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1998
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
TELEVISION
BROADCASTING SERVICES
(DIGITAL CONVERSION) BILL
1998
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be moved on behalf of the
Government
(Circulated by authority of
Senator the Hon. Richard Alston, Minister for Communications, the Information
Economy and the Arts)
ISBN: 06445 26718
TELEVISION BROADCASTING SERVICES
(DIGITAL CONVERSION) BILL 1998
OUTLINE
The Television Broadcasting Services (Digital Conversion) Bill 1998
provides a regulatory framework for the introduction of digital television in
Australia. In particular, the Bill requires the Australian Broadcasting
Authority (ABA) to formulate and implement legislative schemes for the
conversion of commercial and national (ABC and SBS) television broadcasting
services from analog mode to digital mode.
The proposed Government
Amendments make minor and technical amendments to clarify and refine the
operation of provisions in the Bill.
In summary, the minor policy
changes to the operation of the Bill which are made by the Government
Amendments:
• require the ABA, in determining under proposed
subsection 34(3) of the Broadcasting Services Act 1992 (BSA) whether
television spectrum is available to be allocated for datacasting, to have regard
to possible future demand for spectrum for the provision of commercial
television broadcasting services (Amendment (1));
• provide that
the simulcasting requirements in Parts 2 and 3 of proposed Schedule 4 to the BSA
do not apply to advertising or sponsorship matter or any transmission
arrangements or individual television programs, where the ABA is satisfied that
the digital version of the television broadcasting service will be substantially
the same as the analog version of the television broadcasting service
(Amendments (7), (18), (36) and (54));
• bring the planning
objective for digital conversion schemes in relation to metropolitan areas into
line with the corresponding objective in Parts 2 and 3 of proposed Schedule 4 in
relation to regional areas – ie. to require the schemes to be directed
towards the objective that, as soon as practicable after the start of the
simulcast period, the digital transmission of a television broadcasting service
achieves the same level of coverage and potential reception quality as is
achieved by the analog transmission of that service (Amendments (15), (16), (33)
and (34));
• include individual owners and operators of
broadcasting transmission towers in provisions which require the ABA to consult
with commercial and national broadcasters on the formulation and implementation
of digital conversion schemes (Amendments (17), (28), (35) and (51));
• enable the digital conversion schemes to allow temporary test
transmissions of a commercial or national television broadcasting service to be
made in digital mode before the commencement of the simulcast period (Amendments
(18) and (36));
• require the ABA to give a commercial television
broadcasting licensee or a national broadcaster an opportunity to rectify a
breach of the obligations during the simulcast period to continue digital
transmission and to comply with the High Definition Television (HDTV) format
standard, before requiring surrender of the digital transmitter licence
(Amendments (19), (23), (42), (46), (73) and (74));
• ensure the
effective operation of provisions enabling the issue of a replacement
transmitter licence as a result of a failure to comply with an HDTV format
standard, by providing for that replacement transmitter licence to authorise
reduced ‘transmission capacity’, rather than reduced bandwidth
(Amendments (24) and (47));
• enable the ABA to formulate and
implement a different digital conversion scheme for the transmission of
commercial and national television broadcasting services to remote areas, taking
into account the special circumstances that apply to the transmission of
television broadcasting services to those areas (Amendments (11) to (14), (18),
(26) to (27), (29) to (30), (36) to (41), (48) to (50) and
(52));
• enable separate HDTV format standards to be prescribed
under Part 4 of proposed Schedule 4 to the BSA in relation to remote areas
(Amendment (57));
• provide that, in relation to the ABC and SBS,
the end of the simulcast period for a metropolitan or regional coverage area
(other than a remote coverage area) is the same as that applicable to commercial
television broadcasting services in the licence area corresponding to the
coverage area concerned (Amendments (31), (32) and (70));
• exempt
advertisements and sponsorship from the operation of the closed captioning
standards in Part 4 of proposed Schedule 4 to the BSA (Amendment
(59));
• require any digital television broadcasting transmission
standards/datacasting standards which deal with conditional access systems to be
directed towards the objective that, as far as practicable, those systems should
be open to all providers of television broadcasting services/datacasting
services transmitted in digital mode (Amendments (60) to
(63));
• require the ACCC, before making a Code setting out
conditions that access seekers and owners and operators of a broadcasting
transmission tower are to comply with in relation to the provision of access
under Part 5 of proposed Schedule 4 to the BSA, to consult with: commercial
television broadcasting licensees, national broadcasters and owners and
operators of broadcasting transmission towers (Amendment (69));
and
• empower the ABA to recover from a site or tower owner
administrative costs expended in considering applications for technical
compliance certificates under the digital access regime (Amendments (71) and
(72)).
The Government Amendments will also make technical changes to the
operation of the Bill to confirm that:
• the licence condition
exemption in proposed paragraph 7(1)(k) of Schedule 2 to the BSA, relating to
commencement of digital transmission in accordance with a commercial television
digital conversion scheme formulated under Part 2 of proposed Schedule 4 to the
BSA, also applies to commencement requirements in an implementation plan
approved by the ABA under that scheme (Amendment (3));
• the
provisions in proposed subparagraph 7(l)(m)(ii) of Schedule 2 to the BSA and in
paragraph 32(b) of proposed Schedule 4 to the BSA only enable commercial
television broadcasting licensees and national broadcasters to transmit in
digital mode a program that is ‘incidental and directly linked’ to
another program that is being simulcast in both analog and digital mode
(Amendments (6) and (53));
• the digital conversion schemes may
make provision for the location of digital transmitters at different
broadcasting transmission sites from those used for the corresponding analog
transmitters, where the ABA is satisfied that an alternative location is
appropriate (Amendments (18) and (36));
• restrictions in Part 3 of
proposed Schedule 4 to the BSA on the use of digital transmitters by national
broadcasters operate subject to the national broadcasters being authorised by
regulations to transmit multi-channel programming if the programs are of a kind
exempted by regulations (Amendment (55));
• HDTV regulations may
specify one or more format standards (Amendment (56));
• commercial
television broadcasting licensees and national broadcasters are not required to
comply with digital television format standards, including HDTV format
standards, if they are no longer in a position to comply, either because their
digital transmitter licence was forced to be surrendered, or a replacement
digital transmitter licence has been issued which authorises reduced
transmission that does not enable HDTV transmission (Amendments (57) and
(58));
• the access regime in Part 5 of proposed Schedule 4 to the
BSA gives a commercial television broadcasting licensee or a national
broadcaster an access right in connection with the digital transmission of its
own television broadcasting services, not any television
broadcasting service (Amendments (66) and (68)); and
• the
obligation on the owner or operator of a broadcasting transmission site to
provide access to a site for the purpose of installing a transmitter or
associated facilities used wholly or principally for the transmission of a
digital television broadcasting service applies to a tower owner or operator
that itself has such access to the site (Amendment (67)).
As a result of
the proposed amendments relating to remote areas, minor consequential amendments
are made by Amendments (2), (3), (4), (5), (10), (20) to (22), (25) and (43) to
(45).
Other minor consequential amendments relating to definitions are
made by Amendments (8), (9), (64) and (65).
FINANCIAL IMPACT
The proposed amendments are not expected to have any significant
financial impact on Commonwealth expenditure or revenue.
NOTES ON AMENDMENTS
AMENDMENT (1)
Amendment (1) amends Item 5 of Schedule 1 to the Bill by adding a new
subsection 34(3A) to the BSA.
Item 5 amends section 34 of the BSA by
adding a new subsection 34(3). This new subsection will allow the ABA to
determine, in writing, 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. New subsection 34(3) is intended to ensure that
television spectrum which is not required for broadcasting purposes (including
spectrum required for digital conversion of commercial and national broadcasting
services) can be referred to the ACA and allocated on a competitive basis under
the Radiocommunications Act 1992 (Radcom Act) for the provision of
datacasting services.
Proposed subsection 34(3A) provides that in making
a determination under new subsection 34(3), the ABA is to have regard to the
possible future demand for the use of that part of the radiofrequency spectrum
for the provision of commercial television broadcasting services and such other
matters as the ABA considers relevant. For example, in making decisions on the
allocation of datacasting spectrum in licence areas that already have three
commercial television services, the ABA would be expected to have regard to the
possible need for additional spectrum after 2008, when the restriction on
allocating more than three commercial television licences in a licence area
could be lifted (see Item 1 of Schedule 1 to the Bill).
AMENDMENT (2)
Amendment (2) is a formal amendment to proposed paragraph 7(1)(k) of
Schedule 2 to the BSA contained in item 10 of Schedule 1 to the Bill. It is
consequential upon the amendments relating to remote licence areas (see, in
particular, Amendments (12), (13), (18) and (27)).
