Bills Digest no. 35 2008–09
Broadcasting Legislation Amendment (Digital Television
Switch-over) Bill 2008
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
Date introduced:
24 September 2008
House: Senate
Portfolio: Broadband, Communications and the
Digital Economy
Commencement:
Sections 1 3, on the day
of the Royal Assent; Schedule 1, on the day after the Royal Assent;
Schedule 2 on the 60th day after the Royal Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, 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 bill is to amend the Broadcasting Services Act 1992
(the BSA) to allow for a staggered, region-by-region digital
television switch-over timetable. In addition, the bill amends the
timing of the two statutory reviews which are required under the
BSA.
As the government
noted in the second reading speech for this bill, the switch-over
to digital-only television will represent the most fundamental
change in broadcasting since analog[1] television was introduced in the
1950s.[2] The
transition to digital television has been described elsewhere as a
transition from a world of spectrum scarcity, dumb terminals, and
one-way services, to a world of on-demand programming, intelligent
terminals, and abundant channels .[3]
Digital television produces more authentic
reproductions of original images than analog television. It does
this by converting information about the elements of a picture to
an on/off code that can identify false data, which a digital
receiver is able to correct. Digital pictures are therefore more
authentic reproductions of images than analog pictures which vary
in accordance with the colour and brightness of elements of the
original and which are subject to impairments in the transmission
process that cannot be removed. A major advantage of using digital
television signals is that the digital data stream can be
compressed to use available spectrum more efficiently. As a result,
digital broadcasting offers the potential for the development of
other services, such as interactive television and
multi-channelling.
Digital television data requires decoding by a
specifically designed television set or a standard television set
which uses a set-top data conversion box.
In 1993, a Specialist Group was established in
what is now known as the Australian Communications and Media
Authority (ACMA) to consider the introduction of digital
terrestrial television in Australia.[4] In its final report published in 1997
this group considered that a possible date for commencement could
be as early as 2000.[5] ACMA supported the specialist group s finding,
recommending that government worked towards an early introduction
of digital television.
In response to this recommendation the Howard
Government introduced its initial digital television legislation in
1998. Under this legislation spectrum was loaned to commercial and
national free to air broadcasters who were then required to
simulcast analog and digital television formats for a period of
eight years. Digital broadcasting was to commence in metropolitan
areas by 1 January 2001 and in regional areas from a date to be
determined. All areas were to have digital services by 1 January
2004.[6]
The Howard Government strategy for the
introduction of digital television was criticised almost from the
outset. A Productivity Commission inquiry in 2000 reflected some of
this criticism when it suggested that at least certain aspects of
the digital conversion plan may actually curtail consumer benefits
and increase conversion costs for broadcasters.[7] The Commission labelled a
prohibition on multi channelling imposed on commercial broadcasters
and a requirement which prohibited the allocation of new commercial
television licences, for example, as detrimental to a successful
transition. The Commission considered also that it was crucial to
expedite the switch-off of analog transmissions to deliver
certainty to consumers and broadcasters and to free up the use of
spectrum for other purposes. It concluded that a firm and final
date of 2009 should be set for both metropolitan and regional areas
for the switch-off of analog television, and argued that this
approach to a switch-over would particularly benefit regional
broadcasters who would no longer need to pay the cost of
simulcasting services.[8]
Widespread criticism along similar lines to
that of the Productivity Commission that various restraints built
into the digital television transition regime jeopardised its
success have continued to be raised. The Howard Government
responded to these in a number of ways beginning in 2000 with the
introduction of legislation to refine arrangements for the
introduction of digital television .[9]
In its 2001 election policy the former
government also acknowledged that broadcasters needed more
flexibility to allow them to cope with the transition to digital
television.[10] It
made efforts throughout 2001 and 2002 to respond to the demands of
various broadcasters and at the same time to encourage the public
to embrace digital television, but its transition plans were
consistently hampered by these two factors.
