Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Broadcasting Legislation Amendment (Digital Television) Bill 2006

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

2004-2005-2006

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

 

 

BROADCASTING LEGISLATION AMENDMENT

(DIGITAL TELEVISION) BILL 2006

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments and New Clauses to be Moved on Behalf of the Government

(Sheet Numbers QS385 and PZ244)

 

 

 

 

 

 

(Circulated by authority of Senator the Hon. Helen Coonan,

Minister for Communications, Information Technology and the Arts)



GOVERNMENT AMENDMENTS TO THE

BROADCASTING SERVICES AMENDMENT

(DIGITAL TELEVISION) BILL 2006

OUTLINE

The Broadcasting Legislation Amendment (Digital Television) Bill 2006 (the Bill) contains provisions which implement the Government’s decision to reform several aspects of the digital television and commercial television broadcasting regime.

The Bill as introduced would amend the Broadcasting Services Act 1992 (BSA) and the Radiocommunications Act 1992 (RA) to:

·          remove the current genre restrictions on multi-channelling by national broadcasters to permit national broadcasters to provide a broader range of digital services;

·          remove, from 1 January 2007, the requirement that the high definition television (HDTV) version of the digital television service must be a simulcast of their standard definition television (SDTV) and/or analogue service (in effect allowing one HDTV multi-channel);

·          allow, from 1 January 2009, commercial free-to-air (FTA) television broadcasters to provide a single multi-channel in SDTV digital mode in addition to their SDTV simulcast of the analogue service;

·          remove the regulatory restrictions on the number of multi-channels that may be provided by FTA commercial television broadcasting services at the end of the simulcast period;

·          remove the existing HDTV quota at the end of the simulcast period;

·          ensure that events or parts of events on the anti-siphoning list cannot be shown on a SDTV or HDTV multi-channel without first being shown, or being shown simultaneously, on the main (or simulcast) service;

·          ensure that the acquisition of rights to an event on the anti-siphoning list by a commercial television service operating outside the broadcasting services bands of spectrum (BSB) does not satisfy the requirements for a commercial or national broadcaster acquiring the rights for the purposes of the anti-siphoning scheme;

·          provide for a review of the anti-siphoning scheme prior to 31 December 2009;

·          provide that the usual viewer protections will apply in relation to the regulation of content on multichannels, however other content obligations such as Australian content standards will not apply initially so as to assist with the development of these channels.  There will be a review of the regulation of multichannels before analogue switchover .

 

·          modify the power to allocate new commercial television licences in the BSB such that the ACMA cannot exercise this power unless a decision has been taken by the Minister for Communications, Information Technology and the Arts (the Minister) that such a licence should be allocated, with the Minister’s decision being informed by a review;

·          provide a power to the Minister to veto an application made to the ACMA for a new commercial television broadcasting licence outside the BSB (under section 40 of the BSA) on the basis that the allocation of the licence would be likely to be contrary to the public interest; and

·          provide that certain standard licence conditions and program standards for commercial television broadcasting licences do not apply to commercial television services operating outside the BSB, and that certain tailored conditions and standards apply to these licences.

PROPOSED GOVERNMENT AMENDMENTS

The Government proposes a number of amendments to the Bill.  The amendments are in two sheets - QS385 and PZ244. 

Amendments on sheet QS385 - New digital services on unallocated broadcasting spectrum

One component of the Government’s reform of the digital television and commercial television broadcasting regime relates to decisions to allocate spectrum to provide new digital services.  The amendments on sheet QS385 give effect to that component of the reform. 

The amendments on sheet QS385 will amend the Broadcasting Services Act 1992 (BSA) and the Radiocommunications Act 1992 (the Radcomms Act) to:

·          Provide for the allocation of two types of datacasting transmitter licences, a channel A datacasting transmitter licence and a channel B datacasting transmitter licence.

·          In relation to the channel A licences, provide that:

-         Licensees may only provide datacasting, narrowcasting and community broadcasting to domestic digital television receivers;

-         Commercial television broadcasting licensees and national broadcasters may not control the datacasting transmitter licences;

-         The price-based allocation system for allocation of channel A licences designed by the Australian Communications and Media Authority (ACMA) must include preconditions for participation in the allocation and the Minister may direct the ACMA in regard to these pre-conditions; and

-         The ACMA may impose licence conditions, including in relation to rollout obligations on channel A licences, with the Minister to have the power to direct the ACMA about imposition of such conditions.

·          In relation to the channel B licences, provide that:

-         Licensees may provide a datacasting services under a BSA datacasting licence, another licence allocated by ACMA under the BSA authorising provision of that service, or a service provided in accordance with a class licence under the BSA.  However, licensees cannot provide commercial broadcasting services, subscription television services to domestic digital television receivers, services provided by commercial television broadcasting licenses or national broadcasters to domestic digital television receivers, retransmission of an existing commercial television broadcasting or national broadcasting service to domestic digital television receivers;

-         Commercial television broadcasting licensees and national broadcasters cannot control the datacasting transmitter licence if it is used to provide services to domestic digital television receivers; and

-         Licensees must commence services within 18 months or such longer period allowed by the ACMA.

·          Provide that both channel A and channel B datacasting services must operate in digital mode.

The amendments also:

·             Provide the ACMA with the power to determine, through legal instrument, technical standards relating to the transmission of digital broadcasting services in the broadcasting services bands of spectrum, datacasting services and receivers for use in reception of digital TV services; 

·             Repeal a range of specific standards-making powers; and

·             Provide the ACMA with the power to register voluntary industry codes, and require industry to develop and register with the ACMA codes of practice dealing with a range of digital television and datacasting issues, with a power to determine standards where such codes are not developed or not developed to the satisfaction of the ACMA.

Amendments on sheet PZ244

The amendments on sheet PZ244 deal with various topics. 

Anti-siphoning (Amendments (1) and (3))

Amendments (1) and (3) ensure that the multi-channelling restrictions for events on the anti-siphoning list operate even if the event has been automatically de-listed under the BSA. 

Simulcast-equivalent period (Amendments (4)-(6), (11), (12), (18), (21)-(25), (27), (29)-(32), (40)-(59))

Amendments (4) and (18) extend the existing concept of a “simulcast-equivalent period” in Item 48 of Schedule 2 to the Bill in order to capture non-remote licence areas and coverage areas (in addition to remote licence areas and coverage areas) that do not have a simulcast period. 

The extension of the concept of a “simulcast-equivalent period” and other relevant amendments will ensure that the following obligations on commercial television broadcasting licensees and national broadcasters will apply effectively:

·          HDTV quotas (Amendments (21) and (22)); and

·          captioning obligations (Amendments (23)-(25), (27)).

Amendments (11) and (12) ensure that the exclusion of commercial television multi-channels from Australian content and children’s programming standards applies during the simulcast period or simulcast-equivalent period (as the case may be). 

