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Television Broadcasting Services (Digital Conversion) Bill 1998
Schedule 1 Amendment of the Broadcasting Services Act 1992

   

1  Section 28

Omit “the completion of the review referred to in section 215”, substitute “31 December 2008”.

2  Subsection 34(1)

Omit “may decide”, substitute “may, by written instrument, determine”.

3  After paragraph 34(1)(f)

Insert:

                    (fa)  for the transmission of datacasting services on a temporary basis; or

4  Subsection 34(2)

Omit “the decision”, substitute “a determination under subsection (1)”.

5  At the end of section 34

Add:

             (3)  The ABA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.

             (4)  In making a determination under subsection (3), the ABA is to have regard to:

                     (a)  the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and

                     (b)  such other matters as the ABA considers relevant.

             (5)  In this section:

datacasting service has the same meaning as in Schedule 4.

6  Transitional—section 34 of the Broadcasting Services Act 1992

(1)        This item applies to a decision of the ABA under subsection 34(1) of the Broadcasting Services Act 1992 if the decision was in effect immediately before the commencement of this item.

(2)        The decision has effect as if it had been made in the form of a written determination under subsection 34(1) of that Act immediately after the commencement of this item.

7  Section 92F

Omit “decision”, substitute “determination”.

8  Section 215

Repeal the section.

9  After section 216

Insert:

216A   Schedule 4 (digital television broadcasting)

                   Schedule 4 has effect.

10  At the end of subclause 7(1) of Schedule 2

Add:

                     (k)  the licensee will comply with the requirements of the commercial television conversion scheme in force under clause 6 of Schedule 4 other than either of the following requirements:

                              (i)  a requirement covered by paragraph 6(3)(a) or (b) of that Schedule;

                             (ii)  a requirement of Part B of the scheme to commence digital transmission;

                      (l)  the licensee will comply with so much of an implementation plan:

                              (i)  given by the licensee to the ABA in accordance with the commercial television conversion scheme in force under clause 6 of Schedule 4; and

                             (ii)  approved by the ABA;

                            as does not relate to either of the following requirements:

                            (iii)  a requirement covered by paragraph 6(3)(a) or (b) of that Schedule;

                            (iv)  a requirement of Part B of the commercial television conversion scheme to commence digital transmission;

                    (m)  if there is a simulcast period for the licence area of the licence—the licensee will not broadcast a television program in digital mode during the simulcast period for the licence area unless:

                              (i)  the program is broadcast simultaneously by the licensee in analog mode in that area; or

                             (ii)  under the regulations, the program is treated as incidental and directly linked to a program that is broadcast simultaneously by the licensee in both analog mode and digital mode in that area;

                     (n)  the licensee will comply with standards applicable to the licence under clause 37 of Schedule 4 (which deals with digital broadcasting format);

                     (o)  the licensee will comply with standards applicable to the licence under clause 38 of Schedule 4 (which deals with captioning of television programs for the deaf and hearing impaired);

                     (p)  if the licensee holds a transmitter licence under section 102 or 102A of the Radiocommunications Act 1992 that authorises the operation of a transmitter—the licensee will not operate, or permit the operation of, that transmitter to transmit in digital mode:

                              (i)  a commercial broadcasting service that provides radio programs; or

                             (ii)  a subscription radio broadcasting service; or

                            (iii)  a subscription television broadcasting service; or

                            (iv)  a subscription radio narrowcasting service; or

                             (v)  a subscription television narrowcasting service; or

                            (vi)  an open narrowcasting radio service; or

                           (vii)  an open narrowcasting television service.

11  At the end of clause 7 of Schedule 2

Add:

             (3)  An expression used in paragraph (1)(m) or (p) and in Schedule 4 has the same meaning in that paragraph as it has in that Schedule.

             (4)  Subclause 6(8) of Schedule 4 applies to paragraph (1)(m) of this clause in a corresponding way to the way in which it applies to paragraph 6(3)(c) of Schedule 4 and subclause 6(7) of Schedule 4.

12  At the end of the Act

Add:

Schedule 4 Digital television broadcasting

Note:       See section 216A.

Part 1 I ntroductio n

   

1   Simplified outline

                   The following is a simplified outline of this Schedule:

•      The ABA is to formulate schemes for the conversion, over time, of the transmission of television broadcasting services from analog mode to digital mode.

•      There is to be a simulcast period throughout which broadcasters are to transmit their television programs in both analog mode and digital mode.

•      At the end of the simulcast period, analog transmissions are to cease.

•      Broadcasters must meet standards relating to High Definition Television (HDTV) format transmission of television programs in digital mode.

•      Broadcasters must meet standards relating to captioning of television programs for the deaf and hearing impaired.

•      Broadcasters will be allowed to use spare transmission capacity on digital transmission channels to provide datacasting services.

•      Owners and operators of broadcasting transmission towers must give digital broadcasters and datacasters access to the towers for the purposes of installing or maintaining digital transmitters.

•      There are to be reviews before 1 January 2001 and 31 December 2005 of certain elements of the digital television regulatory regime.

2   Definitions

                   In this Schedule, unless the contrary intention appears:

AAT means the Administrative Appeals Tribunal.

ACA means the Australian Communications Authority.

broadcasting transmission tower means:

                     (a)  a tower; or

                     (b)  a pole; or

                     (c)  a mast; or

                     (d)  a similar structure;

used to supply a broadcasting service by means of radiocommunications using the broadcasting services bands.

commercial television broadcasting service means a commercial broadcasting service that provides television programs.

commercial television conversion scheme means a scheme under clause 6.

coverage area means:

                     (a)  a metropolitan coverage area; or

                     (b)  a regional coverage area.

datacasting service means a service (other than a broadcasting service) that delivers information (whether in the form of data, text, speech, images or in any other form) to persons having equipment appropriate for receiving that information, where:

                     (a)  the delivery of the service uses the broadcasting services bands; and

                     (b)  the service is not of a kind specified in the regulations.

licence area means a licence area for a commercial television broadcasting licence.

metropolitan coverage area means an area that corresponds to a metropolitan licence area.

metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:

                     (a)  New South Wales; or

                     (b)  Victoria; or

                     (c)  Queensland; or

                     (d)  Western Australia; or

                     (e)  South Australia.

national broadcasting service does not include a broadcasting service provided under the Parliamentary Proceedings Broadcasting Act 1946 .

national television broadcasting service means a national broadcasting service that provides television programs.

national television conversion scheme means a scheme under clause 19.

radiocommunication has the same meaning as in the Radiocommunications Act 1992 .

regional coverage area means an area that corresponds to a regional licence area.

regional licence area means a licence area that is not a metropolitan licence area.

remote coverage area means an area that corresponds to a remote licence area.

remote licence area has the meaning given by clause 5.

simulcast period :

                     (a)  in relation to a commercial television broadcasting service where the licence area concerned is not a remote licence area—has the meaning given by paragraph 6(3)(c) of this Schedule; and

                     (b)  in relation to a commercial television broadcasting service where the licence area concerned is a remote licence area—has the meaning given by subclause 6(7) of this Schedule; and

                     (c)  in relation to a national television broadcasting service where the coverage area concerned is not a remote coverage area—has the meaning given by paragraph 19(3)(c) of this Schedule; and

                     (d)  in relation to a national television broadcasting service where the coverage area concerned is a remote coverage area—has the meaning given by subclause 19(7) of this Schedule.

transmitter licence has the same meaning as in the Radiocommunications Act 1992 .