By November 2002, only 35 000 set top boxes
had been sold and the government was forced to launch a digital
television education campaign.[11] This had had no discernible effect by mid 2003
when the Sydney Morning Herald commented that the
government s vision for digital television had ignored the
potential pitfalls of the conversion process. The Sydney
Morning Herald s editorial considered that the blunt club of
shutting down analog television would be ineffective and that the
smarter outcome solution would have been to encourage an individual
player to take the digital TV or to allow new entrants, whose
revenue would be entirely dependent on making a go of digital
technology .[12]
In 2005 the government initiated a House of
Representatives inquiry into the take up of digital television. The
inquiry concluded that the original timeframes for the switch off
of analog television were unrealistic. This was not only due to
factors such as the lack of consumer enthusiasm for digital
television, but also because it was thought that equivalent digital
services were likely not to be available in some areas by the
proposed switch off date. The inquiry therefore recommended that
the government extend switch off timing to 1 January 2010.[13]
Following the House of
Representatives inquiry, the government consulted with broadcasters
before the then Minister for Communications, Information Technology
and the Arts, Senator Helen Coonan, released a revised plan for
digital television conversion in November 2006.[14] The plan was intended
to accelerate the transition by relaxing earlier restrictions
including the prohibition of multi channelling by free to air
broadcasters. They plan also involved commissioning research into
the impediments to digital take up and providing detailed
information to consumers about digital television and the
government s implementation plans for digital switch over. The
switch over date was revised under the plan to some time between
2010 and 2012.
After Labor s election victory in November
2007 the new Minister for Broadband Communications and the Digital
Economy, Stephen Conroy was also confronted by a situation where
only around 40 per cent of homes had converted to digital
television.[15]
Like its predecessor the new government needed time to convince
people to adopt digital technology. As a consequence, the Minister
Stephen Conroy announced that the Rudd Government would extend the
timeframe for the completion of digital switch over to the end of
2013.
In seeking to meet this deadline the new
government sought comment on a number of issues which it raised in
a legislative framework discussion paper. These included
introducing legislation which would allow for the option of
shortening the analog/digital simulcast period for some areas that
may possibly be ready for full conversion earlier than others.
Another option was to introduce legislation that may deliver more
flexibility to areas to accommodate those experiencing difficulty
in achieving switch-over readiness and a staggered switch-over for
smaller geographical areas within the wider television licence
areas for commercial television broadcasting services.[16]
The measures in this bill propose to amend the
BSA to provide for this type of approach to digital switch-over in
regional and metropolitan areas to accommodate not only the
individual needs of various local geographical areas but also to
fit within an overall national digital transition implementation
timeframe.
The approach may be particularly important in
a number of regional television licence areas which were aggregated
under provisions in the Broadcasting Amendment Act 1987.
Aggregation involved the creation of larger - and what were
considered more viable - regional television markets, by combining
existing licence areas so that they could be served by three
commercial services. At the time this legislation was introduced,
it was argued that the larger service areas provided through
aggregation would provide an opportunity for licensees to expand
and develop regional content and that the preferences of viewers
would provide an incentive for regional licensees to produce local
programs.
By 2001, however, a decline in local radio and
television programming had been noted as a result of aggregation.
In response to this decline, additional licence conditions were
imposed in aggregated areas to ensure that local content was
maintained.[17]
While this in itself is not the subject of the current bill, it
does illustrate the importance of localism when making policy that
addresses regional broadcasting. In this case, the proposed
measures appear to adopt a similar approach in accommodating the
needs of individual areas in terms of catering to local market
conditions.