AMENDMENT (3)
Amendment (3) replaces proposed paragraph 7(1)(l) of Schedule 2 to the
BSA with a new paragraph 7(1)(l) (contained in item 10 of Schedule 1 to the
Bill). The amendment addresses the overlap between proposed paragraphs 7(1)(k)
and (l) of Schedule 2 to the BSA.
Paragraph 7(1)(l), as contained in the
Bill, imposes a licence condition on a commercial television broadcasting
licensee to comply with an implementation plan given by the licensee to the ABA
in accordance with the commercial television scheme once the ABA has accepted
the plan.
There is an overlap between paragraphs 7(1)(k) and (l) which
could lead to anomalous results. The implementation plan given by the licensee
to the ABA will set out a timetable for the installation and operation of
digital transmitters, including the commencement dates for digital transmission
of commercial television broadcasting services in metropolitan and regional
licence areas. Failure of the licensee to meet these commencement dates will
amount to a breach of a licence condition under proposed paragraph 7(1)(l) but
not under paragraph 7(1)(k).
Amendment (3) addresses this overlap by
replacing paragraph 7(1)(l) with a new paragraph 7(1)(l) to provide that a
failure to comply with an implementation plan does not amount to a breach of a
licence condition, to the extent that it deals with the commencement
requirements covered by paragraphs 5(2)(a) and (b) of proposed Schedule 4 to the
BSA or by that part of the scheme that relates to remote licence areas.
AMENDMENTS (4) TO (6)
Amendment (4) makes a consequential amendment to proposed paragraph 7(1)(m)
of Schedule 2 to the BSA.
It is consequential upon proposed subclause
5(6) of Schedule 4 to the BSA (Amendment (18)) which provides that Part B of the
commercial television conversion scheme may make provision for a simulcast
period for a specified remote licence area, throughout which the commercial
television broadcasting licensee for that area is required to transmit
simultaneously the commercial television broadcasting service concerned in both
analog mode and digital mode in that area.
Amendment (5) is a purely
drafting amendment consequential upon Amendment (4).
Amendment (6) makes
a technical amendment to proposed paragraph 7(1)(m) of Schedule 2 to the
BSA.
The intention behind proposed paragraph 7(1)(m) is that a licensee
should broadcast the same program in digital mode as in analog mode – this
is achieved by subparagraph 7(1)(m)(i).
Subparagraph 7(1)(m)(ii) is
intended to enable a commercial television broadcasting licensee who is
simultaneously transmitting a program in both analog and digital mode (in
accordance with paragraph 7(1)(m)(i)) to transmit an additional program in
digital mode using the multi-channel capacity of digital transmission, if the
program is treated by the regulations as ‘incidental and directly
linked’ to the program that is being broadcast at that time in both analog
and digital mode.
However, a possible interpretation of subparagraph
7(1)(m)(ii) is that a commercial broadcaster that is not complying with the
simulcasting requirements in subparagraph 7(1)(m)(i) could broadcast a program
in digital mode which is incidental and directly linked to a different program
that is only being broadcast in analog mode.
Amendment (6) amends
subparagraph 7(1)(m)(ii) of Schedule 2 to the BSA to make it clear that a
program can only be taken to be incidental and directly linked to a program that
is being simultaneously transmitted in both analog and digital mode, in
accordance with subparagraph 7(1)(m)(i).
AMENDMENT (7)
Amendment (7) makes an amendment to item 11 of Schedule 1 to the Bill
consequential upon proposed new subclause 5(7) of Schedule 4 (see Amendment
(18)). The effect of new subclause 5(7) is that the simulcasting requirements
relating to non-remote and remote licence areas will not apply to advertising or
sponsorship matter or to any television programs covered by an ABA
determination.
Amendment (7) applies new subclause 5(7) to the
simulcasting requirements in proposed paragraph 7(1)(m) of Schedule 2 to the
BSA. This will ensure that those simulcasting requirements will also not apply
to advertising or sponsorship matter or to any television programs covered by an
ABA determination.
AMENDMENTS (8) TO (11)
Amendments (8) to (11) insert new definitions in clause 2 of proposed
Schedule 4 to the BSA which deals with digital television broadcasting. Clause
2 contains definitions for the purposes of proposed Schedule 4.
Amendment
(8) inserts a definition of ‘broadcasting transmission tower’ in
clause 2. This term is used in Amendments (28) and (35) as well as in clauses
42 to 44 of proposed Schedule 4 to the BSA dealing with access to broadcasting
transmission towers and sites. As a consequence of the insertion of this
definition in clause 2, the definition of ‘broadcasting transmission
tower’ in clause 40 of proposed Schedule 4 to the BSA will be removed (see
Amendment (64)).
Amendment (9) inserts a definition of
‘radiocommunication’ in clause 2. This term, in its plural form, is
used in Amendment (8). As a consequence of the insertion of this definition in
clause 2, the definition of ‘radiocommunication’ in clause 40 of
proposed Schedule 4 to the BSA will be removed (see Amendment
(65)).
Amendment (10) inserts new definitions of ‘remote coverage
area’ and ‘remote licence area’ consequential upon the
proposed amendments relating to Part B of the commercial television conversion
scheme and the national television conversion scheme dealing with remote licence
and coverage areas (see, for example, Amendments (13), (18), (27), (36), (49),
(50) and (57)). The term ‘remote licence area’ is defined by clause
4A of proposed Schedule 4 to the BSA (see Amendment (12)). The term
‘remote coverage area’ is defined by Amendment (10) to mean an area
(in relation to a national broadcasting service) that corresponds to a remote
licence area.
Amendment (11) replaces the definition of ‘simulcast
period’ in clause 2 with a new definition which defines this term for the
purposes of non-remote and remote licence and coverage areas (see paragraphs
5(2)(c) and 17(2)(c) of proposed Schedule 4 to the BSA contained in the Bill and
proposed subclauses 5(6) and 17(6) of that Schedule contained in Amendments (18)
and (36)).
AMENDMENT (12)
Amendment (12) inserts a new clause 4A of proposed Schedule 4 to the BSA
dealing with remote licence areas. New clause 4A will permit the ABA to make a
written determination that a specified licence area is a remote licence area for
the purposes of that Schedule. Any such determination will have effect
accordingly and will be a disallowable instrument. The determination must
therefore be notified in the Commonwealth Gazette, tabled in the
Parliament and will be subject to Parliamentary disallowance.
Commercial
and national broadcasting services are currently provided to remote areas
through a combination of direct transmission by satellite and the retransmission
by terrestrial transmitters of television signals received via
satellite.
The digital conversion scheme will need to be sufficiently
flexible to accommodate the special operational characteristics of remote area
broadcasting and the high cost of providing commercial and national television
broadcasting services to small and isolated communities in remote areas.
AMENDMENTS (13) AND (14)
Amendment (13) inserts a new subclause 5(1A) in proposed Schedule 4 to the
BSA. This new subclause provides that the commercial television conversion
scheme is to be divided into two Parts. Part A of the scheme will deal with
licence areas that are not remote licence areas. Part B of the scheme will deal
with remote licence areas.
Amendment (14) is a consequential amendment.
It will ensure that only Part A of the scheme is directed towards ensuring the
achievement of the policy objectives set out in subclause 5(2) of proposed
Schedule 4 to the BSA.
AMENDMENTS (15) AND (16)
Amendments (15) and (16) will bring the objective relating to the level
of coverage and potential reception quality in metropolitan licence areas into
line with the corresponding objective for regional licence areas (other than
remote licence areas).
Paragraph 5(2)(f) of proposed Schedule 4 to the
BSA provides that it is an objective of the commercial television conversion
scheme that, throughout the simulcast period for a metropolitan 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 is achieved by the transmission of that service in analog mode in
that area.
By contrast, paragraph 5(2)(g) of proposed Schedule 4 to the
BSA provides that it is an objective of the scheme that, ‘as soon as is
practicable’ after the start of the simulcast period for a regional
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.
Amendments (15) and (16) bring the objective relating to the level
of coverage and potential reception quality in metropolitan licence areas into
line with the corresponding objective for regional licence areas (other than
remote licence areas) by omitting paragraph 5(2)(f) and the word
‘regional’ from paragraph 5(2)(g). Paragraph 5(2)(g), as amended,
will apply to any licence area, whether metropolitan or regional, other than a
remote licence area. (The term ‘licence area’ is defined in clause
2 of proposed Schedule 4 to the BSA to mean a licence area for a commercial
television broadcasting licence.)
The amendments will allow metropolitan
licensees who have commenced digital transmission to install additional digital
transmitters over time, as soon as practicable, in accordance with an
implementation plan approved by the ABA, rather than having to install all
digital transmitters or to replicate analog coverage from the commencement of
digital transmission.
