Bills Digest No. 26 2005–06
Broadcasting Legislation Amendment
Bill (No. 1)
2005
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
Glossary
Endnotes
Contact Officer & Copyright Details
Passage History
Broadcasting Legislation Amendment
Bill (No. 1)
2005
Date
Introduced: 23
June 2005
House: Senate
Portfolio: Communications, Information Technology & the
Arts
Commencement: Day after Royal Assent
This Bill amends the
Broadcasting Services Act 1992 ( BSA ) to allow certain
commercial television broadcasters in remote licence areas
to elect to broadcast two commercial television broadcasting
services on one channel (ie to multi-channel). If such an
election is made, the Bill relieves the broadcasters of the
obligation to broadcast high-definition television (HDTV) programs
in that remote licence area.
In a remote licence area, where;
-
there are only two licensees of commercial television
broadcasting services, and
-
they elect jointly, or one of them elects individually, to
provide a third commercial TV service, as they are currently
enabled to do under section 38B of the BSA,
then they can elect to use a single 7MHz channel to broadcast
both the new digital commercial service (in standard definition)
and the digital simulcast of their usual anolog programming (that
is, they can multi-channel). That is, they are relieved of
the usual prohibition on multi-channelling which applies to
commercial TV broadcasters in non-remote licence areas. If the
broadcaster makes this election, they are also relieved of the
obligation to broadcast in HDTV which applies to commercial TV
broadcasters in non-remote licence areas.
Glossary
An explanation of some of the terms and concepts used in this
digest appears at the end. This may be helpful for readers
unfamiliar with some of the terminology used. The terms explained
in the glossary are underlined in the text.
To avoid doubt, this Bill is concerned with the regulation of
multi-channelling and high-definition TV broadcasting by
free-to-air commercial TV broadcasters. It is not
concerned with the national TV broadcasters (ABC and SBS)
or with pay (subscription) TV. Furthermore, the Bill is concerned
only with the rules affecting those licence areas which the ABA has
determined to be remote licence` areas.(1)
Remote licence areas are different from regional and metropolitan
licence areas.
In 1998 the Government introduced legislation which created a
scheme to enable the transition from analog free-to-air television
broadcasting to digital free-to-air television
broadcasting.(2) The legislation provided for the ABA to
formulate a scheme to facilitate this conversion. The legislation
required that the scheme consist of Part A and Part B. Part B was
to deal with remote licence areas and Part A was to deal
with non-remote licence areas. Non-remote licence areas
cover metropolitan and regional areas (other than regional areas
that are deemed to be remote). Non-remote areas cover most of the
Australian population.
In relation to Part A, dealing with non-remote licence
areas, Schedule 4 is prescriptive of the objectives that the ABA s
scheme is to achieve. These objectives are set out in subclause
6(3) of Schedule 4 to the BSA.
By contrast, in relation to the ABA conversion scheme for
remote areas (ie Part B), Schedule 4 prescribes only a few
objectives. Instead, the ABA was given latitude to work out the
elements of the conversion scheme for remote licence areas.
This Broadcasting Legislation Amendment Bill
(No. 1) 2005 deals exclusively with
remote licence areas. The scheme for remote areas can be
more easily understood by identifying the points of distinction
with the scheme applying to non-remote areas. Not only is the
implementation of the conversion scheme for non-remote areas much
further advanced than the scheme for remote areas, but the latter
scheme draws extensively on the former. This is explained in a
paper setting out what the ABA considers to be the objectives of
the remote area scheme, the first draft of which it published in
2003.(3)
For non-remote licence areas, the main elements of the
scheme to convert from analog to digital television transmission
are set out in the following paragraphs. This scheme is modified
for remote areas. The modifications, and the further amendments
made by this Bill, are discussed below.
-
There is to be a simulcast period during which TV
broadcasters must broadcast their programs in both analog mode and
standard definition digital mode. This period commenced on 1
January 2001 in metropolitan areas. For regional areas (not remote
areas) it was to commence by 31 December 2004. The period was to
run for 8 years (ie until 31 December 2008 for metropolitan areas)
but would be subject to review. For remote areas, the simulcast
period is a matter that the ABA may deal with in Part B of the
conversion plan. The policy rationale for having simulcast period
was simply that digital television requires different reception
equipment from analog televisions and the government considers that
people should not be forced immediately to purchase new
equipment.