Apart from introducing changes to licence
conditions to preserve local content on rural television, the
former government had also acknowledged the different conditions
that apply to regional areas as part a National Television
Conversion Scheme which commenced on 2 February 2000 and a
Commercial Television Conversion Scheme which commenced on
9 June 1999. These conversion schemes require ACMA under
Schedule 4 to the BSA to plan so that the ultimate outcome of
digital conversion for broadcasters will be that they achieve the
same level of coverage as they had previously enjoyed in analog
mode as soon as is practicable after the commencement of a
simulcast period in a particular area. Each scheme is divided into
two parts; Part A which deals with metropolitan and regional areas
and Part B which deals with remote areas. The legislation provides
that ACMA may determine which areas are defined as remote. In
February 2001, ACMA determined eight licence areas to be remote for
the purposes of conversion to digital broadcasting.[18] Similarly, the 2000 01
Budget included a financial assistance package under the Regional
Equalisation Plan to facilitate the provision of digital television
(and datacasting) services by commercial television broadcasters in
regional and remote licence areas.[19]
The BSA therefore already recognises that
special considerations may apply to different regions and that
strategies which are appropriate for one area are not necessarily
so for another. Part B of the conversion plans for example
recognises that delivering services to small, scattered populations
is likely to involve additional costs for commercial
broadcasters.[20]
This bill appears also to fit comfortably
within a framework already established under which ACMA consults
with stakeholders and guides digital television implementation
plans that take into consideration differing regional
conditions.
This bill also amends the legislation
to vary the timing of two statutory reviews to reflect the
government s intention to complete the switch over to digital
television by 31 December 2013. These reviews are:
- to the operation of subsection 35A(1) of the BSA. This review
will consider whether new commercial television licences should be
allocated to particular areas and what variations to licence area
plans would need to be made to accommodate such allocations.
(Licence area plans, which are maintained by ACMA, determine the
characteristics, including the technical specifications, of the
broadcasting services that are available in various areas),
and
- to the content and captioning rules applicable to standard
definition and high definition multi channel commercial
broadcasting services under subclause 60C(1) of Schedule 4 of the
BSA.
The BSA sets captioning quotas for commercial
and national free-to-air broadcasters which require that all prime
time programs (that is programs broadcast between 6 pm and 10 pm)
and all news and current affairs programs are captioned once
stations commence broadcasting in digital format.[21] At present captioning provisions
do not apply to community broadcasters or to subscription
television or to multi channels unless a program has previously
been broadcast with captions.[22]
Content rules set minimum levels of Australian
content to be broadcast by free to air broadcasters, as well as
minimum amounts of first release Australian drama, documentaries
and children s programs as well as requiring pre-school programming
to be Australian. However, these rules currently apply only to the
core commercial television services of licensees, not to a
multi-channel service.
There appear to have been no recent concerns
about this bill raised by relevant interest groups. This may be, as
noted, because the measures continue a framework which already
acknowledges that conversion to digital will require approaches
that recognise the different needs of various regions. This may
also be because the government has sought to address any concerns
through consultation with a non-statutory industry advisory group
it has established to support its digital transition strategy.
Amendments regarding the statutory reviews also only change timing,
not their proposed purpose. The membership of this advisory group
is:
- Kim Dalton, Director of Television, ABC Television
- Bruce Meagher, Director of Strategy & Communications, SBS
Television
- Scott Briggs, Regulatory Affairs Manager, Nine Network
- Annabelle Herd, Network Manager, Broadcast Policy &
Strategy, Network Ten
- Kate Fitzgerald, Acting Manager, Regulatory & Business
Affairs, Seven Network
- Debra Richards, CEO, Australian Subscription Television &
Radio Association
- Julie Flynn, CEO, Free TV Australia
- Shirley Brown, Secretary, Regional Broadcasters
Association
- Andrew Brine, President, Australian Community Television
Alliance
- Ross Henderson, Chairman, Australian Electrical &
Electronic Manufacturers Association
- Colin Doyle, Technical Director, Consumer Electronics Suppliers
Association
- Michael Lonie, E-Commerce & Tenancy Services Director,
Australian Retailers Association
- Clive Morton, Terrestrial Media Services Director, Broadcast
Australia
- James Shaw, General Manager, Analysis & Coordination
Division, Australian Communications & Media Authority
- Jackie Zelinsky, representing the National Community Titles
Institute.[23]
In June 2008, the Shadow Minister for
Broadband, Communications and the Digital Economy, Bruce Billson
labelled the government s deadline for digital switch-over as a na
ve, political chest beating exercise that did not ensure the future
of community television. Billson argued that one of the reasons the
previous government had not adopted a policy of setting a firm
switch-over date was that it was working towards sorting out
critical issues such as the place of community television in a
digital broadcasting world and that the government s imposition of
a fixed switch-over date was reckless .[24] There appears to be no other comment
from the political parties in relation to digital television
conversion in recent months.
