Bills Digest no. 145 2009–10
Broadcasting Legislation Amendment (Digital Television)
Bill 2010
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
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ABC
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Australian Broadcasting Corporation
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ACMA
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Australian Communications and Media Authority
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ALP
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Australian Labor Party
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BSA
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Broadcasting Services Act 1992
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Copyright Act
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Copyright Act 1968
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DTH
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Direct to home
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HDTV
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High definition television
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NITV
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National Indigenous Television
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SBS
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Special Broadcasting Service
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SDTV
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Standard definition television
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TVBSP
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Television Black Spots program
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VAST
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Viewer Access Satellite Television
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Broadcasting
Legislation Amendment (Digital Television) Bill 2010
Date introduced: 18
March 2010
House: House of
Representatives
Portfolio: Broadband,
Communications and the Digital Economy
Commencement: Sections 1 to 3 on the day of Royal Assent and
Schedule 1 on the day after Royal Assent.
Links: The
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Broadcasting
Legislation Amendment (Digital Television) Bill 2010 (the Bill) is
to amend the Broadcasting Services Act 1992 (BSA) and the
Copyright Act 1968 (Copyright Act) to enable the delivery
of digital television by means of a satellite service to areas of
Australia which are unable to receive terrestrial signals for the
digital television services licensed to broadcast in those
areas.
Since its introduction in Australia in the 1950s, television has
been delivered by analogue signals. Analogue signals vary in
accordance with the colour and brightness qualities of the original
pictures broadcast, and are subject to interference, which results
in reduction in the quality of pictures received.
Analogue broadcasting also uses a significant amount of
broadcasting spectrum.
Digital television, which will replace analogue in the near
future, on the other hand, is transmitted as bits of data
information. Digital television pictures are therefore not
subject to signal interference and can be more authentic
reproductions of original images. Indeed digital television
not only delivers superior images, it also provides better audio
quality and makes more efficient use of broadcasting spectrum.
Converting digital data to pictures requires viewers to have a
specifically designed television set, or a standard television set
attached to a set-top data conversion box.
Australia began the process of conversion from analogue to
digital television in the early 1990s with a series of discussions,
investigations and recommendations relating to the system Australia
would adopt and how the transition would progress. The Howard
Government introduced the first digital conversion legislation in
1998.[1] This
legislation set the original parameters for conversion and required
free-to-air broadcasters to commence digital terrestrial
broadcasting in metropolitan areas by 1 January 2001. The
Australian Communications and Media Authority (ACMA) later
determined broadcasters in regional areas would be required to
begin digital transmission by January 2004. It was
recognised, however, that the transition to digital broadcasting
would necessarily need to be different in remote areas.
Consequently, unique conversion parameters were put in place under
Part B of a Commercial Television Conversion Scheme.[2] These are discussed
further, later in this digest.
Parameters for conversion in non remote areas have been
discussed at length elsewhere and some of these, such as the loan
of additional spectrum and the requirements to simulcast programs
in analogue and standard definition, have been the subjects
of substantial criticism.[3] They are not relevant to this digest except in the
context that they contributed to the lack of industry enthusiasm
for digital conversion. Combined with a corresponding lack of
consumer interest, they led to the conclusion in 2005 that original
timeframes for the final switch off of analogue television were
unrealistic.[4]
The Howard Government revised plans for total switch off of
analogue broadcasts and proposed a gradual transition process that
would take place between 2010 and 2012 before its electoral defeat
in 2007.
The Rudd Government extended the timeframe set by its
predecessor to the end of 2013. In making this announcement, the
Minister for Broadband, Communications and the Digital Economy,
Senator Stephen Conroy, argued this would ensure the benefits of
digital television were maximised for all Australians.[5]
Digital take up has accelerated across Australia in recent times
and it appears that the 2013 switchover date may be
achievable.[6]
Nonetheless, there remain a number of problem areas to be
addressed, before this is possible. This Bill aims to address one
of these—the inability of terrestrial television services to
deliver digital television to certain groups of Australians.
The issue of inadequate television
reception, known as television black spots, for some communities is
not new. In 2000, the Howard Government provided funding for an
analogue television black spots program with proceeds from the
partial sale of Telstra. The Television Black Spots Program (TVBSP)
identified 574 analogue black spots and provided funding to over
200 retransmission sites. A supplementary program, the Television
Black Spots Alternative Solutions Program was also introduced in
2002 to remedy black spots that could not be addressed under the
TVBSP. Under this program, funding was provided until June 2009 for
retransmission of the local free-to-air digital television services
and for direct-to-home (DTH) satellite equipment for individual
householders.[7]
While regional and remote areas
represented by far the majority of sites assisted under these
programs, during the lifetime of these programs an ACMA
spokesperson noted that reception was as much an issue in Sydney
for example, as it was for rural New South Wales.[8] One article made a similar
point citing suburbs such as Rockdale and Clovelly in Sydney as
well as villages in the Blue Mountains and on the Hawkesbury River,
including Brooklyn and Berowra Waters, as analogue black spot
areas.[9]
Remote and very remote areas make up 86 per cent of Australia,
but contain less than three per cent of the
population;[10] so,
as noted above, digital conversion necessarily requires an approach
that takes into account low population density and vast
spaces.
The Howard Government’s 1998 digital television
legislation conceded this was the case. A new Schedule 4 was
inserted into the BSA providing for the ACMA to determine two
schemes to assist Australia to convert from analogue to digital
mode. These schemes aimed to achieve the same level of digital
coverage and reception quality for viewers as had been delivered by
analogue services. The schemes, known as Commercial Television
Conversion Scheme and the National Television Conversion Scheme,
however, were divided into two parts to take into account
population and geographical variances. Part A concerned
television services in metropolitan and regional licence areas,
whereas Part B dealt with services in remote areas.
