Chapter 1
Introduction
Conduct of the inquiry
1.1
On 22 March 2012, on the recommendation of the Selection of Bills
Committee, the Senate referred the Broadcasting Services Amendment
(Anti-siphoning) Bill 2012 to the Environment and Communications Legislation
Committee (the Committee) for inquiry and report by 4 May 2012.
1.2
In accordance with usual practice, the Committee advertised the inquiry
on its website. It also wrote to various organisations inviting submissions.
The Committee received 19 submissions (listed at Appendix 1) and held a public
hearing in Canberra on 13 April 2012 (see Appendix 2).
1.3
The Committee notes the short period of time between referral of the
bill to the Committee and lodgement of submissions. The Committee appreciates
the effort required to meet this timeframe, and thanks those organisations and
individuals that made contributions to the inquiry.
Background
The anti-siphoning regime
1.4
The "anti-siphoning list" is a list of sporting events that
the Commonwealth Government has determined should be available to the
Australian viewing public via free-to-air television. It is referred to as the
anti-siphoning list because it seeks to prevent listed events being
"siphoned off" to subscription television broadcasters thus
preventing many Australians from viewing them.[1]
Events on the current anti-siphoning list include:
-
the opening and closing ceremonies of the Summer and Winter
Olympic Games;
-
the Melbourne Cup;
-
the National Rugby League (NRL) State of Origin Series;
-
the quarter-finals, semi-finals and the final of the Rugby World
Cup tournament;
-
cricket test matches involving the senior Australian
representative team played in Australia;
-
the final of the Netball World Championships if it involves the
senior Australian representative team; and
-
each match in the Australian Football League (AFL) premiership
competition, including the finals series.[2]
1.5
Under the existing anti-siphoning scheme, subscription television
licensees are prohibited from acquiring the right to televise an event that is
on the anti-siphoning list. However, in certain circumstances a subscription
television licensee may acquire these rights:
-
if free-to-air television broadcasters have not obtained these
rights by 12 weeks before the start of the anti-siphoning event; or
-
the right to televise an event is held by commercial television
licensees who have the right to televise the event to more than 50 per cent of
the Australian population; or
- the right to televise is held by either the Australian
Broadcasting Corporation (ABC) or the Special Broadcasting Service (SBS).[3]
1.6
The current scheme requires free-to-air broadcasters to premiere
anti-siphoning events on their analog channel and core digital channels. Events
on the anti-siphoning list may be simulcast or repeated on a broadcaster's
digital multichannels but cannot be shown first on a multichannel.[4]
1.7
The current anti-siphoning scheme does not:
-
reserve listed events solely for free-to-air broadcasters;
-
oblige free-to-air broadcasters to buy the rights to events on
the list;
-
guarantee free-to-air broadcasters exclusive rights to events on
the list; or
-
compel free-to-air broadcasters that acquire the rights to events
on the list to broadcast the events live or in full.[5]
1.8
The anti-siphoning scheme is administered by the Australian
Communications and Media Authority (ACMA).[6]
Reform to the anti-siphoning regime
1.9
On 25 November 2010, the Minister for Broadband, Communications and the
Digital Economy announced proposed reforms to the anti-siphoning scheme[7]
'to enhance television coverage of key sporting events in Australia'.[8]
1.10
The bill seeks to implement these reforms.[9]
Overview of the bill
1.11
The Broadcasting Services Amendment (Anti-siphoning) Bill 2012 (the bill)
seeks to amend the Broadcasting Services Act 1992 (the Act) with respect
to the anti-siphoning scheme and anti-hoarding rules.[10]
1.12
The proposed changes to the existing anti-siphoning regime are intended
to 'enhance television coverage of key sporting events in Australia'.[11]
The bill seeks to preserve the existing arrangement whereby subscription
television broadcasters are prevented from acquiring the rights to events on
the anti-siphoning list before free-to-air television broadcasters have had the
opportunity to acquire these rights.[12]
The bill also seeks to introduce coverage obligations for free-to-air
broadcasters intended to ensure that all Australians have access to the best
possible television coverage of significant sporting events.[13]
In addition, the bill would bring the 'anti-siphoning scheme up-to-date with
the modern television broadcasting environment' by taking into account the adoption
of digital television and the use of digital multichannels.[14]
1.13
If enacted, the bill would also implement rules governing the
acquisition of events on the anti-siphoning list by new media services such as online
coverage rights by content service providers.[15]
Listing and de-listing events
1.14
The bill seeks to restructure the anti-siphoning list by allowing the
minister to declare an anti-siphoning event as either 'Tier A' or 'Tier B' thereby
applying different coverage obligations to each tier.
