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Broadcasting Legislation Amendment Bill (No. 1) 2006

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2004-2005

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

BROADCASTING LEGISLATION AMENDMENT BILL (NO. 1) 2005

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Communications, Information Technology and the Arts,

Senator the Honourable Helen Coonan)

 



BROADCASTING LEGISLATION AMENDMENT BILL (NO. 1) 2005

 

 

OUTLINE

 

The Broadcasting Legislation Amendment Bill (No. 1) 2005 (the Bill) amends the Broadcasting Services Act 1992 (the BSA) and the Radiocommunications Act 1992 to allow commercial television broadcasting licensees in remote licence areas to

multi-channel their digital services where they elect jointly, or one elects individually, to provide a third commercial service under section 38B of the BSA.  The amendments will also provide these licensees with an exemption from any mandatory High Definition Television (HDTV) quotas that might be applied in remote licence areas, where they elect to provide a third commercial service under section 38B of the BSA and they elect to multi-channel their digital television services.

 

Currently, incumbent licensees in regional licence areas with two commercial services can elect under section 38B to jointly, or one licensee can individually, provide a third digital commercial service.  Licensees electing to provide a third jointly-operated service will do so using a full 7 MHz digital channel and will be subject to the requirement to provide a quota of programs in HDTV digital mode.  Where one of the licensees individually provides the additional service under section 38B, that licensee may elect to multi-channel the digital transmission of the parent and new service in standard definition television (SDTV) digital mode using a single 7 MHz channel, with an exemption from HDTV requirements.

 

The BSA currently does not specify detailed measures for the implementation of digital television broadcasting for commercial services in remote licence areas.  The Bill provides for a digital television model in remote areas where the incumbent commercial broadcasters can broadcast their existing services and a new (digital-only) service under section 38B on a single channel, with exemption from any mandatory HDTV quotas, such as those that apply in metropolitan and regional licence areas. 

 

In lieu of providing HDTV services, remote area commercial broadcasters can provide a third commercial service, which would provide residents in remote areas with a similar choice of free-to-air television programming to residents of metropolitan and larger regional centres.  The Bill therefore provides a balance between public interest considerations and the special circumstances of remote area commercial television broadcasters, which includes the high costs that would be associated with any satellite delivery of HDTV services.

 

The Bill is to commence on the day following Royal Assent.

 

 

FINANCIAL IMPACT STATEMENT

 

The Bill has no financial impact for the Australian Government.  Provision has been made separately under the Regional Equalisation Plan for funding assistance to regional and remote broadcasters for the introduction of digital television broadcasting.



NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 provides for the citation of the Broadcasting Legislation Amendment Act (No. 1) 2005 (the Act).

 

Clause 2 - Commencement

 

Clause 2 of the Bill provides that the Act will commence on the day after Royal Assent. 

 

Clause 3 - Schedule(s)

 

By virtue of this clause, provisions of the Broadcasting Services Act 1992 (the BSA) and the Radiocommunications Act 1992 (the Radcom Act) are amended as set out in the Schedule to the Bill.

 

 

Schedule 1 - Commercial television in remote licence areas

 

Broadcasting Services Act 1992

 

Item 1 - After subsection 38B(14)

 

Item 1 modifies the operation of subsection 38B(14) of the BSA in relation to remote licence areas. 

 

Section 38B allows for the issue of an additional, digital-only commercial television broadcasting licence in licence areas with only two existing licensees.  Subsection 38B(14) provides that the Australian Communications and Media Authority (ACMA) can determine that two licence areas are to be treated as one licence area for the purposes of section 38B of the BSA.

 

The ACMA (as its predecessor the Australian Broadcasting Authority) designated certain licence areas to be “remote” licence areas under clause 5 of Schedule 4 to the BSA.  Each of these licence areas has only one licensee operating in that area.  However, these licence areas overlap, with the result that in each geographical area covered by remote licence areas there are two commercial television licensees servicing that market.