3   Analog mode

                   For the purposes of this Schedule, a program or service is broadcast or transmitted in analog mode if the program or service is broadcast or transmitted using an analog modulation technique.

4   Digital mode

                   For the purposes of this Schedule, a program or service is broadcast or transmitted in digital mode if the program or service is broadcast or transmitted using a digital modulation technique.

5   Remote licence area

             (1)  The ABA may, by writing, determine that a specified licence area is a remote licence area for the purposes of this Schedule.

             (2)  A determination under this clause has effect accordingly.

             (3)  A determination under this clause is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

Part 2 Commercial television

   

6   Commercial television conversion scheme

             (1)  As soon as practicable after the commencement of this clause, the ABA must, by writing, formulate a scheme (the commercial television conversion scheme ) for the conversion, over time, of the transmission of commercial television broadcasting services from analog mode to digital mode.

             (2)  The commercial television conversion scheme is to be divided into the following Parts:

                     (a)  Part A, which is to deal with licence areas that are not remote licence areas;

                     (b)  Part B, which is to deal with remote licence areas.

Policy objectives

             (3)  Part A of the commercial television conversion scheme must be directed towards ensuring the achievement of the following policy objectives:

                     (a)  the objective that each holder of a commercial television broadcasting licence for a metropolitan licence area is required to commence transmitting the commercial television broadcasting service concerned in digital mode in that area on 1 January 2001;

                     (b)  the objective that each holder of a commercial television broadcasting licence for a regional licence area is required to commence transmitting the commercial television broadcasting service concerned in digital mode in that area by such date during the period:

                              (i)  beginning on 1 January 2001; and

                             (ii)  ending immediately before 1 January 2004;

                            as the ABA determines under the scheme;

                     (c)  the objective that there should be a transitional period for a licence area, that is:

                              (i)  to be known as the simulcast period ; and

                             (ii)  to run for 8 years or for such longer period as is prescribed in relation to that area; and

                            (iii)  in the case of a metropolitan licence area—to begin on 1 January 2001; and

                            (iv)  in the case of a regional licence area—to begin on the date determined in relation to that area in accordance with paragraph (b);

                            throughout which the holder of a commercial television broadcasting licence for that area is required to transmit simultaneously the commercial television broadcasting service concerned in both analog mode and digital mode in that area;

                     (d)  the objective that, throughout the simulcast period for a licence area, the holder of a commercial television broadcasting licence for that area should be authorised, under one or more transmitter licences, to use one or more additional channels to transmit the commercial television broadcasting service concerned in digital mode in that area;

                     (e)  the objective that the additional channels should occupy the same amount of bandwidth as the channels used by the holder of the commercial television broadcasting licence to transmit the commercial television broadcasting service concerned in analog mode in that area;

                      (f)  the objective that, as soon as is practicable after the start of the simulcast period for a licence area, and throughout the remainder of that period, the transmission of a commercial television broadcasting service in digital mode in that area should achieve the same level of coverage and potential reception quality as is achieved by the transmission of that service in analog mode in that area;

                     (g)  the objective that, during the simulcast period for a licence area, there should, as far as is practicable, be co-location of:

                              (i)  transmitters used by the holder of a commercial television broadcasting licence for that area to transmit the commercial television broadcasting service concerned in digital mode in that area; and

                             (ii)  transmitters used by the holder to transmit that service in analog mode in that area;

                     (h)  the objective that, at the end of the simulcast period for a licence area, all transmissions of commercial television broadcasting services in analog mode in that area are to cease and that each holder of a commercial television broadcasting licence for that area is to either:

                              (i)  continue to transmit the commercial television broadcasting service concerned in digital mode in that area using the additional channels that were used for digital transmission during the simulcast period and surrender any transmitter licence that authorised analog transmission of that service in that area during the simulcast period; or

                             (ii)  transmit the commercial television broadcasting service concerned in digital mode in that area using the channels that were used during the simulcast period to transmit that service in analog mode and surrender any transmitter licence that authorised digital transmission of that service on the additional channels in that area during the simulcast period;

                      (j)  the objective that, after the end of the simulcast period for a licence area, the transmission of a commercial television broadcasting service in digital mode in that area should achieve the same level of coverage and potential reception quality as was achieved by the transmission of that service in analog mode in that area immediately before the end of that period;

                     (k)  the objective that holders of commercial television broadcasting licences be permitted to use any spare transmission capacity that is available on the digital transmission channels for the purpose of the transmission of datacasting services;

                      (l)  the objective that the ABA is to consult holders of commercial television broadcasting licences about the implementation of the scheme;

                    (m)  the objective that, if the implementation of the scheme affects particular broadcasting transmission towers, the ABA is to consult the owners and operators of those towers.

             (4)  Subclause (3) does not prevent the commercial television conversion scheme from allowing the holder of a commercial television broadcasting licence for a regional licence area to transmit the commercial television broadcasting service concerned in digital mode in that area during the whole or a part of the period:

                     (a)  beginning on 1 January 2001; and

                     (b)  ending immediately before the start of the simulcast period for that area;

so long as that transmission complies with such requirements as are ascertained in accordance with the scheme.

             (5)  Subclause (3) does not prevent Part A of the commercial television conversion scheme from allowing the holder of a commercial television broadcasting licence for a licence area to transmit, on a test basis, the commercial television broadcasting service concerned in digital mode in that area before the start of the simulcast period for that area, so long as that transmission:

                     (a)  complies with such requirements as are ascertained in accordance with that Part of the scheme; and

                     (b)  occurs during a period ascertained in accordance with that Part of the scheme.

             (6)  The objective mentioned in paragraph (3)(g) (which deals with co-location of transmitters) does not prevent Part A of the commercial television conversion scheme from making provision for the location of digital transmitters otherwise than as mentioned in that paragraph, where the ABA is satisfied that an alternative location is appropriate having regard to:

                     (a)  the remaining objectives set out in subclause (3); and

                     (b)  the costs that are likely to be incurred by the licensee concerned; and

                     (c)  such other matters (if any) as the ABA considers relevant.

Remote licence areas—simulcast period

             (7)  Part B of the commercial television conversion scheme may make provision for a transitional period for a specified remote licence area, that is to be known as the simulcast period ,throughout which the holder of a commercial television broadcasting licence for that area is required to transmit simultaneously the commercial television broadcasting service concerned in both analog mode and digital mode in that area.

Simulcasting

             (8)  In determining, for the purposes of paragraph (3)(c) and subclause (7), whether the holder of a commercial television broadcasting licence transmits simultaneously the commercial television broadcasting service concerned in both analog mode and digital mode:

                     (a)  if a relevant determination is in force under subclause (9)—ignore any advertising or sponsorship matter covered by the determination, so long as the licensee complies with such conditions (if any) as are specified in the determination; and

                     (b)  if a relevant determination is in force under subclause (10)—ignore any television programs covered by the determination, so long as the licensee complies with such conditions (if any) as are specified in the determination.

