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1998
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
THE
SENATE
TELEVISION BROADCASTING
SERVICES
(DIGITAL CONVERSION) BILL 1998
DATACASTING
CHARGE (IMPOSITION) BILL 1998
EXPLANATORY
MEMORANDUM
(Circulated by authority
of Senator the Hon. Richard Alston, Minister for Communications, the Information
Economy and the Arts)
THIS MEMORANDUM TAKES ACCOUNT OF THE AMENDMENTS
MADE BY THE HOUSE OF
REPRESENTATIVES TO THE TELEVISION BROADCASTING SERVICES (DIGITAL CONVERSION)
BILL 1998 AS INTRODUCED
TELEVISION BROADCASTING SERVICES
(DIGITAL CONVERSION) BILL 1998
DATACASTING
CHARGE (IMPOSITION) BILL 1998
OUTLINE
The main purpose of the Television Broadcasting Services (Digital
Conversion) Bill 1998 is to provide a regulatory regime for digital television
broadcasting.
Commercial and national (ABC and SBS) television programs
are currently transmitted to the public in Australia in analog mode, using a
channel bandwidth of 7MHz. Analog television channels can transmit one
continuous stream of programming and some limited data/text embedded in the main
carrier signal.
Digital television is a broadcasting transmission system
which uses digital modulation techniques to transmit television programs. Using
compression technology and the same amount of bandwidth that is used for analog
television, digital television broadcasting transmitters have the technical
capacity to transmit a High Definition television (HDTV) picture, or to transmit
multiple programs at the same time; and can use residual capacity to transmit
data/information (either stand alone or linked to television
programs).
The Bill requires the Australian Broadcasting Authority (ABA)
to formulate legislative schemes for the conversion, over time, of the
transmission of commercial and national (ABC and SBS) television broadcasting
services from analog to digital mode (Parts 2 and 3 of proposed Schedule 4 to
the Broadcasting Services Act 1992 (BSA)). Broadcasters will be required
to meet standards relating to HDTV format transmission of television programs in
digital mode as well as standards relating to captioning of television programs
for the deaf and hearing impaired and such other technical standards as may be
determined in regulations (Part 4 of proposed Schedule 4 to the
BSA).
Part A of the digital conversion scheme formulated by the ABA in
relation to commercial television broadcasting licensees in non-remote licence
areas will be required to meet specified policy objectives – including
that digital transmission commence in metropolitan licence areas on 1 January
2001 and progressively in regional licence areas (other than remote licence
areas) between 1 January 2001 and 1 January 2004, that the digital transmission
of the commercial television broadcasting service be required to achieve the
same level and potential quality of reception as is achieved by analog
transmission in each licence area and that commercial television broadcasters be
allocated channels for their digital transmitters which occupy the same amount
of bandwidth (ie. 7MHz) as analog transmitters (clause 6 of proposed Schedule 4
to the BSA).
Licensees in non-remote licence areas will be required to
transmit in both analog mode and digital mode for at least an 8 year simulcast
period, which may be extended by regulations. At the end of the simulcast
period, analog transmission will cease (clause 6 of proposed Schedule 4 to the
BSA).
Part B of the digital conversion scheme formulated by the ABA in
relation to commercial television broadcasting licensees in remote licence areas
will be able to make provision for a simulcast period (subclause 6(7) of
proposed Schedule 4 to the BSA). In formulating Part B of the scheme and
determining the extent to which the objectives of Part B should differ from
those of Part A, 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 (clause 14 of proposed
Schedule 4 to the BSA).
The ABA will be able to require commercial
television broadcasting licensees to lodge implementation plans (including in
relation to the installation and phased operation of digital transmitters in
regional areas). Licensees will be required, as a condition of licence, to
comply with the digital television conversion scheme and with any implementation
plans that are approved by the ABA in accordance with the scheme (item 10 of
Schedule 1 to the Bill).
The digital television conversion scheme
formulated by the ABA in relation to the national broadcasters will be required
to meet similar statutory objectives (Part 3 of proposed Schedule 4 to the BSA).
However, in recognition that the Minister has overall planning responsibilities
for the national broadcasters and is accountable to Parliament for their
operation, the Bill empowers the Minister to approve implementation plans lodged
by the ABC and the SBS in relation to the commencement of digital
transmission.
Part A of the digital conversion schemes formulated by the
ABA in relation to commercial television broadcasting licensees and the national
broadcasters in non-remote areas must make provision requiring the surrender of
digital transmitter licences if the licensee or national broadcaster fails to
comply with digital service commencement and simulcasting obligations (clauses 8
and 23 of proposed Schedule 4 to the BSA). Where a licensee or national
broadcaster fails to comply with HDTV obligations, there is provision for either
requiring surrender of the transmitter licence, or issuing a replacement licence
which is sufficient to enable transmission of a digital television service, but
which does not enable transmission in HDTV format.
Part B of the schemes
may provide for the surrender of digital transmitter licences if the licensee
does not comply with a specified requirement of that Part of the schemes
(subclauses 8(10) and 23(10) of proposed Schedule 4 to the BSA).
The Bill
prevents commercial television broadcasting licensees and the national
broadcasters from using their digital transmitters to provide subscription
television broadcasting services (item 10 of Schedule 1 to the Bill and clause
36 of proposed Schedule 4 to the BSA). Commercial television
broadcasting licensees will be prohibited from
providing multi-channel services (ie from transmitting more than a simulcast of
their analog television service), but will be able to be authorised by
regulations to broadcast programs that are incidental and directly linked to the
programs transmitted at that time in analog mode (item 10 of Schedule 1 to the
Bill). The ABC and the SBS will also be able to be authorised by regulations to
transmit programming which is incidental and directly linked; and will be able
to transmit multi-channel programming if the programs are of a kind exempted by
regulations (clause 35 of proposed Schedule 4 to the BSA). The Bill requires
reviews to be conducted by 1 January 2001 into the content of the above
regulations and by January 2005 into whether the provisions in the Bill which
prevent subscription television and multi-channelling should be amended or
repealed (Part 8 of proposed Schedule 4 to the BSA).
The Australian
Communications Authority (ACA) will be required by the digital conversion
schemes to allocate existing commercial and national television broadcasters
additional television spectrum, free of upfront charge, to enable them to
simulcast their analog television programs in digital mode (clauses 8 and 23 of
proposed Schedule 4 to the BSA). The Bill permits the existing free to air
television broadcasters to use spare transmission capacity in this spectrum to
provide certain ‘datacasting’ (information/data) services, subject
to the charging regime in the Datacasting Charge (Imposition) Bill 1998
discussed below.
The Bill also makes provision for the ABA to identify
television spectrum which can be used for digital datacasting purposes and which
could be allocated under the existing price-based allocation mechanisms in the
Radiocommunications Act 1992 (Radcom Act) (item 5 of Schedule 1 to the
Bill).
The Bill requires owners and operators of broadcasting
transmission towers to give digital broadcasters and digital datacasters access
to the towers for the purpose of installing or maintaining digital transmitters
(Part 5 of proposed Schedule 4 to the BSA).
As mentioned above, reviews
are required to be conducted before 1 January 2001 of certain elements of the
digital television regulatory scheme. A further review which is required to be
conducted before this date is into the content of regulations which relate to
the scope of the definition of a ‘datacasting service’ (Part 8 of
proposed Schedule 4 to the BSA).
In addition, before 1 January 2001, the
Minister is to arrange for a review to be conducted into whether any amendments
of Commonwealth laws should be made 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.
Underserved regional licence areas are those with fewer than 3 commercial
television broadcasting services (clause 59 of proposed Schedule 4 to the
BSA).
The Bill prohibits the ABA from allocating more than 3 commercial
television broadcasting licences in any licence area before 31 December 2008
(item 1 of Schedule 1 to the Bill). A review is to be conducted before 31
December 2005 to determine whether this prohibition should be extended (clause
60 of proposed Schedule 4 to the BSA).
Further reviews are required to be
conducted before 31 December 2005 into the duration of the simulcast period and
whether all television spectrum has been identified for broadcasting and
datacasting use and has been efficiently structured (clause 60 of proposed
Schedule 4 to the BSA).
The Bill also makes amendments to the BSA and the
Radcom Act consequential upon the digital television broadcasting scheme
provided for in the Bill (Schedules 1 and 2 to the Bill).
The Datacasting
Charge (Imposition) Bill 1998 provides for the imposition of a charge in
relation to the provision of datacasting services, using residual transmission
capacity on channels allocated for digital conversion, by commercial and
national free to air television broadcasters. The amount of this charge will be
determined by the ACA, having regard to any directions issued by the Minister.
Before determining a charge under the Bill, the ACA will be required to provide
a report to the Minister on whether the proposed charge meets competitive
neutrality principles.
FINANCIAL IMPACT
The digital conversion scheme in the Television Broadcasting Services
(Digital Conversion) Bill will provide for the return of ‘loaned’
spectrum to the Commonwealth at the end of the simulcast period, which could
then be allocated for specified purposes in accordance with a price-based
allocation system.