 

As each remote licence area has only a single licensee, for a licence to be issued under section 38B of the BSA (an exempt licence) the licence areas must be amalgamated for that purpose by the ACMA under subsection 38B(14).  In Western Australia, for example, there is a single remote licence area covering the majority of the state (excluding Perth), and this remote licence area is the licence area of a single licensee.  Four other remote licence areas exist in Western Australia, and together these individual licence areas cover the same geographical area as the larger remote licence area.  To allow the broadcasters in remote areas, including Western Australia, to be eligible to apply for an exempt licence, the ACMA would need to amalgamate each of the smaller licence areas with the larger area.

 

Item 1 inserts new subsection 38B(14A) of the BSA, which clarifies that where the ACMA makes a determination under subsection 38B(14) of the BSA to treat two remote licence areas as one, and one of the two licence areas is entirely within the other licence area,  the amalgamated licence area for the purposes of section 38B is the smaller licence area.  This provision will ensure that exempt licences may be issued by the ACMA in relation to each of the smaller licence areas that together cover the same geographical area as the larger licence area of the second commercial television licensee. 

 

Item 2 - After subsection 38B(21)

 

Item 2 imposes a new licence condition in relation to the transmission of parent services where a joint venture company transfers an exempt licence.

 

Subsection 38B(20) provides that, where a joint venture company has been allocated an exempt licence, it is a condition of both the exempt licence and each of the parent licences that services must be provided under the exempt licence for at least two years after the commencement of the service.  Subsection 38B(21) imposes a similar licence condition in relation to exempt licences issued to individual licensees.

 

Item 2 inserts new subsections 38B(21A) and (21B), which impose a special licence condition on holders of licences issued under subsection 38B(5) in relation to the transmission of the commercial broadcasting services provided under the parent licences in those remote licence areas.

 

New subsection 38B(21A) provides that the special licence condition will only apply where:

(a)     the exempt licence was issued to a joint venture company;

(b)     the exempt licence has been transferred; and

(c)     there is a multi-channelling election in force in relation to one or both of the parent licences.

 

Item 7 inserts new subclause 6(7B), which provides for the making of multi-channelling elections in relation to remote licence areas.

 

New subsection 38B(21B) provides that the holder of an exempt licence that was initially issued to a joint venture company must continue to provide either or both of the parent services on the multi-channel while a multi-channelling election is in force in relation to the relevant parent service or services. 

 

This provision ensures that a new exempt licensee cannot stop providing access to a multi-channelled parent service without the consent of that parent licensee.  This is intended to provide security for consumers in remote licence areas as it will ensure that digital services are not interrupted where ownership arrangements in that remote licence area change.



Item 3 - At the end of section 38B

 

Item 3 restricts the power of the ACMA under subsection 38B(27) of the BSA to determine a designated time for a remote licence area in Western Australia.

 

Subsection 38B(1) of the BSA provides that where there are only two existing commercial television broadcasting licences in force in a particular licence area, the existing licensees may jointly, or individually, give notice to the ACMA that they will apply for an exempt licence.  The notice must be given to the ACMA within 90 days of the designated time for the licence area.

 

Subsection 38B(26) provides that, where the licence area concerned is a remote licence area or it overlaps with a remote licence area, the designated time for that licence area is the time determined by the ACMA under subsection 38B(27).

 

Item 3 inserts new subsection 38B(29), which provides that when the ACMA determines a designated time for remote licence areas in Western Australia under subsection 38B(27), this time must be no later than 1 January 2006. 

 

Imposing this requirement on the ACMA will ensure that a broadcaster in a Western Australian remote licence area will be able to give notice to the ACMA under subsection 38B(1) of the BSA of its intention to apply for an exempt licence early in 2006 at the latest.  If  notice is given, the joint venture or individual licensee must apply for an exempt licence within 12 months after the designated time. 

 

Requiring the designated time for remote licence areas in Western Australia to be no later than 1 January 2006 is intended to encourage the broadcasters to start digital transmission of their existing services (the parent services) and section 38B services in these remote licence areas at an early stage, with associated benefits for consumers in those areas.

 

Item 4 - Clause 2 of Schedule 4

 

Item 5 - Clause 2 of Schedule 4

 

Item 6 - Clause 2 of Schedule 4

 

Items 4, 5 and 6 define the concepts of “exempt licence”, “exempt remote area service” and “parent licence”.  The insertion of these definitions is consequential to Item 7.

