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Broadcasting Legislation Amendment Bill (No. 2) 2001

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1998-1999-2000-2001

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

 

BROADCASTING LEGISLATION AMENDMENT BILL (NO. 2) 2001

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications, Information Technology and the Arts, Senator the Hon Richard Alston)



BROADCASTING LEGISLATION AMENDMENT BILL

(NO. 2) 2001

OUTLINE

The Broadcasting Legislation Amendment Bill (No. 2) 2001 (the Bill) amends the Broadcasting Services Act 1992 (the BSA) and the Radiocommunications Act 1992 (the Radcom Act) to:

·          amend the provisions relating to the allocation of additional commercial television broadcasting licences in 2-service markets (clause 4; items 1 to 4 of Schedule 1);

·          amend the anti-siphoning provisions, in order to allow the automatic ‘de-listing’ of events in certain circumstances (clause 5; items 5 and 6 of Schedule 1);

·          allow the Australian Broadcasting Authority (the ABA) to determine that specified programs or advertising transmitted on the high definition television (HDTV) version of a television service may be different from the programs or advertising transmitted on the standard definition (SDTV) or analog version of the service (items 7 to 12 of Schedule 1); and

·          make minor amendments to certain provisions relating to datacasting services, principally to correct anomalies introduced by various amendments to the Broadcasting Services (Digital Television and Datacasting) Bill 2000 (items 13 to 20 of Schedule 1). 

Under the existing BSA provisions relating to the allocation under section 38B of a third commercial television licence in licence areas currently licensed to receive two commercial services, individual broadcasters are in a position to prevent the allocation of a licence for a third service through non-participation in the joint election process for a third licence. 

The Bill amends the BSA to ensure that a third licence can be allocated under section 38B, by enabling the existing licensees to apply either jointly or separately.  The Bill also amends section 73A of the BSA to ensure that an incumbent broadcaster allocated an additional licence under section 38B would not be in breach of the control provisions of the BSA in situations involving overlapping licence areas. 

The current simulcast provisions of the BSA do not allow the HDTV version of the television broadcasting service to be different from both the SDTV version and the analog version.

The Bill amends the BSA to enable the ABA to grant an exemption authorising broadcasters to ‘time-shift’ HDTV programs - that is, to show the HDTV version of a program at a different time to when the SDTV/analog versions are shown (see in particular new subclauses 37EA(2) and 37FA(2) of Schedule 4).  This would enable good quality HDTV to be demonstrated during the day, provided it is shown in SDTV at another time.

The Bill also amends the BSA to enable the ABA to allow broadcasters to provide different advertising in the HDTV version of a television service compared to the analog and SDTV version of that service in the first two years of digital television broadcasting (see in particular new subclauses 37EA(4) and 37FA(4) of Schedule 4).  This will provide time for broadcasters to put in place the necessary equipment to provide the same range of HDTV advertising as they provide in SDTV.

FINANCIAL IMPACT

The Bill is not expected to have any significant impact on Commonwealth expenditure or revenue.



REGULATION IMPACT STATEMENT



Amendment to the anti-siphoning regime to provide for 6 week automatic de-listing of events

1.         Background

1.         The objective of the Parliament in establishing the ‘anti-siphoning’ regime was to prevent subscription broadcasting licensees acquiring the exclusive rights to broadcast important events that should be freely available to the public.  Section 115 of the Broadcasting Services Act 1992 (BSA) empowers the Minister to gazette a list of events, or events of a kind, the televising of which the Minister believes should be available free to the general public.  The current anti-siphoning list is confined to domestic and international sporting events and has effect from 6 July 1994 to 31 December 2004.

2.         It is envisaged under the current anti-siphoning regime that the maximum public benefit from broadcasting of listed events, in terms of audience reach, is achieved when free-to-air broadcasters provide coverage.  Paragraph 10(1)(e) of Schedule 2 of the BSA imposes a condition on subscription broadcasting licensees preventing them from acquiring a right to a listed event until a right has first been acquired by the ABC, SBS or commercial free-to-air broadcasters reaching more than 50 per cent of the Australian population.  Thus, free-to-air broadcasters have priority over subscription broadcasting licensees for the acquisition of rights to listed events, including those which together comprise a tournament or competition.

3.         Subsection 115(2) of the BSA gives the Minister discretion to remove an event from the anti-siphoning list.  The Minister is able to ‘de-list’ events, for example, where free-to-air broadcasters have had a real opportunity to acquire the right to televise an event, but none of them has acquired the right within a reasonable time.