The amount of the datacasting charge to be imposed on
commercial television broadcasters and national television broadcasters under
the Datacasting Charge (Imposition) Bill will be formulated closer to the time
of allocation of the spectrum, in accordance with competitive neutrality
principles and taking into account the price paid for any additional spectrum
which is allocated for datacasting.
REGULATION IMPACT
STATEMENT
B1. Problem or Issue Identification
Digital technology has
been increasingly used in information and communication technology for more than
thirty years. In recent years this technology has advanced to a stage where it
is now technologically possible, and relatively affordable, for it to be used
for the transmission of television pictures and sound to consumers via
terrestrial transmission. Digital compression technology has also enabled the
quality of these transmissions to be significantly improved—approaching
cinema-like pictures and CD-quality surround sound—while using the same
amount of the broadcast spectrum currently used for analog terrestrial
broadcast. The spectrum efficiency of digital transmission can alternatively
allow for multiple channels to be carried within the same frequency bandwidth.
In addition, the ability to access and transmit digital data (text, pictures,
sounds in any combination) into the home opens the door to
‘convergence’ opportunities where the computer, television and other
equipment can all receive data broadcast over terrestrial
networks.
Internationally, the US and the UK have already commenced the
conversion to digital with many other countries already developing
implementation plans for digital terrestrial television broadcasting (DTTB).
Increasingly programs and equipment sourced from these markets (whose programs
comprise a substantial proportion of those broadcast on Australian networks)
will be in digital format.
The introduction of digital television in
Australia presents major issues for consumers. To take advantage of the
benefits of DTTB, consumers will need to invest in new reception equipment. The
cost of digital sets is difficult to predict (and the price could fall rapidly
once the market is established) and consumer demand for the range of services
offered by DTTB is currently not known. Therefore, the timeframe for consumer
take-up of digital technology cannot be estimated. In the meantime, consumers
will continue to expect to receive free-to-air analog television
programming.
There are also major issues for industry relating to the
introduction of DTTB in Australia. The current broadcast
‘landscape’ consists of free-to-air (terrestrial), and fledgling
cable and satellite subscription services. Terrestrial free-to-air broadcasting
services are currently received in most Australian homes while around twelve per
cent of households are estimated to subscribe to pay TV (provided through cable,
satellite or MDS technologies). Infrastructure has been established by
commercial and national broadcasters for the production and terrestrial
transmission of television programming. This infrastructure represents
significant long-term capital investments by these broadcasters.
Outside
this traditional landscape are other sectors which, with the advent of digital
technology, will be capable of using broadcast spectrum to deliver
non-broadcasting services (in particular data services). Long-term investment
decisions by all these sectors are required to enable development of
television-based and other digital services.
Finally, the introduction of
DTTB poses regulatory challenges for Government given the dynamic nature of DTTB
developments internationally and the need to allocate broadcasting service bands
spectrum for its introduction in Australia. It is important for the Government
to put in place a framework that provides clear ground rules to all participants
and ensures that the community benefits from the opportunities presented by the
development and application of this technology. The Government is faced with
determining how this framework should work with key issues being: how digital
broadcasting should be used, how much control should be left with the market and
what must be regulated by government. These decisions need to be made on the
basis of their potential impacts on all affected groups (existing industry
participants and new entrants, infrastructure stakeholders, consumers and the
public) and with consideration being given to digital broadcasting spectrum as
an economic resource.
B2. Objectives of Regulation
Given
the issues identified above, the objectives for the introduction of DTTB in
Australia could be seen as to:
• improve the technical quality of
the Australian television system in line with international technology
advances;
• allow for a smooth transition from analog to digital
television broadcasting and transmission which avoids disruption to consumers in
metropolitan and regional areas;
• maximise the use of existing
transmission infrastructure;
• introduce DTTB services within a
timetable to ensure that Australia does not fall significantly behind the rest
of the world;
• increase viewer choice and diversity of product
(recognising the role of community television services and Australian content in
this regard);
• seeking competitive neutrality between the
commercial and national television broadcasting sector, the pay TV sector and
other communications sectors;
• provide an appropriate return to
the Commonwealth for the use of television spectrum;
• achieve
spectrum efficiency gains to enable new services to be
introduced;
• encourage the use of television spectrum to provide a
range of new information/data services;
• take into account the
rapidly changing commercial and technological
environment;
• protect the interests of consumers in regional
areas; and
• retain free-to-air analog television services for a
period of time to ensure that the interests of consumers are
protected.
The Government’s announcement of 24 March 1998 provides
the authoritative basis for this proposal.
B3. Identification of
Options
Commercial free-to-air television broadcasting services are
subject to regulation through the BSA. Services of the national broadcasters
(the ABC and the SBS) are mainly subject to their enabling legislation—the
Australian Broadcasting Corporation Act 1983 and the Special
Broadcasting Service Act 1991. Overall spectrum planning is the subject of
the Radcom Act. The introduction of DTTB services will require amendment to this
legislative framework.
Three major options covering critical issues in
the introduction of DTTB in Australia were identified in the consultation phase.
Option 1: No limit on new free-to-air television broadcasting
entrants and no limit on competition in broadcasting and related
services.
By:
• Opening up broadcasting services band
spectrum for competitive bids for DTTB services from existing broadcasters and
new entrants;
• Replanning the broadcasting system to maximise
spectrum available for such allocation;
• Placing no restrictions
on spectrum usage (including high definition television, multi-channel,
subscription and datacasting services); and
• Placing no
requirements on the use of existing infrastructure.
Option 2: No limit
on new free-to-air television broadcasting entrants but provide existing
commercial and national broadcasters with digital spectrum to replicate their
analog broadcasting service. No restrictions on competition in broadcasting and
related services in residual spectrum.
By:
• Providing
existing commercial and national free-to-air broadcasters with access, free of
upfront charge, to only a sufficient additional quantum of spectrum to allow the
replication of their analog television programming in standard definition
digital mode for a designated period;
• Allowing residual spectrum
to be allocated by competitive bids for broadcasting and/or non-broadcasting
services;
• Placing no restrictions on spectrum usage (including
high definition television, multi-channel, subscription and datacasting
services); and
• Placing no requirements on the use of existing
infrastructure.
Option 3: Enhance the standard of existing free-to-air
television broadcasting services and provide access to new services while
minimising consumer disruption.
By:
• Providing only
existing commercial and national free-to-air broadcasters with access, free of
upfront charge, to additional spectrum to allow them to start digital television
transmission while maintaining their current analog television transmission for
a designated period;
• Restricting the types of services which
these broadcasters can provide (multi-channel, subscription and/or datacasting
services);
• Requiring these broadcasters to undertake a proportion
of digital programming in high definition television
format;
• Allowing residual spectrum to be allocated by competitive
bids for non-broadcasting services;
• Requiring that current
infrastructure usage be maximised; and
• Enabling the review of
such decisions at an appropriate time in the timetable for the introduction of
DTTB.
B4. Assessment of Impacts
Impact Group
Specification
The Commonwealth Government
• The
Commonwealth Government is responsible for the regulation of broadcasting and is
the recipient of licence fees paid by the broadcasting
sector.
Business
• Existing and potential free-to-air
television broadcasting networks (metropolitan and
regional)
– predominantly medium to large
businesses, established infrastructure as an outcome of capital investment over
many years, Australian controlled and the majority of which are Australian owned
due to foreign ownership and control rules applying to broadcasting
services;
– in addition, there are two
existing publicly-funded national broadcasters (the ABC and the SBS) and a
number of community television stations (small
businesses).
• Existing and potential cable and satellite
subscription service providers;
– medium or
large businesses, recently introduced services with high levels of capital
investment, Australian and foreign;
• Existing and potential
communications sector providers of datacasting
services;
– may be small, medium or large
businesses, Australian and foreign;
• Owners and operators
of existing terrestrial transmission
infrastructure;
– existing commercial
free-to-air broadcasters; and
– one
publicly-funded transmission network, currently subject to a privatisation
process.
Consumers
• Metropolitan television
viewers;
• Regional television viewers;
and
• Sub-groups within these broader groups (such as deaf and
hearing impaired viewers).
Assessment of Benefits and
Costs—General
There are some costs and benefits which will
apply to each option.
Government
DTTB provides for more
efficient use of the broadcasting spectrum. This has the potential for the
Commonwealth to raise revenue from allocation of this spectrum to interested
players.
Amendment to legislation will impose administrative and
enforcement costs above costs currently incurred by existing regulation. There
may also be long-term unanticipated costs to the Government if insufficient
flexibility is allowed in regulation to take account of future consumer,
industry and technological development.
Business
The
benefits of digital technology for the industry are threefold: it potentially
allows for additional services (and new revenue streams) to be provided; allows
for many programs to be produced more efficiently than the current analog
technologies; and it provides increased flexibility in the way that content can
be manipulated and stored.
