Chapter 3
Multichannelling
Multi-channelling
3.1 The Television Broadcasting Services (Digital Conversion) Bill 1998
prohibits the use of digital spectrum for the provision of multi-channel
services by commercial and national broadcasters.
3.2 The Bill prohibits commercial and national broadcasters from broadcasting
a television program in digital mode during the simulcast period, unless
that program is the same as the television program broadcast in analog
mode, or is a program that is, under regulations, treated as incidental
and directly linked to the analog program.
3.3 When amended by the provisions in the Bill, these simulcasting requirements
will form part of commercial broadcasting licence conditions under the
Broadcasting Services Act 1992. Therefore, if a commercial television
broadcasting licence holder broadcasts a program in digital mode that
is not the same as, or incidental or directly linked to, its analog program
it will be in breach of its broadcasting licence condition.
3.4 The Bill requires that, before 1 January 2001, the Minister must
cause to be conducted a review into the content of regulations for provisions
relating to `incidental and directly linked' programming to be allowed
for commercial and national broadcasters; and programs which will be exempt
from the simulcasting requirements for national broadcasters.
3.5 The Explanatory Memorandum to the Bill states:
Subject to the Ministerial review to be conducted to determine the scope
of these regulations …it is envisaged that this condition would allow
commercial television broadcasting licensees to transmit multi-view programming
and other incidental video material directly linked to the analog simulcast.
The regulations could, for example, permit different visual representations
of the same event, filmed within the confines of the event, such as the
ability to view the event from different camera angles. [1]
3.6 The major concerns raised in submissions to the Committee related
to the boundaries between enhanced programming which could be considered
`incidental and directly linked' to analog programs, and therefore allowed
by the simulcasting requirements, and programs which would be considered
multi-channelling.
3.7 A variety of views were presented to the Committee as to the extent
of enhanced programming that would be permitted under the legislation.
For example, FACTS stated that it would:
… see the following kinds of services falling within the Government's
policy intentions:
- Extended coverage of the same event;
- Enhancement of the current program, such as:
- replays within a sports match
- provision of more detailed coverage of news or other items in
programs concurrent with the broadcast of that program.
- Localism:
- Providing regional versions of the news, e.g. Western Sydney or
Geelong-focussed news, alongside the normal bulletin, or as different
“windows” within a bulletin.
- Multi-view: i.e. availability of different camera angles or coverage
from the same event. [2]
3.8 In response to the Committee's questioning on the issue of whether
providing regional versions of the news alongside the normal bulletin
would be permitted within the definition of enhanced programming, Mr Branigan
from FACTS told the Committee that:
What is allowed by the exception is certainly enhancements, but they
must be incidental and directly linked. I would argue that most of the
things we have suggested here as program enhancements are very clearly
incidental and directly linked. Some of them may be close to the border.
Some of them may, at the end of the day, turn out to be on or over the
border. That is a matter for the regulator to determine. [3]
3.9 In response to the FACTS' example, ASTRA expressed its concern that:
Under that example, you can see the program streams diverging quite substantially.
If that is permitted then—wanting to avoid these sorts of things—the
thin edge of the wedge and slippery slope and every other cliché
you want to bring out is well and truly with us. [4]
3.10 The difficulty in defining programs which would be considered as
`incidental and directly linked' was also outlined by the Department of
Communications and the Arts, which submitted that:
Clearly, the boundaries of such enhanced programming will need to be
carefully set to avoid broadcasters providing de facto multi-channelling.
In practice, the extent to which a broadcaster can provide enhanced programming
will depend on the HDTV requirements, as little if any enhanced programming
will be possible during HDTV transmissions. [5]
3.11 ASTRA supported a restrictive interpretation of the word `incidental'
such as the meaning interpreted by the High Court in Director of Public
Prosecutions v United Telecasters Sydney Limited (1990) 91 ALR1 where:
…the High Court held that to activate the relevant exemption the
advertising matter must be published contemporaneously with the other
matter and must be in subordinate conjunction with that other matter.
[6]
3.12 The Committee notes that the legal interpretation of `incidental
and directly linked' will set the parameters for the statutory review
into the kinds of programs to be authorised by regulations, to be conducted
by 2001. The Committee also notes that these regulations will be subject
to Parliamentary scrutiny and disallowance.
3.13 The Committee further notes that the amount of enhanced programming
that broadcasters will be able to undertake will be limited by the requirements
for HDTV programming to be regulated.
3.14 The Committee believes that it is important that the review of this
issue (and indeed of other important issues listed for review by the year
2001) should be undertaken at the earliest possible opportunity to lessen
the level of uncertainty expressed to the Committee by some sectors of
the industry.
Recommendation 5
The Committee recommends that all the reviews scheduled to be carried
out before the year 2001 be undertaken at the earliest possible opportunity.
3.15 The Committee notes that reviews of various aspects of the implementation
of the conversion to digital television broadcast are foreshadowed in
the legislation. Since so much of the implementation of government policy
in this area is to occur through the formulation of regulations, the Committee
considers it essential that the Parliament should be kept closely informed
of the progress of the developments.
Recommendation 6
The Committee recommends that the Department of Communications and
the Arts table an interim report in Parliament by the end of 1999 on the
stages reached on any review yet to be completed.
