) or satellite, while newer unregulated services are typically delivered over the internet. This shift towards internet delivery is transforming the way that audiences access television.

As well as more EPGs, there are also many more channels that UK audiences can easily access. Over the last century, the number of channels available in the UK has increased from a single channel in 1922 to several hundred today. Some of these channels appear only on one EPG, while many can be accessed from multiple EPGs.

This growth in the number of channels appears to be accelerating due to the increasing availability of channels delivered over the internet, known as internet protocol (IP) delivered television. These channels combine the convenience and choice of modern internet-enabled platforms with the familiarity of linear television.

Data suggests that the UK has a high proportion of televisions that are connected to the internet, with some research showing that smart televisions are already in as many as 74% of UK households. We therefore expect that the vast majority, if not all, of these households have the ability, if not necessarily the inclination to access EPGs and channels that are currently unregulated.

As part of this growth in internet delivered television there has been a particularly rapid increase in the number of free ad-supported streaming television (FAST) channels available internationally. Many of these channels show similar programmes and adverts to traditional licensed broadcast channels on platforms like Freeview and Freesat.

The UK market for FAST is growing particularly quickly, with a number of high-profile FAST channels having recently emerged and taken up by UK consumers. Research shows that UK FAST channel revenue increased by 180 times between 2019 and 2022. Larger global FAST services – including Samsung TV Plus, LG Channels, Amazon Freevee, and Pluto TV – are already starting to attract significant numbers of UK viewers. For example, Ofcom’s Media Nations 2023 reflected that 8% of individuals over 13 surveyed in February 2023 said they had used Freevee in the past 3 months, and 3% had used Samsung TV Plus. Research suggests that this trend in the use of FAST is expected to continue to grow, with forecasts predicting that the UK FAST channel revenue will quadruple in the next 4 years.

Providers of traditional EPGs that are already regulated are adapting to this changing consumption and delivery of content. For example, Sky’s newest product Sky Stream delivers content via the internet, compared to Sky Q that delivers services via satellite. Everyone TV, which provides Freeview and Freesat, has recently announced a new service, called Freely, set for launch in 2024 and which will be built-in to the next generation of smart TVs and feature a line-up of public service broadcaster content and other free-to-air channels designed to replicate the terrestrial TV experience.

This changing distribution and consumption of television means that there is greater choice for consumers in how they access linear television content and that there is more competition within the market for delivering services. The growth and delivery of these new EPGs and channels is overall positive for consumers. This competition encourages new and innovative services to emerge, which are likely to provide better and better user experiences for consumers.

For the purposes of this consultation and the regulation of EPGs, FAST channels are a type of internet delivered television channel and would be captured under regulation if shown on a regulated EPG. However, services that only give access to a provider’s own channels (with no access to third party content), like ITVX currently does, or exclusively to programmes on-demand rather than live, are not EPGs and therefore do not come within scope of this proposed regulation.

1.2 Wider policy landscape

As a result of the rapidly changing technology and ways in which audiences consume content, the regulation of EPGs sits within a wider context of changes to the broadcasting landscape.

This includes proposed updates to the broadcasting and on-demand regulatory framework, set out in the draft Media Bill. As part of this, the government is giving Ofcom powers to draft and enforce a new Video-on-demand Code, aimed at larger TV-like on-demand services. This will be similar to the Broadcasting Code, which sets out appropriate standards for content on linear television, including rules on harmful or offensive material, due accuracy and due impartiality in news, and fairness and privacy.

This policy has similar objectives to updating the regulated EPG services in the UK. The changes to video-on-demand regulation will similarly mean that TV-like content, no matter how audiences choose to watch it, will be subject to similar standards. UK audiences will be better protected from harmful material and able to complain to Ofcom if they see something they are concerned about. The Media Bill will also align video-on-demand requirements for accessibility services (subtitles, audio description, and signing) with existing requirements in place for broadcasters. This will similarly ensure that audiences with hearing loss and sight loss will be able to enjoy content consistently, regardless of where they choose to access it.

The draft Media Bill also intends to legislate so that public service content provided by the public service broadcasters is made available and given protected prominence across major online television platforms, referred to as ‘television selection services’. Giving online prominence to designated internet programme services (for example, apps on a television set) operated by our public service broadcasters builds on existing prominence requirements for public service broadcast channels on regulated EPGs. This means that high quality public service content will remain discoverable and easily accessible to UK audiences on their televisions despite the rapid evolution in content distribution. This will involve prominence rules being in place for regulated television selection services as they are for regulated EPGs. Other similar rules like accessibility for those with disabilities will be put in place for regulated television selection services, as is the case for regulated EPGs.

The government recognises, given the increasingly integrated nature of services providing content, that a user interface may provide audiences access directly to live television channels simultaneously with on-demand content and third-party applications. In designing the regime for the regulation of television selection services, it is expected that a service could deliver an EPG as part of a television selection service. The nature of the objectives for the regulation of these services are similar, around ensuring existing regulatory frameworks are updated to reflect the evolution of television distribution. The government therefore considers that given these similarities, a service could be effectively regulated by Ofcom as both a television selection service and as an EPG. Codes of practice by Ofcom will be clear around how both these regimes will work in practice and what happens where they intersect, and will be proportionate in ensuring that services can reasonably comply with both regimes.

More widely, with the changes in technology and viewing habits, there are ongoing considerations about the future of television distribution in the UK. For example, as technologies develop and the affordability and availability of different transmission models change, the ways in which audiences choose to consume television content, and the ways in which providers choose to deliver that content, will continue to evolve. The government remains committed to the future of digital terrestrial television (DTT), the technology which underpins Freeview. Millions of households across the UK rely on DTT, particularly rural communities and older people. The government also recognises the crucial role that DTT services play in the wider UK broadcasting system, in particular in helping ensure that public service content continues to be widely available and free-to-air to all audiences. For these reasons, the government has legislated to secure continuity of DTT until at least 2034 (subject to a spectrum management ‘break clause’).

As the sector evolves, it is right that we continue to evaluate the future distribution of television services. To support this, as set out in the Broadcasting White Paper, the government has asked Ofcom to continue to track changes in DTT viewing and to undertake an early review, before the end of 2025, on market changes that may affect the future of content distribution over the next decade and beyond. This will inform the government’s wider work looking at the future of television distribution in the UK beyond 2034.

Before any decisions about the future of terrestrial television are made, close consideration will be given to how any changes would impact audiences, and especially those who rely on DTT as their primary means of watching television.

This consultation should be considered in this context of a broader landscape of regulatory change and the future of television distribution. In the longer term, consideration will need to be given to how the sector is evolving and whether further changes to the regulatory framework may be required that take into account these changes in the delivery and consumption of television content.

This consultation on the use of existing powers to regulate additional EPGs does not consider changes being made to the regulatory framework through the Media Bill, or the broader considerations about the future of television distribution.

2. Current UK broadcasting regulatory framework

2.1 Legal context for regulation

Ofcom is the UK’s independent regulator for broadcasting, and is the body that regulates EPGs and television channels. Ofcom’s duties as a regulator are set out in the Communications Act 2003, the Broadcasting Act 1996, and the Broadcasting Act 1990. This includes, for example, its duty to set standards for the regulation of television and radio programmes as appear best calculated to secure the standards objectives set out in the Communications Act 2003. In fulfilling this function, Ofcom has drafted these standards in light of other relevant legislation such as the Human Rights Act 1998 and the Equality Act 2010. Ofcom’s regulation ensures that licensed EPGs and television channels available in the UK must abide by a common set of rules and standards in relation to the services they deliver and the programmes they show.

While the UK was a member of the European Union (EU), the Audiovisual Media Services Directive (AVMSD) determined the basis for the UK’s broadcast licensing framework. This European legislation is based on a ‘country of origin’ principle, which means that linear television services can broadcast across the EU provided they comply with the rules of the country that has jurisdiction over the service.

Since the UK left the EU, the UK has been able to decide on its own approach to regulation of television services, while continuing to respect international commitments like the European Convention on Transfrontier Television (ECTT).^{[footnote 2]}

In preparation for the UK’s exit from the EU the government updated the system for broadcasting regulation in the UK. On 31 December 2020 the EPGs that had been subject to UK regulation at that point were described in UK legislation as ‘regulated electronic programme guides’. These regulated EPGs are Freeview, Freesat, Sky, Virgin Media, and YouView. They typically provide listings for 100 or more channels and, collectively, are available in millions of households across the UK.