             (9)  The ABA may, by writing, determine that paragraph (8)(a) applies to specified advertising or sponsorship matter transmitted by a specified commercial television broadcasting licensee during a specified period. The specified advertising or sponsorship matter may consist of all advertising or sponsorship matter transmitted by the licensee concerned. The specified period may consist of the simulcast period for the licence area concerned.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

           (10)  The ABA may, by writing, determine that paragraph (8)(b) applies to specified television programs transmitted by a specified commercial television broadcasting licensee during a specified period.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

           (11)  The ABA must not make a determination under subclause (9) or (10) unless the ABA is satisfied that, if it were assumed that the determination were made, the version of the commercial television broadcasting service transmitted in digital mode will be substantially the same as the version of the service transmitted in analog mode.

           (12)  A determination under subclause (9) or (10) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

           (13)  A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).

7   Scheme may confer administrative powers on the ABA

                   The commercial television conversion scheme may make provision with respect to a matter by conferring on the ABA a power to make a decision of an administrative character.

8   Transmitter licences

Grant of additional spectrum for digital transmission

             (1)  The commercial television conversion scheme must make provision for requiring the ACA to issue transmitter licences authorising transmissions of commercial television broadcasting services in digital mode.

Return of spectrum if digital transmission does not begin

             (2)  Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising digital transmission if:

                     (a)  the holder does not commence digital transmission as mentioned in paragraph 6(3)(a) or (b) of this Schedule; and

                     (b)  the holder does not satisfy the ABA that there are exceptional circumstances.

Return of spectrum if digital transmission does not continue throughout the simulcast period

             (3)  Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising digital transmission if:

                     (a)  the holder commences digital transmission as mentioned in paragraph 6(3)(a) or (b) of this Schedule; and

                     (b)  the holder ceases digital transmission during the simulcast period for the licence area concerned; and

                     (c)  under the scheme, the ABA gives the holder a written direction to:

                              (i)  resume digital transmission in that area within the period specified in the direction (being a period that is not longer than one month); and

                             (ii)  continue digital transmission throughout the simulcast period for that area; and

                     (d)  the holder does not comply with a direction referred to in paragraph (c); and

                     (e)  the holder does not satisfy the ABA that there are exceptional circumstances.

Return of spectrum at end of simulcast period

             (4)  Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence to whom subparagraph 6(3)(h)(i) of this Schedule applies to surrender the transmitter licence or licences as mentioned in that subparagraph.

             (5)  Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence to whom subparagraph 6(3)(h)(ii) of this Schedule applies to surrender the transmitter licence or licences as mentioned in that subparagraph.

             (6)  Part A of the commercial television conversion scheme must provide that, if the holder of a commercial television broadcasting licence for a licence area fails to notify the ABA, at least 6 months before the end of the simulcast period for that area, whether the holder intends to pursue the outcome referred to in subparagraph 6(3)(h)(i) or (ii) of this Schedule, the holder is taken to have pursued the outcome referred to in subparagraph 6(3)(h)(i) of this Schedule.

Return of spectrum if HDTV standards contravened

             (7)  Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence for a licence area to surrender the transmitter licence or licences that authorised the transmission of the commercial television broadcasting service concerned in digital mode in that area if:

                     (a)  the holder contravenes a standard under subclause 37(1) (which deals with HDTV); and

                     (b)  under the scheme, the ABA gives the holder a written direction to comply with that standard within the period specified in the direction (being a period that is not longer than one month); and

                     (c)  the holder does not comply with a direction referred to in paragraph (b); and

                     (d)  the holder does not satisfy the ABA that there are exceptional circumstances.

             (8)  Subclause (7) does not prevent the commercial television conversion scheme from making provision for requiring the ACA to issue a transmitter licence to replace the licence that was surrendered as mentioned in that subclause. However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.

Variation of analog transmitter licence to allow digital transmission

             (9)  Part A of the commercial television conversion scheme must make provision for requiring that, if subparagraph 6(3)(h)(ii) of this Schedule applies, the ACA must vary the conditions of the transmitter licence that authorised analog transmission of the commercial television broadcasting service concerned during the simulcast period so as to ensure that the licence authorises digital transmission of that service in the area concerned after the end of the simulcast period.

Remote licence areas

           (10)  Part B of the commercial television conversion scheme may make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising analog transmission or authorising digital transmission if the holder does not comply with a specified requirement of that Part of the scheme.

           (11)  Part B of the commercial television conversion scheme may make provision for requiring the ACA to vary the conditions of a transmitter licence that authorised analog transmission of a commercial television broadcasting service in a remote licence area so as to ensure that the licence authorises digital transmission of that service in that area.

9   Submission of implementation plans to the ABA

             (1)  The commercial television conversion scheme must make provision for requiring holders of commercial television broadcasting licences to prepare, and submit to the ABA, one or more implementation plans relating to digital transmission, where the implementation plans are in accordance with the scheme.

             (2)  The commercial television conversion scheme may provide for variation of implementation plans submitted to the ABA by holders of commercial television broadcasting licences.

10   Amendment of certain plans and guidelines

             (1)  The commercial television conversion scheme may amend the frequency allotment plan or a licence area plan.

             (2)  The commercial television conversion scheme may amend technical planning guidelines in force under section 33.

             (3)  Subclauses (1) and (2) do not limit the ABA’s powers under sections 25, 26 and 33.

11   Reviews and reports

                   The commercial television conversion scheme may provide for the ABA to conduct reviews, and report to the Minister, on specified matters.

12   Ancillary or incidental provisions

                   The commercial television conversion scheme may contain such ancillary or incidental provisions as the ABA considers appropriate.

13   ABA to have regard to datacasting allocation power

             (1)  In formulating or varying the commercial television conversion scheme, the ABA must have regard to its power under subsection 34(3) (which deals with datacasting allocation).

             (2)  Subclause (1) does not limit the matters to which the ABA may have regard.

14   ABA to have regard to special circumstances that apply in remote licence areas

             (1)  In formulating or varying Part B of the commercial television conversion scheme, the ABA must have regard to the special circumstances that apply to the transmission of commercial television broadcasting services in remote licence areas.

             (2)  Subclause (1) does not limit the matters to which the ABA may have regard.

15   Minister may give directions to the ABA

             (1)  In formulating or varying the commercial television conversion scheme, the ABA must comply with any written directions given to it by the Minister under this subclause.

             (2)  A direction under subclause (1) may be of a general or specific nature.

             (3)  The Minister must arrange for a copy of a direction under subclause (1) to be published in the Gazette within 14 days after the direction is given.

16   Variation of scheme

             (1)  The commercial television conversion scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901 .

             (2)  Subclause (1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

17   Scheme to be a disallowable instrument

                   An instrument under subclause 6(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

18   Processes to be public

                   In formulating or varying the commercial television conversion scheme, the ABA must make provision for:

                     (a)  public consultation; and

                     (b)  consultation with holders of commercial television broadcasting licences; and

                     (c)  consultation with national broadcasters; and

                     (d)  consultation with the ACA; and

                     (e)  consultation with owners and operators of broadcasting transmission towers.

Part 3 ABC/SBS television

   

19   National television conversion scheme

             (1)  As soon as practicable after the commencement of this clause, the ABA must, by writing, formulate a scheme (the national television conversion scheme ) for the conversion, over time, of the transmission of national television broadcasting services from analog mode to digital mode.

Note:          Under clause 32, the scheme does not take effect until approved by the Minister.

             (2)  The national television conversion scheme is to be divided into the following Parts:

                     (a)  Part A, which is to deal with coverage areas that are not remote coverage areas;

                     (b)  Part B, which is to deal with remote coverage areas.