Limitations on the broadcast of anti-siphoning events on multi-channels during the simulcast period will also be extended to the simulcast-equivalent period (Amendments (5), (6), (29)-(32) and (40)-(59)).

Licence area plans (Amendments (2), (8) and (37))

Amendments (2), (8) and (37) amend the BSA to provide that for commercial television broadcasting licences in force before 1 January 2007 and for national broadcasters, SDTV and HDTV multi-channels do not need to be included in licence area plans (LAPs) during the simulcast period or simulcast-equivalent period.  It is considered unnecessary to include SDTV and HDTV multi-channels in LAPs because the radiofrequency spectrum that will be used by incumbent broadcasters to provide multi-channels has already been allocated and planned by the ACMA.  

After the end of the simulcast period or simulcast-equivalent period (as the case may be), all services would need to be planned, including multi-channels.

For new commercial television broadcasting licences allocated after 1 January 2007, the services would need to be planned, including multi-channels. 

Multi-channelling in under-served markets (Amendments (9), (13)-(17), (19), (20), (33), (34), (38), (39), (60), (61))

The amendments in relation to licences issued under sections 38A and 38B will ensure that commercial television broadcasting licences in under-served markets are permitted to provide unlimited multi-channelling from the end of the simulcast period.  It is intended that each licence (the parent licence(s) and the additional licence) would be able to be used to provide multi-channelling.

Similarly, it is proposed that commercial television broadcasting licences in under-served markets would be permitted to provide an additional SDTV multi-channel from 1 January 2009.  

Where a section 38A or 38B licensee does not have sufficient spectrum capacity to provide the multi-channels the licensee is authorised to provide under the licence, the licensee will be permitted to apply to the ACMA for an additional transmitter licence to provide additional spectrum capacity for multi-channelling (Amendments (60) and  (61)).  The intention is that section 38A and 38B licensees will be treated, as far as possible, in a manner consistent with other commercial television broadcasting licensees, and that audiences in under-served markets should be able to receive a comparable range of services to those available in other regional and metropolitan licence areas.

Section 38A and 38B licensees will also be able to revoke an election to multi-channel the additional service with the parent service, with the effect that the licensee will be obligated to comply with the HDTV quota obligations (Amendments (19), (20), (33) and (34)).

Captioning (Amendments (26) and (28))

Amendments (26) and (28) clarify that broadcasters must caption a program on a multi-channel if that program has previously been broadcast on the main channel with captions. Broadcasters are not otherwise required by the Bill to caption multi-channel programming.  

Commercial television broadcasting licences under section 40 (Amendment (10))

A commercial television broadcasting licence issued under section 40 of the BSA authorises the licensee to provide a single service using spectrum outside the broadcasting services bands (BSBs).  Amendment (10) provides that a section 40 TV licence will authorise the provision of a digital service only.  This measure is consistent with the Government’s policy of facilitating the switchover of commercial broadcasters from analogue television signals to digital mode.

Duration of transmitter licences (Amendment (35) and (61))

Amendment (35) clarifies the duration of transmitter licences issued under sections 102 and 102A of the RA.  Essentially, the transmitter licence remains in force while the related licence under the BSA is in force.

Amendment (61) makes similar provision for the duration of transmitter licences issued to licensees in under-served markets to facilitate multi-channelling.

Variation of instruments (Amendments (7) and (36))

As a result of the changes to be made to the BSA by the measures in the Bill (as amended), the ACMA will need to amend certain legislative instruments to reflect the changes to the regulatory regime.

Amendments (7) and (36) provide that where the ACMA varies the national television conversion scheme, the commercial television conversion scheme or program standards within 30 days of the commencement of the relevant provisions of the Bill, the ACMA will not need to consult widely before making the variation. 

FINANCIAL IMPACT

The amendments are expected to have no significant impact on Commonwealth expenditure.  The allocation of datacasting transmitter licences is likely to result in receipt of revenue from price-based allocation of these licences.  However, at this stage it is not possible to predict with any accuracy the quantum of revenue likely to be received.



NOTES ON AMENDMENTS ON SHEET QS385

The amendments on sheet QS385 amend Schedule 2 to the Bill and insert new Schedule 2A into the Bill.

Amendment (1)

Amendment (1) provides that new Schedule 2A (inserted into the Bill by Amendment (9)) will commence by proclamation within the period of six months from the day on which the Act receives Royal Assent, or on the first day after the end of the six month period. 

Schedule 2A relates to technical standards for transmission of broadcasting services, datacasting services and receivers for use in reception of digital television services , and industry codes and standards for digital television and reception equipment.  Commencement by proclamation is necessary to allow time for the ACMA to make standards about matters that are currently the subject of regulations made under provisions to be repealed by Amendment (9).  

Amendments to Schedule 2 to the Bill

Amendments (2) and (3)

Amendments (2) and (3) insert definitions into section 6 of the BSA which are used in Amendment (4).

Amendment (4)

Amendment (4) inserts new section 51A into the BSA.  This new section excludes channel B datacasting transmitter licences from the operation of the provisions in Part 5 of the BSA (which deals with control of commercial broadcasting licences and datacasting transmitter licences), except in cases where the transmitter is used to deliver a service to domestic digital television receivers. 

The Government intention is that channel B datacasting transmitter licences that are used to deliver services other than services capable of being received by domestic digital television receivers will be excluded from the operation of Part 5 of the BSA. The Government considers that where the new services to be provided on channel B transmitter licences are not delivered to normal domestic digital television receivers, it is not necessary to exclude existing free to air television broadcasters from controlling the supply of such services.  

The existing legislated prohibition in the BSA on commercial television broadcasters controlling a datacasting transmitter licence will continue to apply in respect of channel A datacasting transmitter licences, because services provided using a channel A datacasting transmitter licence are intended to be provided to the widest possible digital television audience and must be provided to domestic digital reception equipment. 

Amendment (5)

Amendment (5) inserts new subsections 212(2B) and 212(2C) into the BSA.

New subsection 212(2B) allows an action, suit or proceeding to be taken against a person in relation to a breach of any of the conditions in the Radcomms Act relating to the transmission by a datacasting transmitter licensee of a BSA exempt re-transmission service. This amendment is necessary to enable the enforcement of the provisions in the Radcomms Act relating to retransmission using datacasting transmitter licences.   

New subsection 212(2C) provides the Minister with a power to direct the ACMA in relation to the exercise of the power conferred on the ACMA by section 212(1)(b)(ii) of the BSA.  This amendment enables the Minister to direct ACMA in relation to permitting out-of-area retransmission. 

These provisions might be used, for example to permit out-of-area retransmission of services where the datacasting transmitter licensee had limited technical options other than to transmit by a single frequency network which encompassed areas outside the licence area in question.