Section 211A of the Communications Act 2003, therefore now provides the legal framework for the regulation of EPGs and channels. Since leaving the EU, whether a channel is regulated in the UK is determined by whether it appears on a regulated EPG.

Box 2: The definition of a regulated electronic programme guide

A regulated EPG is defined under section 211A of the Communications Act 2003 as:

• any EPG that was already regulated in the UK on 31 December 2020

• any guide provided by a person designated by the Secretary of State by regulations or by a person having a prescribed connection with a person so designated, and

• any guide falling within a description prescribed by the Secretary of State by regulations

All other EPGs are unregulated.

This consultation is focussed on the second and third parts of this definition, where the Secretary of State has powers to bring new EPGs under the existing broadcasting regulations in the UK by designating or describing services for inclusion.

A small number of channels are regulated in the UK regardless of whether they appear on a regulated EPG. This includes television broadcasting services and certain channels within the jurisdiction of the UK under the ECTT. Conversely, some channels (‘exempt foreign services’) are exempt from regulation in the UK, even if they appear on a regulated EPG. These are RTÉ1, RTÉ2, TG4, and services provided within the jurisdiction of an ECTT state other than the UK. In addition, with the exception of any subsidiary companies, the BBC and S4C are not required to seek broadcasting licences for their services. The regulation of these channels is outside the scope of this consultation.

Parliament has also put in place a number of specific restrictions that prevent or restrict certain types of bodies from holding some or all broadcast licence types. This includes, for example, political bodies and local authorities. Consequently, any channels provided by these bodies are prohibited from appearing on regulated guides.

2.2 Regulatory requirements for channels and EPGs

The regulatory system for broadcasting in the UK is world renowned and is often looked to as an example of a system of fair, proportionate, and independent regulation of content. These broadcasting regulations mean that UK audiences are rightly confident in the standards of the content that they enjoy, and that they will be appropriately protected from harmful programming. There is an important balance to be achieved to ensure that the protections in place for audiences do not impact on the UK’s free and independent media, where freedom of expression is not unduly impeded by the regulation of content standards. In fulfilling its duties, which include applying standards that give audiences adequate protection from harmful material, Ofcom is required under section 3 of the Communications Act 2003 to do so in such a way that best guarantees an appropriate level of freedom of expression. This section of the Communications Act 2003 also sets out that in performing their duties, Ofcom’s regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.

Requirements for regulated channels

Aside from some specific caveats set out in more detail at Section 2.1 above, as part of this regulatory system, channels that audiences can access by means of a regulated EPG must seek a broadcast licence from Ofcom. These licensed channels must fulfil several obligations, which include:

Licensed channels must comply with Ofcom’s Broadcasting Code, which sets audience protection standards for all content shown on the channel. This includes, for example, rules to protect under-18s, rules on harmful or offensive material, materially misleading content, and rules requiring due accuracy and due impartiality on news content. This means that audiences can complain to Ofcom if they have seen something they are concerned about, and Ofcom can choose to investigate and take action that it considers appropriate.

The provider of a channel must also be assessed by Ofcom as fit and proper to hold a licence. The provider must have procedures in place to handle communications and complaints from viewers, as well as managing content standard complaints and fairness and privacy complaints. Licensed services must also meet obligations relating to equal opportunities and training to support increasing diversity in the television broadcasting sector. Further detail on the requirements for regulated channels can be found in Ofcom’s guidance for television broadcast licensees.

Ofcom licensed channels appearing on a regulated EPG also have to comply with accessibility requirements, as set out in Ofcom’s Code on Television Access Services. This requires that within 10 years of becoming licenced, 80% of programmes are subtitled, 10% are audio described, and 5% are presented in (or translated into) sign language. These regulations rightly ensure that television content can be enjoyed by the widest audience possible. To ensure that these requirements are proportionate, Ofcom is able to introduce exemptions from compliance with these requirements based on factors like cost, technical feasibility, and audience benefit. Exemptions ensure that where compliance with accessibility rules would have a disproportionate impact, and possibly even affect a services’ ability to deliver, the requirements can be lessened or removed.

Requirements for regulated EPGs

Those EPGs falling under the definition of a ‘regulated EPG’ must also seek a broadcast licence from Ofcom. In addition to only providing access to appropriately licensed channels, the providers of regulated EPGs must themselves comply with certain obligations, which include:

Giving appropriate prominence to designated public service channels, which include BBC channels, ITV1, STV, Channel 4, Channel 5, S4C and local television services.

EPGs must provide assistance to users with hearing and/or visual disabilities. This includes adjustments such as providing information about which programmes provide access services (subtitles, audio description, signing) and additional adjustments that providers should make reasonable endeavours to secure such as allowing users to select a ‘high contrast’ display.

Under Ofcom’s code of practice on EPGs, regulated EPGs must also ensure fair, reasonable and non-discriminatory treatment for the channels that appear on their guide, for example ensuring that agreements with broadcasters about channel listings are fair and non-prejudicial.

In this way the regulation of EPGs provides protections for audiences against harmful content, additional benefits in how content is presented to audiences, and ensures fair treatment for channels appearing on the service.

Existing broadcasting standards are tried and tested, with multiple EPGs and hundreds of channels already regulated under the current system. This system of regulation is well understood both in the sector and by members of the public, who feel empowered to raise any concerns with Ofcom about the guides they have used and the programmes they have watched.

3. Updating the UK broadcasting framework

3.1 The growing regulatory gap

As set out above, the current system of broadcasting regulation means that the EPGs that are regulated in the UK are set in legislation. Under the current description, these regulated EPGs are Freeview, Freesat, Sky, Virgin Media, and YouView. All other EPGs that can be accessed by UK audiences on their television sets are unregulated, meaning that the EPGs and the channels appearing on them do not need to be licensed to show content. Under the current definition of a regulated EPG, the Secretary of State has powers to bring additional EPGs under regulation.

As the broadcasting landscape changes, there are increasingly more ways in which audiences can access content. Over the last several years this has been dominated by the growth of video-on-demand services, however as set out above, this is being further fuelled by the growth in internet-delivered television channels and newer unregulated EPGs. Internet delivered services are becoming more popular and are increasingly being used by UK audiences to access television programming.

While positive for consumers in terms of choice and innovation, these changes mean that there is a growing regulatory gap, where EPGs that deliver similar - and often competing - services to those that are regulated do not have to comply with the same statutory regulations. Desk research reflects that there are at least 19 currently unregulated EPGs that UK audiences can access via their television sets, either directly through pre-installed software, via downloaded applications, or via a channel slot on another EPG. Many of these are popular and mainstream services tied to major global companies.

The main consequence of this regulatory gap relates to the fact that the current framework for regulating television channels is dependent on whether or not they appear on a regulated EPG. The channels shown on an unregulated EPG do not have to be licensed by Ofcom, irrespective of the types of content on those channels or how accessible they are. There are many examples of unregulated channels that UK audiences with connected TVs can access as easily as if they were changing between regulated channels. Desk research indicates that there are approximately 900 channels that UK audiences can access on EPGs on their television sets that are entirely unregulated in the UK.

These unregulated channels span entertainment, news, religious, documentary, and children’s content.  Initial evidence suggests that some are already producing content that has the potential to harm UK audiences. For example, there are cases of channels showing content during the day that would need to be shown after the watershed if regulated, including swearing and sexual content. Under the current system, there is no recourse to investigate or take any action against any channels that may be causing harm to UK audiences.

Many of the unregulated EPGs that audiences can access are aware of the potential risk that not being regulated brings, and therefore act responsibly to ensure that they have their own audience protection measures in place. However, it remains the fact that unregulated content on these unregulated EPGs can be easily found and accessed by large audiences, including potentially by children and vulnerable audiences. As the channels on these services do not have to be regulated, the public do not have an independent route to raise any concerns. This means that not only are audiences unable to complain to Ofcom if they see something on television that affects or concerns them, but there is no independent regulatory authority with the power to investigate and take enforcement action if any of these services are showing content that may cause audiences harm.

Currently the channels that appear on these unregulated EPGs may be mostly those that are already regulated because they appear on other EPGs that are already regulated by Ofcom. However, if no action is taken, over time this overlap is likely to reduce as new channels and services continue to appear that do not have to follow any statutory regulations. This is of particular concern in the context of the increasing use of internet delivered services and the predicted growth in FAST services, which currently mainly appear on unregulated EPGs and are therefore unregulated.