Part A, for example, set rules regarding a simulcast period in
which television programs had to be broadcast in analogue and
digital mode in metropolitan and regional areas. Simulcast periods
for remote areas were a matter for the ACMA to decide. Indeed,
clauses 14 and 28 of Schedule 4 directed the ACMA to consider the
special circumstances that apply to the transmission of television
broadcasting in remote areas.[11] As such, the ACMA was given significant latitude
in promoting conversion in remote areas.
The scope for remote communities in general in the BSA
conversion schemes did not apply to self help retransmission or
direct to the home sites, however. It seemed in fact that these
sites had been forgotten in conversion planning, and as late as
June 2007 it was noted that policy and regulatory arrangements for
their conversion had yet to be decided.[12]
Self help retransmission facilities
are licensed by ACMA for those sites which currently are unable to
receive adequate analogue television signals. Generally the sites
are in remote areas, but some metropolitan and regional
‘black spot’ reception areas, as noted earlier in this
digest, do not receive maximal analogue television
coverage.[13]
There has been no obligation under digital conversion schemes
to ensure that these communities receive the same level of digital
coverage they receive at present.[14]
The Howard Government released a
discussion paper which considered the issue of digital conversion
of retransmission sites. Updated ACMA statistics on these sites
indicate that there are currently 177 sites with one or more self
help retransmission services located in metropolitan and regional
licence areas. Of these sites, 37 are located in metropolitan areas
and 140 in regional licence areas. Approximately 22 000 households
are served by self-help retransmission facilities in metropolitan
areas, and 48 000 households in regional areas. ACMA estimates that
there are 303 self help analogue terrestrial retransmission sites
in remote central and eastern Australia and 180 in the remote and
regional Western Australia. These sites serve an estimated 50 000
households in central and eastern Australia remote licence areas
and an estimated 35 000 households in Western Australia.[15]
In 2007 apart from self help
transmission sites there was also DTH satellite reception equipment
installed in approximately 74 000 households. In some cases
the installation of this equipment had involved gaining approval
from the ACMA to access satellite services outside a licence
area.[16]
The 2007 discussion paper suggested
that options for digital terrestrial conversion may not be viable
for self help sites and some submissions commenting on the paper
agreed. Imparja television for example noted that self help systems
were low power, robust, reliable and able to be installed by
relatively untrained and unskilled operators. Digital transmitters
on the other hand required expensive receivers and specialised
knowledge to install and support.[17] As a consequence, the option to convert these
sites to digital was most likely beyond the capabilities of many
self help communities. The Balonne Shire Council in remote
Queensland agreed that sufficient expertise was not available to
self help communities to make terrestrial conversion a solution; it
advocated instead for expansion of the DTH option.[18]
Indeed, there appeared to be a
reasonable amount of support for some type of satellite solution to
the self help sites dilemma. Southern Cross Broadcasting argued
that it had undertaken extensive technical and financial modelling
on several models for digital conversion of self help sites and
concluded it would be best achieved by DTH.[19] However, the option of expanding
access to satellite services which operated outside remote licences
areas was criticised because it would mean the loss of local
content, which is particularly vital to remote communities.
In addition to support for the
satellite solution, there were calls for subsidies to assist
communities to convert. Lithgow Council in New South Wales noted,
for example, that in addition to technical issues and the cost of
actual conversion, there were ongoing costs that would be
prohibitive, particularly considering that television broadcasting
was not ‘core’ council business.[20]
The Howard Government did not respond to the digital conversion
paper before the 2007 election and a solution to the dilemma of how
best to deal with self help sites was left to the new Australian
Labor Party (ALP) administration.
In December 2007, the Rudd Government announced that it would
revise the digital television switchover date for metropolitan
areas to 2009 and confirmed it would legislate to make 2013 a final
digital switchover date for all areas. A switchover timetable was
released by October 2008.[21] In January 2009, the Minister for Broadband,
Communications and the Digital Economy, Senator Stephen Conroy,
announced a package of measures for a digital switchover pilot for
the Mildura/Sunraysia region in Victoria which was to operate from
1 January to 30 June 2010. Following the pilot, it is intended that
digital switchover will be progressively implemented in regions
across Australia from 1 July 2010.[22]
Conroy’s January 2009 announcement recognised that self
help transmission sites in Mildura/Sunraysia were likely to
experience problems in the digital switchover process. The
switchover package therefore would include a new satellite
service.[23]
In August 2009, Anthony Albanese,
the Minister for Infrastructure, Transport, Regional Development
and Local Government noted further:
The Government is currently examining options
for maximising viewer access to digital television services where
the signals provided by broadcasters prove to be deficient. The
costs and technical aspects of conversion are also being
investigated and the Government will consider all facets, including
any possible assistance programs, in the decision making
process…Information in relation to the switchover timetable
and related issues, such as the conversion of ‘black
spot’ television transmitters [self help transmission
sites] to digital, will be made available publicly once all issues
and factors have been addressed … to ensure a smooth
transition from analog (sic) to a digital environment for
viewers.[24]
The Government promised to release a discussion paper on the
self help satellite solution. However, as the Opposition
spokesperson on Broadband, Communications and the Digital Economy,
Senator Nick Minchin, observed in September 2009 the paper had yet
to be released and this prevented discussion of the pros and cons
of the satellite proposal.[25] No paper has subsequently been
released.
In January 2010, the Government announced that a decision had
been made on what to do about digital conversion for self help
sites and DTH households. Following discussion with television
broadcasters it had been agreed that they would upgrade 100
existing analogue self help sites to operate in digital mode.
