41. In this section we consider allegations of unfairness both in the methodologies underlying the games and in the practices used to handle calls.

Fairness of competitions

42. Mr Banatvala, Director of Standards at Ofcom, told us that the Broadcasting Code requires "fairness". He added that if Ofcom were to receive a specific complaint that a competition was unfair, "we would have to ask ourselves … would a reasonable person be able to get to the answer? If the answer to that is no, then there is a possible breach of the Code".[92] Many games are intended to sustain a broadcast programme for a number of hours, and it is therefore not in the interest of the broadcaster for answers to be identified too quickly.[93] Puzzles unsolved at the end of a programme are sometimes carried forward to another day. If answers are too obscure, however, and few prizes have been won by the end of the programme, viewers may become disenchanted and switch off. Ultimately, audiences could diminish as a result. Producers made the point that it was in their own (and broadcasters') interests that callers enjoyed the experience and remained comfortable about participating again at a future date.[94]

43. Some games definitely test the boundaries of fairness and, in our opinion, occasionally transgress them. In one game broadcast on ITV Play,[95] participants were asked to name an item that might be found in a lady's handbag; a participant would win a prize by suggesting an item which matched one from a list selected by the production company before the start of the show. The top answer - for which the highest prize was awarded - was "Rawlplugs"; another answer was "balaclava". We received a submission from a person who complained to ITV about this particular answer and was initially told that the answer was justified as the handbag may have belonged to a decorator.[96] Mr Van Rest, the Controller of ITV Play, acknowledged that he had been "disappointed" and "surprised" by the decision of the producer to include such an answer.[97] We welcome Ofcom's finding, in response to a complaint, that ITV had conducted a competition unfairly and had been in breach of Rule 2.11 of the Broadcasting Code.[98]

44. Committee members accepted an invitation from Optimistic Media to visit its production studios in November 2006. During our discussions, we watched a feed from the Pop the Q show, a tower game in which viewers were attempting to guess one of ten films with sequels selected before the programme by the show's producers. Two prizes were won early in the programme; but an hour and a half then passed with no more correct guesses. We saw the list of correct answers and our impression was that many were obscure and difficult to guess.

45. Other games use methodologies which are almost impossible for a viewer to discern, and we were told that "simple-looking questions are often engineered to produce unexpected answers".[99] For instance, a set of numbers may be displayed, some in digital form and some spelt out in words, with viewers being invited to add them and guess the total. The viewer has no way of knowing whether numbers in word form are to be excluded, or whether each digit which forms a component of a large number should be aggregated, or whether certain letters in words are to be treated as roman numerals. In another example, a puzzle asked viewers to count the number of "reds" in a paragraph.[100] The viewer may not realise that the solution may not be the number of instances of the word "reds" but the number of occurrences of the letters "r", "e" "d" and "s" in succession (or in reverse order) as a part of longer words, or even occurrences of the letters not in succession. Methodologies are not necessarily revealed once a show has concluded.[101] Ofcom does not require broadcasters to give details on air of the methodology of a particular puzzle, recognising that such information could be commercially sensitive. It does, however, state in its guidance on interpretation of Rule 2.11 of its Broadcasting Code that an audience should normally be able to expect the correct solution to be provided on air. It adds that "broadcasters should be able to provide Ofcom with the correct answer and the methodology used to arrive at that answer, together with evidence that it could not have been changed after the competition started". [102] There is no requirement for any assessment, independent or otherwise, of whether or not a methodology is "fair".

46. We received a memorandum from PromoVeritas, describing its role in verifying the output of the Great Big British Quiz Channel as well as promotional output from commercial bodies, in order to ensure compliance with statutory requirements and codes of practice. PromoVeritas approves rules for proposed new puzzle types and checks all puzzles before broadcast for conformity with those rules.[103] This does not necessarily mean that a particular methodology has been certified as "fair"; but it does allow greater confidence in the processes used to frame a puzzle before broadcast.