4.         The process for de-listing usually requires a pay TV licensee, or frequently an associated pay TV channel provider, to apply in writing to the Minister.  Such requests are forwarded to the Australian Broadcasting Authority (ABA) for consideration and advice.  Any notices or declarations by the Minister under section 115 of the BSA are disallowable instruments.

5.         In practice, events on the anti-siphoning list are unlikely to be de-listed until it can be demonstrated that free-to-air broadcasters have declined offers to obtain the rights.  It follows that pay TV operators cannot finalise their own program arrangements until the outcome of negotiations for free-to-air rights are known and the subsequent de-listing has been authorised.  This can limit the ability of pay TV operators to schedule and promote forthcoming events, with consequential effects on audiences and revenue because of the difficulty in attracting new subscribers on the basis of programming that cannot be effectively promoted.

6.         The Government’s public policy objective of making available certain major sporting events free to the general public would not be served by removal of the anti-siphoning provisions of the BSA at this time.  Currently, there are a total of 1.2 million subscribers to Australia’s 3 main pay TV services.  This compares with 6 million homes that are reached by free-to-air television.  

7.         However, there is scope for amendments to the existing anti-siphoning regime which would assist pay TV operators to gain prompt access to broadcasting rights where free-to-air broadcasters have had a reasonable opportunity to acquire rights.  Streamlining of the administration of the regime has the potential to improve returns to pay TV operators; should not affect the availability of major sporting events to the general public; and provides scope to increase the total audience size where the same events are shown on both free-to-air and pay TV.

8.         In its recent Inquiry Report on Broadcasting regulation, the Productivity Commission recommended changes to the anti-siphoning regime.  The Commission concluded that some regulatory protection to prevent migration of major sporting events from free-to-air to pay TV services is justified.  However, the Commission found that the current anti-siphoning regime has anti-competitive effects and its costs to the community as a whole exceed its benefits.

9.         The Commission concluded that broadcasting rights to listed events should not be granted exclusively to a particular media form.  It recommended the reform of the anti-siphoning regime so that free-to-air and pay TV broadcasters would be prevented from obtaining broadcasting rights to listed events which exclude coverage in the other form of broadcasting.  The Commission also recommended transferring responsibility for administration of the regime from the Minister to the ABA and streamlining of the decision making procedures.

10.     The Commission further recommended narrowing of the anti-siphoning list by applying more stringent criteria for listing of events.  This particular recommendation is not addressed here as the Minister for Communications, Information Technology and the Arts has already responded to it.  On 21 December 2000, the Minister directed the ABA to conduct an investigation into which events should be included on the anti-siphoning list, having regard to the policy that an event should only be included on the list if it has been consistently broadcast in the past five years.  The ABA is to report to the Minister on the investigation by 30 June 2001.

2.         Problem

11.     In the Productivity Commission’s Inquiry Report on Broadcasting the Commission concludes that the current anti-siphoning rules have anti-competitive effects in the market for sporting rights which impact on broadcasters and sporting organisations.

12.     The anti-siphoning provisions in the BSA prevent pay TV licensees from acquiring broadcasting rights to an event or events of a kind on the anti-siphoning list unless a free-to-air broadcaster has acquired rights to broadcast the events.

13.     Where free-to-air broadcasters have chosen not to acquire rights, the Minister has the discretion to de-list an event, making the rights available to pay TV operators.  The Commission reported pay TV industry concerns that this de-listing process is cumbersome and lengthy, and may limit the time available to properly schedule and promote the event.  This could reduce the return to pay TV operators on their investment in broadcasting rights.

14.     In addition, under current procedures, pay TV operators rely on cooperation from free-to-air broadcasters for evidence that broadcasters have had a reasonable opportunity to obtain rights to a listed event.  However, there is often no incentive for free-to-air broadcasters to support de-listing applications by pay TV operators.

3.         Objectives

15.     The objective of the proposed amendment to the BSA anti-siphoning regime is to reduce any unnecessary anti-competitive effects and improve the efficiency of the regime while ensuring the continued availability of significant sporting events on free-to-air television.

4.         Options

16.     In addition to reform of the anti-siphoning list, which is being implemented with a review of the list by the ABA as noted in paragraph 10, the Commission had recommended two broad options for improving the anti-siphoning regime.  These are:

(a)       to prohibit broadcasters in one form of broadcasting from acquiring broadcasting rights of sporting events of major national significance to the exclusion of those in other forms of broadcasting; and

(b)       to transfer responsibility for administration of the anti-siphoning provisions from the Minister for Communications, Information Technology and the Arts to the ABA and to streamline procedures to reduce the time taken for decisions and to improve certainty and transparency.