 

Item 7 - After subclause 6(7A) of Schedule 4

 

Item 7 inserts special rules for services provided under exempt licences in remote licence areas in relation to digital conversion arrangements.

 

Subclause 6(1) of Schedule 4 to the BSA requires the ACMA to formulate a commercial television conversion scheme (the conversion scheme) for the conversion of existing analogue commercial television services to digital mode transmission.

 

Subclause 6(6A) of Schedule 4 requires the ACMA to determine a date in the conversion scheme from which time each holder of a commercial television broadcasting licence in a remote licence area is required to commence transmitting their service in standard definition television (SDTV) digital mode.

 

Subclause 6(7) of Schedule 4 requires the conversion scheme to make provision for a simulcast period for remote licence areas.  During the simulcast period each holder of a commercial television broadcasting licence in a remote licence area will be required to transmit their service simultaneously in analogue and SDTV digital mode.

 

Item 7 allows a commercial television licensee in a remote licence area, where an exempt licence has been issued for that area, to elect to multi-channel the digital version of their parent service and the section 38B service on the one 7 MHz channel.

 

New subclause 6(7B) allows an individual licensee that has been allocated an exempt licence, or the two existing licensees in a remote licence area where an exempt licence has been allocated to a joint venture company, to make an election that the special rules are to apply (a multi-channelling election).  The election must be made by way of notice in writing given to the ACMA at or about the time the exempt licence was allocated.

 

New subclause 6(7C) provides that the election remains in force until revoked by written notice given to the ACMA.  It is intended that, where a broadcaster makes a multi-channelling election, the broadcaster should be able to decide later to withdraw that election if sufficient radiofrequency spectrum is available.  However, in such a case the broadcaster would be required to comply with any High Definition Television (HDTV) quotas applicable in that remote licence area.

 

A revocation under subclause 6(7C) must generally be made by a company that made the election.  However, if the election was made in relation to a joint venture exempt licence and the parent licence has been transferred, the revocation must be made by the new licensee for the parent licence.  If the election was made by an individual licensee in relation to an exempt licence held by that licensee and the exempt licence has been transferred, the revocation must be made by the new licensee for the exempt licence.

 

A revocation under new subclause 6(7C) only takes effect if approved by the ACMA.  New subclause 6(7D) provides that if the ACMA is satisfied that there is sufficient radiofrequency spectrum available the ACMA must approve the revocation.  The ACMA is also required to vary the digital channel plan to allot a channel to the licensee.  This provision ensures that a broadcaster can only revoke a multi-channelling election if there is sufficient radiofrequency spectrum available for a television channel in the relevant area.  If there is spectrum available the ACMA must reserve that spectrum for the broadcaster under the relevant digital channel plan for that licence area.

 

The ACMA must determine the day on which the revocation takes effect.  It is likely that there will be some delay between the issuing of notice to the ACMA of a broadcaster’s intention to revoke a multi-channelling election and the commencement of independent transmissions by the broadcaster.  After the broadcaster gives notice to the ACMA that they wish to revoke the multi-channelling election, the broadcaster will need to prepare to transmit their service independently, which may involve the purchase and installation of equipment. 

 

To ensure that there is no disruption to digital services, where the ACMA approves the revocation it must specify that the multi-channelling election ceases to have effect on a particular day.  The specified day will generally be the day on which the broadcaster is expected to commence independent transmission.  Until that time, the broadcasting service provided by that licensee would continue to be transmitted on the multi-channel. 

 

New subclause 6(7E) provides that the ACMA may vary the day on which the revocation takes effect.  If the broadcaster is not ready to commence transmission on the specified date, or is ready early, the ACMA may vary the specification to reflect the date on which transmissions are to commence.  In particular, the ACMA may make such a variation at the request of the broadcaster concerned.

 

New subclause 6(7F) defines an exempt remote area service for the purposes of the special rules.  An exempt remote area service is defined to include both the service provided under the exempt licence, and the parent services operating in that licence area.  The insertion of this definition is consequential to new subclauses 6(7B), 6(7H) and 37G(4) of Schedule 4 to the BSA.

