Summary of responses to the 2023 consultation on the regulation of additional electronic programme guides

Consultation and responses

On 20 September 2023, a consultation was launched on whether and how to use existing powers to bring additional electronic programme guides (EPGs) under the UK’s regulatory framework. This consultation was open for 10 weeks and closed on 29 November 2023.

An “electronic programme guide” is the legal term for any service that lists and/or promotes the television programmes of one or more third party channels, and provides a way to access those channels. The regulatory framework set out in the Communications Act 2003 means that only services defined in legislation as “regulated electronic programme guides”, and the channels that appear on them, are generally subject to UK regulation. The EPGs that are currently regulated are defined at section 211A of the Communications Act 2003 as those services that were regulated at the point that the UK left the European Union, on 31 December 2020. These regulated EPGs are Freeview, Freesat, Sky EPG, Virgin Media EPG, and YouView EPG.

Under section 211A of the Communications Act 2003, the Secretary of State has powers to bring additional EPGs under the current regulatory framework, either by designating specific providers (or those with a prescribed connection to those providers) or by setting a description in legislation of a “regulated electronic programme guide”.

The consultation was intended to gather evidence from any interested parties, including relevant stakeholders such as the providers of both regulated and unregulated EPGs and channels. The consultation sought views on whether to use the existing powers at section 211A of the Communications Act 2003, and asked for evidence from providers about the potential impact of the regulation of additional EPGs.

In total, the consultation received 55 responses. All responses were considered in this summary of consultation responses.

A breakdown of responses by group is reflected in the table below. Respondents in the ‘other’ group, included industry representative bodies, consumer representative bodies, and network providers.

Respondent type	Number of responses	Percentage of responses
Individual	26	47%
Channel provider	12	22%
EPG provider	5	9%
Both EPG and channel provider	5	9%
Other	5	9%

This consultation was an opportunity for industry and the public to directly engage on this issue and provide evidence to support policy development at that time. Whilst the government is aware that some of this information may now be of less relevance considering the gap in time, for transparency it is important to publish a summary of the responses to this consultation, to form part of the evidence base for decision-making in this space going forward.

Regulation of additional EPGs

The consultation considered whether additional EPGs should be captured under the existing regulatory framework in the UK. Overall, the consultation received a mixed response to this question.

Of the 26 individual members of the public that responded, the majority suggested that additional EPGs should not be captured under regulation in the UK. These responses focussed on the negatives of government interference in media regulation and highlighted concerns about regulation limiting freedom of expression. These respondents generally reiterated these concerns in response to all of the consultation questions.

Of the EPG and channel providers that responded to the consultation, around half agreed that additional EPGs should be captured under regulation. The majority of other responses reflected on the importance of considering the issue but highlighted the need for proportionality or suggested that caveats to the regulation of newer services would need to be put in place to ensure this proportionality.

Responses that agreed additional EPGs should be captured under regulation largely focussed on the regulatory gap created by the recent development of new EPGs and the potential benefits to audiences of regulating these unregulated services. In particular, respondents highlighted the positive impact that the regulation of additional EPGs would have in terms of ensuring consistent protections for audiences. In particular several EPG and channel providers focussed on the importance of prominence in delivering public service content to audiences and the benefits of this. The benefits of requirements for the provision of access services to ensure accessibility for those with disabilities were also highlighted in several responses.

Others focussed on the changing market and delivery of television, and the need to ensure a level playing field between providers delivering similar and competing services. Some responses suggested that regulated EPGs competing directly with unregulated EPGs are at a competitive disadvantage, outlining that there are financial, operational and resource implications that the unregulated EPGs do not have to fulfil.

Conversely, several responses opposed the regulation of additional EPGs or suggested that there should be lighter-touch regulation for those currently unregulated services. The changing television landscape was often highlighted in these responses, in particular the growth of free ad-supported streaming television (FAST) channels. These are subscription-free linear channels, often consisting of content that has already been broadcast, that are delivered over the internet.

EPG and channel providers reflected that these kinds of channels are at a nascent stage of development and that they often operate differently to traditional linear channels. These channels typically show archive content that has already been broadcast, often are niche and narrowly focussed, and sometimes are ‘popup’ channels that only air for a few months at a time. The lower revenue of FAST channels compared to traditional linear channels was also highlighted. Due to these differences, and the early stage of development of the FAST industry, these respondents highlighted the need for proportionate regulation for FAST channels in particular. Many suggested that the current broadcasting regulatory framework would not deliver proportionate regulation for these services.

Impact of regulating additional EPGs

The consultation sought views and requested evidence on the impact of existing regulation and potential additional regulation of EPGs.