Minister Conroy praised the constructive approach to digital
conversion adopted by the broadcasters which would mean 100
communities would ‘simply need to install a high definition
set-top-box to access a full suite of digital television
channels’.[26] For those communities not covered under the
agreement the Government intended to provide a satellite conversion
subsidy to eligible households currently served by
‘self-help’ transmission sites which were not to be
upgraded to digital by the broadcasters.[27]
As this Bill illustrates, digital conversion under the satellite
solution must necessarily involve substantially more than a subsidy
to deliver digital services to those in digital black spots. From
the onset, it will involve the creation of three new commercial
satellite television licences and licence areas.[28] Further, in attempting to
deliver on the government’s service promise for rural
Australians, it will require satellite licensees in the new licence
areas to provide an equivalent number of channels to viewers as are
enjoyed by metropolitan audiences. This requirement, in turn, will
involve negotiation with terrestrial broadcasters, affiliation and
supply arrangements with metropolitan licensees. It will also
involve making legal provision in the event that equivalency in
programming cannot be achieved through commercial means.
Moreover, the satellite solution must deal with the thorny issue
of how to ensure ‘localism’ - that is, the provision of
local content, including coverage of matters of local significance,
for regional and remote audiences - is maintained. In attempting to
do so, the legislation proposes that satellite operators will not
be required to broadcast the exact content of the metropolitan
channels they are required to carry. Instead, they will have
flexibility to transmit local events and advertising. In two
of the licence areas, a dedicated local news channel will need to
operate. The channel will ‘aggregate’ local news from
terrestrial regional broadcasters in these licence areas.[29] The terrestrial
broadcasters will be required under their licence conditions to
provide local material to the satellite broadcaster.
In April 2010, during the period in which this Bill was under
consideration by a Parliamentary committee, the Government
announced that an agreement had been reached to establish a joint
venture company, Viewer Access Satellite Television (VAST), to
deliver the satellite solution. The participating broadcasters were
to be Southern Cross Media and Imparja. The VAST service would
deliver programming in standard definition from the Seven, Nine and
Ten networks and their new digital channels, as well as all ABC and
SBS channels and high definition channels.[30]
The VAST service is to operate in northern and southern time
zones, providing standard definition services for viewers in
Queensland and the Northern Territory based on Brisbane time and
for viewers in New South Wales, Victoria, South Australia and
Tasmania based on Sydney time. High definition services are to be
provided in a combined zone which has yet to be defined. As at
April 2010, negotiations to deliver the satellite service in
Western Australia were underway with Prime and WIN
television.
The Government had decided that a $400 subsidy would be paid to
eligible households to convert to the new satellite service. This
is to assist viewers to purchase a satellite set top box with an
access ‘smart card’, a satellite dish and cabling.
On 18 March 2010 the Senate referred the Broadcasting
Legislation Amendment (Digital Television) Bill 2010 to the Senate
Standing Committee on Environment, Communications and the Arts for
inquiry and report by 12 May 2010.
Details of the inquiry are at:
http://www.aph.gov.au/senate/committee/eca_ctte/digital_tv_2010/index.htm
In welcoming the announcement of a satellite solution, Free TV
Australia’s Chief Executive Officer Julie Flynn observed that
broadcasters had worked closely with the Government ‘to
provide certainty for viewers’. According to Flynn,
regional broadcasters had also sought to identify areas where
digital terrestrial solutions would be viable.[31]
Although his comments were not made directly in the context of
comment on the satellite announcement, Broadcast Australia
Technology Director, Stephen Farrugia makes a case for the hybrid
digital conversion solution the Government has adopted. Farrugia
argues:
It will rarely be possible or practical …
to service 100 percent of a population terrestrially, and an
element of satellite coverage will always be warranted. The end
result is a hybrid coverage model, where satellite coverage is used
as a safety net. For example, direct-to-home satellite might be
more viable for communities of only around 30 homes; whereas
terrestrial services might be justifiable for remote communities of
around 500 homes.
Ultimately, the approach taken to addressing
digital black spots will vary from country to country, depending on
government policy, spectrum availability and other market
factors.[32]
Concerns have
been expressed that the Government has not allowed enough time for
satellite services to be available especially for those in the
Mildura/Sunraysia area where it was recently announced with some
fanfare that the countdown to switchover from 100 days had begun.
According to one source as specifications for satellite set
top boxes have not been released, installers cannot order them and
this may mean that up to 1000 people will have no television
reception after 30 June 2010.[33]
In response, a
spokesman for the Digital Switchover Taskforce claims not only will
upgrades to self help transmitter sites be completed by 30 June
2010, but the new satellite service will also be available to
viewers well before switchover in Mildura/Sunraysia.[34]
There has also been concern expressed about the issue of price
for those who will be forced to take the satellite option.
Christopher Zinn from Choice wonders whether there will be some
people who might not be able to afford to watch television under
the new system. It modifies the expression free-to-air television,
Zinn claims, as it will be free for some whilst there will be a
capital cost attached for others.[35]
Previously, one Indigenous community network, PAW Media and
Communications, expressed similar sentiments about cost should self
help facilities completely disappear and satellite services become
the norm for remote areas. The point made iterates Zinn’s
concern about equity:
Costs of receiving TV will be transferred to
householders in communities already dealing with poverty and low
incomes. Given the highly mobile home occupation patterns of people
in Aboriginal communities it is also problematic as to whether
anyone would want to invest in a satellite receiver on any given
house…
It is to be noted that people in regional areas
and the cities are not being required to carry any of the costs of
the digital conversion other than the purchase of a set top box or
digital TV.[36]
National Indigenous Television (NITV) has raised concern there
is no guarantee that it, and other similar narrowcast services,
will be able to continue operation once the satellite solution is
in place.[37] NITV
is not listed as a service that will be included on the new
satellite and it argues that the Optus Aurora platform which hosts
the service will close in the medium term.[38] NITV believes that, as a
service which fills a significant gap in the Australian media
landscape by informing, entertaining and educating Indigenous
Australians, it rightfully should be included on the new satellite
service.