Submissions to the Government from existing
commercial broadcasters estimate the capital costs of digital conversion to be
in excess of $500 million. In addition, commercial broadcasters estimate that
they will incur more than $600 million in additional operating costs if required
to simulcast their analog channel for a prolonged period (costs based on a 15
year simulcast period). The ABC estimates capital costs of more than $100
million in the pre-implementation stage and the SBS more than $20 million. The
national broadcasters are yet to complete their long-term planning so final
costs of conversion (including any additional costs for simulcasting of analog
and digital modes) are not known.
Consumers
The benefits of
digital terrestrial television to viewers are substantial. Digital television
allows the broadcast of widescreen, cinema quality programs with surround sound.
It can also allow the provision of multiple information streams allowing the
user access to a more enriching and even interactive television experience.
From a technical point of view, it provides clearer, sharper pictures without
the interference and ghosting that currently affect many viewers in built-up
areas or hilly terrain.
To take advantage of the benefits provided by
digital television, consumers will be required to purchase either a new digital
television set, or a set top box to convert the incoming digital signal for
display on an analog receiver. It is difficult to predict how much sets will
cost, and the price could fall rapidly once the market is established. Large
widescreen digital sets capable of displaying high definition video will
probably cost several thousand dollars, while conventionally sized sets are
likely to approach the prices of current sets over time. The price of set top
boxes will depend on their functionality, but will probably be a few hundred
dollars.
Assessment of Benefits and
Costs—Options
Government
Any price based
competitive allocation of varying amounts of spectrum for digital transmission
has the potential to raise revenue for the Government. Currently, there is no
shortage of spectrum. In addition, the spectrum efficiency of digital
technology will enable more services to be provided through smaller amounts of
spectrum than current analog technologies. Therefore, the amount of potential
revenue to the Commonwealth is uncertain. Options 1 and 2 would allow more
spectrum to be allocated immediately than option 3. However, options 2 and 3
would enable the recovery of spectrum loaned to existing commercial and national
free-to-air broadcasters in the medium term which could then be made available
for such allocation. Enforcement costs could be expected to be relatively low
due to limited regulation under Option 1.
Costs to Government would
include the lack of certainty that spectrum would be ultimately used for DTTB
services under the unrestricted allocations process of Option 1 and any
potential delay in the introduction of DTTB by new free-to-air television
broadcasters provided with access to digital spectrum under Options 1 and 2.
There would be increased certainty in regard to the introduction of DTTB under
Option 2, as existing commercial and national television broadcasters could
replicate their analog service in digital mode, but there would remain no
guarantee that the enhanced television services (such as high definition
television) offered by digital television technology would be introduced.
Option 3 would ensure the introduction of digital services in the medium term
(including high definition television) but government would incur the
opportunity costs of not allocating spectrum immediately through a price-based
mechanism.
Option 1 would also impose additional costs to government if:
existing commercial television analog licence fees fell as a result of any fall
in broadcaster revenue because digital transition was not ensured; and access to
digital spectrum by the ABC, the SBS and community broadcasters were to be
assured. Administration costs could be relatively higher for replanning the
broadcasting spectrum which would be required under Options 1 and 2.
Existing free-to-air broadcasters
If existing commercial
and national television broadcasters were able to obtain spectrum, there would
be benefits to them of being allowed to use allocated spectrum flexibly under
option 1 and enabling them to adapt programming to suit consumer demand and,
therefore, advertiser preference. They would have the flexibility to provide
multi-channel, datacasting and subscription services which could provide
potential revenue streams.
Option 3 would limit this flexibility but
provide existing commercial and national television broadcasters with certainty
that they will be able to transmit their current analog service in analog and
digital mode and provide high definition television and datacasting services.
Option 2 would also technically limit this flexibility through limited spectrum
allocation. By limiting competition, option 3 would enable existing commercial
television broadcasters to sustain their current revenue base during the
transition period while there are dual transmission costs. Under option 3, these
broadcasters would also be able to use much of the existing infrastructure
resulting in considerable savings.
Option 1 would impose costs of
obtaining access to spectrum for digital transmission for existing commercial,
national and community television broadcasters. Option 2 would impose costs of
obtaining any additional spectrum required to provide services other than
current analog service (such as high definition television- a potential main
driver for consumer take-up). These options could cause particular concern for
regional and community broadcasters which have lower revenue bases.
Under option 1 there would also be costs imposed by investment
uncertainty. Long-term analog investment, advertising and programming
commitments could be undermined if digital spectrum was not assured. Options 1
and 2 may also result in a loss of advertising revenue to other commercial
spectrum holders (including other television broadcasters). There is no
evidence that this could be offset by the provision of multi-channel
services.
Radical replanning of the spectrum required under options 1 and
2 would impose costs to broadcasters for their analog services as they may need
to purchase or lease new transmitter equipment, and undertake consumer education
to adapt equipment and consumer habit to receive new analog channels. Under
option 2 existing television broadcasters may also incur costs of having digital
spectrum ‘split’ if they are required to buy additional spectrum to
provide a full high definition television or multi-channel
service.
Options 2 and 3 would involve costs for the broadcasters in
being required to simulcast their analog programming for a designated period of
time as well as providing digital programming and maintaining Australian content
levels. This could be particularly difficult for regional and community
broadcasters with low revenue bases.
Under Option 3, existing
commercial and national television broadcasters would be required to pay fees
for datacasting services which they provide. There may be increased compliance
costs of this option given a higher level of regulation. The option would also
incur opportunity costs for the broadcasters of not being able to provide
multi-channel and subscription services.
Potential free-to-air
television networks
Under Options 1 and 2, potential free-to-air
television broadcasters would gain access to the broadcast spectrum for the
transmission of a digital television broadcasting service which could be
expected to raise advertising, and other revenues. Flexible use of the spectrum
would enable these broadcasters to provide services based on consumer and
therefore advertiser preference. At this stage, it is not possible to estimate
expected revenues which a potential new digital free-to-air television
broadcaster would earn.
Under these options, potential free-to-air
television broadcasters would incur costs in obtaining spectrum through a
competitive process. In addition they would incur the costs of setting up a
digital broadcast and transmission system (while not incurring the additional
analog transmission costs incurred by existing broadcasters simulcasting in
analog and digital) and the opportunity costs which such investment would
involve. These costs are not currently quantifiable but could be expected to be
significant. Additional costs would be incurred if the broadcaster were unable
to use existing infrastructure. Option 2 would provide less spectrum available
for new free-to-air television broadcasters which may limit the number of
entrants and new services, or the amenity of available spectrum. Under Option
3, these broadcasters would bear the opportunity costs of not being able to
obtain broadcasting spectrum to provide a commercial digital television
service.
Existing and potential subscription service
providers
Options 1 and 2 would allow subscription service providers
to compete for unrestricted use of broadcasting services band spectrum which
would allow them to provide subscription and other services over the terrestrial
network. There could also be expected to be some economies of scale for such
operators able to provide programming through a variety of transmission methods.
These costs have not been quantified by the sector. Under Option 3 service
providers could potentially obtain spectrum to provide datacasting services
while, by limiting competition, the revenue base of current subscription
services would not be undermined by the introduction of terrestrial subscription
services.
Costs, under Options 1 and 2, could be incurred through the
ability of existing television broadcasters or potential free-to-air television
broadcasters to undertake subscription services and potentially undermine the
revenue base of subscription service providers. In addition, subscription
service providers would bear the additional cost of introducing any additional
terrestrial services while maintaining their current non-terrestrial services.
There could also be opportunity costs from not fully using the existing
non-terrestrial infrastructure or as a result of the relatively limited capacity
available through broadcasting services band spectrum used for free-to-air
television broadcasting compared with other transmission technologies. Under
Option 3 existing and potential subscription service providers would bear the
opportunity costs of not being able to obtain broadcasting services band
spectrum to transmit a commercial digital television broadcasting
service.
Existing and potential communications sector providers of
datacasting services
Under all options, communications service
providers would have access to broadcasting services band spectrum to deliver
data services. This would enable them to broadcast data services to television
receivers which may be more attractive to the consumer than purchasing
additional hardware. The commercial returns to be expected from such services
is currently not known. There may also be economies of scale in the provision
of data services which are already available through other delivery
mechanisms.
Under each option, existing and potential communications
service providers would incur costs in obtaining spectrum and establishing their
digital terrestrial services, the quantum of which is not known. Options 1 and 2
could also involve the establishment costs of new transmission facilities as the
use of existing infrastructure is not ensured. Communications service providers
may also incur costs of any decline in revenue for their current cable-based
services which is not matched by revenues earned through their terrestrial
services.
Under Options 2 and 3, there would be less spectrum available
for the competitive allocation to these which may limit the number of entrants
and new services.
Owners and operators of existing terrestrial
transmission infrastructure
Under Options 1 and 2, operators would be
able to offer transmission services to potential new players for the digital
transmission of television programming. Under all options, operators will be
able to offer such services for digital transmission of datacasting services.
These services could potentially provide revenue to owners and
operators.
Under Option 1, there would be no guarantee that current
infrastructure use would be maximised with resulting costs (in terms of
uncertainty of investment in current and new infrastructure) for operators.