Policy objectives

             (3)  Part A of the national television conversion scheme must be directed towards ensuring the achievement of the following policy objectives:

                     (a)  the objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in digital mode in a metropolitan coverage area by such date as is ascertained in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20;

                     (b)  the objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in digital mode in a regional coverage area by such date as is ascertained in relation to that area in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20;

                     (c)  the objective that there should be a transitional period for a coverage area, that is:

                              (i)  to be known as the simulcast period ; and

                             (ii)  to begin on the date mentioned in whichever of paragraphs (a) and (b) is applicable; and

                            (iii)  to end at the end of the simulcast period (within the meaning of paragraph 6(3)(c) of this Schedule) for the licence area that corresponds to that coverage area;

                            throughout which a national broadcaster is required to transmit simultaneously the national television broadcasting service concerned in both analog mode and digital mode in that coverage area;

                     (d)  the objective that, throughout the simulcast period for a coverage area, each national broadcaster should be authorised, under one or more transmitter licences, to use one or more channels to transmit the national television broadcasting service concerned in digital mode in that area;

                     (e)  the objective that the additional channels should occupy the same amount of bandwidth as the channels used by the national broadcaster to transmit the national television broadcasting service concerned in analog mode in that area;

                      (f)  the objective that, as soon as is practicable after the start of the simulcast period for a coverage area, and throughout the remainder of that period, the transmission of a national television broadcasting service in digital mode in that area should achieve the same level of coverage and potential reception quality as is achieved by the transmission of that service in analog mode in that area;

                     (g)  the objective that, during the simulcast period for a coverage area, there should, as far as is practicable, be co-location of:

                              (i)  transmitters used by a national broadcaster to transmit the national television broadcasting service concerned in digital mode in that area; and

                             (ii)  transmitters used by the national broadcaster to transmit that service in analog mode in that area;

                     (h)  the objective that, at the end of the simulcast period for a coverage area, all transmissions of national television broadcasting services in analog mode in that area are to cease and that each national broadcaster is to either:

                              (i)  continue to transmit the national television broadcasting service concerned in digital mode in that area using the additional channels that were used for digital transmission during the simulcast period and surrender any transmitter licence that authorised analog transmission of that service in that area during the simulcast period; or

                             (ii)  transmit the national television broadcasting service concerned in digital mode using the channels that were used during the simulcast period to transmit that service in analog mode and surrender any transmitter licence that authorised digital transmission of that service in that area on the additional channels during the simulcast period;

                      (j)  the objective that, after the end of the simulcast period for a coverage area, the transmission of a national television broadcasting service in digital mode in that area should achieve the same level of coverage and potential reception quality as was achieved by the transmission of that service in analog mode in that area immediately before the end of that period;

                     (k)  the objective that national broadcasters be permitted to use any spare transmission capacity that is available on the digital transmission channels for the purpose of the transmission of datacasting services;

                      (l)  the objective that the ABA is to consult with national broadcasters about the implementation of the scheme;

                    (m)  the objective that, if the implementation of the scheme affects particular broadcasting transmission towers, the ABA is to consult the owners and operators of those towers.

             (4)  Subclause (3) does not prevent the national television conversion scheme from allowing a national broadcaster to transmit the national television broadcasting service concerned in digital mode in a regional coverage area during the whole or a part of the period:

                     (a)  beginning on 1 January 2001; and

                     (b)  ending immediately before the start of the simulcast period for that area;

so long as that transmission complies with such requirements as are ascertained in accordance with the scheme.

             (5)  Subclause (3) does not prevent Part A of the national television conversion scheme from allowing a national broadcaster to transmit, on a test basis, the national television broadcasting service concerned in digital mode in a coverage area before the start of the simulcast period for that area, so long as that transmission:

                     (a)  complies with such requirements as are ascertained in accordance with that Part of the scheme; and

                     (b)  occurs during a period ascertained in accordance with that Part of the scheme.

             (6)  The objective mentioned in paragraph (3)(g) (which deals with co-location of transmitters) does not prevent Part A of the national television conversion scheme from making provision for the location of digital transmitters otherwise than as mentioned in that paragraph, where the ABA is satisfied that an alternative location is appropriate having regard to:

                     (a)  the remaining objectives set out in subclause (3); and

                     (b)  the costs that are likely to be incurred by the national broadcaster concerned; and

                     (c)  such other matters (if any) as the ABA considers relevant.

Remote coverage areas—simulcast period

             (7)  Part B of the national television conversion scheme may make provision for a transitional period for a specified remote coverage area, that is to be known as the simulcast period , throughout which a national broadcaster is required to transmit simultaneously the national television broadcasting service concerned in both analog mode and digital mode in that area.

Simulcasting

             (8)  In determining, for the purposes of paragraph (3)(c) and subclause (7), whether a national broadcaster transmits simultaneously the national television broadcasting service concerned in both analog mode and digital mode:

                     (a)  in the case of the Special Broadcasting Service Corporation where a relevant determination is in force under subclause (9)—ignore any advertising or sponsorship matter covered by the determination, so long as the Special Broadcasting Service Corporation complies with such conditions (if any) as are specified in the determination; and

                     (b)  if a relevant determination is in force under subclause (10)—ignore any television programs covered by the determination, so long as the national broadcaster complies with such conditions (if any) as are specified in the determination.

             (9)  The ABA may, by writing, determine that paragraph (8)(a) applies to specified advertising or sponsorship matter transmitted by the Special Broadcasting Service Corporation during a specified period. The specified advertising or sponsorship matter may consist of all advertising or sponsorship matter transmitted by the Special Broadcasting Service Corporation. The specified period may consist of the simulcast period for the coverage area concerned.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

           (10)  The ABA may, by writing, determine that paragraph (8)(b) applies to specified television programs transmitted by a specified national broadcaster during a specified period.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

           (11)  The ABA must not make a determination under subclause (9) or (10) unless the ABA is satisfied that, if it were assumed that the determination were made, the version of the national television broadcasting service transmitted in digital mode will be substantially the same as the version of the service transmitted in analog mode.

           (12)  A determination under subclause (9) or (10) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

           (13)  A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).

20   National broadcasters to give implementation plans to the Minister

             (1)  A national broadcaster:

                     (a)  may give the Minister one or more implementation plans relating to the conversion, over time, of the transmission of the national television broadcasting service concerned from analog mode to digital mode; and

                     (b)  must, if and when required to do so by the Minister, give the Minister one or more implementation plans relating to the conversion, over time, of the transmission of the national television broadcasting service concerned from analog mode to digital mode.

             (2)  If an implementation plan is given to the Minister under this clause, the Minister must:

                     (a)  approve the implementation plan; or

                     (b)  refuse to approve the implementation plan.

             (3)  In deciding whether to approve an implementation plan under this clause, the Minister must have regard to the following matters:

                     (a)  in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—whether the implementation plan is directed towards ensuring the achievement of the following policy objectives:

                              (i)  the objective that each national broadcaster should be required to commence transmitting the national broadcasting service concerned in digital mode in each metropolitan coverage area on 1 January 2001;

                             (ii)  the objective that each national broadcaster should be required to commence transmitting the national television broadcasting service concerned in digital mode to regional coverage areas (other than remote coverage areas) on or after 1 January 2001 so that all regional coverage areas (other than remote coverage areas) have digital transmission of the service by 1 January 2004;

                     (b)  in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—the objectives mentioned in subclause 19(3);

                     (c)  in the case of an implementation plan that relates to a remote coverage area—the special circumstances that apply to the transmission of national television broadcasting services in that area;

                     (d)  such other matters (if any) as the Minister considers relevant.