The Special Broadcasting Service (SBS) has expressed concern
about access to services.[39] It claims it will not be available on a number of
upgraded digital terrestrial sites which will carry the ABC and
commercial broadcasters. Consequently, if audiences wish to view
SBS they will need to connect to the satellite service. According
to SBS, this situation ‘will be a disincentive for viewers to
access SBS’s services’.[40] It seeks a government commitment that
additional transmitters will be installed at the affected
terrestrial sites.[41]
In January 2010, Nationals’ Leader Warren Truss criticised
the Government’s intention to convert a minority of the self
help retransmission sites.[42] Truss claimed that the omission will leave thousands of
people with ‘blank screens’ when analogue transmissions
close. He maintained that the satellite broadcast of local news
will mean people in country areas will lose local community service
announcements and special programs and they will ‘have to get
used to watching their news service late at night or make a choice
between local news and their favourite program being broadcast
during their news slot’.[43]
In addition, Mr Truss is concerned that people in the country
will have to pay for the installation of satellite dishes. This is
despite the fact that the Government expects to make millions of
dollars from the sale of the broadcasting spectrum which will be
released with the switchover to digital and it is spending $66
million on digital conversion advertising. The Government would not
treat people in metropolitan areas with the same contempt,
according to Truss.[44]
In 2008, the Opposition succeeded in having an amendment to a
digital television switch-over Bill accepted to insert a provision
that required the Government to identify and report on efforts to
rectify digital transmission black spots.[45] Senator Minchin continued to
seek the release of a discussion paper on the satellite option. He
also demanded that the government provide a guarantee of federal
government support for the installation of upgraded
equipment.[46] The
Government’s failure to release a discussion paper on the
satellite option has also been raised by the indigenous
narrowcaster NITV. NITV maintains that this legislation therefore
does not reflect an appropriate and open consultative process and
leaves a number of aspects relating to the operation of the
satellite services and consumer access unresolved. [47]
The current Opposition spokesman, Tony Smith, has argued since
taking over the shadow communications portfolio that while the new
satellite service may be welcomed by some, people in regional areas
would need to remain cautious and ‘hold their champagne corks
until they see the actual evidence and delivery’.[48] In their concluding
remarks in the Senate Committee report referred to above, Coalition
Senators said:
In the absence of sufficient evidence or
cost-benefit analysis, Coalition Senators remain concerned that the
use of a satellite broadcasting service may not be the most
satisfactory or appropriate or cost-efficient means to address the
issue of digital television black spots.
We worry about potentially significant
out-of-pocket preparatory expenses for rural and regional digital
reception, exacerbated by uncertainty about whether they will
access digital TV from terrestrial or satellite means.
Coalition Senators consider that television
viewers in remote, rural and outer-metropolitan areas deserve
equivalent access to equivalent television services as their city
counterparts, ideally through upgraded terrestrial services where
practicable.[49]
In the Senate Committee report, the Australian Greens considered
that the ‘concerns of National Indigenous Television (NITV),
the Rural Health Education Foundation (RHEF), the Western
Australian Government's Westlink service, and other narrowcasters
and community broadcasters in a similar position’ about their
financial ability to secure access to the satellite service had
been adequately addressed by the Government.[50]
According to the Explanatory Memorandum, the Bill ‘creates
a framework for a new satellite service to allow the provision of
digital television to all Australians’. The Bill itself will
not have any financial impact. As the Explanatory Memorandum notes
further, however, the Government is negotiating with commercial and
national broadcasters to fund the satellite service. As a result
there will be financial implications from the passage of this Bill.
The Government has said that it will commit $40 million each year
for four years to build and operate the service.[51]
An important issue with which this Bill deals is that of equity
of access to broadcasting services. As noted elsewhere in this
digest, there is some suggestion that the satellite solution for
self help facilities that will not be upgraded for DTH households
creates two categories of free-to-air viewers—those with real
free-to-air services and those who need to pay capital costs.
Paw Media and Communications have pointed out that in many
cases, it is those least able to afford the capital cost who will
be affected. Another problem, which may surface in Aboriginal
communities where home-occupation-patterns are ‘highly
mobile’, may be that people are reluctant to invest in a
satellite receiver on one house.[52] The Government will provide a subsidy for those
households which will need to access digital television through the
satellite, but in April 2010 it is not clear exactly what
proportion of the actual installation cost that will be.
The Government has also introduced an assistance package so
eligible viewers in regional areas will receive a free high
definition set top box, installation and necessary upgrade to
cabling and antennas to enable them to receive digital terrestrial
television.[53]
There is potential for any satellite subsidy to be increased to
accommodate eligible households in the new satellite areas fully,
but it will be difficult to address the needs of exceedingly mobile
communities.
There is some justification in these arguments, and the question
could be asked whether the alternatives suggested in the Howard
Government’s 2007 discussion paper should have been given
greater consideration to enable more self help sites to be
converted for digital reception. It could be argued that the
cost of upgrading 100 self help sites will not be overly onerous
for broadcasters, who have benefited substantially from government
largess in the digital switch over process.[54]
But at the same time, as Stephen Farrugia maintains, it would be
almost impossible to guarantee a 100 per cent terrestrial broadcast
coverage. The alternative to a satellite solution could well have
been no pictures at
all.