Under options 2 and 3, operators would have greater certainty in regard to the
continued use by existing commercial and national television broadcasters of
infrastructure. Under option 3, operators would bear the opportunity costs of
providing reasonable access to broadcasters and datacasters for the purpose of
installing transmitters for use in providing services in digital
mode.
Consumers
A highly competitive and unregulated
digital television environment such as Option 1 could provide some benefits to
consumers in terms of choice of services. Under Option 2, consumers would be
assured of receiving a digital television service which would replicate the
current analog system as well as potential new services. Under Option 3,
consumers will have certainty that digital services, including high definition
television, will be made available in the short to medium term with minimal
disruption to their current viewing. Consumers will continue to receive current
television programming (including that provided by community broadcasters) on
their analog sets and will have plenty of time to purchase digital technology,
reducing the risk of such investment. Consumers will also be able to receive a
range of datacasting services direct into their home through their digital
equipment.
Under Option 1, there could be significant costs to consumers
in terms of disruption. There would be little certainty that digital television
services would be provided while current analog coverage is maintained. New
commercial free-to-air digital television broadcasting services may only be
received through new equipment requiring immediate investment in an immature
market. Viewers may have no guarantee of being able to receive existing
free-to-air television broadcasting services in digital mode. Current analog
programming (including the level of Australian content) could also be affected.
Radical spectrum replanning may affect the analog spectrum requiring viewers to
adjust their analog equipment to receive signals. The need for new transmission
infrastructure may also have environment or urban amenity cost
implications.
While ensuring the transition of existing commercial and
national television broadcasters, Option 2 would still impose costs to consumer
in terms of disruption. These broadcasters could only offer a simulcast of
their analog programming, requiring consumers to invest in digital technology
without the prospect of being offered potential main benefits of the technology
– high definition television or other enhanced services. Consumers would
not be certain that these services would be offered by new entrants
either.
Under Option 3, there is an opportunity cost of not having new
free-to-air television channels (or current free-to-air channels being
multi-channelled) being made available in the short
term.
B5. Consultation
In January 1997, an Australian
Broadcasting Authority (ABA) Specialist Group (including industry
representatives) recommended that adjacent 7 MHz channels to those currently
used by the commercial and national television broadcasters for analog
television be allocated to them, so that they could transmit high definition
quality pictures on a digital channel while simulcasting that programming on
existing analog channels. The Group further recommended that additional
channels to allow for digital conversion by existing commercial and national
television broadcasters be provided free of upfront charge by the Commonwealth
and that an equivalent amount of spectrum be recovered from these broadcasters
at the end of a simulcast period.
These recommendations, which had been
made following a process of public consultation, were accepted by the ABA in a
report provided to the Minister in July 1997. The ABA’s report was also
released to the public and has provided a focus for submissions to Government
and public debate on the introduction of DTTB in Australia.
In addition,
the Government received formal and informal submissions from a wide variety of
industry representatives from the broadcasting, print media and communications
sectors.
There was little industry agreement on the appropriate option to
be pursued by Government. Existing commercial and national television
broadcasters argued strongly that they would need to bear significant costs to
convert to digital while continuing to provide analog services for a simulcast
period (to avoid disruption to viewers). This was of particular concern to
regional broadcasters. They argued that, for this reason, they should be
provided with an additional amount of bandwidth (of the same quantum and within
the same range as that provided for their analog broadcasting) free of upfront
charge and that they should be allowed flexible usage of such bandwidth.
Commercial television broadcasters also argued that any introduction of new
free-to-air television broadcasters would seriously undermine their capacity to
provide digital and analog services during a simulcast period. Representatives
from the pay TV sector, while conceding that existing commercial and national
television broadcasters should be provided with spectrum to convert to digital,
argued that the amount of spectrum provided should only be sufficient to
replicate existing analog broadcasts with remaining spectrum being allocated to
broadcasting or non-broadcasting players through a price-based allocation
system. They argued that allowing existing commercial television broadcasters
to provide subscription services would severely disadvantage the pay TV sector
which has been required to bear the costs of an initial spectrum auction and
significant infrastructure costs. They also argued that radical replanning of
the spectrum should be undertaken to allow for spectrum efficiency gains.
Representatives from other sectors argued that an open competitive process
should be used for the allocation of all available spectrum with no restrictions
on the use of that spectrum.
B6. Conclusion and Recommended
Option
Option 1
This option would achieve some
short-term spectrum efficiency gains and would provide early financial returns
to the Commonwealth through the sale of spectrum (although there is no certainty
that the spectrum would be used for DTTB and the start up dates for such
services would be uncertain). Existing broadcasters would only be able to be
involved in the introduction of DTTB and related services if they successfully
bid for auctioned spectrum.
However, this option would result in severe
disruption to viewers – new spectrum allocations would not ensure that
digital service providers could use existing transmission infrastructure and
viewers would have no guarantee of being able to receive broadcasting services
in digital mode. The transition from analog to digital television would be
uncertain - because there would be no guarantee that existing television
broadcasters would be involved. This option would require either that the ABC,
SBS or community television groups had no guaranteed right to digital spectrum,
or that existing commercial free-to-air television broadcasters were
disadvantaged in comparison with new broadcasters.
There would also be
a significant risk that the quality of Australia’s existing television
system would be reduced by the unrestricted introduction of new commercial
players.
Option 2
This option would ensure that existing
commercial and national television broadcasters have access to digital spectrum
to simulcast their current analog programming but would require them to bid for
additional spectrum if they wanted to provide enhanced services such as high
definition television. The option would overcome concerns by the pay TV sector
that it would be unfair to give existing commercial and national television
broadcasters free spectrum for any other purpose but would potentially cause
delay in the introduction of DTTB (through substantial replanning of spectrum)
and not guarantee the availability of services potentially necessary to promote
consumer take-up.
This option would not ensure that digital service
providers could use current infrastructure and mean that consumers would face
the prospect of being denied access to high definition television - a potential
main benefit of DTTB. This option would provide some revenue to the
Commonwealth through the auction of spectrum but less than available through
Option 1.
Option 3
This is the recommended option as it
would ensure a smooth, timely transition to DTTB which is built on the
experience, expertise and infrastructure of existing television broadcasters and
which takes into account the increased costs of investing in DTTB and providing
dual digital/analog services. This would not be achieved under Options 1 or
2.
Non-broadcasting uses of broadcasting services band spectrum
(datacasting) would be encouraged so that consumers received a wide range of new
information/data services. The prohibition on the provision of
multi-channel/pay TV services would ensure that the developing pay TV sector is
not unfairly disadvantaged by digital conversion of existing commercial and
national television broadcasters. The proposed sale of broadcast services band
spectrum for datacasting would also ensure transmission of community television
services.
The multi-channel service/pay TV prohibition would potentially
reduce the range of broadcasting services available to viewers, but there are
alternative delivery mechanisms (eg, satellite and cable) for these services.
The restrictions would be reviewed before the end of the transition period. In
addition, this option enables the Government to take into account the rapidly
changing commercial and technological environment by allowing flexibility in the
future decision-making process.
Under Option 3, the Commonwealth would
obtain an early financial return from the allocation of television spectrum for
datacasting services and from charging existing commercial and national
television broadcasters for the authority to transmit datacasting services from
their digital broadcasting transmitters. The immediate financial return may not
be as great as under Option 1 or 2. However, there will be further financial
returns to the Commonwealth under Option 3 when the loaned spectrum is returned
by existing commercial and national television broadcasters at the end of the
simulcast period.
The Government considers that restrictions on
competition at this stage in the transition to digital television broadcasting
will be required to achieve its objectives to:
• allow for a smooth
transition from analog to digital television broadcasting and transmission which
avoids disruption to consumers in metropolitan and regional
areas;
• maximise the use of existing transmission
infrastructure;
• introduce DTTB services within a timetable to
ensure that Australia does not fall significantly behind the rest of the
world;
• maximise viewer choice and diversity of product
(recognising the role of community television services and Australian content in
this regard) across free-to-air and subscription services.
The Government
considers that these objectives can only be achieved through this option.
However, the Government has also aimed at achieving competitive neutrality, as
far as practicable, between the free-to-air broadcasting, pay TV and other
communications sectors.
The Government will review these issues during
the introduction and transition stages.
B7. Implementation and
Review
Legislation will require considerable detailed technical
planning in areas such as: spectrum identification and allocation; transmission
requirements and broadcaster implementation schedules. Under the legislation,
the ABA will be required to develop a scheme, after consultation, designed to
achieve the Government’s objectives including that:
• DTTB be
introduced on 1 January 2001 and in regional areas from that date so that all
areas have digital services by 1 January 2004;
• existing
commercial and national television broadcasters are required to simulcast their
analog broadcasts for a period of 8 years or such longer period prescribed in
regulations;
• an equivalent amount of spectrum
‘loaned’ to commercial and national television broadcasters be
recovered by the Commonwealth at the end of the simulcast period; and
• Existing commercial and national television broadcasters will be
required to undertake high definition television transmission of a proportion of
their programming, and may undertake enhanced programming and datacasting
services (subject to a charging regime) but be disallowed from undertaking
multi-channel or subscription services.