             (4)  Before deciding whether to approve an implementation plan under this clause, the Minister may direct the ABA to give the Minister a report about the matter.

             (5)  If the Minister approves an implementation plan under this clause, the implementation plan comes into force on approval.

             (6)  If the Minister refuses to approve an implementation plan under this clause, the Minister may, by written notice given to the national broadcaster concerned, require the national broadcaster to give a fresh implementation plan.

             (7)  This clause applies to the giving or approval of a variation of an implementation plan in a corresponding way to the way in which it applies to the giving or approval of an implementation plan.

21   Compliance with implementation plans

                   If an implementation plan given by a national broadcaster under clause 20 is in force, the national broadcaster must comply with the implementation plan.

22   Scheme may confer administrative powers on the ABA

                   The national television conversion scheme may make provision with respect to a matter by conferring on the ABA a power to make a decision of an administrative character.

23   Transmitter licences

Grant of additional spectrum for digital transmission

             (1)  The national television conversion scheme must make provision for requiring the ACA to issue transmitter licences authorising transmissions of national television broadcasting services in digital mode.

Return of spectrum if digital transmission does not begin

             (2)  Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising digital transmission if:

                     (a)  the national broadcaster does not commence digital transmission as mentioned in paragraph 19(3)(a) or (b) of this Schedule; and

                     (b)  the national broadcaster does not satisfy the ABA that there are exceptional circumstances.

Return of spectrum if digital transmission does not continue throughout the simulcast period

             (3)  Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising digital transmission if:

                     (a)  the national broadcaster commences digital transmission as mentioned in paragraph 19(3)(a) or (b) of this Schedule; and

                     (b)  the national broadcaster ceases digital transmission during the simulcast period for the coverage area concerned; and

                     (c)  under the scheme, the ABA gives the national broadcaster a written direction to:

                              (i)  resume digital transmission in that area within the period specified in the direction (being a period that is not longer than one month); and

                             (ii)  continue digital transmission throughout the simulcast period for that area; and

                     (d)  the national broadcaster does not comply with a direction referred to in paragraph (c); and

                     (e)  the national broadcaster does not satisfy the ABA that there are exceptional circumstances.

Return of spectrum at end of simulcast period

             (4)  Part A of the national television conversion scheme must make provision for requiring a national broadcaster to whom subparagraph 19(3)(h)(i) of this Schedule applies to surrender the transmitter licence or licences as mentioned in that subparagraph.

             (5)  Part A of the national television conversion scheme must make provision for requiring a national broadcaster to whom subparagraph 19(3)(h)(ii) of this Schedule applies to surrender the transmitter licence or licences as mentioned in that subparagraph.

             (6)  Part A of the national television conversion scheme must provide that, if a national broadcaster fails to notify the ABA, at least 6 months before the end of the simulcast period for a coverage area, whether the broadcaster intends to pursue the outcome referred to in subparagraph 19(3)(h)(i) or (ii) of this Schedule, the broadcaster is taken to have pursued the outcome referred to in subparagraph 19(3)(h)(i) of this Schedule.

Return of spectrum if HDTV standards contravened

             (7)  Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender the transmitter licence or licences that authorised the transmission of the national television broadcasting service concerned in digital mode in the coverage area concerned if:

                     (a)  the national broadcaster contravenes a standard under subclause 37(1) (which deals with HDTV); and

                     (b)  under the scheme, the ABA gives the national broadcaster a written direction to comply with the standard within the period specified in the direction (being a period that is not longer than one month); and

                     (c)  the national broadcaster does not comply with a direction referred to in paragraph (b); and

                     (d)  the national broadcaster does not satisfy the ABA that there are exceptional circumstances.

             (8)  Subclause (7) does not prevent the national television conversion scheme from making provision for requiring the ACA to issue a transmitter licence to replace the licence that was surrendered as mentioned in that subclause. However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.

Variation of analog transmitter licence to allow digital transmission

             (9)  Part A of the national television conversion scheme must make provision for requiring that, if subparagraph 19(3)(h)(ii) of this Schedule applies, the ACA must vary the conditions of the transmitter licence that authorised analog transmission of the national broadcasting service concerned during the simulcast period so as to ensure that the licence authorises digital transmission of that service in the area concerned after the end of the simulcast period.

Remote coverage areas

           (10)  Part B of the national television conversion scheme may make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising analog transmission or authorising digital transmission if the national broadcaster does not comply with a specified requirement of that Part of the scheme.

           (11)  Part B of the national television conversion scheme may make provision for requiring the ACA to vary the conditions of a transmitter licence that authorised analog transmission of a national television broadcasting service in a remote coverage area so as to ensure that the licence authorises digital transmission of that service in that area.

24   Amendment of certain plans and guidelines

             (1)  The national television conversion scheme may amend the frequency allotment plan or a licence area plan.

             (2)  The national television conversion scheme may amend technical planning guidelines in force under section 33.

             (3)  Subclauses (1) and (2) do not limit the ABA’s powers under sections 25, 26 and 33.

25   Reviews and reports

                   The national television conversion scheme may provide for the ABA to conduct reviews, and report to the Minister, on specified matters.

26   Ancillary or incidental provisions

                   The national television conversion scheme may contain such ancillary or incidental provisions as the ABA considers appropriate.

27   ABA to have regard to datacasting allocation power

             (1)  In formulating or varying the national television conversion scheme, the ABA must have regard to its power under subsection 34(3) (which deals with datacasting allocation).

             (2)  Subclause (1) does not limit the matters to which the ABA may have regard.

28   ABA to have regard to special circumstances that apply in remote coverage areas

             (1)  In formulating or varying Part B of the national television conversion scheme, the ABA must have regard to the special circumstances that apply to the transmission of national television broadcasting services in remote coverage areas.

             (2)  Subclause (1) does not limit the matters to which the ABA may have regard.

29   Minister may give directions to the ABA

             (1)  In formulating or varying the national television conversion scheme, the ABA must comply with any written directions given to it by the Minister under this subclause.

             (2)  A direction under subclause (1) may be of a general or specific nature.

             (3)  The Minister must arrange for a copy of a direction under subclause (1) to be published in the Gazette within 14 days after the direction is given.

30   Variation of scheme

             (1)  The national television conversion scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901 .

             (2)  Subclause (1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

31   Scheme to be a disallowable instrument

                   An instrument under subclause 19(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

32   Scheme does not take effect until approved by the Minister

                   The national television conversion scheme, or a variation of the scheme, does not take effect unless and until it is approved, in writing, by the Minister.

33   Processes to be public

                   In formulating or varying the national television conversion scheme, the ABA must make provision for:

                     (a)  public consultation; and

                     (b)  consultation with national broadcasters; and

                     (c)  consultation with holders of commercial television broadcasting licences; and

                     (d)  consultation with the ACA; and

                     (e)  consultation with owners and operators of broadcasting transmission towers.

34   Compliance with scheme

                   A national broadcaster must comply with the national television conversion scheme.