-
At the end of the simulcast period, analog transmissions are to
cease.
-
There are to be no new commercial broadcasting licences issued
until the end of 2006.(4) This is subject to review.
This measure is to protect the incumbent commercial broadcasters
during the period when they have to invest significantly in digital
transmission and other equipment.
-
In order to broadcast in digital mode, commercial and national
broadcasters were lent another 7MHz channel free of upfront charge.
This is additional to the 7 MHz channel that they use for analog
transmissions. Because digital broadcast technology is capable of
conveying sound and pictures more efficiently than analog mode, it
uses less bandwidth than the equivalent analog broadcast. The new
7MHz channel given to broadcasters is more than is required for a
standard definition digital TV broadcast. Such a channel is
technically capable of carrying, for example, several standard
definition TV (SDTV) broadcasts (ie multi-channelling) or, say, one
or two SDTV broadcasts and a high definition TV (HDTV) broadcast.
After doing so, there may still be spare capacity in the
channel.
-
The way in which the new channel could be used was the subject
of a good deal of debate and negotiation. The manner in which the
debate is presently resolved is this:
-
as has been already described, national and commercial TV
broadcasters had to use part of their new channel to broadcast, in
SDTV, the same programming as they were broadcasting in analog
(i.e. simulcasting).
-
in addition, both national and commercial broadcasters were
required to meet quotas for the broadcast of (digital) HDTV. This
is presently 1040 hours per year (on average, 20 hours per
week).
-
commercial broadcasters are prevented from using their
channel capacity to broadcast a second SDTV service (ie
multi-channelling) except in very limited circumstances. For
instance, where a live sporting event overlaps with a scheduled
program, the end of the event can be multi-channelled. In
addition, commercial broadcasters can provide program
enhancements for their digitally transmitted program.
-
the national broadcasters are permitted to multi-channel, but
the second SDTV service is subject to genre
restrictions.(5)
-
both commercial and national broadcasters, and new entrants,
were also permitted to provide datacasting services using
the part of the newly loaned spectrum which was not required for
standard or high definition television. New entrants were permitted
to acquire such spectrum which was to be allocated on a competitive
basis. Datacasters must pay a fee to the government.
-
neither the national or the commercial TV broadcasters are
permitted to provide pay (subscription) TV using their existing or
new 7MHz channels.
The BSA expressly defines metropolitan areas and
provides that all other areas, other than remote areas,
are regional areas. The legislation provides that the ABA
may determine which licence areas are remote areas.
The legislation recognises that the special circumstances of
remote areas may make the policy considerations for metropolitan
and regional areas inapt. Remote areas are the least well served by
commercial broadcasters. Additionally, commercial broadcasters in
remote areas commonly broadcast to many areas of low population
density and therefore may require more retransmission sites and
more costly satellite feeds to reach their audiences.
These factors, amongst others, create different policy
considerations which would make the objectives of Part A of the
Conversion scheme inappropriate. For instance, licensees in
regional areas were required to commence transmission in
SDTV by 1 January 2004, are required to simulcast for 8 years and
must satisfy HDTV quotas. It was considered that these requirements
may have been inappropriate for remote areas and so the legislation
created a different framework which enabled the ABA to work out a
more appropriate conversion plan for these areas.
For this reason, the ABA was to develop the Part B conversion
scheme, for remote licence areas, over time, taking into account
its observations about the operation of Part A of the scheme in
non-remote areas. The amendments in this Bill reflect some of the
elements of that Part B conversion scheme.