Significantly, when the regulation of EPGs was set in legislation at the point the UK left the EU, it was anticipated that a regulatory gap could emerge as the regulated EPGs defined at that time may become outdated as delivery of content evolved. As set out at Section 2.1, the amended Communications Act 2003 sets out powers for the Secretary of State to designate or describe which additional EPGs should be regulated in the UK, therefore allowing the list of EPGs that are currently regulated in the UK to be updated. Given the changing landscape and delivery of services since the current regulated EPGs were set out, this consultation is focussed on gathering evidence to inform the use of this existing power to bring additional EPGs under regulation.

3.2. The case for regulation of additional EPGs

With this changing landscape and growing regulatory gap in mind, it is important to consider the potential impact of leaving the current scope of regulated EPGs in the UK unchanged.

The government considers that the growing use of unregulated EPGs is increasing the risk of harm to audiences when watching television. The use of unregulated EPGs means there is an increasing number of unregulated channels that audiences are able to access on their television sets. Without any regulation of standards by Ofcom, this means that channels are able to include programmes containing content that could pose a significant risk of harm, for example violent or sexual content that would be inappropriate for children. As set out above, the regulatory gap means that audiences currently have no way to raise concerns about these channels with Ofcom, and Ofcom has no recourse to take any action. If more EPGs were brought under UK regulation, the channels available on these services would be required to be licenced by Ofcom, and this regulatory gap that creates risk of audience harm would be reduced.

While the primary benefit of regulating additional EPGs is the minimisation of potential audience harm, there are also other benefits. In particular, unregulated guides also do not have to comply with Ofcom’s EPG code of practice, meaning that they do not have to ensure prominence for public service channels or accessibility for audiences with disabilities. This means that providers are not required to ensure audiences benefit from easily accessible public service content, and those with disabilities may be restricted or provided with an inconsistent service when accessing their favourite content on television. Unregulated EPG providers are also not required to give channels on their EPGs fair, reasonable and non-discriminatory treatment.

Additionally, the government recognises that the delivery of popular and mainstream EPGs that are unregulated has the potential to create an unfair competitive market. There are currently many similar and competing services that do not have to abide by the same rules. This is concerning as it means that different services have different obligations, based only on the fact that some are more recently established and therefore have not been captured under regulation. These EPGs may be delivering content to the same audiences but do not have to ensure that their services are accessible or that the channels they show are licensed. Ensuring compliance with these regulations has a cost for the services that are regulated that unregulated services do not have to pay. Section 4.2 below discusses the cost of regulation in more detail.

As households increasingly purchase televisions that can be connected to the internet and the use of FAST channels in the UK grows, over time these unregulated services will likely take up a more significant proportion of the time spent by audiences accessing EPGs. Given this and the existing regulatory gap, it is therefore important for the government to actively consider and determine which EPGs should be regulated in the UK and as a result, which services have to abide by the same set of rules and standards as the currently regulated EPGs and broadcast channels.

The existing system of regulation in the UK is long standing and is widely considered as an example of fair and independent broadcasting regulation. As set out above, Ofcom is tasked with ensuring the application of standards to protect audiences from harm in the manner that best guarantees an appropriate level of freedom of expression. It is in this context, where the landscape and delivery of services has changed so much since the currently regulated EPGs were set out in legislation, that the government considers that ‘do nothing’ is not a viable option. With an existing independent broadcasting regulatory regime and existing powers to bring additional EPGs under regulation, the government is therefore minded to regulate to bring additional EPGs under regulation in the UK.

The government believes it will be necessary to take a proportionate approach, extending regulation where the benefits to audiences and need are greatest, while simultaneously minimising the regulatory burden on new and innovative services. This consultation therefore goes on to consider which EPGs should be regulated in the UK, as set out in Section 5. Those EPGs that already hold a UK licence, as well as channels already regulated by Ofcom, channels regulated internationally under the ECTT, and foreign exempt services will not be impacted by this regulation.

It is anticipated that this initial set of regulations will be significant and as such, the Secretary of State has decided to open this consultation to both industry participants and members of the public. There is no statutory duty for the Secretary of State to consult publicly on the exercise of this power. This is being done on an exceptional basis to gather evidence, and should not be taken as an indication that there will be a public consultation on any future exercise.

Question 1: Should the government capture additional EPGs under regulation in the UK? Please explain your reasoning and provide any relevant evidence.

As set out in Section 1.2, the government also recognises that the decision to regulate additional EPGs sits within a broader landscape of regulatory change and in particular consideration about the future of television distribution. While the current process for the regulation of EPGs and channels has functioned well and can be updated to include additional guides, in the long-term further changes to this regulatory framework may be required that take into account changes in how audiences are accessing content and a move towards internet delivered and FAST services. These longer-term considerations are not part of this consultation.

4. Impact of EPG regulation

4.1 Benefits of regulation

The government has identified the following benefits associated with regulating additional EPGs:

Regulation of channels: Regulated EPGs must ensure that all channels that appear on their service are appropriately licensed or authorised. Excluding those channels that are licensed or authorised by ECTT states, this means that the majority of channels must hold a broadcast licence from Ofcom and abide by UK broadcasting rules and standards. These rules protect audiences from potentially harmful material and allow them to have confidence that they, and those that they are responsible for, can enjoy television safely. This is particularly important for children and vulnerable audiences accessing content via EPGs. Audiences can also then complain to Ofcom if they see something on television that they are concerned about. This regulation underpins the confidence that UK audiences have in the standards of the content that they enjoy.

Consistent regulation: Regulating additional EPGs will create a more level playing field between EPGs, and between the providers of channels. The current discrepancies in regulation place a higher regulatory burden on regulated EPGs and channels, likely giving unregulated EPGs a competitive advantage. Unregulated EPGs do not have to apply for a licence, ensure that the channels they show are regulated, provide prominence for public service content, accessibility, or fair and non-discriminatory treatment. This creates unequal requirements for different EPG providers, often where similar and competing services are being provided. Updating the legislation to incorporate more EPGs will ensure equal requirements on more EPGs delivering similar services to audiences.

Prominence for public service content: The existing prominence regime for linear broadcast television means that regulated EPGs must give appropriate prominence within the guide to certain designated public service broadcasting channels. This includes BBC channels, ITV1, STV, Channel 4, Channel 5, S4C and local television services. These channels receive EPG prominence in exchange for additional obligations put on them, for example the provision of news and current affairs programmes. Making sure these designated channels are available and giving them prominence ensures that public service content is easy to find and access, providing benefit to both audiences, who can easily find and enjoy high quality UK content, and the public service broadcaster channels, who benefit from ease of access to their channels.

Accessibility for those with disabilities: Regulated EPGs must take appropriate steps to ensure that people with hearing and/or visual disabilities are able to make use of their guide for all the same purposes as people without disabilities. Channels on regulated EPGs are also required to provide access services, including subtitles, audio description, and signing. This has a positive impact on the experience of using EPGs for those with disabilities, and means that they have a more equitable experience of television viewing. Regulating more EPGs would mean that accessibility is more consistent for those with disabilities across different services. This could also benefit EPG providers themselves if audiences have a more user-friendly experience of their service and are therefore more likely to recommend the service to others.

Fair, reasonable and non-discriminatory treatment: Providers of regulated EPGs are prohibited from engaging in any practice that Ofcom considers would be damaging to fair and effective competition in the provision of the licensed services. For example, under Ofcom’s code of practice on EPGs, they must publish and comply with an objectively justifiable method of allocating listings. This is beneficial for broadcasters as it ensures fair treatment in their channel allocation on regulated EPGs. The regulation of more EPGs would mean that this fair treatment is guaranteed for channels across more services that they appear on.

Question 2: Do you agree with the benefits of statutory regulation of additional EPGs outlined in this consultation, and that the statutory regulation of EPGs has benefits for audiences? Do you have any evidence to contribute relating to the extent of these or any other potential benefits? Please provide figures where possible.

4.2 Costs of regulation

The government has identified the following costs associated with regulating additional electronic programme guides:

Familiarisation for EPGs and channels: Providers of EPGs and channels will incur costs related to familiarisation with the new regulatory framework. Both EPGs and channels will need to determine whether they are to be newly regulated and EPG providers will need to collect relevant data to determine this by measuring audience reach. If a service does come under regulation they will need to review and understand the requirements of the UK’s broadcast regulatory framework.