A further crucial issue in the Bill is that of the provision of
local content for regional and remote audiences.
‘Localism’ has long been an objective of broadcasting
regulation in Australia and providing local content to communities
is an important object of the BSA.[55] However, since the 1980s, concerns
have been raised at various times about the decline in local
content in regional markets and government has been forced to
intervene to ensure viewers in the bush are informed about local
events and news. Following the closure of a number of regional news
bureaux in 2002, the Howard Government imposed a minimum local
content licence condition on regional television broadcasters in
Queensland, New South Wales and Victoria.[56]
A key aim of the Bill is deliver the same access in a digital
broadcasting environment to local news and events to viewers who
are unable to receive regional terrestrial television. It could be
perceived that conditions proposed by the legislation under which
terrestrial news will be aggregated and then delivered ‘as
soon as practicable’ (proposed clause 7(d))
after the terrestrial licensee begins broadcast of the material
gives the satellite broadcasters too much leeway. That is, their
interpretation of what is ‘practicable’ may amount to
the delivery of information hours after a broadcast on terrestrial
television and, at the least, at an inconvenient time for
audiences.
Items 1–6 of the Bill insert into
existing subsection 6(1) of the BSA, those definitions which are
relevant to the creation of satellite licensees.
The Bill amends existing Part 4 of the BSA to create four new
Divisions which will be an aid to navigating Part 4.
Item 11 inserts the heading of proposed
Division 1—about the allocation of licences.
Existing section 38B provides that additional (digital only)
licences can be allocated in licence areas where only two
commercial television broadcasting licences (called
parent licences) are in force.
Where the parent licence holders form a joint-venture company, the
additional licences can be allocated to the joint-venture entity.
The reason for this is so that there is no breach of sections
53—56A of the BSA which limit media ownership.
Items 13–25 amend existing
section 38B so that the ACMA will be able to invite the parent
licence holders to submit a notice of intention about an
application for an additional (digital only)
licence for the same area to which the parent licences
apply. This amendment is an acknowledgement that areas which
are served by only two commercial television broadcasting licences
are under-serviced.
Item 26 inserts proposed section
38C which establishes commercial television broadcasting licences where
services are provided with the use of a satellite (a satellite
licence). The amendments in item 26 are an
acknowledgement that areas which are serviced by satellite are also
under-serviced.
Specifically, the table in proposed subsection
38C(1) details the three proposed licence areas,
namely:
- South Eastern Australia, being the area consisting of New South
Wales, Victoria, South Australia, Tasmania, the Australian Capital
Territory and the Jervis Bay Territory
- Northern Australia, being the area consisting of Queensland and
the Northern Territory, and
- Western Australia, being the area consisting of Western
Australia.
In addition, column three of the table specifies those existing
licensees which are eligible to form joint ventures to hold
licenses in those areas. Proposed subsections
38C(2)–(10) set out the procedure by which a joint
venture company or a special purpose company[57] may make an application to the ACMA
for a commercial
television broadcasting licence for those licence
areas—and the requirements of the ACMA to allocate the
satellite licence. Where the ACMA receives applications from
two or more special purpose companies, the commercial television
broadcasting licence is to be allocated to one of the companies
based on a price-based system which is set out in proposed
subsections 38C(11)–(14).
Proposed subsection 38C(15) sets out the
circumstances in which the ACMA must cancel a
satellite licence, including contravention of a condition set out
in either proposed clause 7B[58] or 7C[59] of Schedule 2 of the
BSA which are inserted by item 72 of this Bill.
Where the ACMA is satisfied that the contravention was not
due to technical or unforeseen circumstances beyond the
licensee’s control, or circumstances specified in the
regulations, it must notify the licensee in writing that if the
contravention continues for 30 days the satellite licence will be
cancelled. The ACMA must cancel the
satellite licence 30 days after the notice is given if the
contravention has continued.
Proposed subsections 38C(17)–(24) set out
the conditions under which the ACMA must advertise and then
allocate a commercial television broadcasting licence under section
38C if it was previously allocated and then cancelled.
Item 27 inserts the heading for a new Division
2—about the services which are authorised by
licences.
Commercial television broadcasting licences in force immediately
before 1 January 2009, are authorised under
existing subsection 41B(1) to provide a core commercial television
broadcasting service, a high definition television (HDTV)
multi-channelled commercial television broadcasting service, and a
standard definition (SDTV) multi-channelled commercial television
broadcasting service during the simulcast period. By
comparison, existing subsection 41B(2) authorises commercial
television broadcasting licences allocated on or after
1 January 2009 to provide a HDTV
multi-channelled commercial television broadcasting service and two
SDTV multi-channelled commercial television broadcasting
services.
Item 29 inserts proposed subsections
41B(2A)–(2E). In particular proposed
subsection 41B(2E) introduces two new
terms. An eligible parent licence
is a commercial television broadcasting licence allocated under
existing section 38A of the BSA: proposed paragraph
41B(2E)(d). An eligible section 38B
licence is one of the additional (digital only)
licences which have been awarded to a joint venture entity under
amended section 38B: proposed paragraph
41B(2E)(e). Essentially the amendments in
item 29 will authorise an eligible
parent licence and an eligible section
38B licence (which operate in under-serviced areas)
to provide the same number of services as are available in
metropolitan licence areas—that is, three. However, the
services will be in standard definition mode.
Item 32 inserts proposed section
41CA so that a satellite licence authorises the provision
of commercial television broadcasting services that correspond to
services provided by a commercial television broadcasting licensee
in a related terrestrial licence area, or
in a metropolitan licence area.