Benefits of regulation

Respondents that agreed additional EPGs should be captured under regulation responded to the consultation positively by focussing on the benefits of regulation.

This included a focus on the importance of ensuring protections for audiences from harm by ensuring that channels are required to comply with Ofcom’s Broadcasting Code. Some suggested that this regulation provides “fundamental” protections for audiences, and many responses in particular focussed on the importance of these protections for children. Several responses also reflected rules to ensure protections against materially misleading content. One response outlined that audiences should be able to have confidence that they will not encounter harmful TV content regardless of which service they are using.

Responses also highlighted the importance of requirements for provision of access services for those with disabilities, both on regulated EPGs and regulated channels. This includes specific requirements for channels to ensure that a certain amount of their content is subtitled, audio described, and signed. These responses agreed that these accessibility requirements are important for ensuring more equal access to TV content.

Some responses also highlighted the benefits of prominence for public service content within an EPG, where this allows audiences to easily find high-quality UK original content on their TV sets.

Some responses also focussed on the importance of having an independent body with powers to investigate and take enforcement action against any services not complying with these rules. These respondents suggested that this accountability is an important part of the UK’s regulatory system, and some reflected on the importance of having a third party that consumers can complain directly to.

Responses also highlighted the importance of improving the consistency of regulation and balancing requirements between providers delivering similar and competing services. These respondents focussed on the importance of regulatory consistency to ensure a fair and competitive market for services. One response also highlighted that the current system of broadcasting regulation in the UK is well-established and globally respected.

Respondents that either opposed outright the regulation of additional EPGs or suggested lighter-touch regulation tended to also agree with these benefits of regulation. However, their responses generally highlighted a view that despite these benefits, the existing statutory regulations could be disproportionate for newer services and in particular for FAST channels. When discussing the benefits of regulation, one response suggested that self-regulation could achieve the same benefits as statutory regulation. One respondent suggested that the risk to audiences on EPGs was low as audiences generally access more harmful content on mobile phones, laptops and tablets rather than via television sets.

The consultation responses were generally focussed on anecdotal evidence of the impact of regulation and did not provide quantitative estimates of the total benefit of the regulation of additional EPGs.

Costs of regulation

Respondents noted that there are several costs associated with statutory broadcast regulation, and costs that would result from additional EPGs being regulated. Some responses suggested that the costs would be more significant than accounted for in the consultation and set these out in more detail.

Evidence provided in response to the consultation included the familiarisation costs for EPGs and channels, such as costs related to reviewing Ofcom’s guidance and ensuring understanding of these requirements.

Compliance costs for EPGs and channels were also set out, including the cost of applying for and annual fees for broadcast licences, and costs associated with updating practices and processes to ensure compliance with Ofcom rules. EPG providers set out that these costs could include updating their practices around channel listings and accessibility provisions for those with disabilities. Regulatory requirements discussed in consultation responses included compliance with the Broadcasting Code, the Code on the Scheduling of Television Advertising, the Cross-promotion Code, and providing yearly returns to Ofcom of financial and transmission data. Respondents also highlighted the costs of administrative tasks, compliance training, resourcing, and upgrading internal systems. One response highlighted that the risks of non-compliance includes fines and in extreme cases suspension or loss of licence.

Several EPG and channel providers suggested that statutory regulation would have a significant impact in particular for FAST channels, where statutory regulation could become a significant proportion of their operational costs. Some EPG providers suggested that these newer channels may not have the capacity or capability to meet these regulatory costs and would therefore stop providing their services if they were brought under regulation. Only a fifth of total respondents included consideration as to whether they would apply for a broadcast licence as a currently unregulated channel provider. While some responses suggested that their provision of channels may be reduced if they were required to hold a broadcast licence, the majority of these set out that they would need to consider in more detail the compliance and operational costs associated with statutory regulation. Providers of portal services in particular highlighted that they would expect either the majority, or many of the smaller channel providers, not to seek a broadcasting licence if the EPG that they appear on were to be regulated. One EPG provider suggested that those based outside of the UK may be similarly unlikely to apply for a licence. Some responses suggested that this may result in an impact on the range of channels and programmes available to UK audiences.

Some responses reflected that an indirect impact of channels not seeking broadcast licences would be a decrease in the quantity of content available to audiences. Some also highlighted that the removal of any channels as a result of regulation would also incur an additional cost for the EPG provider from lost revenue. Finally, some responses suggested that there could be an additional cost to the removal of these channels if audiences are driven to other, higher-risk platforms to access similar content.

Responses generally did not provide any data to support the assessment of the costs of statutory regulation, including estimates of familiarisation and compliance costs. Both EPG and channel providers were unable to provide estimates of how many channels they would expect not to apply for a broadcasting licence were the service they appear on to be regulated.