35   Simulcasting requirements

             (1)  If there is a simulcast period for a coverage area, a national broadcaster must not broadcast a television program in digital mode in that area during the simulcast period for that area unless:

                     (a)  the program is broadcast simultaneously by the national broadcaster in analog mode in that area; or

                     (b)  under the regulations, the program is treated as incidental and directly linked to a program that is broadcast simultaneously by the national broadcaster in both analog mode and digital mode in that area; or

                     (c)  the program is of a kind that is declared by the regulations to be exempt from this clause.

             (2)  Subclause 19(8) applies to this clause in a corresponding way to the way in which it applies to paragraph 19(3)(c) of this Schedule and subclause 19(7) of this Schedule.

36   Digital transmitter not to be used to provide a subscription television broadcasting service etc.

             (1)  If a national broadcaster holds a transmitter licence that authorises the operation of a transmitter for transmitting the national broadcasting service concerned in digital mode, the national broadcaster must not operate, or permit the operation of, that transmitter to transmit in digital mode:

                     (a)  a commercial broadcasting service that provides radio programs; or

                     (b)  a subscription radio broadcasting service; or

                     (c)  a subscription television broadcasting service; or

                     (d)  a subscription radio narrowcasting service; or

                     (e)  a subscription television narrowcasting service; or

                      (f)  an open narrowcasting radio service; or

                     (g)  an open narrowcasting television service.

             (2)  Subclause (1) does not prevent a national broadcaster from doing anything that the broadcaster is authorised to do under paragraph 35(1)(c) of this Schedule.

Part 4 Standards

   

37   Digital television format standards

HDTV standards—non-remote areas

             (1)  The regulations must determine standards that require:

                     (a)  holders of commercial television broadcasting licences; and

                     (b)  national broadcasters;

to meet specified goals or targets in relation to the extent to which television programs, or specified kinds of television programs, are transmitted in accordance with one or more specified High Definition Television (HDTV) formats relating to the transmission of television programs in digital mode.

             (2)  Subclause (1) does not apply in relation to the transmission of:

                     (a)  a commercial television broadcasting service in a remote licence area; or

                     (b)  a national television broadcasting service in a remote coverage area.

             (3)  Subclause (1) does not apply in relation to the transmission of a commercial television broadcasting service in a licence area unless:

                     (a)  that service is transmitted in digital mode in that area; and

                     (b)  that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8).

             (4)  Subclause (1) does not apply in relation to the transmission of a national television broadcasting service in a coverage area unless:

                     (a)  that service is transmitted in digital mode in that area; and

                     (b)  that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(8).

HDTV standards—remote areas

             (5)  The regulations may determine standards that require:

                     (a)  holders of commercial television broadcasting licences; and

                     (b)  national broadcasters;

to meet specified goals or targets in relation to the extent to which television programs, or specified kinds of television programs, are transmitted in accordance with one or more specified High Definition Television (HDTV) formats relating to the transmission of television programs in digital mode.

             (6)  Subclause (5) does not apply in relation to the transmission of a commercial television broadcasting service in a licence area unless:

                     (a)  that area is a remote licence area; and

                     (b)  that service is transmitted in digital mode in that area; and

                     (c)  that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8).

             (7)  Subclause (5) does not apply in relation to the transmission of a national television broadcasting service in a coverage area unless:

                     (a)  that area is a remote coverage area; and

                     (b)  that service is transmitted in digital mode in that area; and

                     (c)  that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(8).

Non-HDTV standards

             (8)  The regulations may determine other standards that are to be observed by commercial television broadcasting licensees and national broadcasters in relation to the format in which television programs are to be transmitted in digital mode.

             (9)  Subclause (8) does not apply in relation to the transmission of a commercial television broadcasting service in a licence area unless that service is transmitted in digital mode in that area.

           (10)  Subclause (8) does not apply in relation to the transmission of a national television broadcasting service in a coverage area unless that service is transmitted in digital mode in that area.

Compliance by national broadcasters

           (11)  A national broadcaster must comply with a standard under subclause (1) or (8).

Note:          For compliance by licensees, see clause 7 of Schedule 2.

38   Captioning standards

             (1)  The regulations must determine standards that are to be observed by:

                     (a)  holders of commercial television broadcasting licences; and

                     (b)  national broadcasters;

in relation to the captioning of television programs for the deaf and hearing impaired.

             (2)  Standards under subclause (1) must require licensees and national broadcasters to meet specified goals or targets in relation to the extent to which television programs, or specified kinds of television programs, are captioned for the deaf and hearing impaired.

             (3)  Subclause (2) does not limit subclause (1).

             (4)  Standards under subclause (1) must be directed towards ensuring the achievement of the following objectives:

                     (a)  the objective that, as far as is practicable:

                              (i)  holders of commercial television broadcasting licences; and

                             (ii)  national broadcasters;

                            should provide a captioning service for television programs transmitted during prime viewing hours;

                     (b)  the objective that, as far as is practicable:

                              (i)  holders of commercial television broadcasting licences; and

                             (ii)  national broadcasters;

                            should provide a captioning service for television news programs, and television current affairs programs, transmitted outside prime viewing hours.

             (5)  For the purposes of subclause (4), prime viewing hours are the hours:

                     (a)  beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

             (6)  Standards under subclause (1) do not apply to a particular licensee or national broadcaster before the first occasion on or after 1 January 2001 on which the licensee or broadcaster broadcasts television programs in digital mode.

             (7)  A national broadcaster must comply with a standard under subclause (1).

Note:          For compliance by licensees, see clause 7 of Schedule 2.

             (8)  In this clause:

program does not include advertising or sponsorship matter (whether or not of a commercial kind).

39   Technical standards for digital transmission of television broadcasting services

             (1)  The regulations may determine technical standards that:

                     (a)  relate to the transmission of commercial television broadcasting services, and national broadcasting services, in digital mode; and

                     (b)  are to be followed by the ABA in formulating or varying the commercial television conversion scheme or the national television conversion scheme.

             (2)  Standards under subclause (1), to the extent that they deal with conditional access systems, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those systems should be open to all providers of television broadcasting services transmitted in digital mode using the broadcasting services bands.

             (3)  The commercial television conversion scheme must be consistent with any standards determined under subclause (1).

             (4)  The national television conversion scheme must be consistent with any standards determined under subclause (1).

             (5)  In this clause:

conditional access system means a conditional access system that:

                     (a)  relates to the provision of one or more television broadcasting services transmitted in digital mode using the broadcasting services bands; and

                     (b)  allows a provider of a television broadcasting service transmitted in digital mode using the broadcasting services bands to determine whether an end-user is able to receive a particular television broadcasting service transmitted in digital mode using the broadcasting services bands.

40   Datacasting standards

             (1)  The regulations may determine standards that are to be observed by:

                     (a)  holders of commercial television broadcasting licences; and

                     (b)  national broadcasters; and

                     (c)  other persons;

in relation to the provision, by the holders, broadcasters or other persons, of datacasting services transmitted in digital mode.

             (2)  Standards under subclause (1), to the extent that they deal with conditional access systems, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those systems should be open to all providers of datacasting services transmitted in digital mode.

             (3)  If a transmitter licence authorises the transmission of datacasting services in digital mode, then, in addition to any conditions to which that licence is subject under the Radiocommunications Act 1992 , the licence is taken to be subject to a condition that the holder of the transmitter licence, and any person authorised by the holder of the transmitter licence, must comply with a standard under subclause (1).

