Bills Digest No. 3 2003-04
Communications
Legislation Amendment Bill
(No. 3) 2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Communications Legislation
Amendment Bill (No. 3)
2003
Date Introduced:
19 June 2003
House: House of Representatives
Portfolio: Communications, Information Technology
and the Arts
Commencement:
The provisions of this
amending Act commence on various dates which, in some cases,
reflect the need to await amendments to subordinate instruments.
The commencement date for each relevant amendment is identified in
the discussion in the Main Provisions, below.
The Bill amends
broadcasting, telecommunications and radiocommunications
legislation to correct minor legislative anomalies associated with
the introduction of digital television and datacasting services in
Australia, particularly in relation to services available to
regional areas. The Bill also amends the penalty provisions of the
Telecommunications Act 1997 to provide the option of a
penalty payment as an alternative to formal prosecution in the
courts.
In 1998, Australia established a legislative
framework for conversion from analog to digital TV. The analog TV
transmission system has been in place since TV was first introduced
into Australia. Elements of the digital conversion schemes included
the 'loan' for all free-to-air broadcasters (including the ABC and
SBS) of 7Mhz of spectrum for broadcasting. A prohibition was placed
on new free-to-air television entrants until the end of 2006. There
was also a requirement to simulcast in analog and digital for at
least eight years. A prohibition was also placed on multichanneling
by the free-to-air broadcasters until 2005. These measures
recognised the large capital costs in making the transition to
digital television and that there was no clear evidence at that
time that digital TV would bring any new major revenue
schemes.(1)
'Digital transmission' is defined as the
broadcasting of a program or service using a digital modulation
technique. Digital TV offers sharper pictures (including some
programs in high definition HDTV) clearer sound, widescreen
programs and extra channels. The common digital transmission uses a
standard definition digital broadcast (SDTV). Digital TV can be
received by an integrated digital television or by an analog TV
that is connected to a digital television receiver set-top box.
A 'datacasting service' is defined as a
service (other than a broadcasting service) that delivers
information (whether in the form of data, text, speech, images or
in any other form) to persons having equipment appropriate for
receiving that information, where the delivery of the service uses
the broadcasting services bands.(2) Current restrictions
on datacasting imposed by the Federal government mean that it is
unable to resemble a conventional TV service. Australia's first
commercial datacasting channel is expected to be launched by the
end of this year.(3)
Digital conversion for free-to-air TV is a
separate issue to digitisation by pay-TV providers.
The Minister's Second Reading speech explains
that the main metropolitan areas of Australia have three commercial
television services, as well as the ABC and SBS. Many regional
areas have two or, in some cases, only one ('solus') commercial
service. The introduction of digital television broadcasting has
seen government support for the provision of additional services in
regional areas. In a solus market, a commercial television
broadcasting licensee can obtain a second analog licence in the
same area provided both are ultimately converted to digital
transmission. In a two-service regional market a commercial
broadcaster can provide a third service in digital
mode.(4)
The Government also provided financial
assistance for digital roll-out to regional broadcasters by way of
rebates against their annual licence fee and supplementary grants
in some smaller licensee (solus) markets. This financial assistance
recognised that the cost per viewer for the roll-out in regional
areas was higher and the revenue base lower than for metropolitan
areas.
The Parliamentary Library has issued an
E-Brief on Digital Television and Datacasting prepared by
Dr Kim Jackson which provides a summary of the policy and
legislative measures associated with the introduction of digital
television and datacasting in Australia. The E-Brief notes that the
ABC announced on 26 May 2003 that it would close its digital
multi-channel services, 'Fly TV' and 'ABC Kids' due to lack of
funding. The E-Brief is available on http://www.aph.gov.au/library/intguide/sp/digital_television.htm
and it was issued on 16 June 2003.
The web
site for the industry-based Digital Broadcasting Australia (DBA) at
(www.dba.org.au) includes
information on:
the digital take-up rate in Australia
digital products, and
digital reception and programming.
The web
site contains the following pie chart estimation of the national
take-up of digital TV in Australia:
NSW leads Digital TV
uptake
(26 June 2003)
As
at the end of May 2003, there are estimated to be more than 82,000
digital television homes, with 56% of those homes being in New
South Wales and ACT.
The break down by state is based on sales to
retailers of digital television receivers and integrated digital
TVs in the five months to 31 May 2003.
