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Ofcom has launched a one-year pilot during which broadcasters can make on-air references to any website where the audience can access paid-for applications in order to participate in voting or competitions. Previously, paid compo entries and voting could only lawfully take place on the phone.

The UK's communications regulator said it was launching a pilot to expand the mediums from which broadcasters can obtain paid-for participation after recognising "the speed and effect of convergence" in communications. The pilot arrangements, which run until 20 August 2012, only apply to viewer interaction in audience voting and competition schemes.

"During the pilot period, broadcasters will ... be able to refer to any website through which paid-for participation may take place," Ofcom said in its broadcast bulletin (from page 5 of 72-page/954KB PDF).

Rules designed to ensure programme content and advertising services are kept distinct are set out in Ofcom's Broadcasting Code. The Code specifically provides that a broadcaster that "invites viewers to take part in or otherwise interact with its programmes" can only use "premium rate telephone services or other telephony services based on similar revenue-sharing arrangements" if it charges those viewers for their participation or interaction. Broadcasters can use any means to obtain audience participation or interaction when there is no charge involved.

Last month Ofcom originally announced the pilot with stricter terms. Under these, broadcasters could only promote sites which contained applications for mobile devices which allowed viewers to pay to participate in programmes. It has relaxed its view, though, allowing broadcasters to promote websites which take payment more directly.

Ofcom had received responses to its previous plans, including some from broadcasters, that detailed faults with its proposals and prompted Ofcom to admit the pilot terms were too limited.

"We consider it may be a false distinction to limit the means by which viewers are able to participate to websites which are directly linked to mobile and device-based apps since viewers are unlikely to consider that there is any difference between a website which is linked to an app and one which is not," Ofcom said.

"Further, and separately, we acknowledge the point made about the ease with which an app-website link – conceptual or functional – could be minimised or side-stepped by broadcasters so rendering the linkage futile in any event. We are inclined to accept that the linkage proposed is of doubtful utility for the pilot period. In light of those considerations, we have concluded that, during the pilot period, it would not be appropriate to limit on air references only to those websites which are directly linked to mobile and device-based apps used for those purposes," Ofcom said.

All means of paid-for participation must pass through a premium rate service (PRS) to provide third-party verification of the interaction, Ofcom said.

"The use of PRS ensures that voting and competition schemes are administered fairly through the verification requirements imposed under the broadcast licences and it is important that such verification is assured for the protection of viewers," Ofcom said.

"As a result, the promotion of paid-for participation through web interfaces and websites will only be permitted for audience voting and competition schemes and not for other forms of participation," it said.

In 2008 Ofcom introduced new rules that require broadcasters to obtain third-party verification on audience voting and competition entries made by viewers through premium rate services. The changes were implemented after the regulator fined every UK terrestrial broadcaster for abusing rules on audience participation in competitions. The Broadcasting Code states that competitions should be conducted fairly.

ITV was fined £5.67m for:

  • the selection of competition finalists before phone lines had closed, meaning paying competitors had no chance of winning;
  • selecting competition finalists because of where they lived or whether they were suitable TV participants;
  • the placing of known contestants on shortlists;
  • ignoring viewer votes and over-riding viewer choices; and
  • failing to inform viewers of repeat programmes that the programme was recorded and phone calls to premium lines would be wasted.

Some of ITV's biggest shows, including Ant and Dec's Saturday Night Takeaway and Soapstar Superstar, as well as Channel 4's Richard and Judy show were the subject of fines. The BBC was also fined £400,000 for conducting viewer and listener competitions unfairly.

Following the scandal Ofcom said it would work closer with PhonepayPlus, the premium-rate phone regulator. The bodies had been criticised for perceived confusion over which areas of the market each was responsible for regulating and how they worked together to co-ordinate responsibility for premium rate providers, television broadcasters and production companies.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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