AMENDMENT (17)
One of the policy objectives of the commercial television conversion
scheme is that the ABA is to consult commercial television broadcasting
licensees about the implementation of the scheme (paragraph 5(2)(m) of proposed
Schedule 4 to the BSA).
The legal obligations of tower owners and
operators may be affected by the implementation of the conversion scheme, in so
far as they will be subject to the transmitter access regime in proposed Part 5
of Schedule 4 to the BSA if commercial broadcasters are required to install
digital transmitters on broadcasting transmission towers.
It is proposed
that paragraph 5(2)(m) of proposed Schedule 4 to the BSA be supplemented by a
new consultation requirement in proposed paragraph 5(2)(n). This new
requirement will provide that Part A of the commercial television conversion
scheme (dealing with non-remote licence areas) must, among other things, be
directed towards ensuring the achievement of 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.
Related amendments are Amendments (28), (35) and (51).
AMENDMENT (18)
Amendment (18) will:
• enable Part A of the commercial
television conversion scheme (dealing with non-remote licence areas) to allow
temporary test transmissions of a commercial television broadcasting service to
be made in digital mode before the commencement of the simulcast
period;
• ensure that Part A of the scheme may make provision for
the location of digital transmitters at different broadcasting transmission
sites, where the ABA is satisfied that an alternative location is
appropriate;
• enable Part B of the scheme (dealing with remote
licence areas) to make provision for a simulcast period for a remote licence
area; and
• ensure that the simulcasting requirements applying to
commercial television broadcasting licensees in non-remote and remote licence
areas will not apply to advertising or sponsorship matter or individual
television programs or transmission arrangements covered by an ABA
determination.
Test transmissions
The first objective of
the commercial television conversion scheme is that each commercial television
broadcasting licensee 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 (paragraph 5(2)(a) of proposed Schedule 4 to
the BSA).
The second policy objective of the conversion scheme is that
each commercial television broadcasting licensee for a regional licence area
will be required to commence transmitting the commercial television broadcasting
service concerned in digital mode in that area by such date during the period
beginning on 1 January 2001 and ending immediately before 1 January 2004 as the
ABA determines under the conversion scheme (paragraph 5(2)(b) of proposed
Schedule 4 to the BSA).
Subclause 5(3) of proposed Schedule 4 to the
BSA makes it clear that nothing in subclause 5(2) prevents the digital
conversion scheme from allowing a commercial television broadcasting licensee
for a regional licence area to transmit its television programs in digital mode
in that area during the whole or a part of the period beginning on 1 January
2001 and ending immediately before the start of the simulcast period for that
area, provided the transmission complies with such requirements as are
ascertained in accordance with the scheme. This provision is intended to ensure
that there is sufficient flexibility in the digital conversion scheme to allow a
regional licensee to commence digital transmission before the formal simulcast
period begins.
In addition, Amendment (18) will insert a new subclause
5(4) of Schedule 4 to the BSA to permit Part A of the conversion scheme (dealing
with non-remote licence areas) to allow a commercial television broadcasting
licensee to conduct temporary test transmissions of its commercial television
service in digital mode during a period beginning before the start of the
simulcast period for the licence area concerned, so long as the transmissions
comply with such requirements as are ascertained in accordance with Part A of
the scheme and occur during a period ascertained in accordance with that Part.
This will allow metropolitan and regional broadcasters to trial digital
transmissions for periods approved by the ABA, before commencing permanent
digital transmission.
Item 3 of Schedule 1 to the Bill will also enable
the ABA to make television spectrum in the broadcasting services bands available
for allocation for the transmission of datacasting services on a temporary
basis.
Location of digital transmitters
One of the
objectives of the commercial television conversion scheme is that, during the
simulcast period for a licence area, there should, as far as practicable, be
co-location of digital and analog transmitters (paragraph 5(2)(h) of proposed
Schedule 4 to the BSA). This is intended to ensure that commercial television
broadcasting licensees can be approved by the ABA to use existing transmission
infrastructure to transmit their commercial television programs in digital mode.
The co-location objective is expressed in terms which recognise that
there will be occasions where commercial television broadcasting licensees will
not be able to use adjacent channels and co-location of analog and digital
transmitters will therefore not be practicable.
However, to ensure that
the co-location objective is not unduly restrictive, proposed subclause 5(5)
makes it clear that nothing in the analog co-location objective in proposed
paragraph 5(2)(h) prevents Part A of the commercial television conversion scheme
(dealing with non-remote licence areas) making provision for the location of
digital transmitters at other broadcasting transmission sites, where the ABA is
satisfied that an alternative location is appropriate having regard to the other
objectives in subclause 5(2), to the costs involved for the licensee concerned
and to such other matters as the ABA considers relevant.
Remote
licence areas––simulcast period
Proposed subclause 5(6)
provides that Part B of the commercial television conversion scheme (dealing
with remote licence areas) 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 commercial television broadcasting licensee
for that area is required to transmit simultaneously the commercial television
broadcasting service concerned in both analog mode and digital mode in that
area.
Exemption from the simulcasting requirements for advertising or
sponsorship matter and television programs covered by an ABA
determination
Amendment (18) also inserts new subclauses 5(7) and
(12) of proposed Schedule 4 to the BSA to the effect that the simulcasting
requirements in paragraph 5(2)(c) and subclause 5(6) of proposed Schedule 4 to
the BSA do not apply in relation to television programs or the broadcast of
advertising or sponsorship matter, whether or not of a commercial kind, covered
by an ABA determination, provided the licensee complies with any conditions
specified in the determination. The definition of ‘program’ in s. 6
of the BSA, in relation to a broadcasting service, is defined to include
advertising or sponsorship matter, whether or not of a commercial
kind.
Proposed subclause 5(8), when read with subsection 46(2) of the
Acts Interpretation Act 1901 provides, in effect that that ABA’s
determination in relation to advertising or sponsorship matter may apply to
specified advertising or sponsorship matter during a specified period (which may
consist of the simulcast period for the licence area concerned) or to a class of
advertising or sponsorship matter transmitted during that period. It may apply
to a specified licensee or a specified class of licensees. The specified
advertising or sponsorship matter may consist of all advertising or sponsorship
matter transmitted by the licensee or class of licensee
concerned.
Proposed subclause 5(9), when read with subsection 46(2) of
the Acts Interpretation Act 1901 provides, in effect, that the
ABA’s determination in relation to television programs may exempt
specified television programs or specified classes of television programs
transmitted by a specified commercial television broadcasting licensee or a
specified class of commercial television broadcasting licensees during a
specified period. This would, for example, allow the ABA to approve
‘one-off’ programs, or arrangements for digital transmission of a
commercial television ‘network feed’.
However, the ABA will
not be permitted to make a determination under either subclause 5(8) or (9)
unless it is satisfied that, on the assumption that the determination were made,
the digital version of the commercial television service concerned will be
‘substantially the same’ as the analog version of that service
(proposed subclause 5(10)).
The provisions in subsections 33(3), (3A) and
(3B) of the Acts Interpretation Act 1901 in relation to instruments will
also apply to the ABA’s determination under subclauses 5(8) and (9). This
will allow the ABA, for example, to revoke or vary any such determination in the
same manner and subject to the same conditions as applied to the making of the
original determination (see subclause 14(2) of proposed Schedule 4 to the
BSA).
Proposed subclause 5(11) provides that the ABA’s
determination under subclause 5(8) or (9) is a disallowable instrument. The
determination must therefore be notified in the Commonwealth Gazette,
tabled in the Parliament and will be subject to Parliamentary
disallowance.
AMENDMENT (19)
Subclause 7(2) of proposed Schedule 4 to the BSA requires the commercial
television conversion scheme to make provision for requiring a commercial
television broadcasting licensee to surrender its digital transmitter licence or
licences if:
(a) the licensee does not commence digital transmission in
accordance with paragraph 5(2)(a) or (b) of proposed Schedule 4 to the BSA;
or
(b) the licensee commences digital transmission in accordance with
those requirements but does not continue digital transmission throughout the
simulcast period for the licence area concerned;
and the licensee does
not satisfy the ABA that there are ‘exceptional
circumstances’.
The effect of Amendment (19) is that this
requirement will continue to apply where a licensee fails to commence digital
transmission in non-remote licence areas and does not satisfy the ABA that there
are exceptional circumstances (new subclause 7(2)) but not where the licensee
ceases digital transmission during the simulcast period for a non-remote licence
area (new subclause 7(2A)). Amendment (19) will enable the ABA to give a
commercial television broadcasting licensee that has complied with commencement
obligations an opportunity to rectify a subsequent breach of its digital
transmission requirements, before being required to surrender its digital
transmitter licence or licences.