Compliance for EPGs: Providers of newly regulated EPGs will incur compliance costs. Firstly, they will need to seek a broadcasting licence from Ofcom. The current fee for submitting an application is £2,500. In addition, an annual fee is payable to Ofcom to reflect the costs of regulation. For guides with a relevant turnover below £10 million, the annual fee is currently set at £1,000, rising to approximately £450,000 for guides with annual turnover above £300 million. Ofcom’s tiered approach to licence fees (both for EPGs and for channels) ensures that regulation is proportionate, with the largest providers captured under regulation paying significantly more than the smallest. As well as the application and annual fees, EPGs will face compliance costs associated with following Ofcom’s EPG code of practice. This may include updating practices around prominence, accessibility, and fair and reasonable treatment, which could be costly. EPGs will also need to monitor and ensure that all channels available on their service are appropriately licensed.

Compliance for channels: Providers of newly regulated channels will also incur compliance costs. They will need to seek a broadcasting licence from Ofcom, where the application and annual fees for channel providers are generally the same as for EPGs. For teleshopping channels, a flat fee of £2,000 is payable annually rather than a fee which is proportional to relevant turnover. Channels will need to review their programme offering to ensure that it is compliant with Ofcom’s Broadcasting Code, the UK Code of Broadcast Advertising and other relevant codes and rules. Compliance costs may depend on whether a channel needs to change its programme offering if it does not think that it is compliant with Ofcom’s Broadcasting Code, or other relevant codes. It is worth noting that this may be viewed as a positive impact as content in breach of the Broadcasting Code is likely to be harmful to audiences.

Removal of channels: Some channels appearing on newly regulated EPGs may ask to be removed from those guides, or cease operation altogether, rather than seek a broadcasting licence. This is particularly likely to be the case where the channel is very small or otherwise unprofitable, or where Ofcom would not approve a broadcasting licence. This could relate, for example, to whether the applicant is disqualified from holding a licence. As a wider market implication, channels, and in particular international FAST channels, could choose not to operate in the UK in order to avoid regulation. Changes to the programmes shown on a channel, or removal of a channel from an EPG entirely, may impact the range of programmes and channels available to UK audiences. Viewers could therefore potentially see reduced access to the range of content that is currently easily available in the UK.

Ofcom and Advertising Standards Authority (ASA) administration: Ofcom and the ASA will incur additional administrative and enforcement costs in relation to newly regulated services. This will include the need to process additional licensing applications for EPGs and channels, and then ensuring compliance with the EPG code of practice, the Broadcasting Code, the Code on the Scheduling of Television Advertising (COSTA), the UK Code of Broadcast Advertising (BCAP Code) and other relevant regulations for newly licensed services. This would likely require additional resourcing. Depending on the number of EPGs and channels captured under legislation, and the number of unregulated channels appearing on these services, the cost to Ofcom could be significant. The ongoing cost of regulation should be passed onto newly regulated EPG and channel providers by way of the annual fees described above. However, the upfront costs of hiring additional staff and training would not be covered by these fees and may need to be passed onto industry, including currently regulated EPGs and channels, by Ofcom.

Question 3: Do you agree with the costs of statutory regulation of additional EPGs outlined in this consultation? Do you have any evidence to contribute relating to the extent of these or any other potential costs? Please provide figures where possible.

5. Proposed scope of additional EPG regulation

As set out above, the government has existing powers to bring additional EPGs under regulation, either by creating a description of which services are regulated, or designating specific providers. Subject to the outcome of this consultation, the preferred approach is to regulate additional EPGs based on a description of services under section 211A(2)(c). The government considers that this approach will achieve its objectives of ensuring a fair and proportionate approach. It will allow for the creation of appropriate and specific criteria, designed to include under regulation only those services where regulation would most benefit audiences. This approach will also mean that regulations continue to capture relevant EPGs under regulation going forward.

Due to the low barriers to entry associated with establishing EPGs, and therefore the number of new providers expected to emerge in the future, the government is not minded to designate individual providers of EPGs in addition to using a description of criteria. However, the power to designate individual providers remains available to the government, and could be used in future if considered necessary.

The government considers it is right that EPGs that are frequently accessed by UK audiences – and, by extension, the channels that appear on them – should be regulated under the UK’s existing broadcasting regulatory framework. It is considered that this approach will balance the need to protect audiences and ensure a fair regulatory framework, with the importance of media freedoms. This will ensure that the impact on businesses is proportionate to the benefit for UK audiences, freedom of expression is not unduly curtailed and we do not inadvertently curb competition and innovation.

To ensure proportionality, the government therefore proposes to regulate additional EPGs on the basis of:

Scope of jurisdiction and application: Regulation by Ofcom should be limited to EPGs that are used by members of the public in the UK as a way of accessing television programme services, where that access is by means of a television set.

Potential benefit to UK audiences: To ensure that the EPGs brought under regulation are those that will bring a significant benefit to UK audiences, regulation should be targeted at EPGs that have a significant audience reach in the UK or are distributed via the DTT platform.

The components of these descriptions are considered in more detail below, as well as alternative criteria that have been considered. Under this proposed approach, EPGs not meeting the proposed description would remain unregulated until they reach a certain threshold for audience reach, providing an important route to market for new providers and channels, where compliance costs can represent a significant barrier to entry. This approach will also mean that only those services being accessed by a relatively significant audience, either at a similar level to the currently regulated EPGs or currently regulated channels, will come under regulation.

5.1 Scope of jurisdiction and application

Jurisdiction

The current approach to jurisdiction for regulated EPGs and licensed television services is set out in the Communications Act 2003, as amended. The currently regulated EPGs are those that came under UK - and therefore Ofcom - jurisdiction under the AVMSD at the point that the UK left the EU. Ofcom’s jurisdiction over linear television services is based on several factors, including where a service is based (for example, where the head office and editorial decisions on programme schedules are made), and where a service is broadcast to (for example, to the UK or to another country). The existing powers under section 211A of the Communications Act 2003 for the Secretary of State to bring additional EPGs under regulation also specify that any direct designation of a particular service must be one that is used by members of the public in the UK as a way of accessing television programme services.

In the draft Media Bill, the approach to the regulation of Tier 1 video-on-demand services is to include some larger, TV-like non-UK services, which are not currently regulated in the UK, but which target and profit from UK audiences. The draft Media Bill sets out powers for Ofcom to regulate non-UK video-on-demand services, but this jurisdiction will be limited to the services and content used by members of the public in the UK. The specific services that will be subject to the new regulation will be determined by the Secretary of State following a review by Ofcom of the operation of the video-on-demand market in the United Kingdom.

Our view is that it would not be appropriate or proportionate to require Ofcom to regulate EPGs that are not used by members of the public in the UK. This approach would be inconsistent with existing broadcast and proposed video-on-demand regulation, where regulation is focused on services that are either based in the UK or non-UK services that target UK audiences. Ofcom is a UK regulatory body and in carrying out its functions is focussed on the expectations and viewing habits of members of the public. This consultation therefore proposes that the description of regulated EPGs should be restricted to guides used by members of the public in the UK as a facility for obtaining access to television programme services.

Means of access by audiences

Given the growing delivery of EPGs and channels via the internet, the government also believes that the scope of regulation should consider the method by which audiences are accessing this television content.

The government considers at this time that it would not be proportionate to require Ofcom to regulate EPGs that are not accessed by way of a television set, for example, on other devices such as smartphones and laptops. The regulation of EPGs that are only accessible via the internet on devices other than a television set would significantly and disproportionately expand the current scope of Ofcom’s regulation of EPGs and television channels. Although devices like laptops and smartphones can be used to watch television content, this is not necessarily the main function of these devices, which are used for a wide range of other purposes like communication or browsing the internet.

The government therefore proposes that the regulation of additional EPGs should be limited to those services that can be accessed by way of a television set, whether via the internet or more traditionally via DTT, satellite, or cable. This would include EPGs that are pre-installed, or that audiences can download and access on their television sets, set-top boxes, and streaming sticks. This would exclude websites that offer access to third-party video content but do not have a dedicated presence on television sets, whether directly or via a set-top box or streaming stick. In some cases, these websites can in theory be accessed by way of a television set, for example, through an integrated web browser or if a user was to connect their laptop to their TV via HDMI. However, as these services are not accessed via a television’s dedicated and directly available facilities (i.e. via a pre-installed EPG or downloadable applications), these are considered to be outside of scope of regulation.