There is no requirement that the program content be exactly the
same as provided in those areas, only that the program content be
substantially the same. Proposed subsection
41CA(2) provides that certain matters, including but not
limited to the following, can be ignored in deciding if content is
‘substantially the same’:
- advertising, community information, weather bulletins
- news programs
- programs which, if broadcast, could breach an order or
direction of a court or be in contempt of court
- programs broadcast in circumstances set out in
regulations.
Proposed subsection 41CA(3) allows for coverage
of one anti-siphoning event to be substituted for another
anti-siphoning event.[60] This means that the inclusion of local content
which is significant to viewers in the relevant area can be
broadcast without breaching this requirement.[61]
Item
33 inserts the heading for a new Division 3 into Part
4—about licence conditions.
Existing section 43A imposes conditions about the minimum amount
of material of local significance which a licensee holding a
regional
aggregated commercial television broadcasting
licence, must broadcast. A list of the
areas covered by these licences is contained in existing subsection
43B(2) of the BSA.
Item 38 inserts proposed subsection
43A(3A) which imposes an additional licence condition on a
regional aggregated commercial television broadcasting
licence if the area covered by that licence overlaps
the area covered by a satellite licence. The regional
licensee must provide any material of local significance that it
broadcasts under its licence conditions, to the satellite
licensee. Proposed paragraph 43A(3A)(b)
requires that the material of ‘local
significance’[62] must be provided to the satellite licensee either,
simultaneously with, or as soon as practicable after, the regional
licensee broadcasts the material in its licence area. In
addition, it must be provided to the satellite licensee by
transmitting it in digital mode: proposed subsection
43A(3B).
Item 41 inserts proposed sections
43AA–43AC. Broadly speaking these are licence
conditions imposed where the area covered by a regional commercial
television broadcasting licence area, a metropolitan commercial
television broadcasting licence area or a remote terrestrial
licence area respectively, overlaps a satellite licence area. In
that case those licensees are required to provide to the satellite
licensee local news and information programs, and commercial
television programs simultaneously with, or as ‘soon as
practicable’ after, they broadcast that material in their own
licence area. No guidance is given on the issues that can be
taken into account it determining what is practical in this
context.
Proposed
section 43AD is an acknowledgement that such a licence
requirement might amount to a constitutional acquisition of
property and requires payment of a ‘reasonable amount’
of compensation by the satellite licensee should that be the
case.[63]
Item 42 inserts the heading for a new Division
4 into Part 4. Items 43–45 amend
existing section 45 of the BSA so that the duration of a
satellite licence is ten years, subject to the operation of any
specific cancellation provisions contained within the BSA.
Items 57–61 amend existing section 122 of
the BSA which empowers the ACMA to determine standards for
children’s programs and Australian content. The effect
of the amendments is that these standards only apply to primary
commercial television broadcasting services[64] provided by a satellite
licensee.
Items 62 and 63 amend Part 9A
of the BSA which relates to technical standards.
Proposed section 130AC will empower the ACMA to
determine technical standards that relate to the transmission in
digital mode of services provided by satellite. The ACMA will
also be empowered to determine technical standards for domestic
reception equipment that is to receive services provided by
satellite. Proposed subsection 130BB(2)
creates a criminal offence which attracts a maximum penalty of 1
500 penalty units ($165 000) if a person supplies such equipment
and that equipment does not meet the standard set by the
ACMA. Proposed subsection 130BB(3) creates a
civil penalty provision in similar terms. Exemptions to criminal
offence and civil penalty provisions can be made by the AMCA via
legislative instrument.
Item 64 inserts proposed Part
9C into the BSA about access to commercial television
broadcasting services provided with the use of a satellite.
As a starting point Part 9C defines three categories of reception
areas:
- category A in proposed subsection 130ZB(3)
relates to remote terrestrial licence areas in which people are
unable to receive adequate reception of terrestrial digital
television services, includes people who access a commercial
television service licensed for a remote licence area because they
are entitled to the benefit of an ‘out of area’ permit
held by the remote terrestrial broadcaster.
- category B in proposed subsection 130ZB(4)
caters for known signal deficient reception areas, that is, where
adequate reception of services is intermittent[65]
- category C in proposed subsection 130ZB(7) is
any area that is not a category A or B area where viewers will be
able to seek access to the satellite broadcasting service on a case
by case basis.
Proposed Part 9C creates a conditional access
scheme which sets out the rules about the access to be provided
under a satellite licence.[66] Under the scheme, viewers in category A and
B areas will have access to broadcasts provided by a satellite
licensee. Viewers in category C areas may apply to the scheme
administrator, being either a body or association which represents
commercial television broadcasting licensees, or the ACMA itself,
for a reception certificate where the
viewer is of the opinion that they do not have ‘adequate
reception’.[67] The scheme administrator must deal with the
application within 14 days without requiring payment of a fee or
expenses from the applicant: proposed subsection
130ZB(12). Where a scheme administrator refuses to
issue a reception certificate, the applicant may make a complaint
to the ACMA about the matter and the ACMA, upon investigation of
the complaint, may direct a scheme administrator to issue a
reception certificate: proposed section
130ZF. Item 67 amends section 204
of the BSA so that decisions to refuse to issue, or to revoke, a
reception certificate may be reviewed by the Administrative Appeals
Tribunal.
Item 68 inserts proposed section
211A which sets out the procedure to be followed where a
satellite licence area covers more than one time zone. It
will allow a satellite licensee to give written notice to the ACMA
of a place within the licence area. Once the nomination is in
force, the provisions of the BSA, all program standards,
regulations and codes of practice will apply to programs broadcast
in all parts of the licence area as if the programs were broadcast
at the time that is the legal time in the nominated place.