5.         Impact Analysis

Option (a): to prohibit broadcasters in one form of broadcasting from acquiring broadcasting rights of sporting events of major national significance to the exclusion of those in other forms of broadcasting.

17.     Under the current anti-siphoning rules there are broadly three ways in which a pay TV licensee can obtain broadcasting rights to a listed event: where the rights holder offers pay TV and free-to-air rights in separate packages and a free-to-air broadcaster first acquires the free-to-air rights; where a free-to-air broadcaster acquires exclusive rights and on-sells pay TV rights; and where no free-to-air broadcaster acquires broadcasting rights to an event and the event is de-listed.

18.     Option (a) would make provision under the anti-siphoning rules for pay TV operators to acquire pay TV rights and free-to-air broadcasters to acquire free-to-air rights at any time.  However, an individual pay TV or free-to-air broadcaster would be prevented from obtaining both pay TV and free-to-air rights as a means of obtaining exclusive rights to a listed event.

19.     This option would recognise and facilitate the increasing practice of rights being sold in separate packages (eg. free-to-air, pay TV and Internet) and would obviate the need for de-listing of such events, thus addressing concerns about the difficulty and timeliness of the de-listing procedures.

20.     This option is only applicable in circumstances where rights holders offer separate (that is, non-exclusive) broadcasting rights packages to pay TV and free-to-air broadcasters.  While this is an increasing practice, there is no guarantee that rights holders will choose to offer separate rights.  

21.     This option could undermine the objective of the anti-siphoning regime if sporting bodies chose to only offer rights for either pay TV or free-to-air broadcasting.  A sporting body could choose to sell broadcast rights for only one form of broadcasting, particularly if broadcasters where prepared to pay a premium for rights on the understanding that additional rights would not be offered to broadcasters in another form of broadcasting.

22.     There may be also be difficulties in determining whether an offer of separate rights provides free-to-air broadcasters with a fair opportunity to acquire free-to-air rights.  For example, an organisation with close links to major pay TV operators (such as a pay TV channel provider) could obtain rights and offer free-to-air rights to free-to-air broadcasters on discriminatory terms - all but ensuring that events are shown exclusively on pay TV.  This is contrary to the objective of the anti-siphoning regime.

23.     This option could ease the regulatory cost of the current anti-siphoning rules borne by the pay TV industry.  However, the possible benefits of this option rely on owners of rights choosing to offer separate free-to-air and pay TV rights, otherwise the objective of ensuring free-to-air coverage of listed events could be subverted.  In practice, problems with the availability of non-exclusive rights, such as those described above, could give rise to greater costs for the ABA in monitoring broadcaster compliance with the regime.

Option (b): to transfer responsibility for administration of the anti-siphoning provisions from the Minister for Communications, Information Technology and the Arts to the ABA and to streamline procedures to reduce the time taken for decisions and to improve certainty and transparency .

24.     The first part of this option concerns a proposal to transfer responsibility for administration of the regime from the Minister to the ABA.  It is not clear how this proposal would improve the operation of the anti-siphoning rules. 

25.     Under the current rules the Minister may exercise discretion in administering the anti-siphoning list.  However, the Minister’s decisions concerning the list must be tabled in the Parliament and may be disallowed by the Parliament.  This provides a high degree of transparency and accountability in administration of the list. 

26.     In other respects, the ABA already plays a significant role in administering the anti-siphoning rules.  Under the BSA, the ABA is responsible for monitoring and enforcing compliance with the anti-siphoning rules.  Further, t he ABA has an existing function, established under Ministerial Direction No.4 of 1996, to report to the Minister concerning the operation of the anti-siphoning regime.  This Ministerial Direction already requires the ABA to advise the Minister where the rights for listed events have not been made available to free-to-air broadcasters or where grounds exist for the Minister to exercise his discretion to add or remove events from the anti-siphoning list.  In addition, the ABA is currently undertaking an investigation into the current anti-siphoning list and will report to the Minister on which events should be protected on the list.

27.     In light of the high degree of transparency and accountability associated with the Minister’s role in administering the anti-siphoning list, and the already extensive involvement of the ABA in administering the anti-siphoning regime, it is not clear how this proposal would improve the operation of the regime.