There are already measures in place to encourage the delivery of
additional broadcasting services in licence areas with fewer than
three licensees, the maximum number of commercial broadcasters for
any licence area. These under-served areas tend to be in regional
and remote licence areas. The aim of these schemes is to encourage
the provision of more broadcasting services in
under-served areas without the need for more licensees in
those areas. There cannot be more licensees because the number of
commercial TV broadcasting licences has been frozen until
2006.(6)
The schemes for under-served areas are set out in sections 38A
and 38B of the BSA. The essence of these schemes is that they allow
an additional broadcasting service (ie another channel in
colloquial terms) to be transmitted by an existing licensee (or
licensees jointly). These provisions pre-date the introduction of
digital television and so deal with analog as well as digital
television.
The scheme for under-served areas is described in the next
section. Following that, is a description of the way in which this
scheme is modified for remote areas.
Under section 38A of the BSA, commercial television broadcasting
licensees in licence areas with only one existing
commercial television broadcasting licence can apply to the ACMA
for a licence to operate a second commercial service in that
market. Licensees are required to simulcast the original and second
services in analog and digital mode for the duration of the
simulcast period (at least 8 years) in each single licence area.
Such licensees can elect to multi-channel the digital transmission
of the original and second service on a single 7 MHz channel. If
they elect to do so, they will be exempted from HDTV the
obligations which they would otherwise have.
Section 38B of the BSA provides for incumbent commercial
television broadcasting licensees in markets with two
existing commercial television services to elect to operate a third
commercial television broadcasting service, in digital standard
definition mode only. The licensees may do this in one of two
ways:
Currently, if a joint venture company is used, the additional
digital service will be provided in a new 7MHz channel. The
existing licensees are not permitted to multi-channel the new
channel with their existing services. Also, the licensees will have
to satisfy any HDTV quotas in relation to their existing
services.
If, instead, one of the two licensees individually provides the
additional service, that licensee can elect to provide that third
service on the same channel as it provides its simulcast standard
definition digital broadcast; that is, to multi-channel. If it
elects to multi-channel, it will not have to satisfy any HDTV
quotas.
The scheme described above applies to under-served licences
areas. These tend to be regional and remote licence areas. Special
rules are created by this Bill in relation to remote areas
only. This is dealt with in the next sections.
In short, the Bill amends the BSA and the
Radiocommunications Act 1992 to allow commercial
television broadcasting licensees in remote licence areas to
multi-channel their digital services where they elect jointly, or
one elects individually, to provide a third commercial service
under section 38B of the BSA. By doing so, they will also be
relieved of the obligation to satisfy any HDTV quotas.
Because all the licence areas determined by the ACMA to be
remote licence areas have only one licensee, and section 38B
applies only to licence areas with two licensees, some modification
of section 38B was required to extend its scope so that it can
apply to remote areas.
Some remote licence areas may overlap with, or be entirely
within, another remote licence area. This is the case in Western
Australia. As the Explanatory Memorandum says, there is a single
remote licence area covering the majority of the state (excluding
Perth). There is a single licensee for this remote area. In
addition, there are four other remote licence areas which together
cover the same geographical area as the larger licence area. Each
of these smaller remote licence areas also has only one licensee.
So, for any of these remote licence areas, there is only one
licensee (even though, for geographical area
covered by the smaller licence areas there may be two licensees
transmitting services). To take advantage of section 38B, however,
there must be two licensees in a licence area (not just two
licensees operating in the same geographical area). In the example
given, there is only one licensee in each licence area and so s38B
cannot be used.
The Bill deals with this shortcoming by providing that where a
remote licence area is entirely within another remote licence area,
the two licence areas can be treated as one. The boundary of that
deemed single licence area is the smaller of the two areas. This
has the effect that there would then be two licensees in one
licence area so that an additional licence under section 38B could
be issued.
An existing licensee (or a joint venture company on behalf of
two existing licensees) can apply for an additional licence under
section 38B within 12 months of the designated date for that
licence area. The designated date for non-remote areas is set out
in the BSA. The designated date for remote licences areas is to be
determined by the ACMA.
The Bill amends the BSA to provide that for the remote licence
areas in Western Australia, the date determined by the ACMA as the
designated date must not be later than 1 January 2006. The effect
of this amendment is to bring forward the possibility that existing
licensees in remote licence areas in Western Australia will elect
to provide an additional digital service in their licence
areas.