At its meeting of 25
September 2008, the Selection of Bills Committee resolved to
recommend that the bill be referred immediately to the Senate
Environment, Communications and the Arts Committee for inquiry and
report by 25 November 2008.[25] The Environment, Communications and the Arts
Committee has set a time limit of 24 October 2008 for receipt of
submissions from interested parties.
According to the Explanatory Memorandum, the
bill is expected to have minimal impact on Commonwealth expenditure
or revenue.[26]
Schedule 1
Existing subsection 35A(1) of the BSA provides
for a review about the allocation of new commercial television
broadcasting licences before the earliest digital television
switch-over day .[27] Item 2 amends the provision so that
the Minister must cause that review to be conducted before 1
January 2012.
Existing subclause 60C(1) of Schedule 4 of the
BSA provides for a review of content and captioning rules
applicable to multi-channelled commercial television broadcasting
services at least one year before the earliest digital television
switch-over day . Item 3 amends the provision so
that the Minister must cause that review to be conducted before 1
January 2010.
Item 1 of Schedule 1 repeals
the definition of earliest digital television
switch-over day in existing subsection 6(1) of the
BSA. Following the amendments in items 2 and 3 above, the term is
no longer referred to in the BSA.
Item 4 of Schedule 2 of the
bill inserts proposed clause 5F into Schedule 4 of
the BSA. Proposed subclause 5F(1) provides that
the Minister[28]
may, by legislative instrument:[29]
- determine that a specified area is a local market area and
- determine that the area becomes a digital-only local market
area at a specified time.[30]
The time specified in the determination must
be within the simulcast period: proposed subclause
5F(3).
Proposed subclause 5F(4)
provides that the determination is irrevocable. However
proposed subclauses 5F(5) (10) do allow for
variation of the initial determination by the Minister under
proposed subclause 5F(1) as follows:
- it must not be varied retrospectively: proposed
subclause 5F(6)
- the time specified in the varied determination must not be more
than three months before the time specified in the initial
determination: proposed subclause 5F(7)
- similarly the time specified in a varied determination must not
be more than three months after the time specified in the initial
determination: proposed subclause 5F(8).
The three month time restriction imposed by
proposed subclause 5F(8) does not apply in the
following circumstances:
- the time specified in the initial determination would be likely
to result in significant difficulties of a technical or engineering
nature for a commercial television broadcasting licensee in the
licence area, or a national broadcaster: proposed paragraph
5F(9)(a), and
- those difficulties could not reasonably have been foreseen by
the commercial television broadcasting licensee or the national
broadcaster as at six months before the time specified in the
initial determination: proposed paragraph
5F(9)(b).
Under proposed subclause
5F(11) the Minister must consult with the ACMA before
making or varying a determination under proposed subclause
5F(1).
Existing clause 7 of Schedule 2 of the BSA
provides that commercial television broadcasting licences are
subject to prescribed conditions. Existing paragraph 7(1)(m)
contains the condition that where there is a simulcast period for a
licence area, the licensee must not broadcast a television program
in SDTV digital mode[31] in that area during the
simulcast period, unless the programme is broadcast simultaneously
in analog mode.[32]
Item 1 of Schedule 2 of the bill amends paragraph
7(1)(m) by omitting the words in that area and substituting
in so much of that area as is not a digital-only local
market area . The effect of this amendment is that,
once the Minister has made a determination under proposed subclause
5F(1) that an area is a digital-only local market area , the
requirement to broadcast simultaneously in digital and analog modes
in that digital-only local market area ceases to be a condition of
a commercial television broadcasting licence.
Part 2 of Schedule 4 of the BSA relates to
commercial television.
