Sky has delivered a strongly worded submission to the BBC Trust in response to its proposed on-demand syndication policy. Sky says the strategy is “not fit for purpose” and calls into question the judgement of the BBC Trust in proposing a policy that could leave millions of set-top boxes without on-demand access to BBC programmes. Sky suggests the BBC Trust risks infringing its legal obligations and warns that if adopted the proposed policy could be open to challenge.

“The fundamental principle of broad distribution of publicly funded content ought to lie at the heart of the Trust’s evaluation of on-demand syndication,” Sky submits. “Yet, the BBC Trust’s Provisional Conclusions adopt an unnecessarily restrictive approach to the syndication of long form, on-demand TV content”.

Despite an installed base of over 3.5 million broadband enabled set-top boxes, Sky says it will be unable to support any of the proposed ‘standard’ BBC iPlayer versions.

“The knowing exclusion of millions of existing licence fee payers is one of a number of perverse outcomes,” suggests Sky. “It demonstrates that the Trust has not acted in the public interest in arriving at its draft syndication policy.”

Sky objects to the assumption that by making unspecified modifications to its software its set-top boxes will be capable of taking a standard version of the BBC iPlayer.

“Noting that the Trust has at no time enquired of Sky whether such modifications are technically possible or practicable, the Trust clearly does not consider that provision of BBC public service content to millions of licence fee payers on Sky’s platform is something that should disturb its proposed approach. That the Trust could design a policy that explicitly excludes such a large proportion of licence fee payers raises serious questions about its evaluation and judgment.”

Sky therefore challenges the assumption of the BBC Trust that there will be very few devices or platforms in the market that will not be able to use one of the standard versions of the BBC iPlayer.

“Even if it were possible for Sky to modify the different versions of its connectable set top boxes in such a way as to enable browser access, Sky would expect both the navigation and viewing experience to be extremely poor, particularly when compared to the viewing experience in Sky’s Anytime+ service.”

Sky says that it has spent 20 years developing its service and observes that it would be highly inappropriate for the BBC Trust to base its judgement “on a speculative requirement that Sky change the way it operates (and put its business at risk by making fundamental changes to its platform software) in order to be able to provide BBC public service content”.

Sky claims that it is fundamentally wrong for the BBC Trust to design a policy that explicitly excludes such a large proportion of licence fee payers.

It says the proposed BBC policy is “not fit for purpose” and “does not secure the best interests of licence fee payers as public value is manifestly not maximised by a strategy that restricts access to public service content.

Furthermore, Sky suggests that the BBC Trust risks infringing its legal obligations under the Charter and Framework Agreement.

Under Article 23 of the BBC Charter, the Trust is required to act in the public interest, “represent the interests of licence fee payers” and “have regard to the competitive impact of the BBC’s activities on the wider market”.

Clause 12 of the Framework Agreement states that the BBC must “do all that is reasonably practicable to ensure that viewers, listeners and other users (as the case may be) are able to access the UK Public Services that are intended for them, or elements of their content, in a range of convenient and cost effective ways which are available or might become available in the future”.

“As acknowledged by the Trust, the current BBC strategy could lead to millions of licence fee payers being denied access to the BBC’s on-demand content on their chosen television platform”. Sky concludes: “This cannot be in the public interest.”

Sky argues instead that third parties should have the option of either adopting a standard version of the BBC iPlayer or as separate packages of programmes.

In addition to retaining an online BBC iPlayer to deliver its public purposes, Sky suggests that the BBC should facilitate disaggregated products, for instance by making packages of individual assets and metadata available in a standardised format, such that platform operators would bear the costs of making the content available in future. This would permit the distribution of a subset of BBC programming, for instance for platforms not technically or practically able to make all on programmes available on-demand in the context of their existing service.

Sky says the considerable benefits of this approach include: providing better value for money by reducing the distribution cost to the BBC, reducing the need for the BBC to provide multiple standard versions of the BBC iPlayer product, enabling existing television platforms and devices unable to take standardised versions of iPlayer to make BBC on-demand content available, and allowing licence fee payers to access content in the manner that they have chosen.

The conclusion that the BBC should make its on-demand programming available as packages of assets and metadata in a standardized format is similar to the submission from informitv in response to the BBC Trust consultation.

The primary concern that the BBC appears to have about such an approach is that third-party operators like Sky might selectively distribute more popular programmes and not allow users to access the broader range of public service programming.

This concern may be unfounded, and could be addressed by making it a contractual requirement on third parties providing such BBC programming on demand that they make available access to the full catalogue.

Given that on-demand services can provide access to a virtually unlimited range of programming at marginal cost, it is not clear why it should be to the advantage of a third-party operator to provide access only to a limited selection of BBC programmes, particularly if competing services offer the full range.

It might be argued that Sky has an incentive to promote its own programming, but the reality is that BBC1 and BBC2 still account for well over a quarter of all viewing. It is difficult to see why Sky would want to deny its subscribers access to programmes that they have paid for through their television licence.

As it is, the BBC appears to want to make it more difficult for Sky subscribers to access its programming on demand in order to promote its own services.

The informitv submission in response to the draft BBC syndication policy is available here.