Legislation will also require
regulatory reviews to be undertaken before and during the simulcast phase.
Prior to 1 January 2001, there will be a statutory review
into:
• regulations which should govern enhanced programming and
television datacasting services;
• possible legislative amendments
to respond to convergence between broadcasting and non-broadcasting
services;
• whether the ABC and the SBS should be allowed to
transmit multi-channel programming (see above); and
• possible
legislative amendments governing the retransmission of free-to-air digital
broadcasting services on pay TV systems.
In 2005, there will be a
statutory review into whether:
• all spectrum available for
allocation has been identified and efficiently
structured;
• legislative amendments should allow new commercial
television entrants after 31 December 2008;
• legislative
amendments should allow commercial television broadcasters to provide
multi-channel and/or pay TV services using digital technology;
and
• a simulcast period longer than 8 years should be prescribed
in regulations dependent on an consumer take-up rates.
In addition, the
Department of Communications and the Arts will convene a Digital Television
Planning and Steering Committee with the ABA, the ACA and all relevant industry
sectors which will:
• advise on transmission standards and
compatibility requirements (including issues related to conditional access
systems);
• commence detailed technical planning;
and
• identify broadcasting spectrum not required for the digital
conversion of the commercial and national television
broadcasters.
Wherever possible, it is expected that there will be
co-location of digital and analog transmitters on sites. However, actual
transmission requirements will need to be determined as part of the planning
process undertaken by the ABA and the Committee.
Spectrum identified
through the Committee as not being required for digital conversion of existing
free to air broadcasters (see above) will be allocated on a competitive basis
(subject to conditions) for television datacasting services in time for services
to commence at the same time as free-to-air digital television
broadcasting.
The Australian Communications Authority (ACA) and the
Australian Broadcasting Authority (ABA) will be required to report on the
structure of, and conditions for, the allocation of spectrum not required for
the digital conversion of existing commercial and national television
broadcasters, as well as any legislative amendments which may be necessary or
appropriate.
Conditions of the spectrum sale will preclude existing free
to air broadcasters from bidding for this spectrum. Conditions will also ensure
digital transmission, free of charge, of a standard definition community
television service.
ABBREVIATIONS
The following abbreviations are used in this explanatory
memorandum:
ABA: Australian Broadcasting
Authority
ACA: Australian Communications
Authority
ACCC: Australian Competition and Consumer
Commission
BSA: Broadcasting Services Act
1992
HDTV: High Definition Television
Radcom
Act: Radiocommunications Act 1992
NOTES ON
CLAUSES
TELEVISION BROADCASTING
SERVICES (DIGITAL CONVERSION) BILL 1998
Clause 1 – Short title
Clause 1 provides for the
citation of the Television Broadcasting Services (Digital Conversion) Act
1998.
Clause 2 – Commencement
Clause 2 provides
for the Bill to commence on Royal Assent.
Clause 3 –
Schedule(s)
Clause 3 provides for any amendments or repeals to an Act
specified in a Schedule to the Bill are to have effect according to their
terms.
Schedule 1 to the Bill provides for amendment of the
Broadcasting Services Act 1992 (BSA). Schedule 2 to the Bill provides
for amendment of the Radiocommunications Act 1992 (Radcom Act).
Schedule 1––Amendment of the
Broadcasting Services Act 1992
Item 1 – Amendment of section 28 – Limitation on
allocation of commercial television broadcasting licences
Section 28
of the BSA prohibits the Australian Broadcasting Authority (ABA) from allocating
more than 3 commercial television broadcasting licences in any broadcasting
licence area before a date specified by Proclamation, being a date not earlier
than the completion of the review referred to in section 215 of the BSA.
Section 215 of the BSA required the Minister, before 1 July 1997, to
conduct a review of the television broadcasting industry to assess the national
benefits that would accrue if more than 3 commercial television broadcasting
services were permitted in licence areas. As this provision is now spent it is
to be repealed by item 8 of Schedule 1 to the Bill.
Item 1 of Schedule 1
to the Bill will amend section 28 of the BSA so as to prohibit the ABA from
allocating more than 3 commercial television broadcasting licences in any
licence area before a date specified by Proclamation, being a date not earlier
than 31 December 2008. This will allow the existing free to air commercial
television broadcasters a transition period in which to meet the initial costs
of digital conversion and parallel digital/analog transmission before the
licence allocation restriction can be lifted.
Clause 60 of proposed
Schedule 4 to the BSA provides that, before 31 December 2005, the Minister is to
arrange for a review to be conducted into whether section 28 should be amended
or repealed after 31 December 2008.
In addition, paragraph 59(1)(d) of
proposed Schedule 4 to the BSA provides that, before 1 January 2001, the
Minister is to arrange for a review to be conducted into whether any amendments
of Commonwealth laws should be made 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.
Underserved regional licence areas are those with fewer than 3 commercial
television broadcasting services.
Items 2 to 5 – Amendments of
section 34 – Alternative uses of broadcasting services
bands
Subsection 34(1) of the BSA allows temporary alternative uses
of broadcasting services bands in circumstances where, in effect, a part of the
broadcasting services spectrum bands would be wasted if not temporarily put to
some other use. Subsection 34(2) of the BSA provides that in making its
decision on alternative uses, the ABA is to have regard to the possible future
demand for the use of the relevant part of the radiofrequency spectrum and such
other matters as the ABA considers relevant.
‘Broadcasting services
bands’ is defined in s. 6 of the BSA to mean that part of the
radiofrequency spectrum that is designated under section 31 of the Radcom Act as
being primarily for broadcasting purposes and is assigned by the Minister under
that Act for the ABA for planning.
Item 2 of Schedule 1 to the Bill will
amend subsection 34(1) of the BSA so that if the conditions of paragraphs
34(1)(a) to (d) have been satisfied, the ABA will be required to make a written
determination that the part or parts of the radiofrequency spectrum concerned is
or are available for allocation, for a period specified by the ABA for one or
more purposes covered by paragraphs 34(1)(e), (ea), (f) and (g) and proposed
paragraph 34(1)(fa) to be inserted by item 3 of Schedule 1 to the
Bill.
Item 3 of Schedule 1 to the Bill will amend subsection 34(1) of the
BSA to provide that if the conditions of paragraphs 34(1)(a) to (d) have been
satisfied, the ABA may determine that a part or parts of the radiofrequency
spectrum is or are available for allocation, for a period specified by the ABA,
for the transmission of datacasting services on a temporary basis.
Item
5 of Schedule 1 to the Bill inserts a proposed new subsection 34(5) that
provides that ‘datacasting service’ has the same meaning as in
proposed Schedule 4 to the BSA. The term is defined in clause 2 of that
Schedule to mean a service (other than a broadcasting service as defined in s. 6
of the BSA) 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 the delivery of the service uses the
broadcasting services bands and the service is not of a kind specified in the
regulations. Paragraph 59(1)(a) in proposed Schedule 4 provides that before 1
January 2001 the Minister is to arrange for a review to be conducted to
determine the scope of the term ‘datacasting service’. Clause 40 of
proposed Schedule 4 allows datacasting standards to be made by
regulations.
Item 5 also amends section 34 by adding new subsections
34(3) and (4). New subsection 34(3) 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 Radcom Act
for the provision of datacasting services.
However, proposed subsection
34(4) 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).
Clause 13 of proposed Schedule 4 to the BSA requires the
ABA to have regard to its power under new subsection 34(3) in formulating or
varying the commercial television conversion scheme.
Item 4 of Schedule 1
to the Bill amends the language of subsection 34(2) to make it consistent with
the rest of section 34 as proposed to be amended and makes it clear that a
determination under proposed new subsection 34(3) will not be subject to the
requirements of subsection 34(2).
Item 6 –
Transitional––section 34 of the Broadcasting Services Act
1992
Item 6 of Schedule 1 to the Bill provides that existing
decisions of the ABA under subsection 34(1) of the BSA that are in force
immediately before the Bill receives the Royal Assent are to be treated as if
they had been made in the form of a written determination under subsection 34(1)
of the BSA immediately after Royal Assent.
Item 7 – Amendment of
section 92F – Licences to accord with alternative planning
procedures
Section 92F of the BSA provides that the ABA is not to
allocate a temporary community broadcasting licence except in accordance with a
decision of the ABA under section 34 of the BSA.
As a consequence of the
amendments made by items 2 to 5 of Schedule 1 to the Bill, which require the ABA
to make ‘determinations’ under section 34, item 7 replaces the word
‘decision’ in section 92F by
‘determination’.
Item 8 – Repeal of section 215
– Review of television broadcasting industry
Section 215 of the
BSA required the Minister:
(a) before 1 July 1997, to conduct a review of
the television broadcasting industry to assess the national benefits that would
accrue if more than 3 commercial television broadcasting services were permitted
in licence areas; and
(b) as soon as practicable, but in any case before
1 July 1997, to conduct a review of Australian content on Pay TV.
As this
provision is now spent, it is to be repealed by item 8 of Schedule 1 to the
Bill. (See also the discussion on item 1 above.)