Items 69–74 amend Part 3 of Schedule 2 of
the BSA which broadly sets out the conditions for commercial
television broadcasting licences.
The amendments insert a new Division 2 into
Part 3 of the Schedule specifically in respect of the conditions of
satellite licences. Those conditions complement the
conditions set out in items 33–42 of this
Digest, as outlined above. For example, proposed
clause 7A contains common conditions such as:
- transmission must be in digital mode
- the services are to be provided by means of a satellite
- there is to be a conditional access scheme registered under
Part 9C, and
- the satellite licensee must comply with the technical standards
set out in section 130AC.
Similarly proposed clause 7D provides that a
satellite licensee which is supplied with local news programs and
material under proposed subsections 43A(3A) (item 38) or 43AA(1)
(item 41) must broadcast those programs and that material as soon
as practicable after it begins to be broadcast in the related
terrestrial licence area.
Proposed clauses 7E and 7F
provide some limited exemptions from compliance with the licence
conditions to satellite licensees where provision of new commercial
television broadcasting services are not technically feasible or
where it would cause duplication.
Proposed clause 7H sets out the start dates for
the satellite licence areas as follows:
- for South Eastern Australia TV 3—the ACMA may declare a start
date by legislative instrument. However, it must not be
later than 90 days after the day the satellite licence is
allocated
- for Northern Australia TV3 and for Western Australia
TV3—the ACMA may declare a start date by legislative
instrument. However, it must be at least three months before
the end of the earliest applicable terrestrial digital television
switch-over date for the licence area.
Matters related to program content are
contained in proposed clause 7J.[68]
Items 75–132 amend Schedule 4 of the BSA
which relates to the transition from analogue to digital
broadcasting. Schedule 4 was inserted into the BSA by the
Television Broadcasting Services (Digital Conversion) Act
1998 to regulate the conversion of transmission of
broadcasting services from analogue mode to digital mode.
Essentially these amendments are designed to exclude a satellite
licence granted under proposed section 38C from the operation of
Schedule 4 so that ‘satellite commercial broadcasting
services are disregarded for the purposes of the conversion scheme
for terrestrial television transmitters from analogue to
digital’.[69]
Item 98 inserts proposed subclause
6(7KA), to clarify that clause 6 which sets out the
commercial television conversion scheme does not apply to a
commercial television broadcasting licence allocated under section
38C (a satellite licence). Similarly items
99–101 exclude a commercial television broadcasting
licence allocated under section 38C from the existing requirement
to make digital implementation plans or submitting them to the
ACMA. Nor is a satellite licence subject to the HDTV quota
obligations: proposed clause 37DAA.
Items 103–113 amend the captioning rules
in Schedule 4 of the BSA. The basic rule is contained in
existing subclause 38(1)—that is, each commercial television
broadcasting licensee, and each national broadcaster, must provide
a captioning service for:
- television programs transmitted during prime viewing
hours,[70] and
- television news or current affairs programs transmitted outside
prime viewing hours.
However, there are a number of exceptions.[71] These items will extend
the exceptions to the basic captioning rule to add services
provided under a satellite licence which are not primary satellite
commercial broadcasting services.
Items 114–121 amend existing Part 4A of
Schedule 4 of the BSA to exclude satellite licences from the
operation of clauses 41A–41D which relate to restrictions on
broadcasting anti-siphoning events by commercial television
broadcasting services. According to the Explanatory
Memorandum, these amendments are required ‘because there is
no simulcast period applicable to satellite commercial broadcasting
services licensed under section 38C of the BSA’.[72] Importantly
though, item 122 inserts proposed clauses
41FA and 41FB which will regulate the way SDTV, and HDTV,
multi-channelled commercial television broadcasting services under
a section 38C licence, are to broadcast events on the
anti-siphoning list.
Similarly items 127 and 128 amend existing Part
4A of Schedule 4 to exclude national television broadcasting
services from the operation of clauses 41J and 41K which relate to
restrictions on broadcasting anti-siphoning events by national
television broadcasting services. Importantly,
item 130 inserts proposed
clauses 41LA and 41LB which will regulate the way
SDTV, and HDTV, multi-channelled national television broadcasting
services under a section 38C licence, are to broadcast events on
the anti-siphoning list.
Items 135–144 amend the Copyright Act.
In particular item 141 inserts a new
Part VD, about re-broadcasts by satellite
licensees, into the Copyright Act. Part VD sets up a statutory
licence scheme regulating two separate copyright issues:
- use of copyright in a broadcast, and
- use of underlying copyright in the television program
material—script writing, music, recorded sounds, artworks
.
Proposed section 135ZZG introduces two new
terms:
- eligible program refers to the
television program material which is supplied by a commercial
television broadcaster to a satellite licensee under the conditions
imposed by subsection 43A(3), or sections 43A, 43AB or 43AC of the
BSA.
- original broadcaster of the eligible
program is the commercial television broadcaster which has been
required to provide material to the satellite licensee.
Proposed subsection 135ZZZI(1) deals with the
underlying copyright in television program material so that
copyright in a work, sound recording or cinematograph film is not
infringed by a satellite licensee which is re-broadcasting an
eligible program, if the following conditions are satisfied:
- the eligible program is re-broadcast by a satellite
licensee
- the eligible program is re-broadcast on a service authorised by
the satellite licence
- the re-broadcast of the eligible program complies with the
conditions of the satellite licence set out in Schedule 2 of the
BSA
- a remuneration notice[73]given by the satellite
licensee to the relevant collecting
society[74] is in force
- the original broadcaster of the eligible program was specified
in the remuneration notice, and
- the satellite licensee complies with the requirement in section
135ZZZL to maintain a record system of each eligible program that
is broadcast by the original broadcaster and re-broadcast by the
satellite licensee.