47. Just because a puzzle is misleading does not mean that it is unfair. One of the tricks of the trade in setting cryptic crossword puzzles is to devise clues which mislead the solver; this is generally seen as an acceptable tactic. Cryptic crosswords are however clearly described as such and do not give the impression that cash prizes are likely to be won just by answering a simple-looking question. Ofcom has acknowledged that there is an issue of fairness here, stating that it believes that "an audience should not be misled by a broadcaster stating or implying that a competition is simple if it is actually difficult or cryptic".[104]

48. Some methodologies used for puzzles on Call TV quiz shows are not obvious. We believe that this is tolerable as long as viewers are made aware there is a cryptic element: but this is currently not made clear. Guidance from Ofcom on the issue is sound but does not go far enough. We recommend that Ofcom should require broadcasters to inform viewers that puzzle solutions may not be as simple as they seem. We believe that checks by an independent third party on proposals for new puzzle types and on each puzzle for conformity with agreed rules are valuable in building confidence in the propriety of the games. They are also in the industry's own interests. If there is continued evidence of abuse and significant numbers of complaints about games methodologies, Ofcom should consider making it obligatory for all broadcasters of Call TV quiz shows to verify games with a third party and lodge solutions with them to prevent underhand changes being made while the show is on air. We recommend that Ofcom should consider carefully whether operators should be required to broadcast not just the solutions but also a brief explanation as to how they are arrived at.

49. In most cases of complaint to Ofcom about Call TV quiz services, no breach of the Code was found. When Ofcom submitted its memorandum to our inquiry, in November 2006, it had published detailed findings in only 16 cases involving Call TV quiz programmes. In five cases, broadcasters had been found to be in breach of the Code. In 11 other cases, the broadcaster had recognised the problem highlighted by the complainant and had taken appropriate steps to resolve the issue; and Ofcom had found no breach of the Code.[105] In general, breaches were found to be due to human error, such as a presenter mistakenly rejecting a caller's correct answer, or puzzle answers being misspelt, rather than sharp practice.

50. We are surprised that there have been so few complaints in Ofcom's Broadcast Bulletins about games methodology or about the obscurity of answers. It is not clear to us whether this is because complaints are not being made or whether Ofcom deems such complaints not to present any case to answer under its Broadcasting Code. Of the small number of examples of games which have been described to us, we believe that there are some in which the answers or methodology would not meet the test outlined in oral evidence to us by the Director of Standards at Ofcom; yet they do not appear to have been the subject of a determination by Ofcom. We note that cases tested against the Code originate from complaints by viewers (the majority of whom were interested people who thought that there was something inherently wrong, not people who had actually participated) rather than from monitoring by Ofcom.[106] On balance, unless there is a significant drop in confidence in the integrity of Call TV quiz programmes, we accept that Ofcom's role in ensuring fairness should continue to be primarily one of responding to complaints rather than taking a proactive stance. We recommend, however, that Ofcom should publish periodic reports on the findings of its exercises in monitoring Call TV quiz programmes. Ofcom should in particular watch for any sign that top prizes are consistently going unclaimed because they are associated with puzzles which are so obscure that no viewers solve them.

Unfair practices in handling calls

51. Serious allegations have been made that Call TV Quiz show presenters have sometimes sought to mislead viewers by giving a false impression that no viewers were calling and that a deliberate decision is then made to connect no calls for a period.[107] If the allegations are well-founded, manipulation of viewers is twofold: viewers are encouraged to call in the mistaken belief that they stand a particularly good chance of being connected to the studio, and then, when call volumes have risen, steps are taken actually to reduce to zero their chances of being connected. We were told that three sources had all confirmed that on one occasion, for up to two and a half hours, the person handling and connecting calls to the studio was told by the producers "to ignore the phones completely".[108] One particular allegation has been the subject of investigation by the City of London Fraud Squad.[109] We understand that the Crown Prosecution Service has decided not to bring charges in this particular case but that certain issues have been referred to Ofcom.

52. We did not receive evidence that presenters are presently making claims that no calls are being to a programme when this is patently untrue, or that there is currently a practice of blocking calls. Mr Brook, Chairman of Optimistic Media, made it clear that Optimistic did not operate a policy of blocking calls;[110] as did Mr Fleck (on behalf of Ostrich Media), although his colleague subsequently indicated that Ostrich Media did take steps to bar calls from "hackers" using multiple phone lines from a single internet protocol address, giving them a distinct advantage.[111] We note that the further review of Call TV quiz shows announced by ICSTIS on 10 October 2006 is assessing whether on-screen statements by presenters (for instance about numbers of calls being received) match records of calls being made to the programme in question. We await ICSTIS's conclusions. In the meantime, we signal our strong view that any practice of misleading viewers about call volumes or of blocking calls would be more than unfair: it would be fraudulent and should be punished under criminal law. It would also be a disgrace to the Call TV quiz industry.