It is worth noting that because EPGs and the channels that they show are broadly the same whether accessed via a television or online, in practice large EPGs that offer an online route to their service will effectively be regulated where they are also available on a television set, in particular with regards to content standards.

Question 4: Should the regulation of EPGs be restricted to those used by members of the public in the UK and accessed via a television set? Please explain your reasoning and provide any relevant evidence.

4.2 Potential benefit to audiences

The government believes that EPGs should be captured under regulation only where this would bring the greatest benefit to UK audiences. Most significantly, this means EPGs that have a higher potential to cause harm in terms of unregulated content reaching a large audience, and therefore potentially causing harm to those audiences. Other benefits to audiences of bringing EPGs under regulation also include benefits from requirements placed on regulated EPGs, like prominence for public service content and accessibility for those with sight and/or hearing disabilities.

The government has identified 2 methods for determining which EPGs should come under regulation, where regulation is considered to bring greatest benefit to audiences. These are:

• any EPG that meets a threshold for a significant number of average monthly users, and

• any guide provided directly or indirectly by means of the DTT network

The reasoning behind the proposed inclusion of these types of EPG is shown below, and responses are sought on how the application of these criteria could work in practice.

Audience reach threshold

A key consideration for the government in determining which EPGs should come under regulation is creating a balance between providing protections for audiences when watching television and the need to ensure proportionality for smaller services that are not accessed by many people, and where the cost of compliance with regulation may be disproportionately high.

The government considers that, on balance, the regulation of all EPGs would be disproportionate for those that are very small, likely newly created and that therefore do not have a notable audience reach. As such, a threshold is proposed for capturing EPGs under regulation that have at least some level of significant audience reach.

In determining a threshold, the government proposes to focus on the average monthly audience reach of an EPG because this is a good proxy for its popularity and therefore the potential benefit to audiences of bringing it under regulation.

An initial review of the current EPG provision and audience reach in the UK has reflected some challenges in data collection by EPG providers, where this can be difficult to store or access, and the consistency of metrics between different providers is not guaranteed. Having considered these challenges, the government proposes that in setting an audience reach threshold, the method for EPG providers to use in measuring average monthly audience reach should align with the standard methodology used by Barb Audiences Ltd (Barb), whose data is used by the currently regulated EPGs. Barb is also now being used to measure audience reach for some of the major video-on-demand services, including Netflix, Amazon Prime Video, and Disney+.

The government proposes to align with Barb’s monitoring of EPG audience reach based on an individual using an EPG to directly access and view a channel for at least 3 consecutive minutes. It is proposed that this methodology should be used by EPGs to measure their reach if an average monthly audience reach threshold is set.

There are some challenges in determining at what level this threshold should be set. While the government has access to data for the audience reach of currently regulated EPGs, data is not widely or consistently available regarding the audience reach of currently unregulated EPGs. Moreover, it is difficult to determine at what level an audience reach threshold would best balance the objectives of audience protection with reduced barriers to entry for smaller services.

In setting a threshold for audience reach at which an EPG should become regulated, the government is keen to balance its aims of audience protection and proportionality. Given this desire for a balance and the lack of existing data on the level of audience reach being achieved by unregulated EPG providers, the government welcomes considerations from respondents on 2 options for a proposed level at which this threshold could be set.

Option 1 - A threshold aligned with currently regulated EPGs

It can be argued that the benefits of regulation would be greatest in relation to larger, more popular guides. If more people are accessing an EPG, there naturally is a higher risk that any unregulated harmful content on that EPG will negatively impact a significant number of people. Less popular services could be considered lower risk due to content being shown to a smaller audience, meaning that regulation by Ofcom could be considered disproportionate.

It is also likely that familiarity with these more popular guides may mean that audiences incorrectly believe that the channels on these EPGs are already regulated. As a result, they may be less cautious about using them to discover new channels and not exercise appropriate caution when they, or those they are responsible for, use these guides.

Finally, it may be considered disproportionate to regulate EPGs with lower audience reach, where the service may be newer and, due to their small scale, the costs of compliance may be disproportionately high compared to larger providers.

Taking these considerations into account, a potential approach to setting an audience reach threshold is to set it at a level to capture only the most popular, mainstream services. This approach would be to closely align with the levels of audience reach seen by the EPGs that are already regulated in the UK.

As such the government proposes an option to align an audience reach threshold with the audience reach of the smallest currently regulated EPGs. The government understands that Freesat is currently the smallest regulated EPG with an average audience reach of approximately 990,000 in Q1 2023, based on Barb data. However, the government has taken into account that use of Freesat may be considered to be an extension of audience engagement with Freeview as audiences often access this service as an alternative when Freeview is not available. Though there are some minor differences in the programme offering, the key difference between Freeview and Freesat is the way in which the service is delivered to your television. The level of audience reach for Freesat is also considerably lower than the reach achieved by the next most popular service. As such, in determining a proposed proportionate level of audience reach, the next most popular regulated EPG has been considered, which is YouView with an average monthly viewing of approximately 3.3 million in Q1 2023 according to Barb data. The government therefore proposes as an option an average monthly audience reach threshold of 3.25 million or more, which equates to viewing by approximately 5% of the total number of television households in the UK, as measured by Barb, and closely aligns with the level of audience reach of the smaller regulated EPGs.

Option 2 - A threshold aligned with currently regulated channels

As set out above, the government wants to ensure that audiences, and in particular children and potentially vulnerable individuals, are protected under the existing system of regulation when watching television. A focus on this aim of audience protection may suggest that any audience reach threshold should be set at a relatively low level. The regulation of an EPG results in the channels being shown on this service to be required to hold a licence to broadcast. Therefore, to capture most channels that are available to UK audiences, or to align with the level of audience reach of those channels that are already regulated, a lower threshold for EPG inclusion would need to be set.

To contextualise this, we can consider existing examples of regulated channels where the monthly reach across several regulated EPGs is relatively low. Barb’s July 2023 monthly viewing data can be used to assess the audience reach of some of these smaller channels. There are examples of well-known regulated children’s channels with an audience reach of approximately 1% of total broadcast viewing households. There are also examples of documentary channels with just over 1% of total broadcast viewing households. The fact that these channels are regulated under the current system of regulation may suggest that a threshold should be set at a lower level to align with the viewing of currently regulated channels.

There is also an argument that smaller EPGs may be more likely to show more harmful programming than the largest, more mainstream EPGs. This is because smaller services may be more niche and less likely to have the oversight and scale of internal controls that the larger providers have in place in order to maintain a reputation as safe and respectable services.

A lower threshold for inclusion under regulation would also mean that from a competitive market perspective, the majority of EPGs providing similar and competing services would come under the same rules. Currently many smaller unregulated EPGs provide the same service as larger regulated EPGs, giving audiences access to similar television channels, but do not have to comply with the same regulations to ensure benefits and protections for audiences.

In considering options for a lower level threshold for audience reach, and in line with the levels of viewing of some currently regulated channels reflected above, the government has taken as a starting point 1% of the total number of television households in the UK, which would be a monthly audience reach of approximately 650,000. Given the focus is on internet-delivered services we have also considered viewing as a proportion specifically of television sets that are connected to the internet in the UK. With estimates that as many as 74% of households in the UK own televisions that can be connected to the internet, it can be calculated that approximately 50 million people could have access to a connected television set. Calculating 1% of this population is 500,000 people. Considering this, the government proposes an option for a lower threshold of an average monthly audience reach threshold of 500,000 or more.

Question 5: Should the government use an audience reach threshold to determine which EPGs should be regulated? What are your views on the 2 options presented for a threshold of average monthly audience reach? If you are an EPG provider, does your organisation collect and hold this information and would your EPG be captured by either of these thresholds? Do you have an alternative proposed level at which this threshold should be set? Please explain your reasoning and provide any relevant evidence.

The existing powers that the government has to designate or describe which EPGs are regulated in the UK will remain in place. As such, the threshold set out in legislation could be updated in future if deemed necessary, for example, if the level at which this is set is considered to no longer fulfil government objectives, or if the landscape and audience viewing habits change significantly. In addition, the existing powers mean that specific guides considered to be particularly harmful to audiences could be captured separately by legislation if necessary.