Amendment (6)

Amendment (6) inserts new subclause 41(3) into Part 6 of Schedule 6 of the BSA.  New subclause 41(3) excludes a channel B datacasting transmitter licence from the control provisions in subclauses 41(1) and (2) of Part 6, Schedule 6 of the BSA, unless the relevant transmitter is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.

This provision is intended to give effect to the Government policy that the prohibition on national broadcasters controlling datacasting transmitter licences in relation to channel B licences be removed, in cases where the service is not capable of being received by a domestic digital television receiver, for example, where the service can be received only by certain mobile television services.  The Government considers that where the new services to be provided on channel B licences are not delivered to normal domestic digital television receivers, it is not necessary or desirable to exclude existing free to air broadcasters from controlling the supply of such services.

The existing legislated prohibition in the BSA on national broadcasters controlling a datacasting transmitter licence will continue to apply in respect of channel A licences, because services provided using a channel A datacasting transmitter licence must be provided to domestic digital reception equipment. 

Amendment (7)

Amendment (7) inserts a series of definitions into section 5 of the Radcomms Act which are used in Amendment (8)

These include a definition of ‘domestic digital television receiver’.  This definition is intended to include television receivers such as integrated digital television sets and set top boxes that are normally located in the home or fixed premises, rather than mobile service reception equipment.   In this definition, the reference to a ‘hand-held device’ is intended to mean a device that is primarily designed to be hand-held during use. 

Amendment (7) also inserts new sections 98A and 98B into the Radcomms Act.   Section 98 of the Radcomms Act enables the ACMA to determine the types of transmitter licences that can be allocated.  The new provisions enable the ACMA to declare that certain datacaster transmitter are channel A datacasting transmitter licences and certain other datacasting transmitter licences are channel B datacasting transmitter licences. 

These new provisions are necessary to enable particular requirements to be attached to channel A datacasting transmitter licences and other requirements to be attached to channel B datacasting transmitter licences. 

Amendment (8)

Amendment (8) inserts new subsections 106(5A) and 106(9A) into the Radcomms Act and makes consequential amendments to subsections 106(7), 106(10), 106(11). 

New subsection 106(5A) requires the ACMA to include specified requirements in a determination regarding a price based allocation system for channel A datacasting transmitter licences.  New subsection (9A) provides the Minister with a power to direct the ACMA in relation to the exercise of the power conferred by paragraph subsection 106(5A). 

These provisions are necessary to give effect to the Government policy that the price-based allocation process for channel A datacasting transmitter licences be subject to the pre-conditions, such as the applicant needing to demonstrate the financial capacity and willingness to roll-out and maintain new digital services on a nation-wide basis.

Amendment (8) also amends paragraph 109A(1)(g) of the Radcomms Act and inserts new paragraph 109A(1)(ga) into the Radcomms Act.  The amendment to paragraph 109A(1)(g) excludes channel A and channel B datacasting transmitter licences from the commencement conditions imposed on other datacasting transmitter licences. 

The former paragraph 109A(1)(ga) imposed requirement relating to continuation of service before 2007.

New paragraph 109A(1)(ga) imposes on channel B datacasting transmitter licences a condition that services delivered using such licences must commence within 18 months after the allocation of the licence or as notified in writing by the ACMA.

The Government’s intention is that commencement and roll-out conditions for channel A datacasting transmitter licences could be imposed by the ACMA by licence condition pursuant to paragraph 109A(1)(k) of the Radcomms Act.  New subsection 109A(6) provides the Minister with a power to direct the ACMA in relation to the exercise of the power conferred by paragraph 109A(1)(k), to specify conditions in a channel A datacasting transmitter licence. 

Amendment (8) repeals paragraph 109A(1)(h) of the BSA which provided that, prior to 1 January 2007, the services provided using datacasting transmitter licences were restricted to datacasting services provided under a datacasting content licence under Schedule 6 to the BSA. 

The provisions relating to the range of services which can be provided on datacasting transmitter licences from 1 January 2007 is retained in paragraph 109A(1)(i).  New provisions are added to this provision and amendments made to paragraph 109A(1) to specify the types of services that can be provided using datacasting licences on or after 1 January 2007 in relation to channel A and channel B datacasting transmitter licences.  These requirements are imposed as licence conditions. 

For example, new paragraph 109A(1)(i)(iii) provides that a datacasting transmitter licence can be used to deliver a BSA exempt re-transmission service.  This means that datacasting transmitter licences in general can be used to re-transmit services which under section 212 of the BSA are exempt from the regulatory regime under the BSA.  This provision makes it clear that datacasting transmitter licences can retransmit certain free to air services in prescribed circumstances. 

New paragraph 109A(1)(ia) specifies the types of services that can be provided on channel A datacasting transmitter licences and new subparagraphs 109A(1)(i)(ib)-(ie) specify the types of services that can be provided on channel B datacasting transmitter licences.

New paragraphs 109A(1)(ib)-(ie) give effect to the Government’s intention that channel B datacasting transmitter licences be used to provide a wider variety of services, including both free-to-air and subscription mobile services, but that:

·             commercial and national television broadcasters should not exercise a controlling influence in the provision of in-home services using channel B datacasting transmitter licences; and

·             channel B datacasting transmitter licenses cannot be used for commercial free to air broadcasting to in-home receivers.   

New paragraph 109A(1)(ia) provides that it is a condition of a channel A datacasting transmitter licensee that such a transmitter can only be used to transmit a datacasting service that is capable of being received by a domestic digital television receiver, where that datacasting service is provided under, and in accordance with the conditions of a BSA datacasting licence, is an open narrowcasting television service or is a community television broadcasting service. This gives effect to the Government’s intention that channel A datacasting transmitter licences be used to provide only certain free-to-air services to domestic digital television receivers.  Channel A datacasting transmitter licences cannot be used to deliver new commercial television or radio broadcasting services, subscription television or radio broadcasting services, or retransmitted commercial or national television or radio broadcasting services. 

New paragraph 109A(1)(ib) provides that it is a condition of a channel B datacasting transmitter licence that such a transmitter cannot be used to transmit a commercial broadcasting service or a subscription television broadcasting service that is capable of being received by a domestic television receiver.

New paragraph 109A(1)(ic) provides that a channel B datacasting transmitter licence cannot be used to provide a datacasting service capable of being received by a domestic digital television receiver if the licensee is a commercial television broadcasting licensee, a person who controls such a licensee, a company who is controlled by the controller of such a licensee, a national broadcaster or a company controlled by a national broadcaster.

New paragraph 109A(1)(id) provides that a channel B datacasting transmitter licence cannot be used to provide a datacasting service provided under a BSA datacasting licence capable of being received by a domestic digital television receiver if the holder of the BSA datacasting licence is a commercial television broadcasting licensee, a person who controls such a licensee, a company who is controlled by the controller of such a licensee, a national broadcaster or a company controlled by a national broadcaster.