Under new subclause 7(2A), Part A of the
conversion scheme (dealing with non-remote licence areas) must make provision
for requiring the ABA, before taking action to require a licensee to surrender
its digital transmitter licence or licences because of a failure to continue to
transmit in digital mode during the simulcast period, to give a written notice
to the licensee directing it to resume digital transmission in the licence area
concerned within a period not exceeding one month and to continue digital
transmission throughout the simulcast period for that area. If the licensee
does not comply with such a direction and does not satisfy the ABA that there
are exceptional circumstances, it will be required to surrender its digital
transmitter licence or licences. If the licensee does comply with the
direction, it will not be required to surrender its digital transmitter licence
or licences.
AMENDMENTS (20) TO (22)
Amendments (20) to (22) are consequential upon the proposed division of
the commercial television conversion scheme into two Parts, namely Part A,
dealing with non-remote licence areas, and Part B, dealing with remote licence
areas.
Amendments (20) to (22) will ensure that subclauses 7(3) to (5) of
proposed Schedule 4 to the BSA, dealing with the return of spectrum at the end
of the simulcast period, will apply only in relation to Part A of the scheme.
Proposed subclause 7(9) (Amendment (26)) will enable Part B of the
scheme to make provision for requiring a commercial television broadcasting
licensee to surrender one or more analog or digital transmitter licences
relating to a remote licence area if the licensee does not comply with a
specified requirement of that Part of the scheme.
AMENDMENT (23)
Subclause 7(6) of proposed Schedule 4 to the BSA provides that the
commercial television conversion scheme must make provision for requiring the
commercial television broadcasting licensee for a licence area who breaches a
High Definition Television (HDTV) standard under subclause 34(1) of proposed
Schedule 4 to the BSA to surrender its digital transmitter licence or digital
transmitter licences for that area, unless the licensee satisfies the ABA that
there are exceptional circumstances.
The effect of Amendment (23) is to
enable the ABA to give a commercial television broadcasting licensee in relation
to a non-remote licence area that has complied with commencement obligations an
opportunity to rectify any breach of an HDTV standard, before being required to
surrender its digital transmitter licence or licences.
Under new
subclause 7(6), Part A of the conversion scheme (dealing with non-remote licence
areas) must make provision for requiring the ABA, before taking action to
require a licensee to surrender its digital transmitter licence or licences
because of a failure to comply with an HDTV standard during the simulcast
period, to give a written notice to the licensee directing it to comply with the
standard in the licence area concerned within a period not exceeding one month.
If the licensee does not comply with such a direction and does not satisfy the
ABA that there are exceptional circumstances, it will be required to surrender
its digital transmitter licence or licences. If the licensee does comply with
the direction, it will not be required to surrender its digital transmitter
licence or licences.
AMENDMENT (24)
Amendment (24) makes a technical amendment to subclause 7(7) of proposed
Schedule 4 to the BSA to give effect to its intention.
Subclause 7(7)
provides that if a commercial television broadcasting licensee has failed to
meet an HDTV standard and is required to surrender a digital transmitter
licence, the commercial television conversion scheme may make provision for
requiring the ACA to issue a replacement transmitter licence provided the amount
of bandwidth covered by the replacement licence is less than the amount covered
by the surrendered licence.
Amendment (24) amends the second sentence of
subclause 7(7). The intention behind this sentence is to enable the legislative
scheme formulated by the ABA to require a licensee who has breached HDTV
standards to operate a digital transmitter that will only be sufficient to
provide television programs in standard definition format. This intention is
not, however, achieved by the current wording of the sentence. If the ACA were
to issue a replacement digital transmitter licence covering less bandwidth than
the surrendered licence, it would not be technically possible for the licensee
to operate a digital transmitter to provide television programs in standard
definition format, as the available transmitter and reception equipment would
all be designed to operate on a 7 MHz band. A restriction which limits the
licensee must therefore be achieved by a restriction on the transmission
capacity available to that licensee, such that the licensee is restricted to
transmitting only sufficient data to provide a standard definition television
(SDTV) signal.
The second sentence of subclause 7(7) will therefore be
replaced by a sentence to the effect that the amount of transmission capacity
covered by the replacement licence must be less than the amount of transmission
capacity covered by the surrendered licence. The concept of ‘transmission
capacity’ is used in paragraph 5(2)(l) of proposed Schedule 4 to the
BSA.
AMENDMENT (25)
Amendment (25) is consequential upon the proposed division of the
commercial television conversion scheme into two Parts, namely Part A, dealing
with non-remote licence areas, and Part B, dealing with remote licence
areas.
Amendment (25) will ensure that subclause 7(8) of proposed
Schedule 4 to the BSA, dealing with the variation of an analog transmitter
licence to allow digital transmission, will apply only in relation to Part A of
the scheme.
Proposed subclause 7(10) (Amendment (26)) deals with
variation of an analog transmitter licence in relation to a remote licence area
to allow digital transmission in that area.
AMENDMENT (26)
Amendment (26) inserts proposed subclauses 7(9) and (10) in proposed Schedule
4 to the BSA in relation to remote licence areas.
Proposed subclause 7(9)
will enable Part B of the scheme (dealing with remote licence areas) to make
provision for requiring a commercial television broadcasting licensee to
surrender one or more analog or digital transmitter licences relating to a
remote area if the licensee does not comply with a specified requirement of that
Part of the scheme.
Proposed subclause 7(10) will enable Part B of the
scheme to make provision for requiring the ACA to vary the conditions of an
analog transmitter licence in relation to a remote licence area to ensure that
the licence authorises digital transmission of a commercial television
broadcasting service in that area.
AMENDMENT (27)
Amendment (27) inserts a new clause 12A of proposed Schedule 4 to the
BSA.
Under new clause 12A, in formulating or varying Part B of the
commercial television conversion scheme (dealing with remote licence areas), and
determining the extent to which the objectives of Part B should differ from
those in Part A of the scheme in relation to non-remote licence areas, the ABA
will be required to have regard, among other things, to the special
circumstances that apply to the transmission of commercial television
broadcasting services in remote licence areas.
AMENDMENT (28)
Amendment (28) amends clause 16 of proposed Schedule 4 to the BSA which
provides for the ABA to consult with various parties, including the public and
commercial and national broadcasters, in formulating or varying the commercial
television conversion scheme. There is, however, no express requirement for the
ABA to consult with the owners and operators of broadcasting transmission
towers.
Digital conversion schemes will affect the legal obligations of
owners or operators of broadcasting transmission towers, to the extent that the
digital access regime in Part 5 of proposed Schedule 4 to the BSA will apply to
the installation of digital transmitters at broadcasting transmission
sites.
Amendment (28) will require the ABA, in formulating or varying the
commercial television conversion scheme, to make provision for consultation with
the owners and operators of broadcasting transmission towers.
Related
amendments are Amendments (17), (35) and (51).
AMENDMENTS (29) AND (30)
Amendment (29) inserts a new subclause 17(1A) in proposed Schedule 4 to the
BSA. This new subclause provides that the national television conversion scheme
is to be divided into two Parts. Part A of the scheme will deal with coverage
areas that are not remote licence areas. Part B of the scheme will deal with
remote coverage areas. A remote coverage area is a coverage area in relation to
a national broadcasting service that corresponds to a remote licence area as
defined in proposed clause 4A (see Amendments (10) and (12)).
Amendment
(30) is a consequential amendment. It will ensure that only Part A of the
scheme is directed towards ensuring the achievement of the policy objectives set
out in subclause 17(2) of proposed Schedule 4 to the BSA.
AMENDMENTS (31) AND (32)
Amendments (31) and (32), in conjunction with Amendment (36), will ensure
that, in relation to the ABC and SBS, the end of the simulcast period for a
metropolitan or regional coverage area (other than a remote coverage area) is
the same as that applicable to commercial television broadcasting services in
the licence area corresponding to the coverage area concerned.
Subclauses
17(4) and (5) of proposed Schedule 4 to the BSA enable the Minister to determine
the simulcast period for national broadcasters in a particular area having
regard to the simulcast period in the corresponding licence area for commercial
television broadcasting licensees. These provisions were primarily intended to
enable the Minister to determine a common end of the simulcast period in a
particular licence area and corresponding coverage area. However, the
provisions would also give the Minister flexibility to determine an end date for
the simulcast period for national broadcasters which was different from that for
commercial broadcasters. After further consideration of this matter, it is
considered more appropriate to provide certainty that the simulcast period will
end on the same day in each licence/coverage area.