Charging for calls when the chances of success are zero

53. Ofcom and ICSTIS told us that one of the concerns which viewers had raised with them was that premium rate lines to games studios were said to be still accepting calls during repeat broadcasts of competitions, when viewers clearly had no chance of participating.[112] Ofcom's guidance to broadcasters on interpretation of Rule 2.11 of its Broadcasting Code states that if a former live competition is re-run so that it is no longer possible for the audience to participate by ringing the number given on air, Ofcom would expect this to be made clear to the audience, and that text on television stating "pre-recorded" is likely to be insufficient unless the phone line is also dead or the number on screen is also illegible.[113]

54. We also heard of other circumstances in which callers might be charged at a premium rate for a call even though it would not be possible for them to participate, either because they were not eligible (for instance because they were under the age limit set by the programme) or because the caller had exceeded a limit on calls (daily or otherwise) imposed by the broadcaster.[114] Mr Kidd, the Chief Executive of ICSTIS, believed that this was "not a big issue" given that people did not make 150 calls per night on a regular basis; but he did not think that such a policy was "right and proper", and he believed that there should be a technical solution to prevent such charges. He agreed to investigate the matter.[115]

55. When we raised this issue with the Director of ITV Consumer,[116] he confirmed that callers who continued to call after they had exceeded the limit of 150 calls continued to be charged at premium rate, and he pointed out that the caller was notified on each occasion that they were not being entered for the competition but that they were nonetheless being charged.[117] He maintained that it was not possible to suspend the premium rate charge "because of the mechanics of the system".[118] ITV subsequently expanded on this, explaining that BT charged for the call as soon as it was answered and that ITV could only identify a caller's number (and thereby detect that it was from a caller who had exceeded their call limit and who could not participate) after that charge had been made. ITV added that "neither ITV, nor Eckoh,[119] nor BT can technically stop charging a viewer [for] calls or disable the phone number for one caller". It pointed out that the volume of such callers was very small indeed and that ITV Viewer Care had not received any complaint about a charge being made for a 151st call. It added, however, that it was considering ways in which the cost of any calls over the 150 limit might be refunded. [120]

56. We accept the statement by ITV that the number of callers being charged for calls made after they have exceeded call limits set by broadcasters and who therefore cannot participate is very small. Nonetheless, it is unacceptable in principle that such callers should continue to be charged, particularly when they do not understand the futility of such calls. We welcome the undertaking by ICSTIS that it will investigate the practice of continuing to charge. We find it difficult to believe that there is no suitable way of preventing such calls from being charged, and we urge BT to assist in finding a solution. In the meantime, customers should be refunded the cost of any calls made which have been blocked from entering the competition.

93   Optimistic Media issued a press release on 28 November 2006 announcing immediate introduction of a set of measures to provide greater transparency for viewers: these include a policy that individual quiz questions and puzzles would henceforth stay on-air for a maximum of 60 minutes before resolution. Back

94   For instance Optimistic Media, Ev 17 Back

95   Q 141 Back

96   Bob Winsor Ev 108 Back

97   Q 141 Back

98   http://www.ofcom.org.uk/tv/obb Back

99   Ben Good Ev 86 Back

100   Mark Raven Ev 100 Back

101   Mark Raven Ev 100 Back

102   Guidance on interpretation of Rule 2.11 of the Ofcom Broadcasting Code, Ev 58 Back

103   Ev 99 Back

104   Guidance on interpretation of Rule 2.11 of the Ofcom Broadcasting Code, Ev 58 Back

105   Ofcom submission, paragraph 43, Ev 51 Back

106   Mr Banatvala Q167 Back

107   Ms Vahl Q 11 Back

108   Ms Vahl Q 11 Back

109   Ms Vahl Q 10 Back

110   Q 60 Back

111   Q 61 and Q 72 Back

112   Ev 53 Back

113   Ev 58 Back

114   Mr Henry QQ 154, 155 Back

115   QQ 189-190 Back

116   The department of ITV managing activities dealing directly with consumers Back

117   Q 155 Back

118   Q 159 Back

119   An external service provider responsible for the automated process for answering calls to shows Back

120   Ev 44 Back