 

New subclause 6(7G) provides that the simulcast requirements required to be imposed under the conversion scheme under subclauses 6(7) and 6(7A) do not apply to a service provided under an exempt licence.  As a service provided under an exempt licence is, by definition, a digital-only service, it would be inappropriate for the simulcast requirements to apply to the service provided under an exempt licence. 

 

Importantly, the parent services provided by the two licensees in that licence area are subject to the simulcast requirements as this is a fundamental component of the digital conversion regime under Schedule 4 to the BSA. 

 

New subclause 6(7H) provides that the conversion scheme must authorise exempt remote area services to be transmitted in SDTV digital mode using multi-channelling transmission capacity while there is a multi-channelling election in force.  This new subclause is related to new subclause 6(7B), which provides for the making of a multi-channelling election.  If a broadcaster makes a multi-channelling election, they will be authorised under the conversion scheme to multi-channel the digital television services provided under both the exempt licence and the parent licence.  If the service under the exempt licence is to be provided by a joint venture, the conversion scheme is to authorise the transmission of the digital television service under the exempt licence and the two parent digital services using multi-channelling capacity.

 



Item 8 - At the end of clause 37G of Schedule 4

 

Item 8 inserts new subclause 37G(4).

 

Subclause 37G(1) of Schedule 4 to the BSA provides that regulations may be made to require commercial television broadcasting licensees to transmit a version of their service in HDTV digital mode, and to meet specific quotas in relation to the transmission of HDTV programs.  Under subclause 37G(2), regulations may also be made to impose quotas in relation to HDTV programming to be provided in prime viewing hours.  Subclause 37G(3) confirms that regulations may be made in relation to digital services provided in remote licence areas.

 

New subclause 37G(4) provides that regulations cannot be made to impose HDTV quota obligations in relation to exempt remote area services where a multi-channelling election is in force. 

 

This provision restricts the regulation-making powers in subclauses 37G(1) and 37G(2) to the extent that broadcasters in remote licence areas can feel comfortable that an election to multi-channel their digital services will be made with exemption from HDTV quota requirements.  HDTV quotas cannot be imposed under clause 37G in relation to either the parent digital service or the service provided under the exempt licence while a multi-channelling election is in force.

 

However, if a broadcaster revokes the multi-channelling election under new subclause 6(7C), the broadcaster would be required to comply with any HDTV quotas applicable in that remote licence area. 

 

Radiocommunications Act 1992

 

Item 9 - After subsection 102(2A)

 

Item 9 inserts new rules into the Radcom Act in relation to the issue of transmitter licences by the ACMA where a multi-channelling election has been made.

 

Subsection 102(1) of the Radcom Act provides that where an exempt licence is allocated, the ACMA must issue a transmitter licence authorising the transmission of the service under the exempt licence. 

 

New subsection 102(2B) provides that the ACMA is not required to issue a new transmitter licence under subsection 102(1) where the exempt licence was allocated to an individual licensee and the licensee has made a multi-channelling election. 

 

The reason a new transmitter licence is not required is that new subsection 102(2C) provides that, where a multi-channelling election is in force, the existing transmitter licence held by the licensee for their analogue service will authorise the transmission of the service under the exempt licence.

 

New subsection 102(2D) provides for the issue of a transmitter licence to a broadcaster where the broadcaster gives a notice to the ACMA of its intention to revoke the the multi-channelling election under new subclause 6(7C) of Schedule 4 to the BSA.  The ACMA must issue a new transmitter licence to the licensee where it makes a decision to approve the revocation.  A revocation will only take effect if approved by the ACMA in accordance with new subclause 6(7D) of Schedule 4 to the BSA.  Importantly, a broadcaster will only be able to revoke the election if there is sufficient radiofrequency spectrum available for a television channel in the relevant area.