28.     The Productivity Commission further recommended streamlining of procedures to reduce the time taken for decisions and to improve certainty and transparency in the administration of the regime.  Significant improvements to efficiency, certainty and transparency in the administration of the regime would be achieved by allowing automatic de-listing of events 6 weeks before they are to occur, assuming that free-to-air broadcasters have been given a reasonable opportunity to acquire free-to-air rights, but have not done so.  This option directly addresses issues in relation to the effective operation of the de-listing provisions, which were brought to the attention of the Commission by the pay TV industry.

29.     Under the current anti-siphoning provisions, events are automatically de-listed one week after the event has been held.  This ensures that pay TV operators may provide secondary coverage of listed events without restriction.

30.     Under the preferred option, listed events would automatically be de-listed 6 weeks before the commencement of an event where the rights have been made available to free-to-air broadcasters.  If free-to-air broadcasters oppose the de-listing of an event at that time, and can successfully demonstrate to the Minister that they have not had a reasonable opportunity to acquire the free-to-air broadcasting rights before that date, the Minister could override the automatic de-listing.

31.     Automatic de-listing 6 weeks before the event would maximise the time free-to-air broadcasters have to negotiate rights, while providing an adequate time prior to the event for subscription services to acquire and promote the event.

32.     There is no consistent pattern to the time in advance of an event that rights are offered for sale, or to the time in which negotiations for broadcasting rights are completed.  For example, the free-to-air and pay TV broadcasting rights for the AFL competition commencing in 2002 were finalised early this year.  However, in some cases, such as the ICC Knock-Out Trophy cricket tournament held in October 2000, offers of rights to free-to-air broadcasters can be made as late as a eight weeks before the event.  However, industry representatives advise that a substantial majority of rights are negotiated several months before the event date.

33.     Free-to-air broadcasters are primarily reliant on income from sales of advertising and, thus, prefer to schedule programming some months in advance in order to attract advertisers.  It follows that the option of default de-listing 6 weeks before an event would meet the objective of allowing sufficient time for free-to-air broadcasters to have a reasonable opportunity, underpinned by the anti-siphoning rules, to acquire broadcasting rights in most cases.

34.     In addition, consultation with the pay TV industry indicates that 6 weeks would be the minimum practical time to allow pay TV operators to acquire rights and settle their program schedules.  Unlike free-to-air broadcasters, pay TV operators are less reliant on advance sale of advertising slots in programs and have more flexibility in programming events as they operate on multi-channel platforms.

35.     In circumstances where default de-listing 6 weeks from an event does not meet the timing requirements of pay TV operators, the current de-listing provisions could be retained to deal with ad hoc de-listing applications from pay TV operators arising before and after the prescribed 6 weeks deadline.

36.     Automatic de-listing may impose a regulatory cost on free-to-air broadcasters as, for example, they could be required to demonstrate that they had not been offered broadcasting rights on a reasonable commercial basis for de-listing to be overridden (there are no regulatory requirements imposed on free-to-air broadcasters under the current rules).  However, this would be balanced by the benefit to pay TV operators who would not be required to show that the free-to-air broadcasters have declined reasonable offers as they must, in practice, under the current de-listing provisions.

37.     Since the commencement of the regime in 1994 the Minister has issued 11 de-listing notices at the request of pay TV operators.  Ten of these de-listings have occurred since 1998, most dealing with international test and one-day cricket series.  In each case, the pay TV operator who has applied for a de-listing has obtained broadcasting rights for the event in question.  With this experience as a guide, it can be expected that the automatic de-listing process could be of real benefit to pay TV operators several times per year. 

38.     Automatic de-listing would simplify the de-listing process and reduce the costs of administering the regime for Government.  Under automatic de-listing provisions, the ABA and the Minister would not be required to effect a de-listing.  Instead, the Minister would only issue a notice retaining an event on the anti-siphoning list where a free-to-air broadcaster can demonstrate that it has not been granted an opportunity to obtain the rights. 

39.     The problem of free-to-air broadcasters not being offered broadcasting rights has not arisen in past de-listing applications, and it is expected that circumstances requiring the ABA and the Minister to consider bypassing automatic de-listing would rarely occur.  It is anticipated, therefore, that automatic de-listing would reduce the administrative burden on the regulator and the Government, and costs for administration of the regime could be met from existing resources.

40.     The Minister would be responsible for overriding the automatic de-listing of events where free-to-air broadcasters can demonstrate broadcasting rights have not been made available to them.  The Minister’s overriding of the automatic de-listing would be subject to disallowance by Parliament. 