1.15
Tier A anti-siphoning events would include nationally iconic events, for
example the Melbourne Cup and the AFL and NRL grand finals.[16]
Tier B events would include regionally iconic and nationally significant events
such as "home and away" matches in the AFL and NRL premiership competitions,
the rugby league State of Origin series and the Olympic Games.[17]
The bill would enable the minister to assign Tier B events to a designated
group and specify the total minimum number of hours to be broadcast for a designated
group.[18]
1.16
An event declared to be a Tier A or Tier B event would cease to be an
anti-siphoning event (that is de-listed) 24 hours after the end of the event
unless otherwise determined by the minister.[19]
1.17
For the purposes of the acquisition of broadcast rights by subscription
television broadcasters and the conferral of rights on content service
providers, an event would cease to be an anti-siphoning event 4368 hours (182
days) before the start of the event, where the event is in a designated group,
or in the case of the AFL and NRL premiership competitions, 4368 hours (182
days) before the start of the first event in the competition.[20]
The bill would also enable the minister to further extend this period to 8736
hours (364 days) for AFL and NRL competitions.[21]
These changes to the de-listing periods are intended to provide greater
opportunity for sporting bodies to negotiate openly with subscription
television broadcasters for the rights to listed events that free-to-air
broadcasters have chosen not to acquire.[22]
Coverage obligations
1.18
Free-to-air broadcasters that acquire the broadcast rights to Tier A
events would be required to televise the event live with no delay or with as
short a delay as is technically feasible.[23]
1.19
Free-to-air broadcasters that acquire the broadcast rights to Tier B
events in a designated group would be required to televise the event with no
delay or with a delayed starting time of not more than 24 hours.[24]
Tier B events not in a designated group would be required to be televised with
no delay or with a delayed starting time of not more than four hours, depending
on the type of event.[25]
Multichannelling
1.20
The existing anti-siphoning scheme requires that all listed events are
shown first or exclusively on a primary or main channel. The bill would allow
free-to-air broadcasters to premiere Tier B events on digital multichannels.[26]
1.21
Tier A events would be required to be premiered on a free-to-air
broadcaster's primary channel, with limited exceptions for Tier A events that
overlap with regularly-scheduled news coverage or with other Tier A events to
be televised on a multi-channel.[27]
The bill would also allow the minister, by legislative instrument, to exempt
broadcasters from the obligation to show Tier A events on a primary channel.[28]
"Must offer" arrangements
1.22
The bill provides for revised "anti-hoarding" measures (coverage
obligations) that would apply to the broadcast of anti-siphoning events on
free-to-air television.
1.23
Section 145H of the bill would require a commercial television
broadcasting licensee to televise anti-siphoning events unless that licensee
offers 'to transfer to each other commercial television broadcasting licensee
and each national broadcaster...the right to televise live' the event and none
of those offers was accepted.[29]
By legislative instrument, the ACMA may grant exemptions to the requirement to
televise anti-siphoning events.[30]
1.24
The bill would also require program suppliers to confer the right to
televise an anti-siphoning event to a licensee except where the program supplier
offers 'to transfer to each other commercial television broadcasting licensee
and each national broadcaster...the right to televise live' the event and none
of those offers was accepted.[31]
1.25
Sections 145K and 145L of the bill outline what would constitute an
offer to transfer rights to televise live events. For the purposes of section
145L, an offer must be made in writing, must be made not less than 2880 hours
(120 days) before the start of the event and must be open for acceptance by the
offeree for 14 days from when the offer was made.[32]
In these circumstances, the rights to an anti-siphoning event must be offered
for a nominal consideration of $1.[33]
1.26
If no free-to-air broadcaster takes up the right to televise live an
anti-siphoning event offered by a licensee or program supplier, the rights must
be offered to subscription television broadcasting licensees.[34]
1.27
These "must offer" obligations are intended to prevent a
broadcaster from striking an agreement for the on-selling of unwanted rights on
commercial terms and to prevent unwanted rights 'lying fallow'.[35]
Designated groups
1.28
The bill would enable the minister to declare that certain Tier B events
form a 'designated group'.[36]
This aspect of the bill is intended to provide flexibility to cover long-form,
multi-round tournaments for example the Olympic Games, the Australian Open
tennis tournament and golf tournaments.[37]
1.29
A broadcaster televising a designated group would be required to provide
coverage of the group's events for a period of time equal to or greater than
the 'total minimum number of hours', as specified by the minister.[38]
1.30
The bill would also allow the minister to determine a 'daily minimum
number of hours', in addition to the total minimum number of hours, for a
designated group.[39]
This would address the risk that a broadcaster might provide an unreasonably
low level of coverage on any particular day of a designated group.[40]
1.31
The designated group mechanism is not intended to cover weekly games of
the AFL and NRL. A separate mechanism—the quota group mechanism—would be used
in this instance.
Quota groups
1.32
Section 145G of the bill would empower the minister to determine that
specified Tier B events comprise a 'quota group'.[41]
These arrangements would be used for dealing with, and would be limited to, the
AFL and NRL.