Amendment (36)
therefore omits subclauses 17(4) and (5). Together with Amendments (31) and
(32), this will ensure that the end of the simulcast period for a metropolitan
or regional coverage area (other than a remote coverage area) is the same as
that applicable to commercial television broadcasting services in the licence
area corresponding to the coverage area concerned.
AMENDMENTS (33) AND (34)
Amendments (33) and (34) will bring the objective relating to the level
of coverage and potential reception quality in metropolitan coverage areas into
line with the corresponding objective for regional coverage areas (other than
remote coverage areas).
Paragraph 17(2)(f) of proposed Schedule 4 to the
BSA provides that it is an objective of the national television conversion
scheme that, throughout the simulcast period for a metropolitan coverage area,
the transmission of a national 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.
By contrast, paragraph 17(2)(g) of proposed Schedule 4 to the BSA
provides that it is an objective of the scheme that, as soon as is practicable
after the start of the simulcast period for a regional 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.
Amendments (33)
and (34) bring the objective relating to the level of coverage and potential
reception quality in metropolitan coverage areas into line with the
corresponding objective for regional coverage areas (other than remote coverage
areas) by omitting paragraph 17(2)(f) and the word ‘regional’ from
paragraph 17(2)(g). Paragraph 17(2)(g), as amended, will apply to any coverage
area, whether metropolitan or regional, other than a remote coverage area. (The
term ‘coverage area’ is defined in clause 2 of proposed Schedule 4
to the BSA to mean a metropolitan coverage area or a regional coverage
area.)
The amendments will allow national broadcasters who have commenced
digital transmission to install additional digital transmitters over time in
metropolitan coverage areas as soon as practicable, in accordance with an
implementation plan approved by the ABA, rather than having to install all
digital transmitters or to replicate analog coverage from the commencement of
digital transmission.
AMENDMENT (35)
One of the policy objectives of the national television conversion scheme is
that the ABA is to consult national broadcasters about the implementation of the
scheme (paragraph 17(2)(m) of proposed Schedule 4 to the BSA).
The legal
obligations of tower owners and operators may be affected by the implementation
of the conversion scheme, in so far as they will be subject to the transmitter
access regime in proposed Part 5 of Schedule 4 to the BSA if national
broadcasters are required to install digital transmitters on broadcasting
transmission towers.
It is proposed that paragraph 17(2)(m) of proposed
Schedule 4 to the BSA be supplemented by a new consultation requirement in
proposed paragraph 17(2)(n). This new requirement will provide that Part A of
the national television conversion scheme (dealing with non-remote coverage
areas) must, among other things, be directed towards ensuring the achievement of
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.
Related amendments are Amendments (17), (28) and
(51).
AMENDMENT (36)
Amendment (36) will:
• in conjunction with Amendments (31) and
(32), ensure that, in relation to the ABC and SBS, the end of the simulcast
period for a metropolitan or regional coverage area (other than a remote
coverage area) is the same as that applicable to commercial television
broadcasting services in the licence area corresponding to the coverage area
concerned;
• enable Part A of the national television conversion
scheme (dealing with non-remote coverage areas) to allow temporary test
transmissions of a national television broadcasting service to be made in
digital mode before the commencement of the simulcast
period;
• ensure that Part A of the national television conversion
scheme may make provision for the location of digital transmitters at different
broadcasting transmission sites, where the ABA is satisfied that an alternative
location is appropriate;
• enable Part B of the scheme (dealing
with remote coverage areas) to make provision for a simulcast period for a
remote coverage area; and
• ensure that the simulcasting
requirements applying to national broadcasters in non-remote and remote coverage
areas will not apply to advertising or sponsorship matter or to any individual
television programs or transmission arrangements covered by an ABA
determination.
End of the simulcast period
Subclauses 17(4)
and (5) of proposed Schedule 4 to the BSA enable the Minister to determine the
simulcast period for national broadcasters in a particular area having regard to
the simulcast period in the corresponding licence area for commercial television
broadcasting licensees. These provisions were primarily intended to enable the
Minister to determine a common end of the simulcast period in a particular
licence area and corresponding coverage area. However, the provisions would
also give the Minister flexibility to determine an end date for the simulcast
period for national broadcasters which was different from that for commercial
broadcasters. After further consideration of this matter, it is considered more
appropriate to provide certainty that the simulcast period will end on the same
day in each licence/coverage area.
Amendment (36) therefore omits
subclauses 17(4) and (5). Together with Amendments (31) and (32), this will
ensure that the end of the simulcast period for a metropolitan or regional
coverage area (other than a remote coverage area)
is the same as that
applicable to commercial television broadcasting services in the licence area
corresponding to the coverage area concerned.
Test
transmissions
The first policy objective of the national television
conversion scheme is that the ABC and SBS will be required to commence
transmitting the national television broadcasting service concerned in digital
mode in metropolitan coverage areas on 1 January 2001 (paragraphs 17(2)(a) and
18(3)(a) of proposed Schedule 4 to the BSA).
The second policy objective
of the conversion scheme is that the ABC and SBS be required to commence
transmitting the national television broadcasting service concerned in digital
mode in regional coverage areas on or after 1 January 2001 so that all such
areas have digital transmission of the service by 1 January 2004 (paragraphs
17(2)(b) and 18(3)(a) of proposed Schedule 4 to the BSA).
Subclause 17(3)
of proposed Schedule 4 to the BSA makes it clear that nothing in subclause 17(2)
prevents the conversion scheme from allowing the ABC or SBS to transmit its
television programs in digital mode in a regional coverage area during the whole
or a part of the period beginning on 1 January 2001 and ending immediately
before the start of the simulcast period for that area, provided the
transmission complies with such requirements as are ascertained in accordance
with the scheme. This provision is intended to ensure that there is sufficient
flexibility in the digital conversion scheme to allow the ABC and SBS to
commence digital transmission in a regional coverage area before the formal
simulcast period begins.
In addition, Amendment (36) will insert a new
subclause 17(4) of Schedule 4 to the BSA to permit Part A of the national
television conversion scheme (dealing with non-remote coverage areas) to allow
the ABC or SBS to conduct temporary test transmissions of its national
television service in digital mode during a period beginning before the start of
the simulcast period for the coverage area concerned, so long as the
transmissions comply with such requirements as are ascertained in accordance
with Part A of the scheme and occur during a period ascertained in accordance
with that Part. This will allow the ABC and SBS to trial digital transmissions
for periods approved by the ABA, before commencing permanent digital
transmission.
Item 3 of Schedule 1 to the Bill will also enable the ABA
to make television spectrum in the broadcasting services bands available for
allocation for the transmission of datacasting services on a temporary
basis.
Location of digital transmitters
One of the
objectives of the national television conversion scheme is that, during the
simulcast period for a coverage area, there should, as far as practicable, be
co-location of digital and analog transmitters (paragraph 17(2)(h) of proposed
Schedule 4 to the BSA). This is intended to ensure that national television
broadcasters can be approved by the ABA to use existing transmission
infrastructure to transmit their television programs in digital mode.
The co-location objective is expressed in terms which recognise that
there will be occasions where national broadcasters will not be able to use
adjacent channels and co-location of analog and digital transmitters will
therefore not be practicable.
However, to ensure that the co-location
objective is not unduly restrictive, proposed subclause 17(5) makes it clear
that nothing in the analog co-location objective in proposed paragraph 17(2)(h)
prevents the national television conversion scheme making provision for the
location of digital transmitters at other broadcasting transmission sites, where
the ABA is satisfied that an alternative location is appropriate having regard
to the other objectives in subclause 17(2), to the costs involved for the
national broadcaster concerned and to such other matters as the ABA considers
relevant.
Remote coverage areas––simulcast
period
Proposed subclause 17(6) provides that Part B of the national
television conversion scheme (dealing with remote coverage areas) may make
provision for a transitional period for a specified remote coverage area, that
is to be known as the ‘simulcast period’, throughout which the
national broadcaster is required to transmit simultaneously the national
television broadcasting service concerned in both analog mode and digital mode
in that area.
Exemption from the simulcasting requirements for
advertising or sponsorship matter and television programs covered by an ABA
determination
Amendment (36) also inserts a new subclauses 17(7) and
(12) of proposed Schedule 4 to the BSA to the effect that the simulcasting
requirements in paragraph 17(2)(c) and subclause 17(6) of proposed Schedule 4 to
the BSA do not apply in relation to the broadcast of television programs by the
ABC or SBS or the broadcast of advertising or sponsorship matter by the SBS,
whether or not of a commercial kind, covered by an ABA determination, provided
the ABC or SBS complies with any conditions specified in the
determination.