6.         Consultation

41.     Consultations have been conducted with the parties affected by the proposed changes to the anti-siphoning rules.  The Australian Subscription Television and Radio Association (ASTRA) has advocated the elimination of the anti-siphoning regime for some time.  It has indicated that it regards changes to the current anti-siphoning regime that deliver less cumbersome, more timely de-listing of events would improve the operation of the current rules and would improve Pay TV access to rights.  ASTRA also supports the reduction of the current anti-siphoning list to better reflect actual coverage of listed events on free-to-air television.

42.     The Federation of Australian Commercial Television Stations (FACTS) supports the current anti-siphoning arrangements.  It opposes any option which is likely to lessen the potential for rights owners to offer rights on an exclusive basis, as it considers this will reduce the attractiveness of free-to-air coverage to advertisers and sponsors and hence reduce the likelihood that the event will be shown on free-to-air television.  On this basis, FACTS does not support either the Productivity Commission’s preferred approach or the streamlining of the de-listing process.

7.         Conclusion and Recommended Option

43.     Both of the options offer some scope to improve access by pay TV operators to broadcasting rights to listed events.  Particularly in circumstances where free-to-air broadcaster choose not to acquire rights to a listed event, these options deliver a net public benefit by minimising regulatory barriers to pay TV operators providing coverage of major events - to the benefit of that portion of the population with access to pay TV.

44.     Option (a), which would allow pay TV operators to acquire pay TV rights to listed events as long as separate free-to-air rights are made available to free-to-air broadcasters, would only be effective where rights holders elect to offer separate packages of rights .  If rights holders chose to offer exclusive rights this option could result in listed events being shown exclusively on pay TV to the detriment of free-to-air viewers.

45.     Part adoption of Option (b) is recommended.  The proposal to transfer responsibility for administration of the anti-siphoning rules is not supported.  It is considered preferable to retain the role of the Minister in administering an anti-siphoning list, rather than delegating this function to the ABA, as current arrangements retain Parliamentary accountability over decisions that may have significant social implications.  However, the implementation of a measure to streamline procedures to improve timeliness and certainty in the administration of the regime is supported.  The automatic de-listing of events 6 weeks before they are to occur directly addresses the problems identified by pay TV operators with the current de-listing scheme.  It continues to protect free-to-air broadcaster’s access to broadcasting rights of listed events they wish to televise and, thus, does not diminish opportunities for the public to enjoy free-to-air coverage of listed events.

8.         Implementation and Review

46.     Automatic de-listing would be implemented through amendment to the BSA.

47.     The ABA has an established function under paragraph 158(n) of the BSA to monitor and report to the Minister on the operation of the Act and under Ministerial Direction No.4 of 1996 to report to the Minister concerning the operation of the anti-siphoning regime.  In performing these functions, the ABA would be expected to report to the Minister on the operation of the revised de-listing process.

48.     One measure of the effectiveness of the amendment would be the number of events that are automatically de-listed as opposed to the number of notifications from free-to-air broadcasters seeking the retention of events on the list.



NOTES ON CLAUSES

Clause 1            Short title

Clause 1 provides for the citation of the Broadcasting Legislation Amendment Act (No. 2) 2001 (the Act).

Clause 2            Commencement

This clause provides for the Act to commence on Royal Assent. 

Clause 3            Schedule(s)

By virtue of this clause, provisions of the BSA and the Radcom Act are amended as set out in Schedule 1 to the Bill, and transitional provisions have effect according to their terms. 

Clause 4            Transitional - additional commercial television licences in 2-station markets

By virtue of this clause 4, section 38B of the BSA as in force before the commencement of the Bill continues to apply in relation to any notice given under subsection 38B(1) before the commencement of the Bill. 

Clause 5            Application - free availability of certain types of programs

By virtue of this clause, the amendments made by items 5 and 6 of Schedule 1 apply in relation to events specified in a notice under subsection 115(1) of the BSA at any time. 



SCHEDULE 1 - AMENDMENTS

Broadcasting Services Act 1992

Items 1 to 3:   Section 38B

Section 38B provides a mechanism for the issue of an additional commercial television licence in 2-station markets.  Under subsection 38B(1), there are three alternative mechanisms for the allocation of the additional licence:

·          application by a joint-venture company jointly owned by the existing licensees;

·          separate applications from both licensees, and price-based allocation;

·          application by one of the existing licensees. 