1.33
The bill would require the minister to declare that weekly matches of
the AFL and NRL are quota groups for the purposes of the anti-siphoning scheme.
The minister would be required to specify a 'quota number', which indicates the
number of events in a group that must be shown on free-to-air television.[42]
The maximum of quota number for each round of the AFL Premiership would be 4,
while the maximum quota number for each round of the NRL Premiership would be
3.[43]
1.34
With respect to quota groups, the bill would enable the minister to
specify 'associated set conditions'.[44]
Associated set conditions would enable the minister to determine the types of
matches to be protected as part of the quota number and 'ensure that the
highest quality events in a quota group will be matches shown on free-to-air
television'.[45]
For example, the minister could specify associated set conditions for the
television licence areas in Western Australia regarding AFL matches involving
the West Coast Eagles or Fremantle Dockers. Matches involving these clubs would
have to be included in the quota number in these licence areas and therefore
could not be exclusively acquired by a subscription television broadcaster.[46]
New media providers
1.35
The bill would restrict the extent to which the rights to anti-siphoning
events could be conferred on content service providers, with the intention of
preventing the rights to an anti-siphoning event being siphoned off to new
media and no longer being freely available to Australian viewers.[47]
Application of the bill to existing
broadcast rights
1.36
If enacted, the coverage obligations in the bill would apply to all
listed events acquired since 25 November 2010, the date on which the minister
announced the reforms to the anti-siphoning scheme implemented by the bill.[48]
1.37
Licensees who acquired rights to televise anti-siphoning events between
25 November 2010 and the commencement date of the bill would not be
subject to the new coverage obligations for an event that takes place after the
first 150 days following the commencement date (for example, the Nine Network's
coverage of the 2012 Olympic Games in London).[49]
1.38
By way of further example, the rights to televise the 2012–2016 AFL
Premiership competitions that were acquired by the Seven Network in 2011 will
not be subject to the coverage obligations in section 145H.[50]
The only exception would be AFL Grand Finals in the 2012–2016 seasons where it
is the government's intention to include these events in the anti-siphoning
list as Tier A events.[51]
Enforcement and notification
1.39
As is presently the case, the ACMA would be responsible for administering
and enforcing the anti-siphoning scheme.
1.40
The bill would impose notification requirements on commercial television
broadcasting licensees, national broadcasters and program suppliers.[52]
The notification requirements imposed on broadcasters would require a
broadcaster to notify the ACMA in writing within 10 business days about any
rights to televise an anti-siphoning event that the broadcaster has acquired,
or of any rights the broadcaster ceases to hold.[53]
1.41
The notification requirements imposed on program suppliers would also require
the ACMA to be notified about any rights to televise an anti-siphoning event
that a program supplier has acquired, or of any rights they cease to hold.[54]
Program suppliers would also have to notify the ACMA of an entitlement to
confer on a commercial television broadcasting licensee or a national
broadcaster the right to televise the whole or part of an anti-siphoning event.[55]
1.42
Under the bill, and as is currently the case for the existing
anti-siphoning regime, broadcasters would:
...be subject to the full range of enforcement provisions
available under the Broadcasting Services Act 1992. These include
criminal and civil penalties, the issuing of remedial directions, acceptance of
enforceable undertakings, the imposition of additional licence conditions and
possible suspension or cancellation of a broadcasting licence.[56]
1.43
Parties that have not traditionally been affected by broadcasting
legislation (for example program suppliers and those conferring rights onto new
media providers) may be subject to civil penalties for contravening certain
elements of the new anti-siphoning scheme.[57]
Review of the anti-siphoning
provisions
1.44
The bill would require a statutory review of the anti-siphoning scheme
to be conducted before 31 December 2014.[58]
The minister would be required to prepare a report of the review and present
this report to the federal parliament within 15 sitting days after completion
of the report.[59]
Financial impact
1.45
The bill is not expected to have any direct financial impact on the
federal government.[60]
Issues regarding the bill
1.46
Whilst numerous submitters voiced their opposition to the anti-siphoning
scheme because it is 'inherently anti-competitive',[61]
most submitters acknowledged the need for such a scheme and on this basis were broadly
supportive of the bill.[62]
During the course of the inquiry, however, various stakeholders raised concerns
about some aspects of the bill. Key issues included:
- designated groups and the quota group mechanism;
- de-listing of events, in particular AFL and NRL games;
- the definition of 'live' and exemptions from the coverage
obligations;
- the must offer provisions and their impact on commercial
negotiations;
- the right to televise an anti-siphoning event in part (highlight
packages);
-
the application of the anti-siphoning scheme to content service
(new media) providers;
-
the notification requirements, in particular the requirement to
notify of rights no longer held;
-
ministerial discretion; and
-
the timing of the proposed statutory review.
1.47
These matters are discussed in Chapter 2.
Navigation: Previous Page | Contents | Next Page