Distribution via DTT

The digital terrestrial television platform, better known to audiences as Freeview, is one of the most popular methods of accessing television content in the UK. Since its launch in 1998 it has become one of the biggest and most popular platforms, transmitting to 18 million homes across the country. Freeview is also a vital part of the UK’s system of public service broadcasting, ensuring that public service content is free at the point of use and widely accessible.

The government is minded to regulate all EPGs that it is possible for audiences to access through the DTT platform, even if these services themselves do not meet a defined audience reach threshold. This is in part due to the central role of the DTT platform in the UK’s broadcasting ecosystem, and the high level of trust that audiences therefore need to have in it. Moreover, these EPGs can be easily found by any of the millions of people accessing Freeview when flicking between channels, and can currently show potentially harmful content as they are unregulated.

This would therefore include all guides providing access to channels and other services broadcast over DTT, and all EPGs that are themselves provided (directly or indirectly) by means of those services. For instance, this would include ‘portal services’, which are EPGs available via the Freeview platform, like Channelbox and Vision TV.

The government is aware of the risk that this may discourage some services from being made accessible via the DTT platform. Given the central role of DTT in the UK broadcasting landscape, this is not the intention. Rather, the ease of access and popularity of DTT mean that this should be considered in terms of the need to ensure protection for audiences accessing content in this way.

Question 6: Should all EPGs providing access to services broadcast over DTT be regulated? Please explain your reasoning and provide any relevant evidence.

5.3 Alternative criteria considered

The government has carefully considered a number of alternative descriptors that could be used to determine overall risk and potential benefit for audiences of services coming under regulation. These are reflected below, alongside the reasoning for not using these instead of and/or to supplement the descriptors set out above.

Potential descriptor	Reasoning
Nature of programmes included on channels	Some types of content could be associated with a greater potential to cause harm due to the audiences at which they are aimed or the nature of the programming. These include • programmes aimed at children or young people • programmes of an adult nature • religious programmes, and • news programmes Programmes aimed at, or easily available to, children have the potential to cause significant harm to young audiences if content is inappropriately violent or sexual in nature. Ofcom specifically considers material that might seriously impair the physical, mental or moral development of people under 18 in their regulation of content. Ofcom similarly regulates religious programming to ensure a proper degree of responsibility is taken and that these do not involve any improper exploitation of audiences. Finally, news programmes have the potential to cause harm through the provision of inaccurate content which may spread disinformation. While it is important that these types of programmes are regulated to a certain standard to ensure appropriate protection from harm, the government considers that it would be unworkable to base regulation on the distribution of these kinds of content specifically. In particular as programming and the content on channels is often fluid and can change rapidly, there is no way of monitoring with certainty whether channels – and therefore EPGs – are showing content under these genres. It is therefore considered that it could be unreasonable to capture EPGs under regulation in this way, as channels could change their programming without prior notice. Moreover, there are no set statutory definitions of what content would fall under these various categories, so it would be difficult to determine which channels were providing this content and therefore should be captured. For example, a channel self-described to Ofcom in their licence application as showing entertainment programming often covers news or current affairs content, or shows content that attracts children and young audiences. Furthermore, Ofcom assesses content after it has been broadcast based on the specific circumstances of each case for the purpose of assessing compliance with the Broadcasting Code, and the genre or type of programme would not necessarily bear any relevance. It therefore may be considered inconsistent to focus regulation specifically on content that might be considered to have more potential to cause harm. The government therefore considers that regulation determined by the type or genre of content shown on an EPG would be ineffective.
Ease of access	The government considers that the ease with which an EPG can be accessed by audiences in the UK is in principle strongly correlated with the maximum potential audience harm associated with that guide. In particular, a guide that is easy to access (for example, because it comes pre-installed on a television set) is likely to be both more widely used, and used by a wider range of audiences, including vulnerable audiences. However, ease of access is also difficult to define and measure, making it difficult for both providers and Ofcom to establish whether any particular threshold has been reached. The ease of access of a guide is also closely linked to its popularity, as it is expected that more easily accessible EPGs would have a higher audience reach. For this reason, the government considers that audience reach measured by number of users is a preferable, more tangible descriptor.
Number of channels listed or promoted	The greater the number of channels listed or promoted, the greater the chance that one of those channels is harmful. In addition, the government considers that the number of channels listed or promoted could be used as a proxy for whether the guide is intended to act as a ‘one stop shop’ for general viewing (higher risk), or whether the guide is instead designed to appeal to more knowledgeable viewers seeking out a specific type of content (lower risk). However, the government ultimately considers that audience reach is a preferable descriptor as it more closely correlates with the maximum potential audience harm associated with a guide. In particular, the government is mindful that there might be guides that only list a handful of channels, but nevertheless have the potential to cause significant harm due to their popularity.
Turnover and/or number of employees	The government notes that the annual turnover of an EPG, or other comparable metrics such as the number of employees, could correlate with popularity and therefore the risk that they present to the public. For many guides – which are often packaged with hardware, or used to promote the provider’s own services – it may be difficult or time consuming to accurately determine the turnover associated with an individual guide. Conversely, looking at the turnover of the parent organisation would result in the same risk factor being attributed to multiple guides. Moreover, the level of turnover or number of employees of a provider does not necessarily directly correlate with a larger audience and therefore an increased benefit to audiences of regulation. The government therefore considers that a focus on audience reach is a more suitable proxy for benefit to audiences and that this approach would ensure that those services where audiences would most benefit from regulation would be captured. With regards to proportionality and the exclusion of smaller services, which likely have lower turnover and/or number of employees, the government considers that an audience reach threshold would similarly work to exclude those newer, smaller services. This approach would ensure proportionality and that only those services that are more popular or mainstream are captured under regulation. For these reasons, we are not currently minded to use descriptors related to turnover or the number of employees associated with a guide.

Question 7: Should any other factors or metrics be considered in determining which EPGs should be regulated? Please outline any alternative suggested metrics, how these would be measured, and your reasoning for suggesting this.

5.4 Self-regulation

The government recognises that in some cases providers of unregulated EPGs have voluntarily put in place terms and conditions that limit the types of channels that appear on those guides, or otherwise align with the existing statutory obligations.

This can include additional layers of protection to ensure children do not access unsuitable content, like PIN codes. Providers may also set out their own codes of guidance or terms and conditions for channels to ensure the quality of their content and that programmes do not breach rules focussed on preventing harm, for example around violence or pornography.

These steps taken on a voluntary basis may result in comparable protections to regulated EPGs, while incurring lower administrative costs for the providers. This approach may be seen to help to preserve innovation and choice in the market, giving more freedom to providers to implement appropriate protections for audiences as they see fit and in a proportionate way. Self-regulation may also allow for lower barriers to entry for new channels, encouraging more choice for audiences and new ways of delivering content. For example, many new FAST channels are dedicated entirely to delivering a specific programme to audiences via a linear channel.

In its response to Professor Dame Angela McLean’s Pro-Innovation Regulation of Technologies Review, the government agreed that statutory regulation should not be used when other approaches can achieve the same outcomes in a more co-operative and efficient way. While the audience protection measures put in place by unregulated EPGs may achieve some similar objectives to the regulation provided by Ofcom, the government believes that there are several potential concerns with self-regulation in this space. Firstly, the UK already has a well established and globally respected system for linear television broadcasting regulation in place. The existing broadcasting regime under Ofcom has been in place for 2 decades and there are multiple EPGs and hundreds of channels already regulated in this way. Audiences are familiar with their ability to raise any concerns with Ofcom. Having some EPGs and channels regulated by Ofcom, while other mainstream services with similar levels of audience reach are self-regulated may cause inconsistencies and different outcomes for audiences and providers:

Varying application of content standards for audiences: Though many existing self-regulatory regimes may provide protections for audiences, there may be some aspects of the statutory regulation that are not applied or could be applied in slightly different ways. Audiences may be unaware that there are likely to be variations in their protections depending on the guide they use and the specific terms and conditions in place. Moreover, under any sufficiently robust system of self-regulation that achieves the same objectives as the statutory regime, the provider of the EPG would need to be responsible for ensuring similarly high standards among the channels that appear on it. It may ultimately be more burdensome for the provider to ensure these content standards than the existing statutory scheme where Ofcom is responsible for this.

Lack of independent handling of audience complaints: Under Ofcom regulation, audiences are able to complain to the independent regulator with any concerns about something they have seen on television. Self regulation may cause confusion for audiences if in some cases they should complain to the EPG provider and in others directly to Ofcom. Not being able to complain to Ofcom may also be seen to limit audience avenues for independent recourse.

