BILLS DIGEST NO. 21, 2015–16              9 September 2015

Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Bill 2015

Jonathan Chowns
Law and Bills Digest Section 

Date introduced: 19 August 2015

House:  House of Representatives

Portfolio: Communications

Commencement: The day after the Act receives Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

The Bills Digest at a glance

Free to air commercial TV broadcasters and the ABC and SBS each broadcast several channels (‘services’ in the language of the legislation). They are required to broadcast the primary service in standard definition (SD).

The primary services include the Prime7, Nine, WIN and Ten and the ABC1 and SBS ONE channels.

This Bill will provide the broadcasters with the ability to broadcast their services in SD or high definition (HD).

The change will benefit the free to air TV broadcasters and almost all viewers.

However, those few viewers who have a television or set-top box that are not HD capable will find their televisions go blank, if they try to watch a primary service in HD. They will have to acquire an HD capable TV or set-top box. No funding is being provided for those caught out as the Household Assistance scheme, which provided assistance to certain eligible people to convert to digital TV, concluded on 1 January 2014.

Purpose of the Bill

The purpose of the Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Bill 2015 (the Bill) is to amend the Broadcasting Services Act 1992 (the BSA) to allow national and commercial free-to-air TV broadcasters to broadcast their main service in HD or SD rather than SD, as they now must.

The Bill also makes consequential amendments to continue the existing captioning obligations and anti-siphoning list arrangements for the primary service. Broadcasters have obligations to provide captions on their primary service.[1] The anti-siphoning list scheme gives preference to free to air broadcasters over subscription (or pay TV) operators in relation to sporting events specified on the anti-siphoning list.[2]

Background

The transition from analog to digital TV broadcasts was announced by the Howard Government in 1998, although planning for the transition had begun considerably earlier.[3]

In its 1998 announcement, the Government proposed that the commercial and national free-to-air television broadcasters (FTAs) were to be lent seven megahertz (MHz) of spectrum in return for which they would be required to simulcast their existing service in analog and digital format for eight years. The FTAs would be required to commence digital broadcasting in metropolitan areas by 1 January 2001 and in regional areas from that date onwards so that all areas had digital services by 1 January 2004. Following the start-up of digital television, the FTAs would be required to broadcast minimum levels of high definition TV, with these levels increasing over time. FTAs would not be permitted to use their digital spectrum for multi-channelling or subscription services.

The announcement was followed by the passage of the Television Broadcasting Services (Digital Conversion) Act 1998.[4] Amongst other matters, that Act required the Australian Broadcasting Authority to develop a digital conversion scheme. It also established a simulcast period during which licensees were to be prohibited from broadcasting a digital program unless they also broadcast the same program simultaneously in analog.

Several changes took place over the intervening years including the lifting of the ban on multi-channelling on digital channels. A research paper by the Parliamentary Library provides a history of the transition to digital TV to November 2010.[5] Since then, the full conversion to digital broadcasting was concluded in December 2013.[6]

Consultation Paper: Digital Television Regulation January 2015

The current position insofar as the Bill is concerned is described in a Consultation Paper on Digital Television Regulation (consultation paper) released by the Government in January 2015.[7]

In the section on ‘the role of the primary channel’ the paper says;

Television broadcasters are required to provide a SD channel as their primary channel which is linked to their anti-siphoning and captioning obligations and, in the case of commercial broadcasters, some Australian content obligations…

The concept of a core or primary channel is grounded in the analog era, when each broadcaster offered only one service. This concept remained important during the simulcast period and the progressive transition to digital television (where the primary channel was an SD simulcast of the analog service). With the completion of digital switchover and availability of a larger suite of services however, it is appropriate to consider whether the concept of a primary channel continues to be relevant, and whether current channel specific obligations are fit for purpose in future.

Current legislation requires the primary channel to be SD. This was important during the transition to digital television when access to HD channels was not widespread. However, a survey conducted at the end of digital switchover by Newspoll suggested that 96 per cent of all households had a main television set or set-top box that was HD capable. It is expected that this figure has grown with HD capability generally standard in televisions and set-top boxes currently on the market.

