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Tuesday, 22 November 2011
Page: 13467

Ms ROWLAND (Greenway) (16:57): I would like to thank the member for Wentworth for sharing his quote from Mr Murdoch. It is interesting that Mr Murdoch viewed the internet as a business rather than as a social investment or an investment in people and communities. It brings me back to the point that the internet is but one application of high-speed broadband rather than the end of it. Also, the member for Wentworth mentioned the importance of technology-neutral platforms in the context of this bill, the Broadcasting Services Amendment (Review of Future Uses of Broadcasting Services Bands Spectrum) Bill 2011. I will discuss this further on. There is a clear preference for and a clear recognition of Long Term Evolution, LTE, abiding in these amendments, which I will discuss later.

I rise in support of this bill, which essentially proposes a revenue-neutral extension of a statutory time frame for a review by the minister of whether to allocate one or more commercial television licences in the broadcasting services bands. This extension is to allow for the findings of the convergence review to be received and considered prior to this ministerial review, which is a logical course of policy deliberation, on which I will also elaborate. Despite the seemingly innocuous nature of these amendments, the effect of these provisions reflects the profound and ongoing evolution of our spectrum management, its implications for the broadcasting space and potential future uses of spectrum in the realisation of the digital dividend.

In addition to the extension of the statutory time frame by one year, for a review to be conducted before 1 January 2013, under the proposed amendments the bill also amends the scope of that review to reflect the multiple and often competing uses for the unassigned broadcasting services bands spectrum. This is a logical and desirable amendment. It is consistent with the current convergence review being conducted, which is consulting on the critical issues associated with the ongoing designation, allocation and use of this precious spectrum for future generations. At the outset, I think it is vital we acknowledge the importance of these provisions for telecommunications, radiocommunications, broadcasting and indeed a future convergent communications environment as we shift to platform, technology and content neutrality. We have one opportunity to get this right and, as I have previously commented on in other relevant legislation in the radiocommunications space, there is one lesson that we must adhere to regardless of where we stand in the policy debate, whether we favour future uses for mobile wireless data or indeed commercial television licensing—that is, we must never underestimate the future. In Australia we have an enviable reputation for our regulatory environment, which is by and large globally recognised for its robust nature and logical development. As we approach Long Term Evolution, LTE, and reach the point where we must decide how we maximise the reutilisation of the sweet spot in the radiocommunications spectrum following the analog restack, we must do so in the most informed and forward-looking way possible as well as extract the maximum value, and consistency with the public interest, for what I believe to be the most precious of our scarce resources: spectrum, a finite concept which is used but not consumed and which, when allocated, confers enjoyment of both flexibility and certainty for its licence holder, and the value of its use can be optimised.

I would like to turn briefly to what this bill does. In addition to amending the time frame and the scope of the ministerial review to be conducted under section 35A, it is relevant to note that these provisions will shift to part 3 of the Broadcasting Services Act, which deals with the planning of the broadcasting services bands—that is, it reflects the fact that it will not necessarily be the case for this review to be confined to the allocation of additional commercial television broadcasting licences and, indeed, this is a reflection of a ministerial consideration that will be made in a convergent environment rather than limited to one aspect of broadcasting licensing. Madam Acting Deputy Speaker, it may look innocuous, but it was always perplexing for me, as a practitioner examining these elements of the legislation, to have these provisions located in part 4 of the act rather than in part 3, for how could one enable reallocation of broadcasting services bands for anything other than a BSB designation? I know it would not occupy front of mind for many people, but it is very pleasing for me to see that this has finally been resolved.

The Broadcasting Services Act sets out a process for the allocation of new licences for certain services defined as being capable of using broadcasting services bands spectrum. There are also limits on the actions of the regulator, with the ACMA not permitted to allocate a new commercial television broadcasting licence in an area where there are already three in existence, unless the minister has firstly conducted a review.

I would now like to turn to the nature of the broadcasting services bands because it is useful to provide context for these amendments. The Broadcasting Services Act defines 'broadcasting services bands' to mean:

(a) that part of the radiofrequency spectrum that is designated under subsection 31(1) of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and

(b) that part of the radiofrequency spectrum that is designated under subsection 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services and restricted datacasting services.

That is, the broadcasting services bands are currently defined in a non-convergent term either for broadcasting for digital radio or for datacasting. This is relevant because, under the proposed amendments, section 35A will instead operate to facilitate a review of this usage under the broadcasting services bands. It is also important to note that the amendments do not foreclose the possibility of any decision being made on its future use, including that of additional commercial television services. Although the scope of the review will be broadened, no predetermination is made as a result.