Confusion for channels appearing on EPGs: A channel that appears on multiple guides may be subject to overlapping (and potentially contradictory) requirements from different self-regulatory and statutory schemes. This may cause confusion for channels in trying to abide by regulatory requirements, and may result in increased compliance and familiarisation costs if having to adhere to multiple different schemes.

Question 8: Do you consider the self-regulation of EPGs a robust and appropriate alternative to statutory regulation?

Question 9: If updates are made to the statutory regulation of EPGs, should the government include or exclude EPGs with their own systems of self-regulation within scope of any changes? Please explain your reasoning and provide any relevant evidence.

5.5 Affected services

Given the nature of the open internet, it has not been possible to exactly quantify the number of EPGs available in the UK, or the number of channels that appear on them. As set out previously, analysis suggests that there are at least 19 unregulated EPGs accessible to UK audiences, and across these EPGs approximately 900 channels that are entirely unregulated.

The government estimates that between 5 and 15 electronic programme guides could be captured by the proposed thresholds of audience reach and access via DTT set out above at option 1 and option 2. As a result of this, between 250 and 800 channels could be newly regulated in the UK and would be required to secure a broadcast licence through Ofcom. The extent of inclusion under regulation will depend on the level of an audience reach threshold, with fewer EPGs and channels likely to be captured under the threshold proposed at option 1 compared to the threshold proposed at option 2.

The government does not have a strong evidence base around whether the majority of these channels would choose to seek broadcast licences as a result of this change, or whether some may potentially prefer to no longer appear on the EPG in question. There is also a possibility that some EPGs may choose not to offer their service in the UK if they were to come under regulation. The government will refine these estimates on how many EPGs and channels may become regulated in light of the responses received to this consultation.

It is important to note that, even if the government were to extend regulation to every EPG, certain internet delivered channels would continue to be accessible to audiences in the UK even though they are unregulated. This includes services accessed through the open internet rather than through an EPG, and services that only provide access to a provider’s own content (as these are not defined as EPGs, as explained above).

Nevertheless, the government understands that currently the majority of popular channels appear on one or more EPG, even if this is not the most common way of accessing them.

Question 10: If you are an EPG provider that is currently unlicensed, would your service be captured by any of the proposed criteria for a regulated EPG set out in this consultation?

Question 11: If you are an EPG provider that is currently unlicensed, how many channels does your service carry and would you expect the majority of these to seek a broadcasting licence if your EPG became regulated?

Question 12: If you are a channel provider that is currently unlicensed, would you seek a broadcast licence if the EPG your channel appears on, or intends to appear on, were to become regulated?

6. Proposed implementation process

The government intends to use existing powers at section 211A(2) of the Communications Act 2003 to bring additional EPGs under regulation. It is a legal requirement in the UK for the provider of a regulated EPG to hold a licence at all times the service is offered, and failure to do so is a criminal offence. It is also a legal requirement for the providers of channels appearing on regulated EPGs to hold a broadcast licence. Any new legislation using a description of a service to bring additional EPGs under regulation in the UK would rely on identification by the services that they meet criteria or thresholds set out in law.

The power for the Secretary of State to designate or describe which EPGs are regulated in the UK will remain in place, including that specific guides can be set out in legislation for inclusion. These powers could be used in future if considered necessary, to amend, replace or revoke the specified description of any regulated EPGs to ensure regulation continues to be up to date and proportionate, for example if a threshold approach is considered to no longer fulfil government objectives.

6.1 Implementation period

The government considers that an appropriate implementation period should be included before EPGs meeting the criteria designated by the Secretary of State in regulations are required to comply with the broadcasting regulatory regime. This will allow time for the providers of both those EPGs and the channels that appear on them to familiarise themselves with the regulatory regime and apply for licences where required. This will also ensure sufficient time for Ofcom to adjust its resourcing to an appropriate level in advance of any additional EPGs and channels coming under regulation.

The government proposes that there should be twelve months between the making of the regulations to designate additional regulated EPGs and the point at which the regulations come into force and require the providers that fall within the prescribed description to comply with the regulatory regime for broadcasting.

Question 13: Do you think that the proposed implementation period of twelve months would give sufficient time for newly regulated EPGs to prepare to comply with the UK’s broadcasting regulatory regime? Please explain your reasoning and provide any relevant evidence.

6.2 Process for coming under regulation

Following this implementation period, providers that determine that they meet the definition of a regulated EPG will need to apply for a broadcast licence from Ofcom. Given that all channels on a regulated EPG must be appropriately licensed, EPG providers will then need to inform any unregulated channels that are available on their service that they are now appearing on a regulated guide, and as such will be required to hold an Ofcom broadcast licence. This involves completing an application form that requires details about the applicant channel provider and the service that they provide. Individual channels are responsible for the process of applying for and securing a required licence with Ofcom. See more at Apply for a TV broadcast licence.

It is important to ensure clarity for providers about the point at which they must comply with regulation. In order to ensure certainty for providers, the government considers that:

• EPGs should become regulated periodically, at fixed point(s) in the year – this will allow certainty for the providers of those guides, and the channels appearing on them, on their legal status between these fixed points

• there should be an implementation period between the end of the relevant period of data collection and the next fixed point

The government has proposed that an audience reach threshold is used to determine which services should come under regulation. It is suggested that an average monthly audience reach, as measured by access to a channel via an EPG for at least 3 consecutive minutes, be used to determine this threshold. The government proposes that this monthly audience reach metric be measured and averaged in a given calendar year. Those services that meet the determined audience reach threshold in this period will then become regulated at the next fixed point.

This approach can be illustrated as follows:

• the provider of an EPG collects data on usage of its guide throughout 2024

• on 1 January 2025, the provider is in a position to determine definitively whether or not it will become regulated at the next fixed point (e.g. 1 January 2026) and can communicate this to the providers of the channels that appear on it

• the provider of the guide, and the providers of the channels that appear on it, then have time to seek any necessary licence before the guide becomes regulated

Ofcom would produce guidance to support this process, ensuring clarity for EPG providers about the timeframes for determining their qualification as a regulated service.

Question 14: Do you agree with the proposed process for coming under regulation set out in this consultation? Please explain your reasoning and provide any relevant evidence.

6.3 Services remaining under regulation

Under the current legislation, there is no power for the Secretary of State to use regulations to remove those EGPs which were licensed at the point that the UK left the EU from regulation. Such services would only fall outside of regulation if they chose to surrender their licence.

This concept of fixed regulation - unless a provider ceases to operate their service - aligns with the existing video-on-demand regulatory system, and the proposed Tier 1 approach for video-on-demand regulation set out in the draft Media Bill. Under Ofcom’s existing regulation of on-demand services, once a service has notified Ofcom that they provide such a service, there is no mechanism for them to be removed from regulation, unless they give Ofcom notice that they will no longer be providing their service. The draft Media Bill similarly proposes a system for larger TV-like video-on-demand services to be designated by the Secretary of State as a Tier 1 service and to come under a new Video-on-demand Code. Under this system there is no mechanism for an on-demand service to be removed from regulatory requirements unless further regulation by the Secretary of State were to remove them directly via secondary legislation.

In addition to the argument for a consistent application of legislation, effective regulation requires certainty for providers about their regulatory status, and for audiences about consistency of the regulation of services and content they are accessing. The possibility of an EPG moving from being regulated by Ofcom to not being regulated could also create significant risk of audience harm as the channels on that service, unless on another regulated EPG, would become unregulated as a result. The risk of harm would be particularly high as the audience may be unaware of the change in the regulatory status of the service they are accessing.

Given the nature of the current regulatory system and the desire to ensure certainty for audiences and providers, it could be argued that once a service grows to this level, once active they should remain under regulation regardless of future levels of audience reach. This would ensure certainty for the provider of the guide, the channels that appear on it, and audiences as to the level of protections that they can expect. The currently regulated EPGs similarly remain regulated regardless of whether their significant audience reach reduces over time, as do video-on-demand services. It could be argued that audiences accessing these mainstream, popular services would expect a certain level of regulation and protection, even if these have become relatively less popular over time. Moreover, given the growing use of internet delivered services, it is not expected that these newer services would see a significant decline in usage in the near future.