New paragraph 109A(1)(ie) provides that a channel B datacasting transmitter licence must not be used to transmit a datacasting service capable of being received by a domestic digital television receiver if the service is a BSA exempt re-transmission service.  A BSA exempt re transmission service is a service that does no more than re-transmit programs that are transmitted by a national broadcasting service, commercial broadcasting licensee or a community broadcasting licensee within the licence area of that licence or outside the licence area of that licence with permission from the ACMA.

Amendment (8) also inserts new paragraph 109A(1)(if) which gives effect to the Government policy that channel A and channel B datacasting transmitter licences should be used to transmit services in digital mode consistent with the Government’s policy that terrestrial television services be converted to digital mode and that the channels be used to provide new digital services.

Amendment (8) also makes consequential amendments to subparagraphs 109A(1A) and 109A(4).

Amendment (8) replaces subsection 109A(1B) which is no longer needed with the repeal of paragraph 109A(1)(g).  New subsection 109A(1B) provides that for the purposes of the services that cannot be provided under a channel B datacasting transmitter licence, it is immaterial whether a domestic digital television receiver is capable of receiving subscription television broadcasting services when used in isolation or in conjunction with any other equipment.  This new subsection makes it clear that in relation to a subscription television service, a service is taken to be capable of being received by a normal domestic digital television receiver even if additional equipment, such as a conditional access system or subscription television set top box, is needed to receive that service.  This is intended to ensure that in-home subscription television services cannot be provided on channel A or channel B datacasting transmitter licences. 

Amendment (8) also inserts new subsection 109A(1C) to provide that a condition specified in a licence under paragraph 109A(1)(k) may deal with the commencement or continuity of transmission of datacasting services. This amendment is to make it clear that the ACMA may impose commencement or rollout conditions under paragraph 109A(1)(k).

New subsection 109A(1D) provides that subsection (1C) does not limit paragraph 109(1)(k). New subsection 109A(1E) provides that paragraphs 109A(1)(g) and (ga) do not limit subsection 109A(1C).  Paragraphs 109A(1)(g) and 109A(1)(ga) impose licence conditions relating to commencement of operation.

Amendment (8) also inserts new subsection 109A(5) to provide that subsection 109A(2) and 109A(3), which relate to the constitutions of companies and are relevant to the control provisions in Part 5 of the BSA, do not apply to channel B licensees unless they are transmitting services capable of being received by a domestic digital television receiver.

Amendment (8) also inserts new subsection 109A(6) which empowers the Minister to give a direction to the ACMA about the imposition of licence conditions under paragraph 109A(1)(k) in relation to channel A datacasting transmitter licences.  This provision would, for example, enable the Minister to give a direction to ACMA about the nature of a rollout condition which might be imposed under paragraph 109A(1)(k).

New Schedule 2A to the Bill

Amendment (9)

There is a range of legislative provisions which currently regulate aspects of technical standards and codes of practice.  However, these provisions are not all-encompassing and do not readily allow the ACMA to address emerging issues where technical developments or deployments of new technologies may have adverse impacts on consumers or competition.  The amendment repeals a range of specific standards-making powers and provides more general powers for the ACMA to determine standards.

Amendment (9) repeals the existing provisions in the BSA relating to technical standards for transmission of broadcasting services, datacasting services and receivers for use in reception of digital television services, including Division 1 of Part 4 of Schedule 4 to the BSA (Digital Television Format Standards), Division 4 of Part 4 of Schedule 4 to the BSA (Technical Standards), Part 3A of Schedule 4 of the BSA (Accessibility of Domestic Reception Equipment) and Part 10 of Schedule 6 of the BSA (Datacasting technical standards) . 

Division 1 of Part 4 of Schedule 4 to the BSA provided for regulations to determine digital television format standards, and Division 4 of Part 4 of Schedule 4 to the BSA provided for regulations to determine technical standards related to the transmission of commercial and national broadcasting services in digital mode, which were to be followed by the ACMA in formulating or varying the commercial television conversion scheme or the national television conversion scheme.  Part 10 of Schedule 6 to the BSA provides for regulations to determine technical standards in relation to datacasting services to be observed by datacasting content licensees and datacasting transmitter licensees.

Amendment (9) also repeals clause 35A of Schedule 4 to the BSA and Division 1A of Part 3 of Schedule 6 to the BSA (the provision relating to electronic program guides).

New Parts 9A and 9B of the BSA

The repealed provisions are replaced by new Parts 9A and 9B of the BSA which provide the ACMA with more general standards making powers under which the ACMA will be able to address emerging technical issues. 

New Part 9A adds new sections 130A and 130B into the BSA.  New section 130A gives effect to the Government’s intention that that ACMA be provided with the power to determine, by legislative instrument, technical standards relating to the transmission of digital television broadcasting services in the broadcasting services bands of spectrum (BSB) and datacasting services.  New section 130B gives effect to the Government’s intention that that ACMA be provided with the power to determine, by legislative instrument, technical standards for receivers for use in reception of digital television services using the BSB and in reception of datacasting services.

In relation to compliance by broadcasters and datacasters, the new section 130A  powers are to be reinforced by licence conditions provided for under existing provisions as amended by Amendment (9) (see new paragraph 7(1)(oa) of Schedule 2 of the BSA for commercial broadcasters, new paragraph 9(1)(ca) of Schedule 2 of the BSA for community broadcasters, new paragraph 10(1)(ba) of Schedule 2 of the BSA for subscription broadcasters,  new paragraph 11(1)(ba) of Schedule 2 of the BSA for services provided under a class licence,  new paragraph 24(1)(ca) of Schedule 6 of the BSA for datacasting licences, and new paragraph 109A(1)(gb) of the Radcomms Act for datacasting transmitter licences).

In relation to equipment suppliers, in the absence of licence condition provisions and consistent with other standards compliance provisions, compliance with s 130B will be enforced through offence and civil penalty provisions (see new subsections 130B(2) and 130B(3)).

New Part 9B inserts new sections 130C-130ZA into the BSA.  These new provisions give effect to the Government’s intentions that the ACMA be provided with the power to register industry codes, to require industry groups to develop and register with ACMA codes of practice which could deal with such matters as Electronic Program Guides (EPGs), channel numbering and other relevant matters determined by ACMA, together with a power to determine standards where such codes are not developed or not developed to the satisfaction of ACMA.

The inclusion of importers, manufacturers and suppliers of television receivers in the industry groups covered by the provisions relating to codes and standards (see new paragraph 130F(g) of the BSA) will enable codes to be developed if codes (or resultant industry standards) are needed in relation to equipment as well as transmission to achieve the desired result for consumers, in relation to such matters as EPGs and channel numbering.