Subclause 6(1) is located in Part 2. It
provides that the ACMA must formulate a scheme for the conversion
over time of the transmission of commercial television broadcasting
services from analog to digital mode. Subclause 6(2) provides that
the commercial television broadcasting
scheme must deal with both areas that are
remote licence areas and areas that are
not remote licence areas.
Item 5 repeals existing
subparagraph 6(3)(c)(ii) and substitutes proposed
subparagraphs 6(3)(c)(ii) and (iia). The effect of this
amendment is that the simulcast period will be:
- for a metropolitan licence area nine years or such other period
as determined under proposed subclause 6A(1), and
- for a regional licence area eight years or such other period as
determined under proposed subclause 6A(2).[33]
Items 6 and 7 are in
identical terms That is, the words in that area and are substituted
with in so much of that area as is not a digital-only
local market area . The amendments facilitate the
setting of different analog switch-off dates in different parts of
a licence area.
Item 8 inserts
proposed paragraph 6(3)(ga) into Schedule 4 of the
BSA confirming that one of the policy objectives of the commercial
television conversion scheme is that during the simulcast period
for a licence area, transmissions in analog mode are not required
to be made in an area which has been determined to be a
digital-only local market area.
Item 10 inserts
proposed paragraph 6(3)(ja) into Schedule 4 of the
BSA. The proposed paragraph sets out a further policy objective of
the commercial television conversion scheme. The amendment makes
clear that after a local market area becomes a
digital-only market area, the
transmission of a commercial television broadcasting service in
SDTV digital mode should have the same level of coverage and
reception quality as was achieved by the transmission in analog
mode to that area.
Item 12 of Schedule 2 of the
bill inserts proposed clauses 6A and 6B into
Schedule 4 of the BSA. Proposed clause 6A allows for a
determination of the simulcast period in metropolitan
licence areas and regional licence
areas as follows:
- the Minister may, by legislative instrument, determine the
simulcast period for a metropolitan licence area: proposed
subclause 6A(1)
- the Minister may, by legislative instrument, determine the
simulcast period for a regional licence area: proposed
subclause 6A(2)
- in both areas the simulcast period must end before the end of
31 December 2013: proposed subclauses 6A(3) and
(4)
- in both areas the determination is irrevocable:
proposed subclauses 6A(5) and (6)
However, proposed subclause
6A(7) does allow for the Minister to vary the
determination by legislative instrument providing that:
- the variation is not made retrospectively: proposed
subclause 6A(8)
- the end of the period specified in a varied determination must
not be earlier than three months before the end of the period
specified in the initial determination: proposed subclause
6A(9)
- the end of the period specified in a varied determination must
not be a date after the earlier of the following:
- the end of 31 December 2013, or
- three months after the end of the period specified in the
initial determination: proposed subclause
6A(10)
Proposed subclause 6A(11)
contains an exception to the requirement that a determination of
the simulcast period in metropolitan licence
areas and regional licence
areas must end at the end of 31 December 2013. The
exception applies if the following conditions are satisfied:
- the end of the period specified in the initial determination
would be likely to result in significant difficulties of a
technical or engineering nature for a commercial television
broadcasting licensee for the licence area, or a national
broadcaster, and
- those difficulties could not reasonably have been foreseen by
the commercial television broadcasting licensee or the national
broadcaster, as at six months before the end of the period
specified in the initial determination.
In any event, however, proposed
paragraph 6A(11)(e) provides that the end of the period
specified in the varied determination must not be later than the
end of 30 June 2014. Before making or varying a determination, the
Minister must consult with the ACMA: proposed subclause
6A(13).
Proposed section 6B provides
that the ACMA must not determine that the simulcast period for a
remote licence area ends after 31
December 2013 except in those circumstances which the Minister has
specified in the legislative instrument.
Part 3 of Schedule 4 of the BSA relates to
ABC and SBS television.