The government welcomes views on this approach, as well as the alternative where services that dip below the audience reach threshold in future, after becoming regulated, should have a route to being removed from regulation. It could be argued that this would ensure proportionality, with only the EPGs currently hitting a certain level of popularity having to comply with regulations. With this approach there is a risk that services could come in and out of regulation consistently if their audience reach were to fluctuate over time. As such, an approach would likely need to ensure that a service has been delivering below the audience reach threshold for a certain period of time.

Question 15: Do you think that services should remain under regulation after hitting an audience reach threshold, regardless of future levels of reach? Alternatively, should there be a route to being removed from regulation if a service continually falls below an audience reach threshold after becoming regulated? Please explain your reasoning and provide any relevant evidence.

7. List of all consultation questions

Respondent details

Are you responding:

• as an individual (viewer)

• on behalf of an EPG provider

• on behalf of a channel provider

• other (please specify)

If responding on behalf of an organisation, which industry best describes the work of the business?

Questions on regulation of additional EPGs

Question 1: Should the government capture additional EPGs under regulation in the UK? Please explain your reasoning and provide any relevant evidence.

Questions on impact

Question 2: Do you agree with the benefits of statutory regulation of additional EPGs outlined in this consultation and that the statutory regulation of EPGs has benefits for audiences? Do you have any evidence to contribute relating to the extent of these or any other potential benefits? Please provide figures where possible.

Question 3: Do you agree with the costs of statutory regulation of additional EPGs outlined in this consultation? Do you have any evidence to contribute relating to the extent of these or any other potential costs? Please provide figures where possible.

Questions on jurisdiction

Question 4: Should the regulation of EPGs be restricted to those used by members of the public in the UK and accessed via a television set? Please explain your reasoning and provide any relevant evidence.

Questions on scope

Question 5: Should the government use an audience reach threshold to determine which EPGs should be regulated? What are your views on the 2 options presented for a threshold of average monthly audience reach? If you are an EPG provider, does your organisation collect and hold this information and would your EPG be captured by either of these thresholds? Do you have an alternative proposed level at which this threshold should be set? Please explain your reasoning and provide any relevant evidence.

Question 6: Should all EPGs providing access to services broadcast over DTT be regulated? Please explain your reasoning and provide any relevant evidence.

Question 7: Should any other factors or metrics be considered in determining which EPGs should be regulated? Please outline any alternative suggested metrics, how these would be measured, and your reasoning for suggesting this.

Question 8: Do you consider the self-regulation of EPGs a robust and appropriate alternative to statutory regulation?

Question 9: If updates are made to the statutory regulation of EPGs, should the government include or exclude EPGs with their own systems of self-regulation within scope of any changes? Please explain your reasoning and provide any relevant evidence.

Question 10: If you are an EPG provider that is currently unlicensed, would your service be captured by any of the proposed criteria for a regulated EPG set out in this consultation?

Question 11: If you are an EPG provider that is currently unlicensed, how many channels does your service carry and would you expect the majority of these to seek a broadcasting licence if your EPG became regulated?

Question 12: If you are a channel provider that is currently unlicensed, would you seek a broadcast licence if the EPG your channel appears on, or intends to appear on, were to become regulated?

Questions on implementation

Question 13: Do you think that the proposed implementation period of twelve months would give sufficient time for newly regulated EPGs to prepare to comply with the UK’s broadcasting regulatory regime? Please explain your reasoning and provide any relevant evidence.

Question 14: Do you agree with the proposed process for coming under regulation set out in this consultation? Please explain your reasoning and provide any relevant evidence.

Question 15: Do you think that services should remain under regulation after hitting an audience reach threshold, regardless of future levels of reach? Alternatively, should there be a route to being removed from regulation if a service continually falls below an audience reach threshold after becoming regulated? Please explain your reasoning and provide any relevant evidence.

8. Next steps and how to respond

Next steps

A summary of responses and the government’s response to this consultation will be published in due course following the closure of the consultation.

The government’s response will take all in-scope responses submitted to this consultation into account, and will be based on careful consideration of the points made in consultation responses, not the number of responses received. See further information on the consultation principles.

How to respond

Please respond to this consultation by completing the online response form below:

Comments from all individuals or organisations on the issues raised in the consultation who may be interested are welcomed.

The consultation will close at 23:45 BST on 29 November 2023.

If you cannot access the link, please email your response to epgconsultation@dcms.gov.uk or post your response to:

EPG Consultation
Television and Broadcasting Team
DCMS
4th Floor, 100 Parliament Street
London
SW1A 2BQ

Responses from all individuals or organisations on the issues raised in the consultation who may be interested are welcomed.

9. Privacy notice

Who is collecting my data?

The Department for Culture, Media & Sport (DCMS). The Media and Creative Industries Directorate within this Department is seeking to consult on the regulation of additional electronic programme guides.

Purpose of this privacy notice

This notice is provided to meet the obligations as set out in Articles 13 and 14 of the UK GDPR. This notice sets out how DCMS will use your personal data as part of our legal obligations with regard to data protection.

What personal data do we collect?

Most of the personal information we collect and process is the data provided to us directly by you in the responses to our consultation. This includes:

• your name and/ or organisation you work for

• your contact details, such as the email address you use to contact us

• any additional information you have chosen to include as part of your response

Please do not leave more personal information than is necessary to complete this survey.

How will we use your data?

We use your data to enable us to carry out our functions as a government department, including determining government policy in relation to the issues raised in this consultation.

What is the legal basis for processing my data?

To process this personal data, our legal reason for collecting or processing this data is:

Article 6(1)(e) of the UK GDPR: it is necessary to perform a public task (to carry out a public function or exercise powers set out in law, or to perform a specific task in the public interest that is set out in law). In this case, the processing of your personal data is necessary for the performance of a task in the public interest, as the information gathered helps inform future policies.

What will happen if I do not provide this data?

If you do not provide this personal data we will be unable to consider your views on this matter.

Who will your data be shared with?

Information provided in response to this consultation (not including personal information) may be published at an aggregated and anonymised level, or disclosed in accordance with the access to information regimes (primarily the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004).

Information provided in response to this consultation may be shared with Ofcom, other government departments or agencies which have an interest in the topics addressed in this consultation. This might include specific views or evidence arising from some of the questions to help inform policy development.

How long will my data be held for?

Your personal data will be kept for one year in line with DCMS’ retention policy.

Will my data be used for automated decision making or profiling?

We will not use your data for any automated decision making.

Will my data be transferred outside the UK and if it is how will it be protected?

Your data will not be transferred outside the UK.

What are my data protection rights?

You have rights over your personal data under the UK GDPR and the Data Protection Act 2018. The Information Commissioner’s Office is the supervisory authority for data protection legislation, and maintains a full explanation of these rights on their website. DCMS will ensure that we uphold your rights when processing your personal data.

How do I complain?

If you have questions about this consultation or how we are going to handle your data, you can contact us at epgconsultation@dcms.gov.uk

If you’re unhappy with the way we have handled your personal data and want to make a complaint, please write to the department’s Data Protection Officer or the Data Protection Manager at the relevant agency. You can contact the department’s Data Protection Officer using the details above.

Data Protection Officer
The Department for Culture, Media & Sport
100 Parliament Street
London
SW1A 2BQ

Email: dpo@dcms.gov.uk

How to contact the Information Commissioner’s Office

If you believe that your personal data has been misused or mishandled, you may make a complaint to the Information Commissioner, who is an independent regulator. You may also contact them to seek independent advice about data protection, privacy and data sharing.

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Website: www.ico.org.uk

Telephone: 0303 123 1113

Any complaint to the Information Commissioner is without prejudice to your right to seek redress through the courts.

Changes to our privacy notice

We may make changes to this privacy policy. In that case, the ‘last updated’ date at the bottom of this page will also change. Any changes to this privacy policy will apply to you and your data immediately.

If these changes affect how your personal data is processed, DCMS will take reasonable steps to let you know.

This notice was last updated on 20 September 2023.

1. For consistency, this consultation uses the term ‘channel’ throughout. However, the law distinguishes between several different types of service, including television broadcasting services, digital television programme services (DTPS) and television licensable content services (TLCS). The distinction between these types of service is not relevant for the purpose of this consultation. ↩

2. The ECTT is European legislation that pre-dates the AVMSD and allows freedom of reception to services between the 21 European countries that have ratified it. The UK is one of these countries that have signed and ratified the ECTT. See more information about the ECTT and broadcasting between the UK and EU. ↩