The Bill provides a framework which;
-
may provide people in remote licence areas with more television
services by permitting a 3rd digital service to be broadcast where
there are only two at present;
-
may accelerate the conversion to digital broadcasting in remote
areas, particularly those in Western Australia;
-
may relieve commercial TV broadcasters in remote licence areas
from the obligation to broadcast high definition TV and to purchase
expensive high definition equipment;
-
may lead to more efficient use of spectrum in remote areas by
permitting multi-channelling.
-
the additional channel will not be broadcast in analog (the
object of the legislation is to encourage the take-up of digital
television, so this is not surprising). This means that people in
remote areas without televisions capable of receiving digital TV,
will not be able to receive the third commercial channel which is
digital only.
-
people in remote areas will not be able to receive high
definition TV if broadcasters elect to take advantage of this
initiative because, by electing to multi-channel a third service,
broadcasters are relieved of the obligation to broadcast in
HDTV.
Items 1 to 8 in
Schedule 1 amend the BSA.
Item 1 inserts a new subsection 38B(14A) in the
BSA with the effect that, if a remote licence area (ie with one
licensee) is entirely within another remote licence area (with one
licensee), the area of overlap can be treated as a single licence
area with two licensees instead of one. This enables either or both
of the licensees operating in the smaller licence area to apply to
provide a third digital service in that area under section 38B. See
the explanation above in the section titled Extension of scope of
section 38B .
Item 2 inserts new subsections 21A and 21B.
These do not apply to remote areas in particular. These provisions
fix a possible shortcoming in the section 38B scheme. These
amendments have the effect that if an additional digital service is
provided by a joint venture company under section 38B, and the
company elects to multi-channel, a party to whom that licence is
transferred must continue to broadcast the parent service in
relation to which the election is in force. A parent
service is the original service provided by the licensee and
not the additional service provided under section 38B.
Item 3 sets the last date which the ACMA may
determine the designated date for remote licence areas in Western
Australia. Licensees must apply for an additional licence within 12
months of the designated date. The effect of this is to set a limit
on the time that licensees in remote licence areas of Western
Australia can chose whether or not to apply for the right to
broadcast an extra digital service under section 38B.
Items 4 to 6 insert new definitions.
Item 4 defines exempt licence as a
commercial television broadcasting licence allocated under section
38B for a remote licence area. Item 5 defines
exempt remote area service as the additional service
provided under section 38B, together with the existing services
provided by the two existing licensees in a remote area. Exempt
remote area services are subject to relief from multi-channelling
restrictions and HDTV obligations if the licensee or licensees have
an exempt licence and they elect to multi-channel.
Item 7 sets out the special rules described
above which enable certain licensees of exempt licences to elect to
multi-channel and to be exempted from any HDTV quota.
Item 8 provides the exemption from any HDTV
quota in relation to exempt remote service areas where there is an
election in force.
Items 9 to 11 in Schedule 2
amend the Radiocommunications Act 1992
Items 9, 10 and 11 amend the
Radiocommunications Act 1992 to regulate the operation of
transmitters under the new regime for remote licence areas.
The following abbreviations and expressions are used in this
digest. The meanings of the expressions given here do not
necessarily correspond to the wording in the legislation as they
are intended only to explain the concepts involved.
ABA means the Australian Broadcasting
Authority, which, on 1 July 2005, was merged with the Australian
Communications Authority to form the Australian Communications and
Media Authority (ACMA)
ACMA means the Australian
Communications and Media Authority
BSA means the Broadcasting Services
Act 1992
Channel in this context means a part
of the radio spectrum that is used to broadcast free to air
television. In Australia, a channel is a band of spectrum about
7MHz wide. People commonly speak of, say, channel 2, 7, 9 or 10.
This is not the sense in which the word is used here or in the
Broadcasting Services Act. This colloquial usage makes
some sense in relation to analog broadcasts because each of those
television services (ABC, 7, 9, 10) uses up one 7MHz channel.
However, this usage is apt to confuse when speaking of digital
television because, when those services are broadcast in standard
definition digital mode, it is possible to fit 2 or more services
in one 7MHz channel. So, in theory, it would be possible to
broadcast channels (in the colloquial sense) 7, 9 and 10 in SDTV in
the 7Mhz channel used by any one of them for analog
transmission.