Source:
DBA
As a general estimation, the total number of
households in Australia is in the order of 7.5
million.(5)
Craig Spann, in an article 'Hi-tech nation
warms slowly but surely to digital television', notes that there
are divergent views about the rollout of the 'troubled' digital
television network.(6) Spann quotes the DBA as saying
that recent sales of the set-top boxes have been 'impressive'. The
same article quotes media analyst Paul Budde as saying that the
industry optimism was misplaced and that there was 'no way in the
world' that digital TV would be widespread enough to meet the 2008
analog television deadline and that the more realistic deadline
will be something like another decade.(7) The article
also notes Budde's observation that:
[T]he Federal Government had hampered the take-up
of digital television by restricting the commercial stations from
introducing new digital TV services like multi-channelling, whereby
one network offered several channels.(8)
The article concludes with a rebuttal by a
spokesman for the Minister for Communications, Senator the Hon
Richard Alston, denying that the Commonwealth had bungled the
introduction of digital television and gave the analogy of the
initial slow take-up of DVDs.
Katrina Nicholas in an article 'Launch of TV's
first datacasting channel', includes an observation that in Europe
the driver for digital TV had been the sheer number of extra
channels available to consumers.(9)
When amendments to the Broadcasting
Services Act 1992 (BSA) came into effect on 1 January 2001
they enabled a licensee in a solus market the option of
multi-channelling the digital transmission of their TV service with
no requirement to provide a HDTV component. A second licence was
made available in a solus market to facilitate simulcast of analog
and digital transmission. Multi-channelling is only possible for
digital services. Solus operators who received a second licence
before 1 January 2001 did not enjoy that flexibility because of the
wording used in the January 2001 amendments. The amendment
contained in Item 1 corrects that anomaly by
amending Clause 6 of Schedule 4 Digital Television
Broadcasting contained in the BSA. A new subclause
6(5AA) is inserted in Schedule 4. The new subclause 6(5AA)
enables a commercial television broadcaster who received a second
licence before 1 January 2001 to elect to provide digital services
by multi-channelling, without the obligation to provide a HDTV
component.
The inclusion of a reference to the
new subclause 6(5AA) in
subparagraph 60(1)(g)(vi) of Schedule 4 to the BSA, made by
Item 4, obliges the Minister to conduct a review
of the operation of new subclause 6(5AA) before 1
January 2005.
As a broad statement, the
Radiocommunications Act 1992 (Radcom Act) deals with the
management of the radiofrequency spectrum to ensure the efficient
use of the spectrum and to also ensure that public benefit is
derived from the use of the spectrum. The 'spectrum' means the
range of frequencies within which radiocommunications are capable
of being made.
Item 6 amends paragraph
102A(2A)(c) of the Radcom Act to replace the provision with a
broader version that will allow both licences issued to a solus
operator to broadcast in digital mode irrespective of when the
additional licence was issued after the original section 102A
(Radcom Act) transmitter licence was issued for the digital
conversion schemes.
These amendments commence on a day to be fixed
by Proclamation.
In a broadcast area serviced by two licensees,
the digital conversion arrangements allowed a third licence that
could be operated jointly, or by one of the two licensees on an
individual basis. Licensees in a two service market were given 90
days from 1 January 2001 to elect to apply for the additional
broadcasting licence. In those cases where a regional area
overlapped with a remote area the election date was governed by
arrangements that were to apply to remote areas. The remote area
election date is yet to be determined. This has created an anomaly
for those two service regional area licensees that are capable of
electing but who are precluded because their area overlaps with a
remote area. Items 8 to 10
rectify the anomaly and allow those two service regional areas to
elect for a third licence subject to the condition that within one
year of being granted the licence the licensee will commence a
service in SDTV digital mode. This start-up period may be further
extended by the Australian Broadcasting Authority but no later than
1 January 2006 (see Item 10). Time limitations
have not been established for remote areas as the determinations
for digital conversion for these areas have still not been
finalised.
These amendments commence on the day on which
the Act receives the Royal Assent.
The Radcom Act contains provisions that
regulate radiocommunications. Two of the types of
radiocommunications transmitter licences regulated by the Radcom
Act are for datacasting services and for digital conversion schemes
operated by the 'national broadcasting service' (ABC and SBS).
These licences may include conditions. Similar provisions cover the
licensing of commercial broadcasting services. At present, these
transmitter licences are subject to restrictions, such as delaying
datacasting until 12 months have elapsed after the commencement of
the simulcast period. For metropolitan areas, the simulcast period
commenced on 1 January 2001. For remote licence areas, and many
regional areas, the simulcast period has not commenced yet and will
vary.
Items 11 to
16 repeal various provisions in the Radcom Act to
remove timing restrictions on the national broadcasting service.