Subclause 19(1) is located in Part 3. It
provides that the ACMA must formulate a scheme for the conversion
over time of the transmission of national television broadcasting
services from analog to digital mode. Subclause 19(2) provides that
the national television broadcasting
scheme must deal with both areas that are
remote coverage areas and areas that are
not remote coverage areas.
Item 13 amends existing
paragraph 19(3)(c) by omitting in that coverage area and
substituting in so much of that coverage area as is not
a digital-only local market area . The effect is to
amend the policy objective so that national broadcasters operating
in a coverage area during the simulcast period would be required to
transmit in both analog mode and digital mode except in those parts
of the coverage area that have been specified as digital-only local
market areas.
Item 14 amends existing
paragraphs 19(3)(f) and (g) so that the policy objectives under the
national television conversion scheme to which those paragraphs
relate need only be achieved in that part of the coverage area that
is not a digital-only local market area.
Item 15 inserts
proposed paragraph 19(3)(ga) into Schedule 4 of
the BSA. The proposed paragraph sets out a further policy objective
of the national television conversion scheme. The amendment makes
clear that after a coverage area becomes a digital-only local
market area, the transmission of a national television broadcasting
service in analog mode in that area is not required.
Item 17 inserts
proposed paragraph 19(3)(ja) into Schedule 4 of
the BSA. This item also sets out a further policy objective of the
national television conversion scheme, that after a local market
area becomes a digital-only local market area, the transmission of
national television broadcasting service in SDTV digital mode
should have the same level of coverage and reception quality as was
achieved by the transmission in analog mode to that area.
Items 18 20 amend subclause
35(1) of Schedule 4 of the BSA which relates to simulcasting
requirements for national broadcasters. Under the proposed
amendments national broadcasters would be required to broadcast
simultaneously in digital mode and analog mode only in those areas
that are not a digital-only local market area.
Items 21 and 22 are
application provisions designed to clarify the commencement of
various provisions in Schedule 2 of this bill.[34]
This bill provides for a variable approach to
the switch off of analog television in metropolitan and regional
areas. The Minister can determine timetables for the switch off of
analog television in local markets within wider television licence
areas that take into account readiness for a transition to digital
only television. While the legislation cites a six month window as
the norm for a switch over process for identified areas, it also
allows for extra flexibility at the Minister s discretion in
exceptional circumstances .
There appears to have been no criticism of the
proposals in this legislation. What criticism that has emerged in
relation to the government s overall digital conversion plan
appears to be directed more at the intention to impose a more rigid
national digital switch over timeframe than had been adopted by the
previous government.
[4]. ACMA was
established on 1 July 2005 by the merger of the Australian
Broadcasting Authority and the Australian Communications
Authority.
[18]. These are
the licence areas of ITQ Mt Isa, IMP and QQQ Remote Central and
Eastern Australia, WOW Regional and Remote Western Australia, WAW
Remote Western Australia, VEW Kalgoorlie, GTW Geraldton and SSW
South West and Great Southern Western Australia. ACMA, ABA
determines remote areas licences for digital television, press
release, ABA NR8/2001, 22 February 2001, http://www.acma.gov.au/WEB/STANDARD/pc=PC_91214,
accessed on 30 September 2008.
[28]. In accordance with section 19A of the Acts
Interpretation Act 1901 a reference to the Minister is a
reference to the Minister for Broadband, Communications and the
Digital Economy.
[29]. The Legislative Instruments Act 2003 defines
a legislative instrument as an instrument of a legislative
character that is, or was, made under a delegation of power from
Parliament . A legislative instrument is put before the Parliament
and may potentially be subject to disallowance.
[31]. Clause 4B of Schedule 4 of the BSA
states that a program or a television broadcasting service is
broadcast or transmitted in SDTV digital
mode if the program or service is broadcast or
transmitted in digital mode in a standard definition format.
[32]. Clause 3 of the BSA states that a
program or service is broadcast or transmitted in
analog mode if the program or service is
broadcast or transmitted using an analog modulation technique.
Rhonda Jolly and Paula Pyburne
8 October 2008
Bills Digest Service
Parliamentary Library
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