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Broadcasting Services Amendment (Anti-Siphoning) Bill 2005

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2004-2005

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

_____________________________

 

BROADCASTING SERVICES AMENDMENT (ANTI-SIPHONING) BILL 2004

________________­­­______________

 

SCHEDULE OF THE  AMENDMENTS MADE BY THE SENATE TO WHICH THE HOUSE OF REPRESENTATIVES HAS DISAGREED

 

(1)     Schedule 1, page 3 (after line 4), before item 1, insert:

1A  After subsection 115(1)

       Insert:

    (1AAA)  Any notice in effect in accordance with subsection (1) must include a reference to each match in the Fédération Internationale de Football Association World Cup (FIFA) finals tournament as being an event of the kind specified in subsection (1).

(2)     Schedule 1, page 3 (after line 20), at the end of the Schedule, add:

3  Paragraph 10(1)(e) of Schedule 2

Repeal the paragraph, substitute:

                     (e)  the licensee will not acquire the right to televise, on a subscription television broadcasting service, a commercial television broadcasting service or a national broadcasting service an event that is specified in a notice under subsection 115(1) unless:

                              (i)  a national broadcaster has the right to televise the event on its broadcasting service; or

                             (ii)  the television broadcasting services of commercial television broadcasting licensees who have the right to televise the event cover a total of more than 50% of the Australian population;

                  (eaa)  the licensee will not communicate to the public, or permit to be communicated to the public, on a subscription television broadcasting service an event to which the right to televise has been acquired in breach of subparagraph (e)(i);

(3)     Schedule 1, page 3 (after line 20), at the end of the Schedule, add:

4  After subclause 10(1B) of Schedule 2

Insert:

          (1C)  For the purposes of paragraph (1)(e), if a related party of a subscription television broadcasting licensee acquires the right to televise an event, the licensee is taken also to have acquired the right. For this purpose, related party of the licensee means:

                     (a)  a person who is in a position to exercise control of the licensee; or

                     (b)  a person in respect of whom the licensee is in a position to exercise control; or

                     (c)  a person who is in a position to exercise control of a person mentioned in paragraph (a) or (b); or

                     (d)  a person in respect of whom a person mentioned in paragraph (a) or (b) is in a position to exercise control.

HOUSE OF REPRESENTATIVES REASONS FOR DISAGREEING TO THE SENATE AMENDMENTS

         

           

Senate Amendment (1)

 

This amendment proposes a significant change to the anti-siphoning provisions of the Broadcasting Services Act 1992 (BSA).  Broadly, the amendment provides that the anti-siphoning list made by the Minister for Communications, Information Technology and the Arts, in accordance with subsection 115(1) of the BSA, must include the Fédération Internationale de Football Association (FIFA) World Cup finals tournament.  The anti-siphoning list already includes each match in the 2006 FIFA World Cup, and on 9 March 2005 the Minister announced her intention to add to the list each match in the 2010 FIFA World Cup.  The amendment is therefore unnecessary.

 

The amendment would have the likely effect of preventing the Minister from delisting this event under subsection 115(2) of the BSA, without breaching proposed subsection (1AAA).  The amendment may also have the consequence of overriding both the automatic delisting of the event six weeks before the event’s commencement (subsection 115(1AA) - this is amended to 12 weeks under the Bill) and the delisting of the event seven days after the completion of the event (subsection 115(1B)).  These delisting provisions are designed to ensure the effective operation of the anti-siphoning scheme.  In overriding these provisions, the amendment would circumvent the intended operation of the anti-siphoning scheme.  The amendment would therefore have perverse and undesirable consequences.

 

Accordingly, the House of Representatives does not accept this amendment.

 

Senate Amendments (2) and (3)

 

These amendments propose to extend the anti-siphoning provisions with the object of preventing a subscription television broadcasting (pay TV) licensee, or a company associated with a pay TV licensee, from acquiring the subscription or free-to-air rights to an event included on the anti-siphoning list before those rights are acquired by a free-to-air broadcaster, or the event is delisted from the anti-siphoning list. 

 

The amendments would make it a breach of licence condition for a pay TV licensee if the licensee, or a person who controls it or that it controls, or anyone controlled by or in control of any such person, acquires the broadcast rights to listed events unless a national broadcaster or commercial broadcaster with access to more than 50 per cent of the population acquires the rights.  The amendments expand the scope of the anti-siphoning scheme further by preventing such companies from acquiring the pay TV or free-to-air rights to listed events, whereas currently only the purchase by pay TV licensees of the pay TV rights is addressed (under paragraph 10(1)(e) of the BSA).  Additionally, the amendments seek to make it a breach of licence condition if a pay TV licensee subsequently broadcasts an event the rights to which have been acquired in breach of the anti-siphoning licence condition.

 

In expanding the scope of the anti-siphoning licence condition to include companies associated with pay TV licensees, the amendments would make a pay TV licensee responsible for the business decisions of companies that that licensee is not in a position to control.  This would also potentially mean that the purchase of rights to listed events by some commercial television broadcasting licensees that are associated with pay TV licensees would place those licensees in breach. 

 

The creation of a new licence condition for the broadcast of events that are acquired in breach of the anti-siphoning scheme is unnecessary, since the prior acquisition of rights to an event contrary to the scheme places the licensee in breach of a licence condition (paragraph 10(1)(e) of the BSA).  This additional licence condition could potentially have the effect that, if the rights to a listed event are acquired by a pay TV licensee or associated company in a manner that breaches the anti-siphoning provisions, then that event is unavailable to all pay TV licensees, under any circumstances.  That is, this amendment could mean that a pay TV licensee may not broadcast an event, even if it acquired the rights to that event in line with the anti-siphoning provisions, if another pay TV licensee breached the anti-siphoning licence condition in respect of that event. 

 

The amendments therefore are unnecessary, would have undesirable consequences and would be unworkable.

 

Accordingly, the House of Representatives does not accept these amendments.

 

 

 

 

 

 

                                                                                              I C HARRIS

                                                                      Clerk of the House of Representatives

 

 

House of Representatives

14 March 2005