Proposed subsection 135ZZZI(2) deals with
copyright in a broadcast of an eligible broadcast so that the
copyright will not be infringed if the following conditions are
satisfied:
- the eligible program is re-broadcast by a satellite licensee on
a service authorised by the satellite licence
- the re-broadcast of the eligible program complies with the
conditions of the satellite licence that are set out in
Schedule 2 to the BSA and any of the following conditions is
satisfied:
- there is an
agreement in force between the satellite licensee and the
owner of the copyright in the broadcast of the eligible program as
to the amount payable by the satellite licensee to the owner of the
copyright for the re-broadcast of eligible programs
- if there is no
agreement—there is a determination of the Copyright Tribunal
under section 153RA of the Copyright Act about the amount payable
by the satellite licensee to the owner of the copyright
- if there is no
agreement or determination—the satellite licensee has given
the owner of the copyright in the broadcast of the eligible
program a written undertaking to pay to the owner of the copyright
such amount as is subsequently determined by the Copyright
Tribunal
- the eligible program is re-broadcast by the satellite licensee
during the period specified in the relevant agreement or
determination.
The amount of equitable remuneration is generally agreed between
the satellite licensee and the collecting society, or failing
agreement, determined by the Copyright Tribunal. Where the
Copyright Tribunal has made a determination proposed
subsection 135ZZZK(2) provides that either the
satellite licensee, or the collecting agency, may apply for a new
determination 12 months after the date of the original
determination.
Proposed sections 135ZZZO–135ZZZS are
about collecting societies. Essentially a body may apply to
the Minister to be declared a collecting society for all, or only a
specified class of, copyright owners. The Minister may:
- declare the body to be a collecting society by way of notice
published in the Gazette
- refuse to declare the body a collecting society, or
- refer the application to the Copyright Tribunal—which may
subsequently declare the body a collecting society.
Where the Minister or the Copyright Tribunal has declared a body
to be the collecting society for a specified class of copyright
owners, proposed subsection 135ZZZO(8) empowers
the Minister and the Copyright Tribunal to refuse to declare
another body as the collecting society for that same class of
copyright owners unless they are satisfied that it would be in the
best interest of those copyright owners. Where a declaration
has been made that a body is a collecting society, that declaration
can be revoked by notice published in the Gazette: proposed
section 135ZZZP. Collecting societies must prepare
an annual report as soon as practicable after the end of each
financial year and provide a copy to the Minister. The
Minister must table a copy of the report in each House of the
Parliament within 15 sitting days of that House after the receipt
of the report: proposed section 135ZZQ.
Proposed sections 135ZZT–135ZZZX set out
interim arrangements in circumstances where no collecting society
has been declared. The interim arrangements operate as
follows:
- the Minister may, by written notice in the Gazette, appoint a
person to be a notice holder:
proposed section 135ZZZT
- a satellite licensee may, at any time before the declaration of
a collecting society has been made, give to the notice holder an
undertaking to pay equitable remuneration to a collecting society
when it is declared: proposed section 135ZZZV
- once the undertaking has been made to the notice holder, the
underlying copyright in television program material being copyright
in a work, sound recording or cinematograph film is not infringed
by a satellite licensee which is re-broadcasting an eligible
program: proposed section 135ZZZU
- once the collecting society has been declared, the notice which
was given to the notice holder is taken to be a remuneration notice
to the collecting society: proposed
section 135ZZZX.
Item 142 inserts a new Subdivision
GA into Division 3 of Part VI of the Copyright Act which
will confer new jurisdiction on the Copyright Tribunal as a
consequence of the amendments in this Bill. The Copyright
Tribunal will be empowered to consider the following matters:
- an application by the satellite licensee or the copyright owner
for an order determining the amount payable by the satellite
licensee for a re-broadcast by the satellite licensee:
proposed section 153RA
- an application for a determination of the amount of equitable
remuneration payable for re-broadcasts of eligible programs:
proposed section 153S
- an application to determine a record system: proposed
section 153T
- an application for a body to become a collecting society, on
reference from the Minister: proposed section
153U
- a question whether the declaration of a body as a collecting
society should be revoked, on reference from the Minister:
proposed section 153V, and
- a review of the arrangements adopted by, or proposed to be
adopted by, a collecting society for distributing the amounts it
collects in a period: proposed section
153W.
The intention of this Bill is to ensure that people in
communities which will not have access to terrestrial digital
television broadcasting after the analogue signal is switched off
in 2013 will not be disadvantaged. There has been some criticism of
aspects of the planned satellite solution, the legal framework for
which this Bill will introduce. Essentially, criticism refers to
the failure to convert more terrestrial self help sites to digital
and to the issue of how equitable it is that some Australians must
purchase satellite equipment to broadcasts which are free to
others. There has been some concern raised that satellite services,
as well as self help site conversions, will not be fully functional
by the analogue switch off date. In addition, it has been suggested
that the potentially delayed timing of the broadcast of local news
and content aggregated from terrestrial licensees could be
problematic, depending on the interpretation of some wording in the
Bill.[75]
On the whole however, despite criticism that the Bill creates
some supplementary issues in relation to equity, it is in fact an
attempt to ensure equitable outcomes in a digital environment for
those Australian communities who have been denied comparable
analogue television services. As such, it appears the benefits of
the legislation generally outweigh its
shortcomings.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library by telephoning Rhonda
Jolly on (02) 6277 2429 or Paula Pyburne on
(02) 6277 2434.
Rhonda Jolly and Paula Pyburne
12 May 2010
Bills Digest Service
Parliamentary Library
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