Item 9 –
Insertion of new section 216A – Schedule 4 (digital television
broadcasting)
Item 9 inserts a new section 216A to the BSA which
gives effect to proposed Schedule 4 to the BSA which deals with digital
television broadcasting. The provisions are discussed in detail in the notes on
Schedule 4.
Items 10 and 11 – Amendments of clause 7 of Schedule
2 – Standard licence conditions
Subclause 7(1) of Schedule 2 to
the BSA sets out the conditions to which each commercial television broadcasting
licence is subject (see also s. 42 of the BSA). Item 10 of Schedule 1 to the
Bill adds a number of conditions related to digital television broadcasting and
the captioning of analog and digital television programs for the deaf and
hearing impaired.
Compliance with conversion scheme
The
first new licence condition is that a commercial television broadcasting
licensee must comply with the requirements of the commercial television
conversion scheme in force under clause 6 of proposed Schedule 4 to the BSA,
other than the commencement requirements in paragraph 6(3)(a) or (b) relating to
non-remote licence areas or a requirement of Part B of the scheme (dealing with
remote licence areas) to commence digital transmission in remote licence areas
(proposed paragraph 7(1)(k) of Schedule 2 to the BSA). Failure to comply with
the commencement requirements in paragraph 6(3)(a) and 6(3)(b) will require the
licensee to return spectrum under subclause 8(2) of proposed Schedule 4 to the
BSA unless the licensee satisfies the ABA that there are exceptional
circumstances.
Subclause 8(10) of proposed Schedule 4 to the BSA
provides that, in relation to remote licence areas, Part B of the scheme may
make provision for requiring a licensee to return spectrum if the licensee does
not comply with a specified requirement of that Part of the
scheme.
Clause 6 of proposed Schedule 4 to the BSA will require the ABA,
as soon as practicable after the Bill receives Royal Assent, to formulate in
writing a legally binding scheme for the conversion, over time, of the
transmission of commercial broadcasting services from analog mode to digital
mode.
Compliance with implementation plans
The second new
licence condition is that a commercial television broadcasting licensee must
comply with an implementation plan (and, having regard to subclause 9(2) of
proposed Schedule 4 to the BSA, any variation to such a plan) given by the
licensee to the ABA in accordance with the commercial television scheme once the
ABA has accepted the plan. A failure to comply with an implementation plan will
not, however, amount to a breach of a licence condition, to the extent that it
deals with the commencement requirements covered by paragraphs 6(3)(a) and (b)
of proposed Schedule 4 to the BSA or by that part of the scheme that relates to
remote licence areas
(proposed paragraph 7(1)(l) of Schedule 2 to the BSA).
Clause 9 of proposed Schedule 4 to the BSA provides that the scheme must
require the licensee to prepare, and submit to the ABA, one or more
implementation plans relating to digital transmission, where the plans are in
accordance with the scheme. It is envisaged that these plans would set out a
timetable for the installation and operation of digital transmitters. Clause 9
also allows the scheme to provide for the variation of implementation plans
submitted to the ABA by commercial television broadcasting
licensees.
Enhanced programming and prohibition on
multi-channelling
The third new licence condition is that, if there
is a simulcast period for the licence area of the licence, a commercial
television broadcasting licensee must not broadcast a television program in
digital mode during the simulcast period for the licence area concerned
unless:
• the program is broadcast simultaneously by the licensee
in analog mode in that area; or
• 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 (proposed paragraph 7(1)(m) of Schedule 2 to the
BSA).
The term ‘incidental’ in connection with a simulcast
program is intended to mean something happening or likely to happen ‘in
fortuitous or subordinate conjunction with’ the program: Rothmans v
Australian Broadcasting Tribunal (1985) 58 ALR 675 at 691 per Bowen CJ,
Toohey and Wilcox JJ; and Director of Public Prosecutions v United
Telecasters Sydney Ltd (1990) 91 ALR 1 at 14 per Toohey and McHugh JJ. The
words ‘directly linked’ in conjunction with ‘incidental’
are intended to emphasise the direct relationship between the simulcast program
and the incidental program.
Subject to the Ministerial review to be
conducted to determine the scope of the regulations concerning what programs are
to be treated as ‘incidental and directly linked’ to simulcast
programs (see cl. 59 of proposed Schedule 4 to the BSA), it is envisaged that
the following might be considered ‘incidental and directly linked’
to a simulcast program:
• replays and progress summaries of a
sports match in progress that is simulcast (perhaps also highlights of
elimination matches that brought the players or teams to the simulcast
match);
• more detailed coverage of news items, infotainment items,
speeches or interviews that are being simulcast; and
• different
views of the event that is being simulcast, filmed within the confines of the
event, such as the ability to view the event from different camera
angles.
Item 11 of Schedule 1 to the Bill inserts a new subclause 7(3) of
Schedule 2 to the BSA. The effect of this new subclause is that expressions
used in connection with this third licence condition (as well as in the sixth
licence condition discussed below) and in proposed Schedule 4 to the BSA have
the same meaning for the purposes of this condition as they have in Schedule 4.
Clause 4 of proposed Schedule 4 provides that a television program is broadcast
in digital mode if the program is broadcast using a digital modulation
technique.
Item 11 also inserts a new subclause 7(4) of Schedule 2 to the
BSA as a consequence of proposed new subclause 6(8) of Schedule 4 to the BSA.
The effect of new subclause 6(8) is that the simulcasting requirements relating
to non-remote and remote licence areas will not apply to advertising,
sponsorship matter or television programs covered by an ABA determination. New
subclause 7(4) applies new subclause 6(8) to this third licence condition. This
will ensure that the simulcasting requirements provided for by this condition
will also not apply to advertising, sponsorship matter or television programs
covered by an ABA determination.
Digital format
standards
The fourth new licence condition (proposed paragraph
7(1)(n) of Schedule 2 to the BSA) is that a commercial television broadcasting
licensee must comply with standards applicable to the commercial television
broadcasting licence under clause 37 of proposed Schedule 4 to the BSA. Under
clause 37, regulations will be required to be made to determine standards that
require commercial television broadcasting licensees, the ABC and the 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 one or more specified High Definition Television (HDTV) formats
for the transmission of television programs in digital mode. The regulations
will also be able to determine other standards that are to be observed by
commercial television broadcasting licensees, the ABC and the SBS in relation to
the format in which television programs are to be transmitted in digital
mode.
Captioning of television programs
The fifth new
licence condition (proposed paragraph 7(1)(o) of Schedule 2 to the BSA) is that
a commercial television broadcasting licensee must comply with standards
applicable to the commercial television broadcasting licence under clause 38 of
proposed Schedule 4 to the BSA (which deals with captioning of television
programs for the deaf and hearing impaired).
It is intended that these
standards would be required to be observed by free to air television
broadcasters in relation to programs transmitted in both analog mode and digital
mode. The free to air television broadcasters will not, however, be required to
observe captioning standards provided for in the regulations before the first
occasion on or after 1 January 2001 on which they broadcast television programs
in digital mode.
Prohibition on digital transmitters being used to
provide pay TV, radio or narrowcasting services
The sixth new
licence condition (proposed paragraph 7(1)(p) of Schedule 2 to the BSA) is that
if a commercial television broadcasting licensee holds a broadcasting
transmitter licence required to be issued under s. 102 of the Radcom Act or
under proposed s. 102A of that Act (which deals with broadcasting transmitter
licences required to be issued under digital conversion schemes) that authorises
the operation of a transmitter, the licensee must not operate, or permit the
operation of, that transmitter to transmit in digital mode:
• a
commercial broadcasting service that provides radio programs
– commercial radio broadcasting is governed by commercial radio
broadcasting licences granted by the ABA under Part 4 of the
BSA;
• a subscription television broadcasting
service – this service is governed by the
licensing provisions in Part 7 of the BSA that apply to ‘subscription
television broadcasting services’; or
• a subscription radio
broadcasting service or an open or subscription narrowcasting
service – these services are governed by class
licences under Part 8 of the BSA.
Penalties for contravention of
licence conditions
A breach of any of these licence conditions will
attract, in the case of an individual, a pecuniary penalty of 2,000 penalty
units and, in the case of a body corporate, 10,000 penalty units: see BSA s.
139(1) and the Crimes Act 1914, s. 4B(3).
Item 12 –
Insertion of new Schedule 4 – Digital television
broadcasting
Item 12 of Schedule 1 inserts a new Schedule 4 at the
end of the BSA dealing with digital television broadcasting. Item 9 of Schedule
1 to the Bill inserts a new section 216A to the BSA which gives effect to
proposed Schedule 4.
Part 1––Introduction
Clause 1 – Simplified outline
Clause 1 of proposed
Schedule 4 to the BSA sets out a simplified outline of the Schedule to assist
readers.