             (4)  In this clause:

conditional access system means a conditional access system that:

                     (a)  relates to the provision of one or more datacasting services transmitted in digital mode; and

                     (b)  allows a provider of a datacasting service transmitted in digital mode to determine whether an end-user is able to receive a particular datacasting service transmitted in digital mode.

41   Standards may incorporate other instruments

                   Section 589 of the Telecommunications Act 1997 applies to regulations made for the purposes of this Part in a corresponding way to the way in which it applies to an instrument under that Act.

Part 5 Transmitter access regime

   

42   Simplified outline

                   The following is a simplified outline of this Part:

•      The owner or operator of a broadcasting transmission tower must provide:

               (a)     the holder of a commercial television broadcasting licence; or

               (b)     a national broadcaster;

       with access to the tower, and the site of the tower, for the purpose of installing or maintaining a transmitter for use in transmitting television broadcasting services in digital mode.

•      The owner or operator of a broadcasting transmission tower must provide a datacaster with access to the tower, and the site of the tower, for the purpose of installing or maintaining a transmitter for use in transmitting datacasting services in digital mode.

43   Definitions

                   In this Part:

ACCC means the Australian Competition and Consumer Commission.

business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

datacaster means a person who provides a datacasting service.

facility includes apparatus, equipment, a structure or a line.

site means:

                     (a)  land; or

                     (b)  a building on land; or

                     (c)  a structure on land.

television broadcasting service means a commercial television broadcasting service or a national broadcasting service.

44   Extended meaning of access

             (1)  For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.

             (2)  For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.

45   Access to broadcasting transmission towers

Television broadcasting services in digital mode

             (1)  The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker ), or a national broadcaster (also the access seeker ), give the access seeker access to the tower.

             (2)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Datacasting services in digital mode

             (3)  The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker ), give the access seeker access to the tower.

             (4)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

             (5)  The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ABA stating that, in the ABA’s opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.

             (6)  In determining whether compliance with subclause (1) or (3) in relation to a tower is technically feasible, the ABA must have regard to:

                     (a)  whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and

                     (c)  if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the tower; and

                             (ii)  making alterations to the tower; and

                     (d)  such other matters (if any) as the ABA considers relevant.

Issue of certificate

             (7)  If the ABA receives a request to make a decision about the issue of a certificate under subclause (5), the ABA must use its best endeavours to make that decision within 10 business days after the request was made.

46   Access to sites of broadcasting transmission towers

Television broadcasting services in digital mode

             (1)  The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker ), or a national broadcaster (also the access seeker ), give the access seeker access to a site if:

                     (a)  the tower is situated on the site; and

                     (b)  either:

                              (i)  the site is owned, occupied or controlled by the owner or operator of the tower; or

                             (ii)  the owner or operator of the tower has a right (either conditional or unconditional) to use the site.

             (2)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Datacasting services in digital mode

             (3)  The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker ), give the access seeker access to a site if the tower is situated on the site.

             (4)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

             (5)  The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ABA stating that, in the ABA’s opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.

             (6)  In determining whether compliance with subclause (1) or (3) in relation to a site is technically feasible, the ABA must have regard to:

                     (a)  whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and

                     (c)  if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the site; and

                             (ii)  making alterations to a facility situated on the site; and

                     (d)  such other matters (if any) as the ABA considers relevant.

Issue of certificate

             (7)  If the ABA receives a request to make a decision about the issue of a certificate under subclause (5), the ABA must use its best endeavours to make that decision within 10 business days after the request was made.

47   Terms and conditions of access

Access to towers

             (1)  The owner or operator of a broadcasting transmission tower must comply with subclause 45(1) or (3) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subclause); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Access to sites

             (2)  The owner or operator of a broadcasting transmission tower must comply with subclause 46(1) or (3) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subclause); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Conduct of arbitration

             (3)  The regulations may make provision for and in relation to the conduct of an arbitration under this clause.

             (4)  The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chair of the ACCC.

             (5)  Subclause (4) does not, by implication, limit subclause (3).

48   Code relating to access

             (1)  The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.

             (2)  Before making an instrument under subclause (1), the ACCC must consult:

                     (a)  commercial television broadcasting licensees; and

                     (b)  national broadcasters; and

                     (c)  owners and operators of broadcasting transmission towers.

             (3)  An access seeker must comply with the Code.

             (4)  The owner or operator of a broadcasting transmission tower must comply with the Code.

             (5)  An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

49   Arbitration—acquisition of property

             (1)  This clause applies to a provision of this Part that authorises the conduct of an arbitration (whether by the ACCC or another person).

             (2)  The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:

                     (a)  is otherwise than on just terms; and

                     (b)  would be invalid because of paragraph 51(xxxi) of the Constitution.

             (3)  In this clause:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

50   Relationship between this Part and the National Transmission Network Sale Act 1998

                   Part 3 of the National Transmission Network Sale Act 1998 does not apply in relation to an access seeker seeking access to a broadcasting transmission tower or a site to the extent to which this Part applies in relation to the access seeker seeking access to that tower or site.

Part 6 Collection of datacasting charge

   

51   Collection of datacasting charge

Definitions

             (1)  In this clause:

charge means charge imposed by the Datacasting Charge (Imposition) Act 1998 .

late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subclause (3).

When charge due and payable

             (2)  Charge is due and payable at the time ascertained in accordance with a written determination made by the ABA.

Late payment penalty

             (3)  The ABA may, by written instrument, determine that, if any charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay to the Commonwealth, by way of penalty, an amount calculated at the rate of:

                     (a)  20% per annum; or

                     (b)  if the determination specifies a lower percentage—that lower percentage per annum;

on the amount unpaid, computed from that time.

Determination has effect

             (4)  A determination under subclause (3) has effect accordingly.

Remission of penalty

             (5)  A determination under subclause (3) may authorise the ABA to make decisions about the remission of the whole or a part of an amount of late payment penalty.

Payment of charge and late payment penalty

             (6)  Charge and late payment penalty are payable to the ABA on behalf of the Commonwealth.

Recovery of charge and penalty

             (7)  Charge and late payment penalty may be recovered by the ABA, on behalf of the Commonwealth, as debts due to the Commonwealth.

Payment into Consolidated Revenue Fund

             (8)  Amounts received by way of charge or late payment penalty must be paid into the Consolidated Revenue Fund.

Disallowable instrument

             (9)  A determination under subclause (2) or (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

52   Cancellation of certain exemptions from datacasting charge

             (1)  This clause cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay charge imposed by the Datacasting Charge (Imposition) Act 1998 .

             (2)  The cancellation does not apply if the provision of the other Act is enacted after the commencement of this clause and refers specifically to charge imposed by the Datacasting Charge (Imposition) Act 1998 .

53   ACA to report to the Minister on principles for determining the amount of datacasting charge

             (1)  Before the ACA makes its first determination under section 7 of the Datacasting Charge (Imposition) Act 1998 , the ACA must prepare, and give to the Minister, a written report about proposals that are to be embodied in that determination.

             (2)  The report must contain a statement setting out the extent to which the ACA had regard to competitive neutrality principles in formulating those proposals.

             (3)  The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

Part 7 Injunctions

   

54   Injunctions

Restraining injunctions

             (1)  If:

                     (a)  the holder of a commercial television broadcasting licence has, in accordance with the commercial television conversion scheme, given an implementation plan to the ABA; and

                     (b)  the ABA has approved the implementation plan; and

                     (c)  the holder has engaged, is engaging or is proposing to engage in any conduct in contravention of the implementation plan;

the Federal Court may, on the application of the ABA, grant an injunction:

                     (d)  restraining the holder from engaging in the conduct; and

                     (e)  if, in the court’s opinion, it is desirable to do so—requiring the holder to do something.