For the additional licence to be allocated, the two existing licensees must, within 90 days of the designated time (see subsection 38B(26)), give the ABA a joint written notice specifying one of the above alternatives. 

The requirement for a joint notice means that if one of the two licensees in an area refuses to cooperate in providing a joint notice, that licensee may effectively veto the provision of a third service by the other licensee. 

Items 1 to 3 amend section 38B to remove this effective veto power. 

Item 1:              Subsection 38B(1)

This item repeals and substitutes subsection 38B(1).  The substantive change is to paragraphs 38B(1)(d), (e) and (f). 

New paragraph (d) corresponds to existing paragraph (d) (joint notice that a joint venture company will apply for the new licence). 

New paragraph (e) replaces existing paragraphs (e) and (f) (joint written notice that each licensee will apply separately, or that only one licensee will apply).  Under new paragraph (e), each licensee may give the ABA a separate written notice indicating an intention to apply for the new licence. 

Item 2:              Subsections 38B(3) and (4)

This item repeals subsections 38B(3) and (4) and substitutes a new subsection (3). 

New subsection (3) provides that if an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months of the designated time for that licence area (see subsection (26)), apply to the ABA for an additional licence. 

Item 3:              Subsections 38B(7), (8) and (9)

This item repeals and substitutes subsections 38B(7), (8) and (9). 

New subsection (7) applies where:

·          each licensee gives the ABA a notice under paragraph (1)(e) within the 90 day period; and

·          a licence application is made to the ABA by only one of the licensees within the 12 month period. 

In this situation the ABA allocates the licence as soon as practicable after application. 

New subsection (8) applies where:

·          each licensee gives the ABA a notice under paragraph (1)(e) within the 90 day period; and

·          a licence application is made to the ABA by only one of the licensees within the 12 month period; and

·          the second licensee notifies the ABA, within the 12 month period, that it will not be applying for the licence. 

In this situation the ABA may allocate the licence before the end of the 12 month period. 

New subsection (9) applies where only one licensee gives the ABA a notice under paragraph (1)(e).  In this situation the ABA allocates the new licence as soon as practicable after that licensee applies for the new licence. 

If both licensees apply separately for the new licence, the licence is allocated by price-based allocation (see existing subsections (6) and (10)). 

Item 4:              Section 73A

The effect of existing subsection 73A(1) is that if an additional licence is allocated to one of the existing licensees under new section 38B, the existing licence and the additional licence are treated, for the purposes of the control rules in Part 5 of the Act, as one licence.  However, the licences cease to be treated as one licence once a different person first holds one of the licences (subsection (2)). 

Subsection (3) deals similarly with the situation where the section 38B licence was allocated to a joint-venture company wholly beneficially owned by the existing licensees.  

This item repeals and substitutes section 73A.  New section 73A will operate in a way more appropriate to markets with overlapping licence areas, and the varying corporate structures used by broadcasters. 

New subsection 73A(1) operates so that for each person (including a company) who is in a position to exercise control of a section 38B licence when it is allocated (this includes the holder), the section 38B licence is disregarded for the purposes of the control rules in Divisions 2 and 3 of Part 5 of the BSA.  However, the licence is disregarded in relation to that person only until that person is no longer in a position to exercise control of the licence. 

New subsection 73A(2) is a subsidiary rule to cater for people (including companies) in an intermediate control position.  It applies where:

·          a person who is covered by new subsection (1) (ie a person who was in a position to exercise control of a section 38B licence when it was allocated and remains in such a position) is also in a position to exercise control of some other person (the intermediate person); and

·          the intermediate person is also in a position to exercise control of the licence. 

During the period that this intermediate person is in a position to exercise control of the licence, the licence is also disregarded in relation to that person for the purposes of the control rules in Divisions 2 and 3 of Part 5. 

New subsection 73A(2) effectively protects all persons who fall within a chain of control which begins with a person who controlled the licence when it was allocated. 

Item 5:              After subsection 115(1A)

New subsection 115(1AA) provides that events on the anti-siphoning list are automatically removed from the list (‘de-listed’) 1008 hours (ie 6 weeks) before their commencement, unless the Minister publishes in the Gazette before that time a declaration that the event continues to be included in the list. 

New subsection 115(1AB) provides that the Minister may only publish a declaration under new subsection (1AA) if the Minister is satisfied that at least one free-to-air broadcaster has not had a reasonable opportunity to acquire the rights to televise the event concerned.  Under existing subsection 115(3), such a declaration will be a disallowable instrument. 