Self-regulation as an alternative to statutory regulation

Of those that provided detail on self-regulation in their response, there was a relatively even split between those that set out a position that self-regulation is a robust alternative to statutory regulation and those that did not believe this to be the case.

Some responses outlined concerns that channel providers not falling under statutory regulation currently are able to show potentially harmful content at any time of the day, not having to comply with watershed requirements, and do not provide accessibility features for those with disabilities. Many responses did acknowledge that unregulated providers may set out terms and conditions to ensure appropriate content on their services, but argued that these internal systems are not a direct substitute for the independent enforcement of clear and well-established regulatory rules. Some responses also highlighted that audiences should be able to appeal to an independent regulatory authority with the power to hold services directly to account, rather than relying on internal self-regulation.

Several respondents suggested that it would be inconsistent to have currently regulated EPGs under independent Ofcom regulation, while newer EPGs with similar levels of audience reach operate under a self-regulatory system. Some responses highlighted that Ofcom already has responsibility for the regulation of EPGs and it would therefore be more consistent to extend this existing regime rather than establishing a separate self-regulatory regime. In particular, responses highlighted that a self-regulatory approach does not ensure that the exact same requirements are in place for services delivering a similar service to audiences and competing on a similar scale. Some responses suggested that a self-regulatory system would undermine the reach and impact of the existing statutory regulatory regime.

With regard to accessibility requirements in particular, one consumer representative body suggested that, in the absence of legal requirements, many organisations fail to prioritise accessibility for those with disabilities. This response also highlighted Ofcom’s ability to apply exemptions for access service requirements to ensure that the regulatory burden of providing these is proportionate.

Contrastingly, several responses outlined their view that self-regulation should be considered an appropriate alternative to statutory regulation. Several of these responses suggested that the current self-regulation frameworks implemented by unregulated EPG providers are highly robust, including content standard guidelines and additional consumer protection mechanisms like PIN codes and content warnings. Some suggested that this self-regulation either aligns with or even goes beyond the statutory requirements in terms of protections for audiences, and particularly children and vulnerable audiences. Many of these respondents argued that the introduction of statutory regulation for these EPGs and the channels appearing on them would therefore add an unnecessary burden with little benefit for audiences in terms of protections.

Several responses argued that a voluntary system of self-regulation could therefore be used to create consistency in audience protections for those platforms not under statutory regulation, while resulting in lower costs for smaller platforms and channels. These responses argued that this could result in more proportionate regulation for newer EPGs. Some responses suggested that a non-statutory code of practice could be co-created with industry to fulfil these objectives, and others suggested that the development of a self-regulatory regime could be overseen by or involve Ofcom.

Scope of regulation of additional EPGs

Of respondents that provided a direct view, all agreed that the regulation of EPGs should be restricted to those used by members of the public in the UK. Respondents generally agreed that this approach would be most proportionate, and ensure consistent protections for UK audiences. Some responses noted that this aligns with the approach for the regulation of Tier 1 video-on-demand services in the Media Act 2024.

There were a mix of responses regarding whether regulation should be limited to EPGs accessed via a television set. Several EPG and channel providers suggested that the focus of regulation should be on EPGs accessible via a television set. These responses highlighted that watching television is not the primary purpose of other devices like mobile phones and tablets, and that watching television on these devices requires more active user participation such as specifically seeking out live TV content and downloading an application.

However, some other responses suggested that the regulation of EPGs should be technology neutral. Several highlighted that significant numbers of people use other devices to access linear content. One response suggested that as technology develops it is becoming more difficult to distinguish between a traditional television set and other technology, with computer monitors of comparable size and connected televisions with similar operating systems to other devices. Another response suggested a risk that the regulation of smart televisions becomes more onerous than other competing devices.

Bringing portal services under statutory regulation

The consultation set out a proposed approach to capturing all services distributed via digital terrestrial television (DTT) in order to capture portal services, which are unregulated EPGs accessible via a channel slot on a regulated EPG.

Some respondents agreed with the rationale set out in the consultation for the inclusion of all EPGs that it is possible for audiences to access through the DTT platform (Freeview). These responses highlighted the public trust in Freeview and suggested that audiences would expect a certain level of protection and accessibility from channels available via DTT. Other EPG providers also suggested that the regulation of portal services would create a level playing field for all channels accessible via an EPG, either through the main platform or from the portal EPG service, and would avoid the risk of channels exploiting a regulatory loophole to broadcast harmful content.