The term 'designation' is used in the definition of the broadcasting services bands, and it is important to note the relationship of this term with that of the allocation process. Broadcasting services bands spectrum is only considered as available for allocation if the regulator, the ACMA, makes a determination in relation to that spectrum. Under these amendments, it is clear that the new section 35A review is not constructed to revisit any availability of BSB spectrum for national or commercial television broadcasting services in an area, nor those parts of the BSB spectrum that will be relocated as part of the digital dividend process that is set out under the Radiocommunications Act. This distinction is relevant in understanding the precise nature of the spectrum management framework, the role of the minister and the role of the regulator in this regard. This distinction, which is picked up in the Convergence Review materials, also highlights how Australia, like many parts of the world finding themselves in the process of convergence, has different planning regimes for spectrum that is used for broadcasting versus spectrum that is used for other services such as telecommunications, including wireless broadband services. Convergence increasingly means that this once-logical rigid separation is questionable. The conduct of the review to be undertaken by the minister under section 35A is also set out in the proposed amendments. These are mandatory yet non-exhaustive, with provision made for any relevant matters to be taken into account. The specified list of requirements includes the objects of the Broadcasting Services Act, planning criteria, spectrum availability and the impact of new television or other services on both the broadcasting services bands as well as on consumers.

I would like to turn to the issue of convergence and its relevance to these amendments. The phenomenon of convergence was once actually a hotly debated point, and I recall in the Productivity Commission's landmark review of telco regulation in 2000 that the concept was indeed hotly contested between stakeholders about what it was, how it could be defined, what its impact would be and what regulatory approaches should be adopted, if any, to address it. Today, of course, it is the subject of understanding how our past regulatory distinctions between elements such as spectrum that is allocated for broadcasting services and spectrum allocated for other purposes such as mobile data were distinguished on the basis of carriage and connectivity versus content provision. Today we accept that a delivery platform does not define or confine content provision. As the Convergence Review papers point out, this has led to a blurring of the distinction in how spectrum is regulated. While the allocation of spectrum for television is currently regulated by the Radiocommunications Act, viewing the same content via a catch-up service is primarily regulated by the Broadcasting Services Act. In a convergent world there is, again, a question as to whether these separate spectrum management regimes are appropriate.

It is also useful before examining the bill in the context of the Convergence Review to take a snapshot of how far the Broadcasting Services Act has evolved since 1992. Back then, some of its key elements were five channels of free-to-air broadcasting and Sky Channel narrowcasting in pubs and clubs, and the subscription broadcasting moratorium was expiring. Now the services relevant to the Broadcasting Services Act oversight include five free-to-air channels plus digital HD or SD simulcast and multichannels, over 100 channels of subscription television, interactive services, video on demand, streamed video and downloaded video.

I would like to make mention of the structure and substance of the Convergence Review currently being undertaken, which continues this methodical and stakeholder driven process of informing crucial policy in this area. The Convergence Review Committee has released a series of discussion papers ranging from licensing, content and competition to community standards. In particular, I would like to focus on discussion paper 2, which is highly relevant to this bill, concerning spectrum allocation and management. The introductory comments of this paper reflect my earlier remarks concerning the importance of sound spectrum management policy. It says:

Spectrum is a scarce national resource. It represents a key platform for the delivery of media content and communications. How this spectrum is planned and managed by government will have an impact on the achievement of the objectives reflected in the principles for the convergent communications environment.

The Convergence Review paper I have mentioned also highlights the five regulatory principles which the ACMA has adopted in its spectrum management undertakings and in providing guidance to stakeholders about the regulatory approach to this spectrum management.

In the context of the above regulatory approach, key issues for the Convergence Review include the following questions: how could public interest considerations relating to the carriage of broadcasting content be dealt with in a converged spectrum management approach—in the amendments to the 15-year spectrum grants for the Radiocommunications Act last year, I noted that there was no jurisprudence in this area on what constituted the public interest under those similar provisions; what are the possible implications for spectrum management policy of the enhanced efficiency of broadcast spectrum resulting from digitisation; how might pricing for broadcasting spectrum and related licences be dealt with; and how might the rollout of digital radio in regional Australia and the allocation of the sixth television channel be managed in the new environment? Consideration of all these questions are, again, all instructive in illustrating the sound policy process which underlies the amendments before us.

In conclusion, the sixth channel, channel A, has been debated since 2000 and certainly even before that. In the 2006 amendments, we had the auction process announced for two digital services, channel A being for in-home narrowcasting and channel B for mobile TV. We have, of course, progressed since then and in January last year we had the DBCDE discussion paper which canvassed the option for the digital dividend. We found stakeholder differences—which I think we all expected to find—between, for example, community broadcasting, free TV, subscription television and mobile operators. In June last year the minister announced that the contiguous block in the high-range UHF band would be released. The ACMA consultation on the digital dividend, whatever the outcome, clearly favours recognition of long-term evolution. The Convergence Review is logical and sensible. Despite all these questions I have discussed, one thing is certain: the dynamic and ever-changing nature of this environment is both predictable, because it actually will change, and very exciting, because we do not know precisely how it will change. I commend the bill to the House, because it is a logical process of enabling the minister to prudently consider the outcomes of the Convergence Review before a decision is made.