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IP Vision wanted to build and add to its platform a bespoke version of the iPlayer, offering syndicated ³ÉÈË¿ìÊÖ on-demand content, but the ³ÉÈË¿ìÊÖ Executive did not allow it to do this. IP Vision's complaint alleged that in taking this decision the ³ÉÈË¿ìÊÖ had breached the ³ÉÈË¿ìÊÖ's fair trading policy and guidelines, competition law and the ³ÉÈË¿ìÊÖ's own on-demand syndication policy and guidelines.

The Trust's Finance and Compliance Committee (FCC) found that the ³ÉÈË¿ìÊÖ had not acted contrary to either competition law or its own syndication policy and guidelines and therefore rejected these elements of the appeal. It noted that the ³ÉÈË¿ìÊÖ had demonstrated that it had taken into account the three main points set out as examples in the syndication guidelines which enable the Executive to decide if it is justifiable for the ³ÉÈË¿ìÊÖ not to syndicate content: impact on the wider market, the ability of the ³ÉÈË¿ìÊÖ to fulfil its public purposes, and value for money.

When considering whether the ³ÉÈË¿ìÊÖ had breached the fair trading guidelines, the FCC found that the Executive had failed to properly assess the competitive impact of its refusal to allow IP Vision to implement their self-build ³ÉÈË¿ìÊÖ-branded iPlayer, and therefore upheld that part of the appeal on the basis of the processes followed. However, the FCC found that, had the ³ÉÈË¿ìÊÖ Executive carried out such an assessment, it was unlikely the ³ÉÈË¿ìÊÖ Executive would have come to a different decision. The FCC therefore partially upheld this part of the appeal on a process point only.

The FCC also noted that when IP Vision's complaint was considered by the ³ÉÈË¿ìÊÖ's Executive Fair Trading Committee (EFTC) at the second stage of the complaints process, all elements of the complaint were dismissed, but the EFTC stated that &there is some merit in the complainant's concerns about the ³ÉÈË¿ìÊÖ's ‘seemingly arbitrary changes in policy, attitude and long periods of non-responsiveness’".

The FCC also noted that this decision does not prevent IP Vision from appealing to the competition authorities.

Rotha Johnston, Chair of the FCC, said:

"The market for on-demand content is developing dynamically. In light of the ongoing success of the iPlayer, the Trust's job when reviewing the ³ÉÈË¿ìÊÖ Executive's approach to syndication, is to ensure that the Executive considers both positive and negative impacts on the sector.

"The Executive not only has to make sure that users have a consistent iPlayer experience regardless of the platform, thereby safeguarding the ³ÉÈË¿ìÊÖ's brand, but also has to consider the value for money of any investment in another platform.  In this case, the Trust found that the Executive had provided reasonable arguments as to why implementing a self-build iPlayer for IP Vision could have jeopardised both value for money and the ³ÉÈË¿ìÊÖ's brand."

The Trust has also announced it is to carry out a scheduled review of the ³ÉÈË¿ìÊÖ's syndication policy, two years on from its initial implementation.

In October 2009, the Executive published a clarification on the syndication guidelines which sets out how the ³ÉÈË¿ìÊÖ will make iPlayer technology available to third party providers such as cable/satellite TV platforms or websites. The general approach is to make standardised iPlayer technology available, but if this does not work for existing platforms the Executive has stated it will only consider a) adjusting iPlayer technology for platforms with above 100,000 users, and b) building a bespoke iPlayer for platforms with more than 500,000 users. It also formalised a ban on any third parties building their own iPlayer products, in order to ensure a consistent user experience.

The Trust has concluded that the substance of this clarification amounted to a significant change to the syndication guidelines. This should have been referred to the Trust for approval before publication. It will now be included in the overall review of syndication policy.

Rotha Johnston added:

"This clarification to the ³ÉÈË¿ìÊÖ's syndication policy should have come to us for the necessary scrutiny before being published and we'll be looking carefully at the policy and guidelines overall as part of our planned review early next year."

Ends

Notes to editors

Full details of the appeal can be found within the finding document here:

• IP Vision, PDFÌý(72°­µþ)
• IP Vision, text onlyÌý(24°­µþ)

The ³ÉÈË¿ìÊÖ's online syndication policy and October clarification on syndication.

More information on IP Vision

IP Vision's primary product is an HD-ready hybrid set top box platform which combines Freeview services with a broadband internet connection to deliver digital TV and video on-demand entertainment, including HD downloads. The platform operates as a direct-to-consumer service under the ‘Fetch TV brand’, or a ‘white-label’ unbranded platform for third parties.