Compliance with industry standards will be enforceable under new section 130V which makes non-compliance with industry standards an offence and subject to a civil penalty.  Section 130V applies to a person who is a participant in the particular section of the industry to which the relevant industry standard applies (see new sections 130V and 130G). 

In relation to compliance by broadcasters and datacasters, the new section 130V provision will be enforced as a licence condition (see new paragraph 7(1)(ba) of Schedule 2 of the BSA for commercial broadcasters, new paragraph 9(1)(cb) of Schedule 2 of the BSA for community broadcasters, new paragraph 10(1)(bb) of Schedule 2 of the BSA for subscription broadcasters,  new paragraph 11(1)(bb) of Schedule 2 of the BSA for services provided under a class licence,  new paragraph 24(1)(g) of Schedule 6 of the BSA for datacasting licences, and new paragraph 109A(1)(gc) of the Radcomms Act for datacasting transmitter licences).    

The Government intention is that new digital services will drive digital take-up, and that the new Part 9A and Part 9B provisions will ensure that new, domestic services are available to the widest possible audience.  The ability for the ACMA to set technical standards for digital television broadcasting and datacasting services will assist in minimising the impact on consumers of the transition to new types of services and equipment. 

Examples of areas where standards-setting powers may assist include in relation to standards for compression of digital transmissions; and minimum transmissions standards for in-home digital television services (such as that already regulated for in relation to the audio component of standard definition).  The standards-making powers will also give the ACMA the ability to address any issues which might arise in relation to standards being used by new services which can be provided using channel B datacasting licences, such as mobile television services, if necessary. 

The ACMA will be required to maintain a register of industry codes and industry standards (see new section 130ZA).

New section 130L provides for the resolution of conflicts which might occur if industry codes and standards overlap. 



NOTES ON AMENDMENTS ON SHEET PZ244

The Amendments on sheet PZ244 cover various topics, and relate to each of the Schedules to the Bill

The Schedules to the Bill have differing commencement dates:

·          Schedule 1 commences on the day after the Bill receives the Royal Assent;

·          Schedule 2 commences on 1 January 2007; and

·          Schedule 3 commences on 1 January 2009.

Amendments to Schedule 1 to the Bill

Amendment (1)

Under subsections 115(1AA) and (1B) of the BSA, events on the anti-siphoning list are automatically removed from the list:

·          12 weeks prior to the event (unless prior to this the Minister declares, by Gazette notice, that the event will remain on the list); or

·          7 days after the event (unless prior to this the Minister declares, by Gazette notice, that the event will remain on the list).

Amendment (1) amends the definition of ‘anti-siphoning event’ (inserted by item 1 of Schedule 1 to the Bill).  Together with Amendment (3), this ensures that automatic de-listings do not affect the restrictions on showing such events on multi-channels. 

Amendment (2)

Amendment (2) adds new section 26B to the Broadcasting Services Act 1992 (BSA).  New section 26B provides that, for the duration of the simulcast period or simulcast-equivalent period (as the case may be), licence area plans (LAPs) are not required to deal with SDTV multi-channelled national television broadcasting services.  It is considered unnecessary to include SDTV multi-channels in LAPs because the radiofrequency spectrum that will be used by the national broadcasters to provide multi-channels has already been allocated and planned by the Australian Communications and Media Authority (ACMA).  

After the end of the simulcast period or simulcast-equivalent period (as the case may be), all services provided by the national broadcasters would need to be planned, including multi-channels. 

Amendments (8) and (37) similarly provide that HDTV multi-channels provided by existing commercial and national broadcasters do not need to be included in LAPs. 

Amendment (3)

Amendment (3) operates with Amendment (1), to the effect outlined in the notes on Amendment (1). 

Amendment (4)

Amendment (4) inserts new clause 4D of Schedule 4 and makes a consequential amendment to the definition of “simulcast-equivalent period” in Schedule 4.

New clause 4D will replace the existing concept of a “simulcast-equivalent period” in relation to the coverage area of national broadcasters (see Item 48 of Schedule 2 to the Bill).  The extended concept of a “simulcast-equivalent period” will capture non-remote coverage areas, in addition to remote coverage areas, that do not have a simulcast period. 

The extension of the concept of a “simulcast-equivalent period” and other relevant amendments will ensure that the following obligations on national broadcasters will apply effectively:

·          HDTV quotas (Amendment (21)); and

·          captioning obligations (Amendments (23)-(25), (27)).

Limitations on the broadcast of anti-siphoning events on multi-channels during the simulcast period will also be extended to the simulcast-equivalent period (Amendments (5), (6), (31), (32) and (54)-(59)).

Amendments (5) and (6)

Amendments (5) and (6) make technical amendments consequential to Amendment (4).

Amendment (7)

As a result of the changes to be made to the BSA by the measures in the Bill (as amended), the ACMA will need to amend the national television conversion scheme to reflect the changes to the regulatory regime.

Amendment (7) inserts a transitional provision into Schedule 1 to the Bill.  New Item 28A of Schedule 1 provides that where the ACMA varies the national television conversion scheme within 30 days of the commencement of Schedule 1 to the Bill (on the day after Royal Assent), the ACMA will not need to consult widely before making the variation.  Clause 33 of Schedule 4 to the BSA, and section 17 of the Legislative Instruments Act 2003 (LIA), both of which deal with consultation requirements, will not apply to a variation in these circumstances.

In such cases, it will be sufficient for the ACMA to make a copy of the proposed variation publicly available on its website for at least 5 business days.  The reason for limiting the consultation period in relation to the national television conversion scheme is to ensure that the ACMA can implement the necessary changes as soon as possible after Royal Assent to the Bill. 

Importantly, these truncated consultation requirements will apply only to variations made by the ACMA which relate to transitional or consequential matters associated with the Bill.  The ACMA will have limited discretion regarding the scope of the variation in these cases, and as such, a lengthy public consultation period is unnecessary.

Amendments to Schedule 2 to the Bill

Amendment (8)

Amendment (8) inserts new section 26A of the BSA and makes other technical amendments consequential to this amendment.  New section 26A is similar to new section 26B, which is to be inserted by Amendment (2).

New subsections 26A(1) and (2) of the BSA provide that, for the duration of the simulcast period or simulcast-equivalent period (as the case may be), LAPs are not required to deal with HDTV multi-channelled commercial television broadcasting services where the relevant commercial television broadcasting licence was in force immediately before 1 January 2007.  It is considered unnecessary to include HDTV multi-channels in LAPs because the radiofrequency spectrum that will be used by the incumbent commercial broadcasters to provide multi-channels has already been allocated and planned by the ACMA.  