Contrastingly, some respondents suggested that the lack of regulation on portal services ensures a variety of smaller and niche services are available for UK audiences, and that these channels are therefore not restricted from being included on UK EPGs due to the financial or internal system constraints of regulation. These responses also highlighted that this content can appeal to diverse and minority audiences, and that the low cost and flexibility of delivery means that they can reach these smaller audience populations.

Audience reach threshold approach to capturing additional EPGs under regulation

The consultation set out a proposed approach of using an audience reach threshold to capture the most popular EPGs under regulation. The consultation highlighted the challenges in determining the level at which an audience reach threshold could be set due to limited access to relevant data for unregulated services. The consultation suggested two indicative options, with one higher threshold of audience reach of 3.25 million, and one lower proposed threshold at 500,000 audience reach.

Respondents presented a mix of views in response to this proposed approach. Of those that provided a response, several agreed with an audience reach approach, some explicitly disagreed with this approach, and a quarter of responses suggested an alternative approach as part of their response.

A number of respondents agreed that audience reach would be a proportionate and objective way of determining which EPGs should be regulated. One response suggested that audience reach would be a simple, auditable metric that could be recognised by all industry players. Some responses explicitly set out support for a methodology of measuring audience reach by services measuring three consecutive viewing minutes via an EPG. One provider agreed with an audience reach approach but suggested that more clarity would be needed on how this should be measured in terms of audience access to the EPG via different parts of a user interface.

Conversely, some responses highlighted concerns with the measurement of audience reach by EPG providers. One response suggested that a consistent measure of audience reach cannot be achieved without consistent data collection by providers. Another response similarly suggested that standardised measurement would be required across all EPG providers, and raised concerns that unless measurement of this metric was taken up by all services there is a risk of medium-sized providers crossing the threshold without being appropriately regulated. Some EPG providers also suggested that an audience reach threshold could risk deliberate fragmentation of services into several EPGs in order to avoid regulation. Some providers suggested that the measurement of audience reach metrics could impose additional costs for EPG providers.

In terms of the level at which an audience reach threshold should be set, just under a third of respondents gave a preference between the two options for the level of an audience reach threshold presented in the consultation, and of those that did there was a relatively even split. Two responses suggested that a threshold should be aligned with the regulation of television selection services through the Media Act 2024, where these will be regulated where they are used by “a significant number of members of the public in the United Kingdom”. One response suggested that Ofcom should determine the level of an audience reach threshold.

Several responses suggested that if an audience reach threshold approach is taken, this level should be regularly reviewed to reflect any market or audience viewing changes going forward. One provider suggested that if an audience reach approach is adopted, the government should implement a system so that an EPG provider can opt into regulation and thereby not have to collect the relevant audience reach figures.

Very few EPG providers gave a clear response as to whether they would themselves be captured by either of the proposed audience reach thresholds set out in the consultation, or provided further evidence of their current level of audience reach. Those that confirmed they would meet some of the criteria set out in the consultation included portal services accessible via DTT, and one smaller EPG provider. One response suggested that there are too many variables and open considerations on a methodology for measuring audience reach to confirm whether they would meet a proposed audience reach threshold.

Other proposed approaches to capturing additional EPGs under regulation

When considering descriptors or metrics that could be used to determine which services come under regulation, the consultation set out several alternatives to audience reach, including the nature of programmes, ease of access, number of channels, turnover and number of employees. Many responses proposed that arguments for an audience reach threshold were stronger than for these alternatives and that this was therefore a preferred option if metrics were to be used to describe a regulated EPG. However, some responses did suggest alternative factors or metrics that should be considered in determining which EPGs should be regulated.

One response suggested that monitoring of network traffic could be used to determine audience consumption as a proxy metric if there are difficulties in measuring audience reach figures. Another response suggested that monthly active devices should be used as a preferred method for monitoring audience reach.

Some responses suggested that an audience reach threshold should be based on channel reach rather than the reach of the EPG. These suggested that this would be more proportionate as regulation would be limited to the channels attracting a significant audience, whereas some channels on a popular EPG may not gain significant audience reach.

In contrast with the assessment set out in the consultation, several EPG and channel providers suggested that the nature of programmes included on channels is a valid factor and should be considered. These responses highlighted particular concern for protecting audiences in relation to programmes aimed at children, adult content, religious programming, and news. However, others highlighted that the nature of programmes on a channel is something that can easily fluctuate, particularly with the introduction of FAST channels, which can change their programming focus over time.

One response proposed that a revenue-based model should be used, with UK EPG revenues reported on an annual basis. One response alternatively suggested that only the primary EPG available on a device should be regulated.