Items 17 to 22 remove timing
restrictions on commercial broadcasters. The timing restrictions
apply to the transmission of datacasting services. Transmissions of
the services by a free to air broadcaster are delayed until either
12 months after the simulcast period commences, or the commencement
by another licensed transmitter of datacasting services, whichever
occurs first. The removal of the 'delay period' followed a review
of datacasting services which concluded that the delay provisions
are no longer necessary. Originally, it had been thought that the
provisions were necessary to ensure a level playing
field.(10)
These amendments commence on the day on which
the Act receives the Royal Assent.
Under Schedule 4 to the BSA, the ABC and SBS
are required to formulate and present to the Minister
implementation plans for the national television conversion scheme.
The Minister may approve or refuse to approve an implementation
plan. The rollout of digital services has seen the need to obtain
approval for a series of variations to the implementation plans.
Item 23 enables the Minister to delegate his
powers to the Secretary of his Department or to an SES officer
within the Department to perform this function under the BSA.
These amendments commence on the day on which
the Act receives the Royal Assent.
Under Part 21 of the Telecommunications
Act 1997, the Australian Communications Authority may make
technical standards about customer equipment, customer cabling and
compliance labelling. The purpose of these measures is to prevent,
as far as possible, the use of equipment, cabling and connections
that is unlawful and dangerous. A breach of matters such as the
conditions of a connection permit, standards for equipment and
cabling or the misapplication of compliance labelling may result in
a prosecution of an offender under the Telecommunications Act
1997. At present, the two regulatory measures are (a) a
warning to an offender, or (b) formal prosecution.
The Bill proposes an additional option of a
penalty in lieu of formal prosecution. Item 47
inserts a new 'Division 13 Penalties payable instead of
prosecution' in the Telecommunications Act 1997
and specifies the range of penalties for individual or a body
corporate for breaches of Part 21 of the Telecommunications Act
1997.
These amendments commence on the
28th day after the day on which the Act receives the
Royal Assent.
The Bill
provides additional flexibilities to assist in the rollout of
digital TV and datacasting services. Over time, the primary
legislation in this area has become layered and complicated.
The Bill aims to remove anomalies and
unnecessary restrictions in the BSA and Radcom Act. Additional
flexibility for the Telecommunications Act 1997 (in terms
of penalties payable for breaches in lieu of formal prosecution) is
also contained in the Bill. These are
desirable objectives but some of the policies that have underpinned
the overall legislative scheme have drawn both support and
criticism from time to time.(11)
- Drawn from the speech by Senator the Hon
Richard Alston, Minister for Communications, to the Digital
Revolution Conference, 14 June 2000.
- See generally: Peter Leonard and Angus
Henderson, 'Television Conversion Schemes', Communications Law
and Policy in Australia, Volume 1, Butterworths, Chatswood,
NSW, 2001, pp. [26,095] to [28,950]; and Digital Broadcasting
Australia, 'What is Digital Television?' on www.dba.org.au.
- Katrina Nicholas 'Launch of TV's first
datacasting service', Australian Financial Review,
1 July 2003, p.16.
- The Hon Peter McGauran MP, Minister for
Science, 'Second Reading Speech', Communications Legislation
Amendment Bill (No. 3) 2003, House of Representatives,
Debates, 19 June 2003, p. 16009.
- Dr Kim Jackson, Digital Television and
datacasting, E-Brief, Department of the Parliamentary Library,
Canberra, 16 June 2003 at: http://www.aph.gov.au/library/intguide/sp/digital_television.htm
.
- Craig Spann, 'Hi-tech nation warms slowly but
surely to digital television', Courier Mail, 1 March
2003, p.16.
- ibid
- ibid
- Katrina Nicholas 'Launch of TV's first
datacasting service', Australian Financial
Review,1 July 2003, p.16.
- The Hon Peter McGauran MP, Minister for
Science, 'Second Reading Speech', Communications Legislation
Amendment Bill (No. 3) 2003, House of Representatives,
Debates, 19 June 2003, p. 16009.
- While supporting the earlier amendments
contained in the Broadcasting Legislation Amendment Bill (No. 1)
2002, the Labor Party criticised the initial legislative policies
such as mandating HDTV (see the Second Reading speeches of Mr
Lindsay Tanner MP, Broadcasting Legislation Amendment Bill (No. 1)
2002, House of Representatives, Debates, 5 December 2002,
p. 9705 and Senator Sue Mackay, Broadcasting Legislation Amendment
Bill (No. 1) 2002, Senate, Debates, 14 November 2002, p.
6364.)
Brendan Bailey
18 July 2003
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2003
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