National Broadcasters
3.16 There are also provisions made in the Bill to prohibit multi-channelling
by the national broadcasters. However, Clause 32 (c) of proposed schedule
4 to the Broadcasting Services Act 1992 will enable regulations
to be developed that would exempt the ABC and the SBS from this general
prohibition for certain types of programs. These regulations are to be
developed following a review that the Minister must ensure is conducted
prior to the year 2001.
3.17 The national broadcasters generally support the opportunity to multi-channel.
In its submission, the Special Broadcasting Service (SBS) stated that:
…SBS is pleased that the Government is prepared to consider multichannelling
for the national broadcasters to better fulfil their Charter responsibilities.
SBS has a complex Charter and looks forward to the opportunities available
with multichannelling to enhance SBS's non-English language news services,
and to providing more programming which fits with SBS's obligation to
provide multicultural broadcasting services. [7]
3.18 However, the Australian Broadcasting Corporation (ABC) expressed
the view to the Committee that:
National broadcasters need to develop plans on a range of financial,
staffing, technical and programming issues for conversion to digital broadcasting.
If the ABC is to provide multi channel programming, it will have a large
impact on that planning process. Either there should be an in-principle
decision by Government well before the planned year 2001 review, with
the details of multi channel programming decided by that review, or the
review should commence by late 1998 or early 1999, and proceed to a conclusion
as quickly as possible, consistent with sound decision-making. [8]
3.19 ASTRA raised concerns with the Committee that:
…any form of multi-channelling will be the `thin edge of the wedge'
which will be sorely tested by all players, especially when it comes to
sporting events where subscription broadcasters are already at a disadvantage
by virtue of the anti-siphoning provisions and the proposed anti-hoarding
provisions requiring a `must offer' of unused sporting rights to the national
broadcasters. [9]
3.20 The Committee recognises the concerns of the pay television sector
that multi-channelling by the national broadcasters should not provide
these broadcasters with a significant competitive advantage in providing
certain types of programming.
3.21 The Committee notes that while the Bills allow for regulations to
be developed which may exempt the ABC and the SBS from the general prohibition
on multi-channelling, the Government's intention is that programs that
may be exempted would be `…programming which is non-commercial and
is in line with their Charter obligations' [10].
3.22 The Committee notes that those regulations would be subject to Parliamentary
scrutiny and disallowance. However, the Committee believes that this is
another area where more precise definition is needed in order to dispel
uncertainty in the industry.
3.23 The Committee concludes that it is appropriate that the prohibition
on multi-channelling apply to all broadcasters in the first instance,
and that any exemptions from this prohibition for the ABC and the SBS
for certain types of programs should be subject to regulations to be developed.
3.24 The Committee recognises that the national broadcasters require
certainty as to whether they will be permitted to multi-channel to allow
them to plan accordingly. The Committee concludes that the review required
under the Bills should be completed as a matter of urgency to provide
this certainty to the national broadcasters.
Regional and Community Broadcasters
3.25 The Committee notes that four regional broadcasters operating in
solus [11] markets called for the opportunity
to be allowed to provide multi-channel services from the commencement
of their digital services. At least one of the solus operators considered
that its very survival after the commencement of digital television broadcasting
would depend on its ability to provide at least one extra channel to its
viewers. [12]
3.26 In its submission to the Committee, the Community Broadcasting Association
of Australia also staked a claim for providing multi-channel services
to its audiences:
Community television by the nature of its content, its production scale
and the scale of its activities is not likely to require full HDTV capacity
in the near future but the community would derive great benefit from access
to local and accessible multichannel capacity. [13]
3.27 The Committee considers the situation of the regional television
broadcasters in greater detail in Chapter 5. In its view, it would be
useful for the Government to recognise the special circumstances of the
community broadcasting sector in the development of regulatory arrangements
that will apply to the digital transmission of a community television
service, free of charge, by a datacaster, as provided for under clause
56 of proposed Schedule 4 of the BSA. These regulatory arrangements will
be subject to review by 2001.
Footnotes
[1] Explanatory Memorandum, Television Broadcasting
Services (Digital Conversion) Bill 1998 and Datacasting Charge (Imposition)
Bill 1998, p. 24.
[2] Submission No. 2 (Federation of Australian
Commercial Television Stations), p. 14.
[3] Transcript of evidence, p. 51 (Mr Branigan)
[4] Transcript of evidence, p. 68 (Mr Meagher)
[5] Submission No. 5 (Department of Communications
and the Arts), p. 4.
[6] Submission No. 14 (Australian Subscription
Television and Radio Association ), p. 5.
[7] Submission No. 3 (Special Broadcasting Service),
p. 3.
[8] Submission No 21 (Australian Broadcasting
Corporation), p. 7.
[9] Submission No 14a (Australian Subscription
Television and Radio Association), p. 6.
[10] Senator the Hon Richard Alston, Minister
for Communications, the Information Economy and the Arts, Digital –
A new era in broadcasting, Media Release, 24 March 1998. Also at http://www.richardalston.dca.gov.au/whats_new.html
[11] Solus markets are commercial television
broadcasting licence areas in which there is only one commercial television
broadcasting licensee.
[12] Transcript of evidence, p. 110 (Mr Gilbertson)
[13] Submission No 12 (Community Broadcasting
Association of Australia), p. 4.