Clause 2 – Definitions
Clause 2 of proposed
Schedule 4 to the BSA sets out the key definitions used in proposed Schedule 4
to the BSA.
Examples of the use of the definition of ‘broadcasting
transmission tower’ are in clauses 18 and 33 (dealing with ABA
consultation with the public, with broadcasters and owners and operators of
broadcasting transmission towers) and 45 to 47 of proposed Schedule 4 to the BSA
(dealing with access to broadcasting transmission towers and
sites).
Another example of a key definition is that of a
‘datacasting service’. One of the policy objectives underlying the
commercial and ABC/SBS television digital conversion schemes for non-remote
areas is that commercial television broadcasting licensees and the ABC and the
SBS should 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 (see paragraphs 6(3)(k) and 19(3)(k) of proposed Schedule 4
to the BSA). The ABA is also given a new power, in proposed subsection 34(3) of
the BSA, to 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 (see item 5 of Schedule 1 to the Bill).
The term
‘datacasting service’ is defined in clause 2 of Schedule 4 to the
BSA to mean a service (other than a broadcasting service as defined in s. 6 of
the BSA) 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 the delivery of the service uses the
broadcasting services bands and the service is not of a kind specified in the
regulations. ‘Broadcasting services bands’ is defined in s. 6 of
the BSA to mean that part of the radiofrequency spectrum that is designated
under section 31 of the Radcom Act as being primarily for broadcasting purposes
and is assigned by the Minister under that Act to the ABA for
planning.
The proposed definitions of ‘remote coverage area’
and ‘remote licence area’ are consequential upon the proposed
provisions 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, subclauses 6(2), 6(7), 8(10), 8(11), 19(2),
19(7), 23(10), 23(11), 37(5) to (7) and clauses 14 and 28 of proposed Schedule 4
to the BSA). The term ‘remote licence area’ is defined by clause 5
of proposed Schedule 4 to the BSA to mean an area specified as in an ABA
determination to be a remote licence area for the purposes of Schedule 4. The
term ‘remote coverage area’ is defined to mean an area (in relation
to a national broadcasting service) that corresponds to a remote licence
area.
Another key definition is that of the ‘simulcast
period’. One of the policy objectives underlying the commercial and
ABC/SBS television digital conversion schemes is that there is to be a
transitional period for metropolitan and regional television licence or coverage
areas (other than remote areas) during which the commercial television
broadcasting licensees and the ABC and the SBS are required to simulcast their
television programs in both analog mode and digital mode. The simulcast period
for commercial television broadcasting licensees in non-remote licence areas
runs for 8 years or such longer period as is specified in the regulations in
relation to a particular licence or coverage area. In non-remote coverage
areas, the end of the simulcast period will be the same as that applicable to
commercial television broadcasting services in the licence area corresponding to
the coverage area concerned.
In the case of a metropolitan commercial
television broadcasting licence area, this period is to begin on 1 January 2001.
In the case of a non-remote regional commercial television broadcasting licence
area, the period is to begin on a date determined by the ABA under the
conversion scheme during the period beginning on 1 January 2001 and ending
immediately before 1 January 2004.
In the case of the ABC and the SBS, in
a metropolitan coverage area the simulcast period is also to begin on 1 January
2001.
In a non-remote regional coverage area, the simulcast period is
to begin on or after 1 January 2001 with the aim of ensuring that all regional
coverage areas have commenced digital transmission of national broadcasting
services by 1 January 2004.
In remote licence or coverage areas, Part B
of the commercial and national television conversion schemes will be able to
make provision for a simulcast period for these areas.
Clause 3
– Analog mode
Clause 3 of proposed Schedule 4 to the BSA
provides that, 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.
The term
‘program’, in relation to a broadcasting service, is defined in s. 6
of the BSA to mean:
(a) matter the primary purpose of which is to
entertain, to educate or to inform an audience; or
(b) advertising or
sponsorship matter, whether or not of a commercial kind.
Commercial and
national television broadcasting programs are currently transmitted to the
public in Australia with the use of spectrum having a channel bandwidth of 7
MHz. Analog television channels can transmit one continuous stream of
programming and some limited data / text embedded in the main carrier signal.
An example of the use of the term ‘analog mode’ is in subclauses
6(1) and 19(1) of proposed Schedule 4 to the BSA which deal with the commercial
and national television conversion schemes.
Clause 4 – Digital
mode
Clause 4 of proposed Schedule 4 to the BSA provides that, for
the purposes of this Schedule, a television program or service is broadcast or
transmitted in digital mode if the program or service is broadcast or
transmitted using a digital modulation technique.
Using compression
technology and the same amount of channel bandwidth that is used for analog
television, digital television broadcasting transmitters have the technical
capacity to transmit a high definition TV (HDTV) picture, or transmit multiple
streams of programming. Digital television broadcasting transmitters can also
switch at any time between HDTV and standard channels and can use residual
capacity to transmit data or information services (either stand alone or with
integrated links to TV programs).
Examples of the use of the term ‘digital mode’ are subclauses 6(1) and 19(1) of proposed Schedule 4 to the BSA which deal with the commercial and national television conversion schemes and clause 37 of proposed Schedule 4 which deals with digital television format standards.
Clause 5 – Remote licence area
Clause 5 of proposed
Schedule 4 to the BSA deals with remote licence areas. It 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.
Part 2––Commercial television
Clause 6 – Commercial television conversion
scheme
Overview
Clause 6 of proposed Schedule 4 to the
BSA will require the ABA, as soon as practicable after the Bill receives Royal
Assent, to formulate in writing a legally binding scheme for the conversion,
over time, of the transmission of commercial broadcasting services from analog
mode to digital mode.
A commercial television broadcasting service is
defined in clause 2 of proposed Schedule 4 to the BSA to mean a commercial
broadcasting service that provides television programs.
‘Commercial
broadcasting services’ are defined in s. 14 of the BSA as broadcasting
services:
(a) that provide programs that, when considered in the context
of the service being provided, appear to be intended to appeal to the general
public; and
(b) that provide programs that:
(i) are able to be
received by commonly available equipment; and
(ii) are made available
free to the general public; and
(c) that are usually funded by
advertising revenue; and
(d) that are operated for profit or as part of a
profit-making enterprise; and
(e) that comply with any determinations or
clarifications made by the ABA under section 19 of the BSA in relation to
commercial broadcasting services.
The term ‘broadcasting
service’ is defined in s. 6 of the BSA to mean a service that delivers
television programs or radio programs to persons having equipment appropriate
for receiving that service, whether the delivery uses the radiofrequency
spectrum, cable, optical fibre, satellite or any other means or a combination of
those means, but does not include:
(a) a service (including a teletext
service) that provides no more than data, and no more than text (with or without
associated still images); or
(b) a service that makes programs available
on demand on a point-to-point basis, including a dial-up service;
or
(c) a service, or a class of services, that the Minister determines,
by notice in the Commonwealth Gazette, not to fall within this
definition.
The term ‘program’, in relation to a broadcasting
service, is defined in s. 6 of the BSA to mean:
(a) matter the primary
purpose of which is to entertain, to educate or to inform an audience;
or
(b) advertising or sponsorship matter, whether or not of a commercial
kind.
The commercial television conversion scheme is to be divided into
two Parts. Part A of the scheme will deal with licence areas for a commercial
television broadcasting licence that are not remote licence areas. Part B of
the scheme will deal with remote licence areas. Remote licence areas may be
determined, in writing, by the ABA.
Part A of the commercial television
scheme required to be formulated by the ABA must be directed to ensuring the
achievement of the policy objectives set out in subclause 6(3) of proposed
Schedule 4 to the BSA. In formulating or varying Part B of the commercial
television conversion scheme, 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 (see clause
14 of proposed Schedule 4 to the BSA).
In formulating or varying the scheme
the ABA is required to consult with the public, commercial television
broadcasting licensees, the national television broadcasters, the ACA and owners
and operators of broadcasting transmission towers. The scheme, once formulated,
must be tabled in Parliament and will be subject to Parliamentary
disallowance.
Once the scheme is in place, a licensee is required to
comply with the requirements of the scheme. This is made a condition of the
commercial television broadcasting licence.
The scheme must provide that
commercial broadcasters are required to submit implementation plans to the ABA
(indicating the stages and a timetable) for the conversion of commercial
television broadcasting services from transmitting in analog mode to
transmitting in digital mode.
The ABA must either approve or refuse to
approve a proposed implementation plan. In the event that the ABA refuses to
approve the plan, a commercial broadcaster may submit further plans.
In
deciding whether to approve the implementation plan, the ABA must have regard to
the policy objectives that the commercial television conversion scheme is
directed towards achieving and whether the plans submitted are in accordance
with the scheme.
Compliance with implementation plans approved by the ABA
is made a condition of the commercial television broadcasting
licence.
Digital commercial television broadcasting services in the
metropolitan areas of Sydney, Melbourne, Brisbane, Perth and Adelaide must
commence by 1 January 2001. In regional licence areas (other than remote
licence areas), these services must start on a date to be determined by the ABA,
such date being between 1 January 2001 and
1 January 2004. In remote
licence areas, there is no set commencement date but Part B of the commercial
television conversion scheme may provide for one.