The definition of ‘program’ in s. 6 of the
BSA, in relation to a broadcasting service, is defined to include advertising or
sponsorship matter, whether or not of a commercial kind. The SBS is permitted
to broadcast advertisements and sponsorship announcements, other than election
advertisements, for up to five minutes in any hour; and which must occur between
programs, or in natural breaks within programs: Special Broadcasting Service
Act 1991, ss. 45 and 70C. The ABC is not permitted to broadcast
advertisements: Australian Broadcasting Corporation Act, s
31.
Proposed subclause 17(8), when read with subsection 46(2) of the
Acts Interpretation Act 1901 provides, in effect, that the ABA’s
determination in relation to advertising or sponsorship matter transmitted by
the SBS may apply to specified advertising or sponsorship matter during a
specified period (which may consist of the simulcast period for the coverage
area concerned) or to a class of advertising or sponsorship matter transmitted
during that period. The specified advertising or sponsorship matter may consist
of all advertising or sponsorship matter transmitted by the SBS.
Proposed
subclause 17(9), when read with subsection 46(2) of the Acts Interpretation
Act 1901 provides, in effect, that the ABA’s determination in relation
to television programs may exempt specified television programs or specified
classes of television programs transmitted by a specified national broadcaster
or a specified class of national broadcasters during a specified period. This
would, for example, allow the ABA to approve ‘one-off’ programs, or
arrangements for digital transmission of a television ‘network
feed’.
However, the ABA will not be permitted to make a
determination under either subclause 17(8) or (9) unless it is satisfied that,
on the assumption that the determination were made, the digital version of the
national television broadcasting service concerned will be ‘substantially
the same’ as the analog version of that service (proposed subclause
17(10)).
The provisions in subsections 33(3), (3A) and (3B) of the
Acts Interpretation Act 1901 in relation to instruments will also apply
to the ABA’s determination under subclauses 17(8) and (9). This will
allow the ABA, for example, to revoke or vary any such determination in the same
manner and subject to the same conditions as applied to the making of the
original determination (see subclause 14(2) of proposed Schedule 4 to the
BSA).
Proposed subclause 17(11) provides that the ABA’s
determination under subclause 17(8) or (9) is a disallowable instrument. The
determination must therefore be notified in the Commonwealth Gazette,
tabled in the Parliament and will be subject to Parliamentary
disallowance.
AMENDMENTS (37) TO (41)
Amendments (37) to (41) are consequential upon the proposed division of the
national television conversion scheme into two Parts, namely Part A, dealing
with non-remote coverage areas, and Part B, dealing with remote coverage areas
(see Amendment (29)).
Amendments (37) to (40) relate to subclause 18(3)
of proposed Schedule 4 which deals with the matters the Minister must have
regard to in deciding whether to approve the ABC’s or SBS’s
implementation plan relating to the conversion from analog to digital
transmission. The amendments will ensure that subclause 18(3) applies only to
an implementation plan that relates to a non-remote coverage
area.
Amendment (41) will ensure that, in deciding whether to approve an
implementation plan that relates to a remote coverage area, the Minister must
have regard to the special circumstances that apply to the transmission of
national television broadcasting services in that area. As a result of
paragraph 18(3)(c) of proposed Schedule 4 to the BSA, the Minister must also
have regard to such other matters (if any) as the Minister considers
relevant.
AMENDMENT (42)
Subclause 21(2) of proposed Schedule 4 to the BSA requires the national
television conversion scheme to make provision for requiring a national
broadcaster to surrender its digital transmitter licence or licences
if:
(a) it does not commence digital transmission in accordance with
paragraph 17(2)(a) or (b) of proposed Schedule 4 to the BSA; or
(b) it
commences digital transmission in accordance with those requirements but does
not continue digital transmission throughout the simulcast period for the
coverage area concerned;
and it does not satisfy the ABA that there are
‘exceptional circumstances’.
The effect of Amendment (42) is
that this requirement will continue to apply where a national broadcaster fails
to commence digital transmission in a non-remote coverage area (new subclause
21(2)) but not where the national broadcaster ceases digital transmission during
the simulcast period for a non-remote coverage area (new subclause 21(2A)).
Amendment (42) will enable the ABA to give a national television broadcaster
that has complied with commencement obligations an opportunity to rectify a
subsequent breach of its digital transmission requirements, before being
required to surrender its digital transmitter licence or licences.
Under
new subclause 21(2A), Part A of the conversion scheme (dealing with non-remote
coverage areas) must make provision for requiring the ABA, before taking action
to require a national broadcaster to surrender its digital transmitter licence
or licences because of a failure to continue to transmit in digital mode during
the simulcast period, to give a written notice to the national broadcaster
directing it to resume digital transmission in the non-remote coverage area
concerned within a period not exceeding one month and to continue digital
transmission throughout the simulcast period for that area. If the national
broadcaster does not comply with such a direction and does not satisfy the ABA
that there are exceptional circumstances, it will be required to surrender its
digital transmitter licence or licences. If the national broadcaster does
comply with the direction, it will not be required to surrender its digital
transmitter licence or licences.
AMENDMENTS (43) TO (45)
Amendments (43) to (45) are consequential upon the proposed division of
the national television conversion scheme into two Parts, namely Part A, dealing
with non-remote coverage areas, and Part B, dealing with remote coverage areas
(see Amendment (29)).
Amendments (43) to (45) will ensure that subclauses
21(3) to (5) of proposed Schedule 4 to the BSA, dealing with the return of
spectrum at the end of the simulcast period, will apply only in relation to Part
A of the scheme.
Proposed subclause 21(9) (Amendment (49)) will enable
Part B of the scheme to make provision for requiring a national broadcaster to
surrender one or more analog or digital transmitter licences relating to a
remote coverage area if the national broadcaster does not comply with a
specified requirement of that Part of the scheme.
AMENDMENT (46)
Subclause 21(6) of proposed Schedule 4 to the BSA provides that the
national television conversion scheme must make provision for requiring a
national broadcaster who breaches a High Definition Television (HDTV) standard
under subclause 34(1) of proposed Schedule 4 to the BSA to surrender its digital
transmitter licence or digital transmitter licences for that area, unless the
national broadcaster satisfies the ABA that there are exceptional
circumstances.
The effect of Amendment (46) is to enable the ABA to give
a national broadcaster that has complied with commencement obligations an
opportunity to rectify a subsequent breach of an HDTV standard, before being
required to surrender its digital transmitter licence or licences.
Under
new subclause 21(6), Part A of the conversion scheme (dealing with non-remote
coverage areas) must make provision for requiring the ABA, before taking action
to require a national broadcaster to surrender its digital transmitter licence
or licences because of a failure to comply with an HDTV standard during the
simulcast period, to give a written notice to the national broadcaster directing
it to comply with the standard in the coverage area concerned within a period
not exceeding one month. If the national broadcaster does not comply with such
a direction and does not satisfy the ABA that there are exceptional
circumstances, it will be required to surrender its digital transmitter licence
or licences. If the national broadcaster does comply with the direction, it
will not be required to surrender its digital transmitter licence or
licences.
AMENDMENT (47)
Amendment (47) makes a technical amendment to subclause 21(7) of proposed
Schedule 4 to the BSA to give effect to its intention.
Subclause 21(7)
provides that if a national television broadcaster has failed to meet an HDTV
standard and is required to surrender a digital transmitter licence, the
national television conversion scheme may make provision for requiring the ACA
to issue a replacement transmitter licence provided the amount of bandwidth
covered by the replacement licence is less than the amount covered by the
surrendered licence.
Amendment (47) amends the second sentence of
subclause 21(7). The intention behind this sentence is to enable the
legislative scheme formulated by the ABA to require a national broadcaster who
has breached HDTV standards to operate a digital transmitter that will only be
sufficient to provide television programs in standard definition format. This
intention is not, however, achieved by the current wording of the sentence. If
the ACA were to issue a replacement digital transmitter licence covering less
bandwidth than the surrendered licence, it would not be technically possible for
the national broadcaster to operate a digital transmitter to provide television
programs in standard definition format, as the available transmitter and
reception equipment would all be designed to operate on a 7 MHz band. A
restriction which limits the national broadcaster must therefore be achieved by
a restriction on the transmission capacity available to that broadcaster, such
that the broadcaster is restricted to transmitting only sufficient data to
provide a standard definition television (SDTV) signal.
The second
sentence of subclause 21(7) will therefore be replaced by a sentence to the
effect that the amount of transmission capacity covered by the replacement
licence must be less than the amount of transmission capacity covered by the
surrendered licence. The concept of ‘transmission capacity’ is used
in paragraph 17(2)(l) of proposed Schedule 4 to the BSA.
AMENDMENT (48)
Amendment (48) is consequential upon the proposed division of the
national television conversion scheme into two Parts, namely Part A, dealing
with non-remote coverage areas, and Part B, dealing with remote coverage areas
(see Amendment (29)).