Commercial television broadcasting
services are, in colloquial terms, television
channels known, in Sydney, for example, as channels 7, 9 and
10.
National television broadcasting
services means the ABC and SBS.
Datacasting is a uniquely Australian
artifice. It is the creation of the Broadcasting Services
Act. When it was originally announced, in 1998, it was not
known what sort of service datacasting would be. It was simply
conceived as a way for new entrants to provide services using
broadcasting spectrum (which could be freed up by the use of
digital broadcasting) but without the issue of any new commercial
TV licences. It could, for instance, have looked exactly like a
broadcasting service (ie, television). In the end, however, it came
to differ from a broadcasting service because the kind of material
that can be datacast is tightly restricted by later amendments to
the Broadcasting Services Act. In very general terms,
datacasting cannot look and feel like what we know as television.
In a technical sense, though, it is just like broadcasting in that
it uses the same spectrum as the television broadcasters (ie the
broadcasting services bands ).
Free to air television means
commercial TV broadcasting services (eg channels 7, 9, and 10 in
Sydney) and national TV broadcasting services (ABC, SBS). It is
different from subscription, or pay TV.
Multi-channelling means the broadcast
of two digital televisions services in one 7MHz channel.
Metropolitan, Regional and
Remote licence areas.
metropolitan licence area means a licence area
in which is situated the General Post Office of the capital city
of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia.
regional licence area means a licence are that
is not a metropolitan licence area.
remote licence area means a licence area which
the ACMA determines to be a remote licence area.(7)
The remote areas and licensees in such areas are:
Regional Television Pty Limited Mt
Isa TV1
Imparja Television Pty. Ltd. Remote
Central and Eastern Australia TV2
QQQ Regional Television Pty Limited
Remote Central and Eastern Australia TV1
WOW WIN Television WA Pty Ltd Remote
and Regional WA TV1
WAW Golden West Satellite
Communications Pty. Ltd. Western Zone TV1
VEW Mid-Western Television Pty Ltd
Kalgoorlie TV1
SSW Golden West Network Pty. Limited
South West and Great Southern TV1
GTW Geraldton Telecasters Pty Ltd
Geraldton TV1
Program enhancements - Commercial television
broadcasters are not permitted to use their new spectrum to
multi-channel. However, they are permitted to provide
program enhancements . Arguably there is little technical
difference between the two. Enhancements include broadcast material
that is directly linked to, and contemporaneous with, the main
program and does not amount to a separate multi-channel
program.
The example given in the BSA is a case where the primary program
is live coverage of a tennis match. In that case, the digital
program-enhancement content could consist of any or all of the
following:
(a) the match from different camera angles;
(b) each player s results in past matches;
(c) video highlights from those past matches;
(d) each player s ranking and career
highlights.(8)
1. ACMA, Determination of
Remote Licence Areas Sub clause 5(1) of Schedule 4 to the
Broadcasting Services Act 1992 available at;
http://www.acma.gov.au/acmainterwr/aba/tv/licence/digitaltv/legislation/documents/rla_determination.pdf
2.
The Television Broadcasting Services (Digital Conversion) Act
1998 amended the BSA by inserting Schedule 4 into the Act.
Schedule 4 is concerned with Digital Television Broadcasting.
3. The Commercial
Television Conversion Scheme Variation 2003 No 1 varied the
Commercial Television Conversion Scheme 1999 by inserting Part B
(the conversion scheme for remote areas). The objectives for the
Part B scheme are discussed in an Explanatory Paper published by
the ABA. Both documents are available here:
http://www.acma.gov.au/ACMAINTER.2163012:STANDARD:712077960:pc=PC_91843
4.
Broadcasting Services Act, s. 28
5.
Schedule 4, clause 6(5A), BSA sets out the genre restriction on
multi-channelling.
6.
Broadcasting Services Act s. 28
7. see: note 1
8.
Broadcasting Services Act, Schedule 4, clause 6(14)
Jonathan Chowns
17 August 2005
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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