When subscribers to Sky and Virgin switch on their television sets, they find RTÉ One at channel 101, RTÉ2 at 102, TV3 at 103, TG4 at 104 and 3e at 105. At that point, the two biggest pay-TV operators in Ireland start to go their separate ways.
But what advantage is there to occupying the top spots on a linear channel menu? According to Virgin Media Ireland, quite a lot.
At the Mediacon event in Dublin Castle last week, chief executive Tony Hanway segued from stressing the need for public-service broadcasting "in any properly functioning society" to the claim that Virgin Media does RTÉ a favour by giving it the top spots.
“We voluntarily choose to give RTÉ’s TV channels top position on our platform. This is of major commercial benefit to RTÉ as it means they can maximise audience reach and the sale of advertising to ad agencies.”
There was a specific context to these carefully selected words. What Virgin Media does not wish to do, “now or at any point in the future”, is pay retransmission fees to RTÉ.
RTÉ has been lobbying the Government to remove legislation that states Irish free-to-air broadcasters “must offer” their standard-definition channels to pay-TV operators, preventing them from receiving payments known as retransmission fees in return.
Essentially, RTÉ regards the obligation to offer its channels for free as a rather large subsidy to pay-TV platforms – one that doesn’t recognise the value of their content or their investment in it.
Sky and Virgin see it completely differently. They point both to the commercial value of the eyeballs they deliver to RTÉ and to the fact that RTÉ has a subsidy of its own from the licence fee.
This second point is moot. A similar fight for retransmission fees in the UK is being led by ITV, which doesn’t get licence fee money but has consistently argued for “fair” payment.
In any case, both sides are sticking to their “without us, you’re nothing” stance and there is no sign, just yet, of a legislative amendment that would change the status quo.
Voluntary arrangement
So what about that idea that Virgin “voluntarily” gives RTÉ the best spots on its electronic programme guide? Sky would agree with Virgin that it does the same (and furthermore that it’s regulated in the UK, not Ireland).
If it is true that there is no regulation of electronic programme guides in Ireland, Virgin could theoretically choose to remove RTÉ2 from channel 102 and put it down at, say, channel 112. This wouldn’t be good news at all for RTÉ2, which would find itself attracting significantly less passing traffic from those viewers whose remote-control habits were cemented in terrestrial times.
And it might be in Virgin Media’s interest to relegate RTÉ to less favourable spots. Since buying TV3 Group in 2015, Virgin has owned channels that compete with RTÉ for the same viewers. Although the first 10 spots on the electronic programme guide are considered the prime positions, a sliding scale obviously applies. Why else would Virgin install its newest baby, Be3, in the 106 spot rather than leave it in at 110, where its predecessor UTV Ireland resided?
Virgin is correct that there is no specific requirement for it to award particular spots to particular channels. The issue is touched on in section 74 of the Broadcasting Act 2009, which seems to state that electronic programme guides should “prioritise” broadcasting services provided in the State, but the wording is dense and fuzzy. The only regulatory guidance on electronic programme guides issued since then was aimed at RTÉ-owned platform Saorview, which was told it must give “prominence” to RTÉ1, RTÉ2, TG4, TV3 and 3e.
BAI intervention
I asked the Broadcasting Authority of Ireland what would happen if Virgin was suddenly to deprioritise RTÉ’s channels. It agreed that Virgin and Sky had voluntarily put RTÉ and the other Irish channels in the top spots. But, crucially, it said it would intervene if Virgin didn’t fancy doing so any more.
“In the event that they were to change the order of the channels, we would have to look at it,” said the authority’s chief executive, Michael O’Keeffe. “There would be potential for regulatory intervention.”
As with Saorview, the question would be whether the regulator was satisfied with how the pay-TV platforms were giving “prominence” to the Irish channels.
The issue of “prominence” is only getting more complicated. The latest generation of pay-TV platforms, notably Sky Q, give less prominence than before to the entire electronic programme guide. The tab that calls up dozens of linear channels is simply presented as one more option alongside box sets, on-demand highlights and tabs that offer personalised viewing recommendations. The buzzword is “discovery”. Who decides how this works? The platform owner, of course.
Media regulators across Europe have yet to catch up to this “top picks” world. When they do, there may be some drama.