… events on the anti-siphoning list currently cannot be premiered on an HD multi-channel unless they are also simultaneously shown (or simulcast) on the primary SD channel. Over recent years, many events have been removed from the list (or ‘delisted’), allowing them to be shown on an HD multi-channel. Since 2010, the Government has, by the making of a relevant notice, delisted events on nearly 60 separate occasions. This also indicates that current arrangements no longer suit commercial or consumer preferences with many Australians expecting key sporting events to be available in HD on both free-to-air and subscription television.[8]

The Government stated that its preliminary position was that the requirement that the primary channel be provided in SD be removed.[9]

Thirty formal submissions were published.[10] Of those that addressed this particular matter, with one exception, all were supportive or did not object to the change. The Coalition of Major Professional and Participation Sports (COMMPS), however, considers that this measure should not be implemented without an overhaul of the anti-siphoning scheme.[11] The comments of submitters to the consultation paper, including those of COMPPS, are set out below.

Committee consideration

House of Representatives Selection Committee

At the time of writing, the Committee has not considered the Bill.[12]

Senate Standing Committee on Selection of Bills

In Report No. 10 of 2015, of 20 August 2015, the Committee resolved to recommend that the Bill not be referred to a committee for inquiry.[13]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Committee has not considered the Bill.[14]

Policy position of non-government parties/independents

The Bill has not been the subject of public comment by the Labor Party, the Australian Greens or other members or Senators.

Position of major interest groups

A selection of views from submissions the Consultation Paper are recorded below.

Australian Industry Group

We support the Government’s position to remove SD from the definition of primary channel and its reason for this removal. As noted by the Government, SD is a legacy system which has been carried over from the digital switchover period when the broadcaster had to provide an SD simulcast of the analog television service on its primary channel. Since the completion of the digital switchover, television receivers have matured and there is significant penetration of television receivers in the market that are capable of displaying HD (and, indeed, decoding MPEG-4).2 Therefore, the Government’s proposal is consistent with the rationale for amending obsolete provisions of the Act.[15]

Australian Broadcasting Corporation

The Consultation Paper proposes a number of measures to increase the flexibility with which broadcasters can determine the mix of services and formats they offer audiences. The ABC welcomes the proposals that there be no new restrictions on the number of television services offered by broadcasters, that the requirement for a broadcaster’s primary channel to be transmitted in standard definition (SD) mode be lifted and that high-definition (HD) quotas not be reintroduced.

…

As the Consultation Paper notes, the original decision was based on a desire to ensure that consumers would have access to lower-cost alternatives to the initially high prices of HDTV receivers. Today, HD receivers make up the overwhelming majority of primary television sets in Australian homes. However, this is not necessarily the case on the second television set in homes as Australians have a propensity when purchasing new televisions to retain older, often less-capable, sets as secondary receivers for use in locations such as the bedroom or kitchen. Reporting on HD penetration among such secondary receivers is less reliable than for primary receivers. As a result, broadcasters choosing to convert their primary service to HD will need to assess the potential loss of audience that might result from their doing so. However, that should be a business decision for broadcasters, rather than a matter of regulation.

The ABC also notes that the Consultation Paper does not propose removing the concept of a primary channel from the broadcasting framework, even though that concept may be less relevant in a multichannel television broadcasting environment where there is no need to distinguish analog services from those offered only in digital. As a decision to remove the concept of the primary channel would affect a number of regulatory constructs, including captioning requirements and children’s programming quotas, the ABC would expect further consultation if that concept were to be considered.[16]

Australian Communications Consumer Action Network (ACCAN)

ACCAN, an organisation representing consumer interests, did not comment on this particular proposal.[17]

Australian Subscription Television ASTRA

ASTRA, the peak industry body for subscription media in Australia, did not comment on this matter.[18]

Coalition of Major Professional and Participation Sports (COMMPS)

COMPPS represents the following organisations which grant rights to broadcast sporting events and therefore have the potential to be affected by changes to the anti-siphoning rules: 

•       Australian Football League

•       Australian Rugby Union

•       Cricket Australia

•       Football Federation Australia

•       National Rugby League

•       Netball Australia and

•       Tennis Australia.[19]

COMPPS considers:

The proposal to remove the requirement in the Broadcasting Services Act that the so called ‘primary’ digital channel must be provided in a standard definition (SD) will have the effect that all digital channels can be provided in HD. This raises an important issue for COMPPS members.