Amendment (48) will ensure that subclause 21(8) of
proposed Schedule 4 to the BSA, dealing with the variation of an analog
transmitter licence to allow digital transmission, will apply only in relation
to Part A of the scheme.
Proposed subclause 21(10) (Amendment (49))
deals with variation of an analog transmitter licence in relation to a remote
coverage area to allow digital transmission in that area.
AMENDMENT (49)
Amendment (49) inserts proposed subclauses 21(9) and (10) in proposed
Schedule 4 to the BSA in relation to remote coverage areas.
Proposed
subclause 21(9) will enable Part B of the scheme (dealing with remote coverage
areas) to make provision for requiring a national broadcaster to surrender one
or more analog or digital transmitter licences relating to a remote coverage
area if the national broadcaster does not comply with a specified requirement of
that Part of the scheme.
Proposed subclause 21(10) will enable Part B of the scheme to make provision
for requiring the ACA to vary the conditions of an analog transmitter licence in
relation to a remote coverage area to ensure that the licence authorises digital
transmission of a national television broadcasting service in that area.
AMENDMENT (50)
Amendment (50) inserts a new clause 25A of proposed Schedule 4 to the
BSA.
Under new clause 25A, in formulating or varying Part B of the
national television conversion scheme (dealing with remote coverage areas), and
determining the extent to which the objectives of Part B should differ from
those in Part A of the scheme in relation to non-remote coverage areas, the ABA
will be required to have regard, among other things, to the special
circumstances that apply to the transmission of national television broadcasting
services in remote coverage areas.
AMENDMENT (51)
Amendment (51) amends clause 30 of proposed Schedule 4 to the BSA which
provides for the ABA to consult with various parties, including the public and
national and commercial broadcasters, in formulating or varying the national
television conversion scheme. There is, however, no express requirement for the
ABA to consult with the owners and operators of broadcasting transmission
towers.
Digital conversion schemes will affect the legal obligations of
owners or operators of broadcasting transmission towers, to the extent that the
digital access regime in Part 5 of proposed Schedule 4 to the BSA will apply to
the installation of digital transmitters at broadcasting transmission
sites.
Amendment (51) will require the ABA, in formulating or varying the
national television conversion scheme, to make provision for consultation with
the owners and operators of broadcasting transmission towers.
Related
amendments are Amendments (17), (28) and (35).
AMENDMENT (52)
Amendment (52) makes a consequential amendment to clause 32 of proposed
Schedule 4 to the BSA.
It is consequential upon proposed subclause 17(6)
of Schedule 4 to the BSA (Amendment (36)) which provides that Part B of the
national television conversion scheme may make provision for a simulcast period
for a specified remote coverage area, throughout which the national broadcaster
is required to transmit simultaneously the national broadcasting service
concerned in both analog mode and digital mode in that area.
AMENDMENT (53)
Amendment (53) makes a technical amendment to paragraph 32(b) of proposed
Schedule 4 to the BSA which deals with simulcasting requirements for national
broadcasters.
The intention behind clause 32 is that a national
broadcaster should broadcast the same program in digital mode as in analog mode
– this is achieved by paragraph 32(a).
Paragraph 32(b) is
intended to enable a national broadcaster who is simultaneously transmitting a
program in both analog and digital mode (in accordance with paragraph
32(a)) to transmit an additional program in digital mode using the multi-channel
capacity of digital transmission, if the program is treated by the regulations
as ‘incidental and directly linked’ to the program that is being
broadcast at that time in both analog and digital mode.
However, a
possible interpretation of paragraph 32(b) is that a national broadcaster that
is not complying with the simulcasting requirements in paragraph 32(a) could
broadcast a program in digital mode which is incidental and directly linked to a
different program that is only being broadcast in analog mode.
Amendment
(53) amends paragraph 32(b) to make it clear that a program can only be taken to
be incidental and directly linked to a program that is being simultaneously
transmitted in both analog and digital mode, in accordance with paragraph
32(a).
AMENDMENT (54)
Amendment (54) makes an amendment to clause 32 of proposed Schedule 4 to the
BSA, consequential upon proposed new subclause 17(7) of Schedule 4 (see
Amendment (36)). The effect of new subclause 17(7) is that the simulcasting
requirements in paragraph 17(2)(c) of proposed Schedule 4 to the BSA and in
proposed subclause 17(6) of that Schedule will not apply to advertising or
sponsorship matter or to any television programs covered by an ABA
determination.
Amendment (54) applies new subclause 17(7) to the
simulcasting requirements in clause 32 of proposed Schedule 4 to the BSA. This
will ensure that those simulcasting requirements will also not apply to
advertising or sponsorship matter or to any television programs covered by an
ABA determination.
AMENDMENT (55)
Amendment (55) makes a technical amendment to clause 33 of proposed Schedule
4 to the BSA.
Clause 33 provides certain restrictions on the use of
digital transmitters (eg. a prohibition on using digital transmitters to provide
an open narrowcasting television service). Under paragraph 32(c) of proposed
Schedule 4 to the BSA, the ABC and SBS will be able to be authorised by
regulations to transmit multi-channel programming if the programs are of a kind
exempted by regulations.
There may be a potential conflict between clause
33 and any regulations made under paragraph 32(c) (ie, the ABC or SBS may be in
breach of the narrowcasting prohibition in clause 33, notwithstanding it is able
to transmit some multi-channel programming under paragraph 32(c)).
For
avoidance of doubt, Amendment (55) makes it clear that the restrictions in
clause 33 do not prevent the ABC or SBS doing anything they are authorised to do
under paragraph 32(1)(c).
AMENDMENTS (56) TO (58)
Under subclause 34(1) of proposed Schedule 4 to the BSA, regulations will be
required to be made to determine standards that require commercial television
broadcasting licensees and the ABC and SBS 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 a specified High
Definition Television (HDTV) format for the transmission of television programs
in digital mode.
Under subclause 34(2), regulations will also be able to
determine non-HDTV standards that are to be observed by free to air television
broadcasters in relation to the format in which television programs are to be
transmitted in digital mode.
It is possible that an HDTV standard will
require broadcasters to comply with one or more of a range of HDTV
formats.
Amendment (56) amends subclause 34(1) to clarify that digital
television format standards made under that clause may relate to a range of
format standards.
Amendments (57) and (58) make further technical
amendments to clause 34 and deal with HDTV standards in remote
areas.
Technical amendments
Under subclauses 7(7) and 21(7)
of proposed Schedule 4 to the BSA, as proposed to be amended, if a licensee or
national broadcaster has failed to meet HDTV standards and is required to
surrender a digital transmitter licence, the conversion schemes may make
provision for requiring the ACA to issue a replacement transmitter licence
provided the amount of transmission capacity covered by the replacement licence
is less than the amount covered by the surrendered licence. The intention is to
enable the legislative scheme formulated by the ABA to require a licensee or
national broadcaster who has breached HDTV standards to operate a digital
transmitter that will only be sufficient to provide television programs in
standard definition (SDTV) format.
Amendment (57) (proposed subclauses
34(1B) and (1C)) and Amendment 58 (proposed subclauses 34(2A) and (2B)) make it
clear that the digital television format standards determined by the regulations
will not apply if:
(a) a commercial television broadcasting licensee or a
national broadcaster is no longer in a position to comply with such standards
because its digital transmitter licence was forced to be surrendered;
or
(b) subclauses 7(7) and 21(7) of proposed Schedule 4 to the BSA apply
and a licensee or national broadcaster is required to operate a digital
transmitter that will only be sufficient to provide television programs in SDTV
format rather than HDTV format.
HDTV standards––remote
areas
Proposed subclause 34(1A) of Schedule 4 to the BSA (to be
inserted by Amendment (57)) provides that the HDTV requirements in subclause
34(1) do not apply in relation to the transmission of a commercial television
broadcasting service or a national television broadcasting service in a remote
licence or coverage area.
Proposed subclause 34(1D) allows regulations to
be made to determine standards requiring commercial television broadcasting
licensees and national broadcasters to meet specified goals or targets in remote
areas in relation to the extent to which television programs, or specified kinds
of television programs, are transmitted in accordance with one or more specified
HDTV formats relating to the transmission of television programs in digital
mode.
Proposed subclauses 34(1E) and (1F) provide that subclause 34(1D)
will not apply in relation to the transmission of a commercial television
broadcasting service or a national television broadcasting service in a licence
or coverage area unless that area is a remote licence or coverage area, that
service is transmitted in digital mode in that area and the service is not
transmitted using a transmitter operated under a transmitter licence issued
under subclause 7(7) or 21(7) (which will not permit transmission in HDTV
format).