 

A date will be specified by the ACMA under new paragraph 6(7D)(b) as the day on which the multi-channelling election ceases to have effect.  New subsection 102(2E) provides that the transmitter licence issued by the ACMA to the broadcaster will take effect on the same day that the multi-channelling election ceases to be in force.  This ensures that the relevant broadcasting service will continue to be provided on the multi-channel until the revocation takes effect.  However, the ACMA must issue a transmitter licence to that broadcaster in anticipation of the date of revocation to ensure that there is no disruption to digital services in that licence area.

 

New subsection 102(2F) establishes a special rule for broadcasting services provided under an exempt licence held by a joint venture company where an election has been made to multi-channel the parent services and the service under the exempt licence on the same 7 MHz channel.  Where there is a joint venture a transmitter licence will be issued under subsection 102(1) to authorise the transmission of the service under the exempt licence.  If a multi-channelling election is in force in relation to each of the parent services, the transmitter licence authorising the transmission of the service under the exempt licence will also authorise the transmission of each of the parent services using multi-channelling transmission capacity.  If only one parent licensee has made a multi-channelling election, the transmitter licence will authorise the transmission of the service under the exempt licence and the service provided by the parent licensee who made the election.

 

New subsection 102(2F) ensures that multi-channelling is authorised where a joint venture provides the service under an exempt licence and either or both of the incumbent licensees in that area have made a multi-channelling election.

 

Item 10 - At the end of section 102

 

Item 10 inserts new subsection 102(6) of the Radcom Act. 

 

New subsection 102(6) defines the concepts of “exempt remote area service” and “multi-channelling election”.  The definitions are referable to the definitions established by Items 4,5 and 6, and are applicable in relation to sections 102 and 102A of the Radcom Act.

 

The insertion of these definitions is consequential to Items 9 and 11.

 



Item 11 - After subsection 102A(2A)

 

Item 11 inserts special rules into the Radcom Act in relation to transmitter licences authorising the transmission of the digital version of the parent services.

 

Subsection 102A(1) of the Radcom Act requires the ACMA to issue a transmitter licence to a licensee to authorise the transmission of the parent service in digital mode, in accordance with the conversion scheme and the related broadcasting licence.

 

New subsection 102A(2B) provides that where an individual is issued with an exempt licence, the individual can use the transmitter licence allocated under subsection 102A(1) to authorise the transmission of the service under the exempt licence.  This provision provides an alternative for individual licensees providing a service under the exempt licence.  New subsection 102(2C) provides that the transmitter licence for the analogue parent service will authorise the transmission of the service under the exempt licence.  New subsection 102A(2B) provides that the transmitter licence for the digital parent service will also authorise the transmission of the service under the exempt licence, thereby giving the individual licensee the option of using either transmitter licence to authorise the transmission of the service under the exempt licence.  These provisions are equivalent to the corresponding provisions for non-remote exempt licences in subsections 102(2A) and 102A(2A).

 

New subsection 102A(2C) is a special rule for a service provided by a joint venture company under an exempt licence.  New subsection 102A(2C) provides that where there is an exempt licence allocated to a joint venture company and each of the parent licensees makes a multi-channelling election, if the parent licensees have been issued with transmitter licences for the digital version of their parent services under subsection 102A(1), then the parent licensees must surrender these transmitter licences.  This provision ensures that where parent licensees elect to multi-channel their parent service along with the joint-venture service under the exempt licence, the licensees must give up their digital transmitter licences so that spectrum is not tied up and it is available to be allocated for other services in those remote licence areas.

 

However, if the ACMA approves the revocation of a multi-channelling election under new subclause 6(7D) of Schedule 4 to the BSA, new subsection 102A(2D) requires the ACMA to issue a new transmitter licence to the licensee revoking the election.  This provision is equivalent to new subsection 102(2D), which is inserted by Item 9.  New subsection 102A(2D) ensures that if a multi-channelling election is revoked the licensee will be authorised to transmit the digital version of their parent service on a full 7 MHz television channel.

 

New subsection 102A(2E) is equivalent to new subsection 102(2E), which is inserted by Item 9.  New subsection 102A(2E) provides that the transmitter licence issued by the ACMA to the broadcaster will take effect on the same day that the multi-channelling election ceases to be in force.  New subsection 102A(2E) ensures that digital transmissions will not be disrupted where a multi-channelling election is revoked.