New subsection 26B(1A) similarly provides that LAPs are not required to deal with HDTV multi-channelled national television broadcasting services during the simulcast period or simulcast-equivalent period (as the case may be).

LAPs will need to include HDTV multi-channels where a new commercial television broadcasting licence is issued during the simulcast period or simulcast-equivalent period.  Further, after the end of the simulcast period or simulast-equivalent period (as the case may be), all services provided by commercial television broadcasters and national broadcasters will need to be planned, including multi-channels.

Amendment (9)

Amendment (9) makes a technical amendment to subsection 38A(9) of the BSA to ensure that licensees operating under a commercial television broadcasting licence allocated under section 38A are subject to a licence condition which requires the provision of at least one service under each of their licences (ie. both the parent licence and the additional 38A licence).  This licence condition applies under each of the licences.

Amendment (10)

Amendment (10) provides that where a commercial television broadcasting licence is allocated under section 40 of the BSA the licence authorises the provision of a digital service only.  Thus, a television service provided under a section 40 licence cannot be transmitted in analogue mode.  This measure is consistent with the Government’s intention of facilitating the switchover of commercial televisionTV broadcasters from analogue television signals to digital mode.

Amendments (11) and (12)

Amendments (11) and (12) make consequential amendments related to Amendment (18).

Amendments (11) and (12) ensure that the exclusion of commercial television multi-channels from Australian content and children’s programming standards applies during the simulcast period or simulcast-equivalent period (as the case may be).   

Amendment (13)

Amendment (13) inserts new paragraph 7(1)(mc) of Schedule 2 to the BSA. 

Item 29 of Schedule 2 to the Bill inserts new paragraphs 7(1)(ma) and (mb) of the BSA.  New paragraph 7(1)(ma) requires commercial television broadcasting licensees to provide a HDTV multi-channel during the simulcast period for the licence area in which they operate.

New paragraph 7(1)(mb) requires commercial television broadcasting licensees in a licence area to provide a HDTV multi-channel during the ‘simulcast-equivalent period’ if:

·          no simulcast period applies in relation to the licence area (eg. in remote areas where the digital conversion scheme has not provided for a simulcast period); and

·          there are regulations in place imposing HDTV requirements. 

New paragraph 7(1)(mc) provides that if a commercial television broadcasting licence was allocated under section 38A or 38B, and there is a simulcast-equivalent period for the licence, the licensee is required to provide an HDTV multi-channelled commercial television broadcasting period during the simulcast-equivalent period.  This Amendment is related to Amendment (18), which extends the concept of the simulcast-equivalent period to non-remote areas.

These new paragraphs are subject to the qualifications in subclauses 7(5), (6) and (7) of Schedule 2 (to be inserted by Item 40 of Schedule 2 to the Bill).  Importantly, if there is a multi-channelling election in force, the licensee is not required to provide an HDTV service.  If the licensee revoked the election and the ACMA approved the revocation under new clause 7B (see Amendment (20)), the licensee would be subject to HDTV quota requirements from the time the revocation takes effect.

Amendments (14)-(17)

Amendments (14)-(17) make technical amendments consequential to Amendment (13).

Amendment (18)

Amendment (18) repeals the definition of “simulcast-equivalent period” in Schedule 4 to the BSA and inserts a new definition.  The new definition cross-refers to new clause 4C of Schedule 4 to the BSA, which is inserted by this Amendment, and new clause 4D of Schedule 4, which is inserted by Amendment (4). 

New clause 4C of Schedule 4 to the BSA extends the concept of a “simulcast-equivalent period” to capture non-remote licence areas, in addition to remote licence areas, that do not have a simulcast period.  For example, in relation to under-served markets, some licensees operating under commercial television broadcasting licences allocated under section 38B of the BSA will have a simulcast period or simulcast-equivalent period, due to their operation in an existing licence area.  However, where the ACMA has amalgamated two licence areas under subsection 38B(14), it is not clear that the section 38B licence area has a simulcast period.  By extending the concept of “simulcast-equivalent period” to both non-remote and remote licence areas, the ACMA will be able to determine a simulcast-equivalent period in each case where there is no simulcast period.

The extension of the concept of a “simulcast-equivalent period” and other relevant amendments will ensure that the following obligations on commercial television broadcasters will apply effectively:

·          HDTV quotas (Amendment (22)); and

·          captioning obligations (Amendments (23)-(25), (27).

Limitations on the broadcast of anti-siphoning events on multi-channels during the simulcast period will also be extended to the simulcast-equivalent period (Amendments (29), (30) and (40)-(53)).

Amendment (19)

Amendment (19) inserts new subclause 6(5BA) of Schedule 4 to the BSA and makes other technical amendments consequential to this amendment. 

New subclause 6(5BA) provides that an election to multi-channel the services provided under the parent licence and the additional licence allocated under section 38A or 38B (as relevantly applies) may be revoked by the licensee by notice in writing.  For the revocation to have effect, the ACMA must approve the revocation.

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 the HDTV quotas applicable during the simulcast period or simulcast-equivalent period in that licence area under clause 37E of Schedule 4 to the BSA.

A revocation under subclause 6(5BA) must generally be made by the holder of the licence allocated under section 38A or 38B.  However, if the parent licence has been transferred, the revocation must be made by the new licensee for the parent licence.  If the section 38A or 38B licence has been transferred, the revocation must be made by the holder of that licence.

Amendment (20)

Amendment (20) inserts new clause 7B of Schedule 4, which provides for the revocation of multi-channelling elections.  If a licensee gives the ACMA a notice of revocation under new subclause 6(5BA) (see Amendment (19)) or existing subclause 6(7C), and the ACMA is satisfied that there is sufficient radiofrequency spectrum available, the ACMA must approve the revocation (new subclauses 7B(1) and (2)).  The ACMA is also required to vary the relevant digital channel plan under the commercial television conversion scheme to allot a channel to the licensee. 

This provision ensures that a multi-channelling election can only be revoked 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.  In determining whether there is sufficient spectrum available, any spectrum covered by a determination under subsection 34(3) of the BSA is taken to be unavailable because that spectrum is reserved (e.g. for datacasting services) (new subclause 7B(3)).

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 services 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 7B(4) 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.  If the ACMA refuses to approve the revocation, the ACMA must give the licensee notice in writing of the refusal (new subclause 7B(5)).

Amendments (21) and (22)

Amendments (21) and (22) make technical amendments consequential to Amendments (4) and (18). 

Amendments (21) and (22) will ensure that the obligations on commercial television broadcasting licensees and national broadcasters to comply with HDTV quotas under clauses 37E and 37F of Schedule 4 to the BSA will apply effectively during the simulcast period, or simulcast-equivalent period, as the case may be.

Amendments (23)-(25)

Amendments (23)-(25), together with Amendment (27), make technical amendments consequential to Amendments (4) and (18). 