This amendment will provide pay television operators with an opportunity to secure unwanted rights to events in sufficient time to effectively promote and program the events before they are broadcast.  It will also result in fewer de-listing procedures being necessary. 

Item 6:              Subsection 115(1B)

This item is consequential on item 5 above.  It ensures that events which are kept on the list by the Minister under new subsection 115(1AA) are subject to automatic de-listing 168 hours (ie 7 days) after the end of the event (under existing subsection 115(1B)). 

Item 7:              After paragraph 7(1)(na) of Schedule 2

This item amends Schedule 2 of the BSA to add a new licence condition for commercial television broadcasting licences.  The amendment is consequential on new clause 37EA, inserted by item 8 below. 

Item 8:              After clause 37E of Schedule 4

Clause 37EA    Further HDTV transmission rules for commercial television broadcasting licensees in non-remote areas

New clause 37EA allows the ABA to:

·          determine that specified programs on the HDTV version of a commercial television broadcasting service may be ‘time-shifted’, ie may be shown at a different time to the transmission of those programs on the SDTV version of the service; and

·          determine that specified advertising or sponsorship matter on the HDTV version of a commercial television broadcasting service may be different from the advertising or sponsorship matter on the SDTV version of the service. 

New subclause 37EA(1) provides that in determining, for the purposes of standards made by regulations under existing subclause 37E(1), whether a commercial broadcaster has ensured that the HDTV simulcast requirement (referred to in existing paragraphs 37E(1)(c) and (d)) is met, one is to ignore:

(a)            any program covered by an ABA determination made under new subclause 37EA(2); and

(b)           any advertising or sponsorship matter covered by an ABA determination made under new subclause 37EA(4). 

New subclause 37EA(2) allows the ABA to make a written determination that new paragraph 37EA(1)(a) applies to specified television programs transmitted by a specified commercial broadcaster during a specified period.  Any one determination may apply for a maximum of 12 months (new subclause 37EA(3)).  Under section 33 of the Acts Interpretation Act 1901 , the ABA may make further determinations under this provision. 

New subclause 37EA(4) allows the ABA to make a written determination that new paragraph 37EA(1)(b) applies to specified advertising or sponsorship matter transmitted by a specified commercial broadcaster during a specified period.  Despite section 33 of the Acts Interpretation Act , the effect of new subclause 37EA(5) is that any determination made under this provision may apply for a maximum of 2 years from the commencement of the relevant simulcast period (referred to in existing clause 6 of Schedule 4). 

New subclause 37EA(6) requires commercial broadcasters to transmit any program (other than advertising or sponsorship matter) which is covered by a determination under subclause (2) (referred to as a ‘qualifying program’ - see new subclause (10)) on the analog and/or SDTV version of the service, as the case may be. [1]   This transmission must be within 168 hours (which is equivalent to 7 days) before or after the transmission of the program on the HDTV version of the service. 

New subclause 37EA(7) ensures that if a broadcaster transmits a program covered by a determination under subclause (2) more than once during a particular week, only the first transmission of the program is counted for the purposes of the HDTV quota referred to in existing paragraph 37E(2)(b). 

New subclause 37EA(8) provides that a determination under subclause (2) or (4) is a disallowable instrument. 

New subclauses 37EA(9) and (10) are interpretation provisions. 

Item 9:              After clause 37F of Schedule 4

Clause 37FA    Further HDTV transmission rules for national broadcasters in non-remote areas

New clause 37FA, which applies to national broadcasters in non-remote areas, makes corresponding provision to new clause 37EA for commercial broadcasters. 

Item 10:           After subclause 37G(1) of Schedule 4

Item 11:           After subclause 37H(1) of Schedule 4

Existing clauses 37G and 37H, which provide for HDTV quotas for commercial broadcasters and national broadcasters in remote areas, are the equivalent of existing clauses 37E and 37F for non-remote areas. 

However, the essential difference is that the power to make standards requiring HDTV quotas for remote areas is discretionary, not mandatory.  Clauses 37G and 37H allow, but do not require, regulations to be made setting such quotas.  Any decision to impose quotas in remote areas will need to take into account the costs and technical feasibility of provision of HDTV in those areas. 

Item 10 amends clause 37G so that if regulations are made determining HDTV quotas for commercial broadcasters in remote areas, the regulations would enable the ABA to make determinations which impose conditions and exceptions which operated in a similar way to new clause 37EA. 

Item 11 amends clause 37H so that if regulations are made determining HDTV quotas for national broadcasters in remote areas, the regulations would enable the ABA to make determinations which impose conditions and exceptions which operated in a similar way to new clause 37EF. 