COMPPS members support the high quality broadcasting of their sports. High quality production and broadcasts allows the content of COMPPS members to be presented in an attractive manner to viewers. COMPPS members have consistently been at the cutting edge of television production innovations. The quality of broadcasts of Australian sports has a world class reputation.

However, the issue of whether the primary channel should be SD or HD must not be considered without also addressing the related issue of the anti-siphoning regime.

As noted in the Consultation Paper, the anti-siphoning regime requires listed events to be broadcast on the primary channel. The requirement that the primary channel be SD has been seen by some stakeholders to be an important part of the anti-siphoning regime.

COMPPS members do not believe it is appropriate to address in isolation only one aspect of the anti-siphoning regime without addressing other, well documented concerns about the regime. The removal of the requirement that the primary channel be an SD channel should be undertaken simultaneously with other long overdue amendments to the anti-siphoning regime.[20]

Community Broadcasting Association of Australia (CBAA)

5.5 The CBAA supports the removal of the requirement that the primary service must be in standard definition. In other words, provision of the primary service in HD ought not be prevented.

5.6 By proposing less regulation of its format, Government clearly considers the underlying concept of a primary service as continuing to be relevant.

5.7 The CBAA strongly supports the concept of primary broadcast services.[21]

Foxtel

The Consultation Paper refers to April 2014 Newspoll research for [the Department of Communications] indicating that 96 per cent of households have a main television set or set top box that is HD compatible. While it is accepted that this number may have increased since April 2014, it remains a relevant consideration that many secondary sets in Australian homes may not be HD compatible. Therefore, by making this change the Government is risking removing access for Australians to listed anti-siphoning sporting events and Australian content that is shown on a primary service.

However, notwithstanding the fact that increased HD service offerings on commercial FTA television may have a commercial impact on Foxtel (because it is a point of competitive differentiation that Foxtel provides a much larger HD offering), and so long as the Government is satisfied that HD availability on secondary sets is sufficiently high, Foxtel does not object to this proposal. It is accepted that audiences increasingly expect services in HD.[22]

Emma Dawson, policy adviser to the former Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy

The Government intends to remove the requirement for the primary channel to be provided in standard definition. Given the widespread availability of HD receivers, there is no longer any reason to restrict the format of the primary channel.

No objection to this position.

However, the Government should note that, while the Newspoll survey conducted at the end of digital switchover found that 96 per cent of all households had access to HD channels on its main television, it is likely that a significant number of secondary television sets still in operation are not HD capable.

It is therefore unlikely that broadcasters will quickly switch their “main” channels to HD in the short term. Should they do so, it should be incumbent upon them to ensure viewers are aware of the change in advance and able to prepare for it.[23]

Free TV Australia

Free TV is an industry body which represents Australia's commercial free-to-air television licensees. It submitted:

The requirement for the primary channel to be provided in standard definition is outdated and should be removed. In an all-digital environment, this requirement no longer has any relevance.

As indicated above, free-to-air broadcasters should be able to determine the best mix of services to meet audience expectations, including whether to transmit their primary channel in HD or SD.[24]

SBS

SBS welcomes the proposals that there be no new restrictions on the number of television services offered by broadcasters, that the requirement for a broadcaster’s primary channel to be transmitted in standard definition (SD) mode be lifted and that high-definition (HD) quotas not be reintroduced.[25]

Financial implications

The Explanatory memorandum says that the Bill is not expected to have any direct financial impact on Commonwealth revenue or expenditure.[26]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[27]

At the time of writing, the Parliamentary Joint Committee on Human Rights has not considered the Bill.[28]

Key issues and provisions

Items 1 to 12 make consequential amendments to the Broadcasting Services Act 1992 (BSA) to apply the same new arrangements that apply to terrestrial broadcasts to services that are re-broadcast by satellite.[29]

Items 13, 16, 20 and 23 make changes to headings.

Under Part 4A of Schedule 4 of the BSA, commercial and national broadcasters are prevented from televising an anti-siphoning event on a non-primary multi-channelled television broadcasting service unless the event is first broadcast, or broadcast concurrently, on the broadcaster’s primary broadcasting service.  Items 14, 15, 17, 18, 21, 22, 22, 24 and 25 make consequential changes to the way the anti-siphoning rules work in the context of the new arrangements concerning HD broadcasts on the primary channel.