These Amendments will ensure that the obligations on commercial television broadcasting licensees and national broadcasters to comply with captioning requirements under clause 38 of Schedule 4 will apply effectively during the simulcast period, or simulcast-equivalent period, as the case may be.

Amendment (26)

Amendment (26) amends the new captioning provisions in Item 85 of Schedule 2 to the Bill to clarify that if a commercial broadcaster provided a captioning service for a program when it was previously transmitted on its main service, then that program must be captioned if rebroadcast on a multi-channel.

Amendment (27)

The effect of Amendment (27) is described in the notes on Amendments (23)-(25) above. 

Amendment (28)

Amendment (26) amends the new captioning provisions in Item 85 of Schedule 2 to the Bill to clarify that if a national broadcaster provided a captioning service for a program when it was previously transmitted on its main service, then that program must be captioned if rebroadcast on a multi-channel.

Amendments (29) and (30)

Amendments (29) and (30) make technical amendments consequential to Amendment (18). 

Amendments (29) and (30) will ensure that the limitations on the broadcast of anti-siphoning events on HDTV multi-channelled commercial television services during the simulcast period apply where there is a a simulcast-equivalent period.

Amendments (31) and (32)

Amendments (31) and (32) make technical amendments consequential to Amendment (4). 

Amendments (31) and (32) will ensure that the limitations on the broadcast of anti-siphoning events on HDTV multi-channelled national television services during the simulcast period will also apply where there is a a simulcast-equivalent period.

Amendment (33)

Amendment (33) inserts new subsections 102(2EA), (2G), (2H) and (2J) of the Radiocommunications Act 1992 (RA) and makes other technical amendments consequential to this amendment. 

Where a multi-channelling election is made by a licensee, the licensee will not be issued a transmitter licence for both the digital version of the analogue parent service and the digital additional service under section 38A or 38B (see subsections 102(2A) and 102A(2A) of the RA).  As a result, if the multi-channelling election is revoked, the licensee will need an additional transmitter licence which permits the use of an additional 7MHz of spectrum so that the licensee will be able to comply with the HDTV quota requirements and the licensee will be able to provide a single SDTV multi-channel after 1 January 2009.  New subsection 102(2G) provides that if a licensee gives the ACMA a notice of revocation of a multi-channelling election under subclause 6(5BA), and the ACMA approves the revocation under clause 7B, the ACMA must issue an additional transmitter licence to the licensee. 

New subsection 102(2H) of the RA provides that the new transmitter licence issued under new subsection 102(2G) comes into effect on the day on which the revocation takes effect. 

New subsections 102(2EA) and (2J) of the RA provide that if a related broadcasting licence is transferred, the new transmitter licence is taken to be issued to the person to whom the related licence is transferred.  This ensures that where a broadcasting licence under the BSA is transferred, the new licensee will be authorised to transmit the broadcasting service or services concerned under the licence. 

Amendment (34)

Amendment (34) makes technical amendments consequential to Amendment (33). 

Amendment (35)

Amendment (35) inserts new subsections 103(4C), (4D), (4E) and (4F) of the RA and makes other technical amendments consequential to this amendment. 

The effect of these amendments is that a transmitter licence issued under subsection 102(1), 102(2D), 102(2G), 102A(1) or 102A(2D) continues in force while the related broadcasting licence under the BSA remains in force.  However, the transmitter licence does not have effect if the related licence is suspended under section 143 of the BSA.

Amendment (36)

Amendment (36) inserts new Items 93A, 93B, 93C, 93D and 93E of Schedule 2 to the Bill.  These new Items deal with transitional arrangements.

New Items 93A and 93B of Schedule 2 to the Bill are required as a consequence of Amendments (19) and (20).  By inserting new subclause 7B of Schedule 4 to the BSA, which provides for the revocation of a multi-channelling election where a notice is given by the licensee under subclause 6(5BA) or 6(7C) of Schedule 4, it was necessary to repeal subclauses 6(7D) and (7E), which dealt with revocations in relation to notices given by licensees under subclause 6(7C). 

New Item 93A provides that a notice given by ACMA under subclause 6(7D) of Schedule 4 to the BSA continues to have effect, notwithstanding the repeal of that subclause.  Such a notice has effect as if it had been given under subclause 7B(2) of Schedule 4.

New Item 93B makes similar provision for the continuing effect of a notice given by ACMA under subclause 6(7E).

As a result of the changes to be made to the BSA by the measures in the Bill (as amended), the ACMA will need to amend:

·          program standards (notably the standards in relation to Australian content and children’s programming);

·          the commercial television conversion scheme; and

·          the national television conversion scheme;

to reflect the changes to the regulatory regime.

New Items 93C, 93D and 93E of Schedule 2 to the Bill provide that where the ACMA varies program standards, the commercial television conversion scheme or the national television conversion scheme within 30 days of the commencement of Schedule 2 to the Bill (on 1 January 2007), the ACMA will not need to consult widely before making the variation.  Section 126 of the BSA (in relation to program standards), clause 18 of Schedule 4 to the BSA (in relation to the commercial television conversion scheme), clause 33 of Schedule 4 of the BSA (in relation to the national television conversion scheme), and section 17 of the Legislative Instruments Act 2003 (LIA), all of which deal with consultation requirements, will not apply to a variation in these circumstances.

In such cases, it will be sufficient for the ACMA to make a copy of the proposed variation publicly available on its website for at least 5 business days.  The reason for limiting the consultation period in relation to these instruments is to ensure that the ACMA can implement the necessary changes as soon as possible after the commencement of Schedule 2 to the Bill. 

Importantly, these truncated consultation requirements will apply only to variations made by the ACMA which relate to transitional or consequential matters associated with the Bill.  The ACMA will have limited discretion regarding the scope of the variation in these cases, and as such, a lengthy public consultation period is unnecessary.

Amendments to Schedule 3 to the Bill

Amendment (37)

Amendment (37) inserts new subsection 26A(1A) of the BSA and makes other technical amendments consequential to this amendment. 

New subsections 26A(1) and (2) of the BSA (inserted by Amendment (8)) provide that, for the duration of the simulcast period or simulcast-equivalent period (as the case may be), LAPs are not required to deal with HDTV multi-channelled commercial television broadcasting services where the relevant commercial television broadcasting licence was in force immediately before 1 January 2007.  New subsection 26A(1A) similarly provides that, for the duration of the simulcast period or simulcast-equivalent period (as the case may be), LAPs are not required to deal with SDTV multi-channelled commercial television broadcasting services where the relevant commercial television broadcasting licence was in force immediately before 1 January 2007. 

It is considered unnecessary to include SDTV or HDTV multi-channels in LAPs because the radiofrequency spectrum that will be used by the incumbent commercial broadcasters to provide multi-channels has already been allocated and planned by the ACMA.  