             (2)  If a person has engaged, is engaging or is proposing to engage in any conduct in contravention of Part 5 of this Schedule, the Federal Court may, on the application of the ABA or of the access seeker referred to in that Part, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the court’s opinion, it is desirable to do so—requiring the person to do something.

Performance injunctions

             (3)  If:

                     (a)  the holder of a commercial television broadcasting licence has, in accordance with the commercial television conversion scheme, given an implementation plan to the ABA; and

                     (b)  the ABA has approved the implementation plan; and

                     (c)  the holder has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (d)  the refusal or failure was, is or would be a contravention of the implementation plan;

the Federal Court may, on the application of the ABA, grant an injunction requiring the holder to do that act or thing.

             (4)  If:

                     (a)  a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (b)  the refusal or failure was, is or would be a contravention of Part 5 of this Schedule;

the Federal Court may, on the application of the ABA or of the access seeker referred to in that Part, grant an injunction requiring the person to do that act or thing.

55   Interim injunctions

Grant of interim injunction

             (1)  If an application is made to the court for an injunction under clause 54, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that clause.

No undertakings as to damages

             (2)  The court is not to require an applicant for an injunction under clause 54, as a condition of granting an interim injunction, to give any undertakings as to damages.

56   Discharge etc. of injunctions

                   The court may discharge or vary an injunction granted under this Part.

57   Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of the court under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

Performance injunctions

             (2)  The power of the court under this Part to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

58   Other powers of the court unaffected

                   The powers conferred on the court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.

Part 8 Reviews

   

59   Reviews before 1 January 2001

             (1)  Before 1 January 2001, the Minister must cause to be conducted a review of the following matters:

                     (a)  the content of regulations made for the purposes of the following provisions:

                              (i)  subparagraph 7(1)(m)(ii) of Schedule 2 and paragraphs 35(1)(b) and (c) of this Schedule (which deal with programming during the simulcast period);

                             (ii)  the definition of datacasting service in clause 2 of this Schedule;

                     (b)  whether any amendments of laws of the Commonwealth should be made in order to deal with convergence between broadcasting services and other services;

                     (c)  whether any amendments of laws of the Commonwealth should be made to deal with the re-transmission, on subscription television broadcasting services, of commercial television broadcasting services transmitted in digital mode;

                     (d)  whether any amendments of laws of the Commonwealth should be made in order to ensure that underserved regional licence areas are provided with the same number of commercial television broadcasting services as are provided in metropolitan licence areas;

                     (e)  the regulatory arrangements that should apply to:

                              (i)  the allocation of spectrum in the broadcasting services bands for use for the provision of datacasting services; and

                             (ii)  the digital transmission of a community television service, free of charge, using spectrum in the broadcasting services bands allocated for use for the provision of datacasting services.

             (2)  A review under subclause (1) of the matter referred to in subparagraph (1)(e)(i) is to be conducted on the basis that:

                     (a)  holders of commercial television broadcasting licences; and

                     (b)  national broadcasters;

should not be eligible for the allocation of spectrum as mentioned in that subparagraph.

             (3)  The Minister must cause to be prepared a report of a review under subclause (1).

             (4)  The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

             (5)  For the purposes of this clause, a regional licence area is underserved if, and only if, there are fewer than 3 commercial television broadcasting services in that area.

60   Reviews before 31 December 2005

             (1)  Before 31 December 2005, the Minister must cause to be conducted a review of the following matters:

                     (a)  whether section 28 should be amended or repealed after 31 December 2008;

                     (b)  whether paragraph 7(1)(m) of Schedule 2 or clause 35 of this Schedule (which deal with simulcast requirements) should be amended or repealed;

                     (c)  whether paragraph 7(1)(p) of Schedule 2 or clause 36 of this Schedule (which deal with subscription television broadcasting services and other matters) should be amended or repealed;

                     (d)  the content of any regulations made for the purposes of paragraph 6(3)(c) of this Schedule (which deals with the duration of the simulcast period);

                     (e)  whether all parts of the broadcasting services bands that are available for allocation for broadcasting services or datacasting services have been so identified;

                      (f)  whether the parts of the broadcasting services bands that have been allocated for use for broadcasting services or datacasting services have been efficiently structured.

             (2)  The Minister must cause to be prepared a report of a review under subclause (1).

             (3)  The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

Part 9 Charges relating to the ABA’s costs

   

61   Charges relating to the ABA’s costs

             (1)  The ABA may, by written instrument, make determinations fixing charges for any matter in relation to which expenses are incurred by the ABA under:

                     (a)  the commercial television conversion scheme; or

                     (b)  the national television conversion scheme; or

                     (c)  subclause 45(5) or 46(5) (which deal with the issue of certificates);

and specifying the persons by whom, and the times when, the charges are payable.

             (2)  A charge fixed under subclause (1) must not be such as to amount to taxation.

             (3)  A determination under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

Part 10 Review of decisions

   

62   Review by the AAT

Commercial television licensees

             (1)  An application may be made to the AAT for a review of any of the following decisions made by the ABA under the commercial television conversion scheme:

                     (a)  a decision to refuse to approve an implementation plan, or a variation of an implementation plan, given to the ABA by the holder of a commercial television broadcasting licence;

                     (b)  a decision that the holder of a commercial television broadcasting licence has failed to satisfy the ABA that exceptional circumstances exist as mentioned in subclause 8(2), (3) or (7) (which deal with surrender of transmitter licences);

                     (c)  a decision requiring the ACA to issue a replacement transmitter licence to the holder of a commercial television broadcasting licence as mentioned in subclause 8(8);

                     (d)  a prescribed decision that relates to the holder of a commercial television broadcasting licence.

             (2)  An application under subclause (1) may only be made by the licensee concerned.

National broadcasters

             (3)  An application may be made to the AAT for a review of any of the following decisions made by the ABA under the national television conversion scheme:

                     (a)  a decision that a national broadcaster has failed to satisfy the ABA that exceptional circumstances exist as mentioned in subclause 23(2), (3) or (7) (which deal with surrender of transmitter licences);

                     (b)  a decision requiring the ACA to issue a replacement transmitter licence to a national broadcaster as mentioned in subclause 23(8);

                     (c)  a prescribed decision that relates to a national broadcaster.

             (4)  An application under subclause (3) may only be made by the national broadcaster concerned.

Transmitter access regime

             (5)  An application may be made to the AAT for a review of a decision of the ABA to issue a certificate under subclause 45(5) or 46(5).

             (6)  An application under subclause (5) may only be made by the access seeker concerned.

             (7)  An application may be made to the AAT for a review of a decision of the ABA to refuse to issue a certificate under subclause 45(5) or 46(5).

             (8)  An application under subclause (7) may only be made by the owner or operator of the broadcasting transmission tower concerned.

63   Notification of decisions to include notification of reasons and appeal rights

                   If the ABA makes a decision that is reviewable under clause 62, the ABA is to include in the document by which the decision is notified:

                     (a)  a statement setting out the reasons for the decision; and

                     (b)  a statement to the effect that an application may be made to the AAT for a review of the decision.