Items 19, 26 and 27 make the substantive changes giving effect to the new arrangements. The provisions amended deal with the mechanism by which an SD service is established as the primary service. The amendment removes the requirement that the primary service be in SD and allows HD services to be primary services.

Concluding comments

The Bill implements a positive measure that has wide support.

However, the Bill will leave those who have a non-HD capable TVs or set-top box without service for those channels broadcast in HD. That problem can be addressed with a new HD set-top boxes which are inexpensive.

There is no funding for those caught out as the Household Assistance scheme, which provided assistance to certain eligible people to convert to digital TV, concluded on 1 January 2014.[30]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Entry Point for referral.

[1].              Department of Communications website, Television captioning, accessed 8 September 2015.

[2].              Department of Communications website, Anti-siphoning, accessed 8 September 2015.

[3].              R Alston (Minister for Communications, Information Economy and the Arts), Digital – A New Era in Television broadcasting, media release, 24 March 1998, accessed 8 September 2015.

[4].              Television Broadcasting Services (Digital Conversion) Act 1998, accessed 8 September 2015.

[5].              Dr R Jolly, Going Digital: tracing the transition to digital terrestrial television in Australia, Research paper, 7, 2010–2011, Parliamentary Library, Canberra, 2011, accessed 9 September 2015.

[6].              Department of Communications, ‘Digital Dividend Spectrum’, Department website, accessed 8 September 2015.

[7].              Department of Communications, Consultation Paper: Digital Television Regulation, January 2015, accessed 8 September 2015.

[8].              Ibid., pp 12-14.

[9].              Ibid., p. 14.

[10].              Department of Communications, Digital television regulation, consultation paper, The Department, Canberra, January 2015, accessed 8 September 2015.

[11].              COMPPS, Submission to Department of Communications, Digital television regulation—Consultation paper, 31 March 2015, p. 4, accessed 8 September 2015.

[12].              House of Representatives Selection Committee, Australian Parliament website, accessed 28 August 2015.

[13].              Senate Standing Committee on Selection of Bills, Report, 10, 2015, The Senate, 20 August 2015, accessed 28 August 2015.

[14].              Senate Standing Committee for the Scrutiny of Bills, ‘Alert digest 2015’, Australian Parliament website, accessed 4 September 2015.

[15].              Australian Industry Group, Submission to Department of Communications, Digital television regulation—Consultation paper, 26 March 2105, p. 3, accessed 8 September 2015.

[16].              ABC, Submission to Department of Communications, Digital television regulation—Consultation paper, March 2015, pp. 2–3, accessed 8 September 2015.

[17].              ACCAN, Submission to Department of Communications, Digital television regulation—Consultation paper, 31 March 2015, accessed 8 September 2015.

[18].              ASTRA, Submission to Department of Communications, Digital television regulation—Consultation paper, 2 April 2015, accessed 8 September 2015.

[19].              COMPPS, Submission to Department of Communications, Digital television regulation—Consultation paper, 31 March 2015, p. 2, accessed 8 September 2015.

[20].              Ibid., pp. 4-5, accessed 8 September 2015.

[21].              CCBBA, Submission to Department of Communications, Digital television regulation—Consultation paper, April 2015, pp. 4-5, accessed 8 September 2015.

[22].              Foxtel, Submission to Department of Communications, Digital television regulation—Consultation paper, March 2015, p. 5, accessed 8 September 2015.

[23].              Emma Dawson, Submission to Department of Communications, Digital television regulation—Consultation paper, 31 March 2015, p. 4, accessed 8 September 2015.

[24].              FreeTV, Submission to Department of Communications, Digital television regulation—Consultation paper, 2 April 2015, p. 13, accessed 8 September 2015.

[25].              SBS, Submission to Department of Communications, Digital television regulation—Consultation paper, 8 April 2015, p. 3, accessed 8 September 2015.

[26].              Explanatory Memorandum, Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Bill 2015, p. 3.

[27].              The Statement of Compatibility with Human Rights can be found at pages 4-6 of the Explanatory Memorandum to the Bill.

[28].              Parliamentary Joint Committee on Human Rights, Australian Parliament website, accessed 4 September 2015.

[29].              Broadcasting Services Act 1992, accessed 9 September 2015.

[30].              Australian Government, Household Assistance Scheme, fact sheet, June 2011, accessed 8 September 2015.