Some responses did not focus on the description approach to bringing additional EPGs under regulation, and suggested a range of alternative options. This included the suggestion by several responses that Ofcom should determine which services should be regulated, or recommend services for designation. Limited detail was provided as to how Ofcom should determine this. One response suggested that a regulated service list should be devised which would set out which channels and EPGs should be regulated in the UK. Other responses suggested that a tiered approach to channel regulation within a regulated EPG should be implemented, with some suggesting lighter-touch requirements similar to the On-Demand Programme Service rules for newer internet-delivered channels.

Implementation process for newly regulated EPGs

The consultation set out a proposed implementation process for consideration. This included a 12 month implementation period before captured services would be required to comply with regulatory requirements. The consultation also proposed that EPGs would become regulated periodically at fixed points in the year based on the collection of audience reach data over the course of a calendar year. Finally, the consultation sought views on whether a service should remain under regulation once an audience reach threshold has been met, regardless of future levels of audience reach.

Responses to the consultation were relatively evenly distributed between those agreeing with the proposed implementation process set out in the consultation, and those suggesting adjustments to this.

Several respondents suggested that the proposed implementation process set out in the consultation would be a sensible approach. These responses highlighted their agreement with the measurement of monthly audience reach, to be averaged for a calendar year, with regulation beginning at the end of the following calendar year if an audience reach threshold is met. Some highlighted that the proposed process with fixed milestones would introduce certainty for EPG providers and their channel partners.

Several providers agreed that a 12 month implementation period would be sufficient for the implementation of the regulation of additional EPGs. One response highlighted that this would be in line with the 12 month implementation period included in the Media Act 2024 for the regulation of Tier 1 video-on-demand services.

However, some responses highlighted concerns with the proposed approach, in particular related to the manufacturing and product development cycles. Various EPG providers suggested that an 18 month or 24 month period would better align with these. Some responses reiterated several administrative and operational factors that would need to be considered were they to come under regulation. This included factors such as channels applying for licences from Ofcom and verification of these by the newly regulated EPG, ensuring content compliance with the Broadcasting Code, delivery and reporting on accessibility requirements, and additional recruitment and training of staff to deliver these. Providers also highlighted that there are typically fixed points for product release throughout the year and that this may cause difficulties if these do not directly align with the introduction of regulatory requirements. These responses suggested that a longer grace period would be required to implement these necessary changes.

One EPG provider also highlighted the potential for required changes around an organisation’s data collection if an audience reach threshold were to be implemented. Others suggested that there should be more clarity about the data that would need to be collected by EPG providers on audience reach.

A range of views were presented in response to consideration of whether services should remain under regulation after reaching an audience reach threshold, regardless of future levels of audience reach.

Several responses suggested that EPGs should permanently remain under regulation after meeting an audience threshold. Some responses highlighted that this approach would provide regulatory coherence across the sector, and suggested that services remaining under regulation would be in the interest of audiences due to the benefits of content standard regulation. These respondents also highlighted that this would ensure certainty for providers, meaning that any investment for regulatory compliance does not later become redundant, and there is not a risk that services would come in and out of regulation over time. Other responses highlighted the need for consistency for audiences in terms of the protections they are provided, and that this approach would be in line with the current regulation of EPGs where there is no built-in mechanism for coming out of regulation.

Some responses suggested that a mechanism for services to come out of regulation could potentially create an incentive for providers to deliberately fall below the audience reach threshold to avoid regulation. Other responses similarly suggested a scenario whereby a service may utilise a mechanism for falling out of regulation in combination with the grace period to gain time outside of regulation. Several respondents proposed that, to avoid this, if a mechanism for coming out of regulation were to be implemented, a grace period should not be allowed for a service that has previously fallen under regulation.

Other responses suggested that there should be a route to coming out of regulation if a service falls below an audience reach threshold. Some responses outlined that the risk to audiences would be lower if a service drops below the threshold and therefore they should no longer be required to meet regulatory requirements. Several responses stated that the reduced audience reach may lead to reduced revenue for providers, which would make regulatory costs disproportionate or potentially unaffordable.

Many of these responses did not specify a proposed process for an EPG coming out of regulation, for example a timeframe over which an audience threshold was not being met. One response suggested that audience reach should be measured on a calendar year basis and if a service does not meet the audience reach threshold in a given calendar year they should immediately be removed from regulation in the following calendar year. A few respondents suggested that a service should only be removed from regulation if they fall below the audience reach threshold for two consecutive years.

Next steps

The government has considered the responses to this 2023 consultation as part of its evidence base in the development of policy for the future regulation of electronic programme guides and television content. More information about the government’s next steps in this space can be found on the Government statement on the future regulation of television electronic programme guides page.