AMENDMENT (59)
Subclause 35(1) of proposed Schedule 4 to the BSA requires regulations to
be developed to determine standards that are to be observed by free to air
television broadcasters in relation to the captioning of television programs for
the deaf and hearing impaired.
The term ‘program’ is defined
in s. 6 of the BSA to include advertising or sponsorship matter, whether or not
of a commercial kind. It is proposed that the captioning of commercial
advertisements and sponsorship be a decision for the advertiser rather than the
broadcaster and therefore be exempted from the captioning requirements in clause
35.
Accordingly, Amendment (59) inserts a new subclause 35(8) which
provides that in clause 35 the term ‘program’ does not include
advertising or sponsorship matter (whether or not of a commercial
kind).
The following legislative provisions are relevant to this proposed
amendment:
(a) The BSA and related codes of practice include rules
relating to the amount, content and placement of broadcast
advertising.
(b) The SBS is permitted to broadcast advertisements and
sponsorship announcements, other than election advertisements, for up to five
minutes in any hour; and which must occur between programs, or in natural breaks
within programs: Special Broadcasting Service Act 1991, ss. 45 and 70C.
(c) The ABC is not permitted to broadcast advertisements: Australian
Broadcasting Corporation Act, s 31.
AMENDMENTS (60) TO (63)
Clauses 36 and 37 of proposed Schedule 4 to the BSA provide that technical
standards for digital transmission of television broadcasting services and
standards in relation to the provision of datacasting services in digital mode
can be determined in regulations.
Amendments (60) to (63) augment the
standard making provisions in clauses 36 and 37 by requiring that standards
which deal with conditional access systems be directed towards the objective
that, as far as practicable, those systems should be open to all providers of
broadcasting services or datacasting services.
Conditional access systems
relate to the additional layer of encryption coding that is used to restrict
reception of a broadcast to a user or group of users (such as subscribers to a
pay TV or data service). Decryption can be provided via hardware or software in
the reception device, which may incorporate use of a smart
card.
Amendments (60) and (61) amend clause 36.
Proposed
subclause 36(1A) (inserted by Amendment (60)) provides that to the extent that
technical standards for digital transmission of television broadcasting services
determined under subclause 36(1) deal with conditional access systems, they 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.
Amendment (61) inserts a new definition of
‘conditional access system’ in proposed subclause 36(4). It
provides that, in clause 36, ‘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 service transmitted in digital mode using the broadcasting services
bands.
Amendments (62) and (63) amend clause 37.
Proposed
subclause 37(1A) (inserted by Amendment (62)) provides that to the extent that
datacasting standards determined under subclause 37(1) deal with conditional
access systems, they 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.
Amendment (63) inserts a new definition of ‘conditional
access system’ in proposed subclause 37(4). It provides that, in clause
37, ‘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.
AMENDMENTS (64) AND (65)
Amendments (64) and (65) are consequential upon Amendments (8) and (9) which
insert the definitions of ‘broadcasting transmission tower’ and
‘radiocommunication’ in clause 2 of proposed Schedule 4 to the BSA.
The term ‘radiocommunication’, in its plural form, is used in the
definition of ‘broadcasting transmission tower’ inserted by
Amendment (8). The term ‘broadcasting transmission tower’ is used
in Amendments (28) and (35) as well as in clauses 42 to 44 of proposed Schedule
4 to the BSA dealing with access to broadcasting transmission towers and
sites.
AMENDMENTS (66) TO (68)
Amendments (66) and (68) will ensure that the access requirements in Part
5 of proposed Schedule 4 to the BSA do not give a commercial television
broadcasting licensee or a national broadcaster an access right in connection
with the transmission of another person’s television broadcasting services
in digital mode.
Paragraphs 42(2)(a) and 43(2)(a) of proposed Schedule 4
to the BSA provide that the owner or operator of a broadcasting transmission
tower is not required to comply with a request for access under subclause 42(1)
or 43(1) unless 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 a
television broadcasting service in digital mode.
As these provisions are
currently worded, they could be interpreted to give a commercial television
broadcasting licensee or a national broadcaster an access right in connection
with the transmission of another person’s television broadcasting service
in digital mode. This is not intended. The access right should only relate to
the transmission by a commercial television broadcasting licensee or a national
broadcaster of one or more of its own television broadcasting services in
digital mode.
Amendment (67) brings the wording of subclause 43(1) more
closely into line with the corresponding provision in the Telecommunications
Act 1997 (see paragraph 34(1)(a) of Schedule 1 to that Act).
The
provisions in clause 43 require a person who is the owner of a broadcasting
transmission tower, if requested to do so by a commercial television
broadcasting licensee or a national broadcaster, to provide access to the
transmission site on which the tower is located. The owner of a site may,
however, be different from the owner of the tower.
Amendment (67) will
make it clear that the obligation to provide access to the site applies to a
tower owner or operator that itself has such access on the basis
that:
(a) the site is owned, occupied or controlled by the owner or
operator of the tower; or
(b) the owner or operator of the tower has a
right (whether conditional or unconditional) to use the site.
AMENDMENT (69)
Clause 45 of proposed Schedule 4 to the BSA provides for a Code to be made by
the ACCC setting out conditions that access seekers and owners and operators of
a broadcasting transmission tower are to comply with in relation to the
provision of access under Part 5 of proposed Schedule 4 to the BSA.
While
it could be reasonably expected that the ACCC would consult industry
participants before making a code under clause 45, it is proposed to amend
clause 45 to include express provisions to this effect.
Amendment (69)
inserts a new subclause 45(1A) which will require the ACCC, before making a Code
relating to access under clause 45, to consult with:
(a) commercial
television broadcasting licensees;
(b) national broadcasters;
and
(c) owners and operators of broadcasting transmission towers.
AMENDMENT (70)
Amendment (70) makes an amendment to paragraph 57(1)(d) of proposed Schedule
4 to the BSA, consequential upon Amendments (31), (32) and
(36).
Paragraph 57(1)(d) provides that before 31 December 2005 the
Minister will be required to arrange for a review to be conducted into whether
the simulcasting requirements introduced by the Bill (including the content of
any Ministerial determination under paragraph 17(2)(c)(ii) about the length of
the simulcast period for the national television conversion scheme) should be
amended or repealed.
The effect of Amendments (31), (32) and (36) will be
that there will no longer be any Ministerial determination about the length of
the simulcast period for the national television conversion scheme. These
amendments will ensure that the end of the simulcast period for a metropolitan
or regional coverage area is the same as that applicable to commercial
television broadcasting services in the licence area corresponding to the
coverage area concerned.
Accordingly, Amendment (70) omits the reference
to a review being conducted into the content of any Ministerial determination
under paragraph 17(2)(c)(ii) about the length of the simulcast period for the
national television conversion scheme.
AMENDMENTS (71) AND (72)
Clause 58 of proposed Schedule 4 to the BSA provides that the ABA will be
able to make written determinations:
(a) fixing charges for any matter in
relation to which expenses are incurred by the ABA under the commercial
television conversion scheme provided for in clause 5 of proposed Schedule 4 to
the BSA or the ABC/SBS television conversion scheme provided for in clause 17 of
that Schedule; and
(b) specifying the persons by whom, and the times
when, the charges are payable.
Provision is made in subclauses 42(5) and
43(5) of proposed Schedule 4 for the owner or operator of a broadcasting
transmission tower to seek a written certificate from the ABA that it is not
technically feasible for the owner or operator to comply with the obligation to
provide a broadcaster with requested access to the tower or transmission site
for the purpose of installing a digital transmitter.
Amendments (71) and
(72) expand the operation of clause 58 to permit the ABA, by written instrument,
to make determinations fixing charges for any matter in relation to which
expenses are incurred by the ABA under subclauses 42(5) and 43(5) and specifying
the persons by whom, and the times when, the charges are payable.
AMENDMENTS (73) AND (74)
Amendments (73) and (74) amend clause 59 of proposed Schedule 4 to the
BSA. These amendments are consequential upon Amendments (19), (23), (42) and
(46).
The effect of Amendments (73) and (74) is that:
(a) a
commercial television broadcasting licensee will be able to apply to the AAT for
a review of an ABA decision under the commercial television conversion scheme
that the licensee has failed to satisfy the ABA that exceptional circumstances
exist as mentioned in subclauses 7(2), (2A) or (6) (which deal with the
surrender of transmitter licences by commercial television broadcasting
licensees); and
(b) a national broadcaster will be able to apply to the
AAT for a review of an ABA decision under the national television conversion
scheme that the broadcaster has failed to satisfy the ABA that exceptional
circumstances exist as mentioned in subclauses 21(2), (2A) or (6) (which deal
with the surrender of transmitter licences by national broadcasters).