Item 12:           At the end of clause 37K of Schedule 4

The requirements of new subclause 37EA(6) concerning re-transmission will be binding on commercial broadcasters by way of a new licence condition (see item 7 above). 

As national broadcasters do not hold broadcasting licences, existing clause 37K requires a national broadcaster to comply with an applicable standard made by regulations. 

Item 12 amends clause 37K to ensure that the requirements of new subclause 37EF(6) concerning re-transmission will be binding on national broadcasters. 

Item 13:           Subclause 2(1) of Schedule 6 (definition of foreign-language news bulletin )

The effect of the amendments made by items 13 to 17 and 19 is that foreign-language news and current affairs programs, and not simply foreign-language news bulletins (which may include discussion commentary or analysis), are excluded from the datacasting genre conditions in clauses 16 and 21. 

Item 13 repeals the definition of ‘foreign-language news bulletin’; consequential on the amendments made by items 14 to 16 below. 

Item 14:           Subclause 2(1) of Schedule 6

Item 14 inserts a new signpost definition of ‘foreign-language news or current affairs program’ in subclause 2(1) of Schedule 6, which refers to clause 5 of Schedule 6.  Clause 5 is amended by items 15 and 16 below. 

Item 15:           Subclause 5(1) of Schedule 6

Item 16:           Subclause 5(4) of Schedule 6

Item 15 repeals subclause 5(1) of Schedule 6, which defines ‘foreign-language news bulletin’ for the purposes of Schedule 6, and substitutes a new definition of ‘foreign-language news or current affairs program’. 

Item 16 repeals subclause 5(4), consequential on item 15. 

A ‘foreign-language news or current affairs program’ is therefore a ‘news or current affairs program’ (which is defined in subclause 2(1) of Schedule 6) which is wholly in a language other than English.  However, minor and infrequent use of English, and English language subtitles or captioning, are ignored (see existing subclauses 5(2) and (3)). 

Item 17:           Paragraph 15(3)(c) of Schedule 6

Subclause 15(1) lists certain genres of programs as Category B television programs.  Among the list is a ‘news or current affairs program’.  Category B television programs are subject to the datacasting genre conditions in clauses 16 and 21 of Schedule 6. 

Subclause 15(3) effectively excludes certain genres of programs from the genre conditions of clauses 16 and 21.  Among the listed genres is paragraph 15(3)(c) ‘a foreign-language news bulletin’.  Item 17 repeals paragraph 15(3)(c) and replaces it with a new paragraph covering ‘a foreign-language news or current affairs program’. 

Item 18:           Subclause 16(2) of Schedule 6

Item 18 makes a technical amendment to subclause 16(2) of Schedule 6 to insert a missing reference to a ‘program’. 

Item 19:           Paragraph 21(2)(c) of Schedule 6

Item 19 replaces a reference to ‘foreign-language news bulletin’ with a reference to ‘foreign-language news or current affairs program’, which is defined in clause 5 as amended by items 15 and 16 above. 

Radiocommunications Act 1992

Item 20:           Paragraph 100(2)(a)

Section 100 of the Radcom Act allows the Australian Communications Authority (the ACA) to issue apparatus licences. 

However, subsection 100(2) prohibits the ACA from issuing an apparatus licence authorising operation of a transmitter within a part of the spectrum designated under subsection 31(1) of the Radcom Act (ie within the broadcasting services bands spectrum) unless the issue of the licence is in accordance with:

(a)            a decision of the ABA under subsection 34(1) of the BSA; or

(b)           an agreement between the ACA and the ABA made under subsection 31(2) of the Radcom Act. 

The ABA is able to make spectrum available for the purposes of the transmission of datacasting services under subsection 34(3) of the BSA.  Accordingly, item 20 amends paragraph 100(2)(a) to allow the ACA to issue an apparatus licence (including a datacasting transmitter licence) in accordance with a decision of the ABA under subsection 34(3) of the BSA. 




[1]        Existing paragraphs 37E(1)(c) and (d) of Schedule 4 require that a program on the HDTV version of a service must be the same as a program transmitted simultaneously on either the analog or SDTV version of the service, depending on:

·          whether the licence concerned was allocated under section 38B (which allows a digital service only); and

·          whether the program is covered by a determination under subclause 6(9) or (10) of Schedule 4 (which allow the ABA to determine that the analog-SDTV simulcast requirement does not apply to specified programs or advertising material).