LAPs will need to include SDTV and HDTV multi-channels where a new commercial television broadcasting licence is issued during the simulcast period or simulcast-equivalent period.  Further, after the end of the simulcast period or simulast-equivalent period (as the case may be), all services provided by commercial television broadcasters and national broadcasters will need to be planned, including multi-channels.

Amendment (38)

Amendment (38) makes technical amendments to paragraph 38B(21A)(c) and subsection 38B(21B) of the BSA to ensure that licensees operating under commercial television broadcasting licences allocated under section 38B are subject to a licence condition which requires the provision of at least one service under each of the licences (ie. both the parent licence and the additional 38B licence).  This licence condition applies under each of the licences.

Amendment (39)

Amendment (39) makes a technical amendment consequential to Amendment (60). 

Amendments (40)-(53)

Amendments (40)-(53) make technical amendments consequential to Amendment (16). 

Amendments (40)-(53) will ensure that the limitations on the broadcast of anti-siphoning events on SDTV and HDTV multi-channelled commercial television services during the simulcast period will also apply where there is a simulcast-equivalent period.  The rules that apply to the broadcast of anti-siphoning events on multi-channels after the end of the simulcast period are also to apply after the end of a simulcast-equivalent period.

Amendments (54)-(59)

Amendments (54)-(59) make technical amendments consequential to Amendment (4). 

Amendments (54)-(59) will ensure that the limitations on the broadcast of anti-siphoning events on SDTV multi-channelled national television services during the simulcast period will also apply where there is a simulcast-equivalent period. The rules that apply to the broadcast of anti-siphoning events on multi-channels after the end of the simulcast period are also to apply after the end of a simulcast-equivalent period.

Amendment (60)

Amendment (60) inserts new sections 101B and 101C of the RA and makes other technical amendments consequential to this amendment. 

New section 101B of the RA applies only in relation to remote licence areas in which an additional commercial television broadcasting licence has been issued by the ACMA under section 38B of the BSA.

New subsection 101B(1) of the RA provides that if a commercial television broadcasting licence allocated under section 38B of the BSA (the related licence) is in force on or after 1 January 2009, and there is an multi-channelling election in force under subclause 6(7B), the licensee may apply to ACMA for an additional transmitter licence.

Where multiple licensed services in digital mode are provided for under one transmitter licence and on one 7MHz channel in accordance with a multi-channelling election, the licensee may not have sufficient spectrum capacity to be able to provide multi-channelling.  Making allowance for such a licensee to apply for an additional transmitter licence is designed to ensure that section 38B licensees are treated, as far as possible, in a manner consistent with other commercial television broadcasting licensees and therefore are able to provide audiences in under-served markets with additional services.

New subsection 101B(2) of the RA provides that an application for an additional transmitter licence must be made in the form approved by the ACMA.

New subsection 101B(3) provides that if a licensee applies for an additional transmitter licence, and the ACMA is satisfied that there is sufficient radiofrequency spectrum available, the ACMA must issue an additional transmitter licence to the licensee.  The ACMA is also required to vary the relevant digital channel plan under the commercial television conversion scheme to allot a channel to the licensee.  In determining whether there is sufficient spectrum available, any spectrum covered by a determination under subsection 34(3) of the BSA is taken to be unavailable because that spectrum is reserved (e.g. for datacasting services) (new subsection 101B(4)).

New subsection 101B(5) of the RA provides that if the related broadcasting licence is transferred, the new transmitter licence is taken to be issued to the person to whom the related licence is transferred.  This ensures that where the additional broadcasting licence issued under section 38B of the BSA is transferred, the new licensee will be authorised to transmit the broadcasting service or services concerned under the related licence. 

New section 101C of the RA applies in relation to licence areas, both remote and non-remote, in which an additional commercial television broadcasting licence has been issued by the ACMA under section 38A or 38B of the BSA.

New subsection 101C(1) provides that if a commercial television broadcasting licence allocated under section 38A or 38B of the BSA (the related licence) is in force on or after 1 January 2009, and there is an multi-channelling election in force under subclause 6(5A), (5AA) or (7B), the licensee may apply to ACMA for an additional transmitter licence.  However, if the licensee has already obtained an additional transmitter licence under new section 101B, the licensee cannot obtain a further licence under section 101C.

As with new section 101B, the intention behind new section 101C is that section 38A and 38B licensees are to be treated, as far as possible, in a manner consistent with other commercial television broadcasting licensees and therefore are able to provide audiences in under-served markets with additional services.

New subsection 101C(2) provides that an application for an additional transmitter licence must be made in the form approved by the ACMA.

New subsection 101C(3) provides that if a licensee applies for an additional transmitter licence, and the ACMA is satisfied that there is sufficient radiofrequency spectrum available, the ACMA must issue an additional transmitter licence to the licensee. 

This provision ensures that a broadcaster can only obtain an additional transmitter licence if there is sufficient radiofrequency spectrum available for a television channel in the relevant licence area.  In determining whether there is sufficient spectrum available, any spectrum covered by a determination under subsection 34(3) of the BSA is taken to be unavailable because that spectrum is reserved (e.g. for datacasting services) (new subsection 101C(4)).

An additional transmitter licence issued under new section 101C will only come into force at the end of the simulcast period, or the simulcast-equivalent period, as relevantly applies to the licence area (new subsection 101C(5)).  As a consequence, it is necessary to provide specific rules for revocations of the multi-channelling election that is a precondition for the licence:

·          if the multi-channelling election is revoked after the application is made but before ACMA makes a decision, the application is taken to never have been made (new subsection 101C(7)); and

·          if the multi-channelling election is revoked after the transmitter licence has been issued, the licence is cancelled (new subsection 101C(8)).

New subsection 101C(6) of the RA provides that if the related broadcasting licence is transferred, the new transmitter licence is taken to be issued to the person to whom the related licence is transferred.  This ensures that where the additional broadcasting licence issued under section 38A or 38B of the BSA is transferred, the new licensee will be authorised to transmit the broadcasting service or services concerned under the related licence. 

Amendment (61)

Amendment (61) inserts new subsections 103(4AA) and (4AB) and 109(1A) and (1B) of the RA and makes other technical amendments consequential to these amendments. 

The effect of new subsections 103(4AA) and (4AB) is that a transmitter licence issued under section 101B or 101C continues in force while the related commercial television broadcasting licence under the BSA remains in force.  However, the transmitter licence does not have effect if the related licence is suspended under section 143 of the BSA.

New subsection 109(1A) clarifies that the licence conditions applicable to an additional transmitter licence issued under section 101B cannot be inconsistent with the related commercial television broadcasting licence under the BSA.  New subsection 109(1B) makes similar provision in relation to transmitter licences issued under section 101C of the RA.