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;
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there are only two licensees of commercial television broadcasting
services, and
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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.
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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.
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At the end of the simulcast period, analog transmissions are to
cease.
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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.
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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.
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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:
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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).
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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.
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the national broadcasters are permitted to multi-channel, but
the second SDTV service is subject to genre restrictions.(5)
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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.
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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;
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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;
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may accelerate the conversion to digital broadcasting in remote areas,
particularly those in Western Australia;
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may relieve commercial TV broadcasters in remote licence areas from
the obligation to broadcast high definition TV and to purchase expensive
high definition equipment;
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may lead to more efficient use of spectrum in remote areas by permitting
multi-channelling.
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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.
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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
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
IRS staff are available to discuss the paper's contents
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ISSN 1328-8091
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