Licensees in non-remote
licence areas are required to continue provision of a commercial television
broadcasting service throughout a simulcast period which is to run for 8 years
or such longer period as is prescribed by regulations. For metropolitan
licensees this period is to commence on 1 January 2001 and for regional
licensees (other than remote licensees), this period is to commence on such date
as the ABA determines under the scheme. For remote licensees, Part B of the
commercial television conversion scheme may deal with the duration of the
simulcast period.
If a licensee fails to commence digital transmission at
the beginning of the simulcast period in a non-remote licence area in accordance
with an approved implementation plan, then the scheme will provide that the
licensee must surrender its digital transmitter licence (unless the licensee can
satisfy the ABA that exceptional circumstances exist). The ABA will be required
to afford a licensee that has complied with its commencement obligations an
opportunity to rectify a breach of its digital transmission requirements before
being required to surrender its digital transmitter licence.
Standards
must be determined by regulations under clause 37 of proposed Schedule 4 to the
BSA which will require licensees in non-remote licence areas to meet specified
goals or targets for digital transmission of programs in High Definition
Television (HDTV) format. In relation to remote licence areas, similar
standards may be determined by regulations under clause 37. Failure to comply
with these standards will be a breach of a licence condition of the commercial
television broadcasting licence. The conversion scheme must also make provision
for either requiring surrender of the transmitter licence (after the ABA has
given the licensee an opportunity to rectify any breach of an HDTV standard), or
issuing a replacement licence which is sufficient to enable transmission of a
digital television service, but which does not enable transmission in HDTV
format.
Commencement of digital television
The first policy
objective of Part A of the conversion scheme (dealing with non-remote licence
areas) is that each holder of a commercial television broadcasting licence for a
metropolitan licence area will be required to commence transmitting the
commercial television broadcasting service concerned in digital mode in that
area on 1 January 2001 (paragraph 6(3)(a) of proposed Schedule 4 to the BSA). A
metropolitan licence area is defined in clause 2 of proposed Schedule 4 to mean,
in effect, a licence area that includes the GPO of the capital city of a
mainland State.
The second policy objective of Part A of the conversion
scheme is that each holder of a commercial television broadcasting licence for a
regional licence area (other than a remote 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 6(3)(b) of proposed Schedule 4 to the
BSA). A regional licence area is defined in clause 2 of proposed Schedule 4 to
mean a licence area that is not a metropolitan licence area. Different
commencement dates for different regional licence areas may be specified by the
ABA under the scheme.
Simulcast period
The third policy
objective of Part A of the conversion scheme is that there should be a
transitional period for metropolitan and non-remote regional television licence
areas throughout which the commercial television broadcasting licensees will be
required to simulcast their television programs in both analog mode and digital
mode. The simulcast period will run for 8 years or such longer period as is
specified in the regulations in relation to a particular licence area.
In the case of a metropolitan licence area, this period is to begin on 1
January 2001. In the case of a regional licence area (other than a remote
licence area) it is to begin on a date determined by the ABA under the
conversion scheme during the period beginning on 1 January 2001 and ending
immediately before 1 January 2004 (paragraph 6(3)(c) of proposed Schedule 4 to
the BSA).
Additional channels
The fourth policy objective
of Part A of the conversion scheme is that, throughout the simulcast period for
a non-remote licence area, the holder of a commercial television broadcasting
licence for that area should be authorised, under one or more transmitter
licences, to use additional spectrum to transmit the commercial television
broadcasting service in digital mode in that area (paragraph 6(3)(d) of proposed
Schedule 4 to the BSA).
The fifth policy objective of Part A of the
conversion scheme is that the additional channels should occupy the same amount
of bandwidth as the channels used by the licensee for a particular coverage area
to transmit the commercial television broadcasting service concerned in analog
mode in that area (paragraph 6(3)(e) of proposed Schedule 4 to the
BSA).
Commercial television broadcasting programs are currently
transmitted to the public in Australia with the use of an analog channel with a
bandwidth of 7 MHz. The intention underlying these policy objectives is that
existing commercial free to air television broadcasters are to be allocated 7MHz
of additional television spectrum, free of upfront charge (except for minor
charges to cover the administrative costs of the ABA) to enable them to
simulcast their analog television programs in digital mode.
Coverage
and potential reception quality
The sixth policy objective of Part A
of the conversion scheme is that, as soon as is practicable after the start of
the simulcast period for a metropolitan or non-remote 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 (paragraph 6(3)(f) of
proposed Schedule 4 to the BSA).
Reception quality can only be specified
as ‘potential’ as the actual reception quality will depend on the
quality of the receiver and antennae being used.
This objective is
intended to allow metropolitan and regional licensees in non-remote licence
areas 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.
A further policy objective in paragraph 6(3)(j) of
proposed Schedule 4 to the BSA is aimed at ensuring that coverage and reception
quality objectives applying throughout the simulcast period will continue to
apply after the end of the simulcast
period.
Co-location
The seventh policy objective of Part A
of the conversion scheme is that, during the simulcast period for a non-remote
licence area, there should, as far as is practicable, be co-location of digital
and analog transmitters (paragraph 6(3)(g) of proposed Schedule 4 to the BSA).
This is intended to ensure that licensees can be approved by the ABA to use
existing transmission infrastructure to transmit their commercial television
programs in digital mode. The access regime in Part 5 of proposed Schedule 4 to
the BSA is intended to further this objective.
This policy objective is
expressed as being required to be achieved ‘as far as is
practicable’ because it is recognised that there are certain circumstances
where co-location of analog and digital transmitters is not technically
possible.
To ensure that the co-location objective is not unduly
restrictive, subclause 6(6) makes it clear that Part A of scheme may make
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 6(3), to the
costs involved for the licensee concerned and to such other matters as the ABA
considers relevant.
End of simulcast period
The eighth
policy objective of Part A of the conversion scheme (paragraph 6(3)(h) of
proposed Schedule 4 to the BSA) is that at the end of the simulcast period
analog transmissions of a commercial television broadcasting service are to
cease and each commercial television broadcasting licensee for a particular
non-remote licence area is either:
(a) to continue transmitting the
service in digital mode in that area using the additional channels that were
used for digital transmission during the simulcast period (ie retain its digital
transmitter licence) and surrender its analog transmitter licence;
or
(b) to 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 its
digital transmitter licence.
If the licensee elects to surrender its
digital transmitter licence, subclause 8(9) of proposed Schedule 4 to the BSA
will require the conversion scheme to make provision for the ACA to vary the
conditions of the licensee’s analog transmitter licence to ensure that the
licence authorises digital transmission of television programs in the area
concerned after the end of the simulcast period.
Continuation of
coverage and potential reception quality
The ninth policy objective
of Part A of the digital conversion scheme is 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 (paragraph 6(3)(j) of proposed Schedule 4 to the
BSA).
Datacasting services
The tenth policy objective of
Part A of the digital conversion scheme is that commercial television
broadcasting licensees should 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 (paragraph 6(3)(k) of proposed
Schedule 4 to the BSA).
The term ‘datacasting service’ is
defined in clause 2 of proposed Schedule 4 to the BSA to mean a service (other
than a broadcasting service as defined in s. 6 of the BSA) 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 the delivery of the service uses the broadcasting services bands and the
service is not of a kind specified in the regulations. Paragraph 59(1)(a) in
proposed Schedule 4 to the BSA provides that before 1 January 2001 the Minister
is to arrange for a review to be conducted to determine the scope of the term
‘datacasting service’. Clause 40 of proposed Schedule 4 to the BSA
allows datacasting standards to be determined by the
regulations.
Consultation
The eleventh policy objective of
Part A of the digital conversion scheme is that the ABA is to consult commercial
television broadcasting licensees about the implementation of the scheme
(paragraph 6(3)(l) of proposed Schedule 4 to the BSA).
The twelfth
policy objective is that Part A of the scheme 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. This
recognises that 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.
These policy objectives are
supplemented by the consultation requirements contained in clause 18 of proposed
Schedule 4 to the BSA in connection with the formulation or variation of the
scheme.
Early commencement of digital
transmission
Subclause 6(4) of proposed Schedule 4 to the BSA makes
it clear that nothing in subclause 6(3) 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, subclause 6(5) of proposed Schedule 4 to the BSA
will permit Part A of the conversion scheme to allow a commercial television
broadcasting licensee to conduct temporary test transmissions of its commercial
television broadcasting 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
To ensure
that the co-location objective in paragraph 6(3)(g) of proposed Schedule 4 to
the BSA is not unduly restrictive, subclause 6(6) of that Schedule makes it
clear that Part A of the commercial television conversion scheme may make
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 6(3), to the
costs involved for the licensee concerned and to such other matters as the ABA
considers relevant.
Remote licence areas––simulcast
period
Subclause 6(7) of proposed Schedule 4 to the BSA 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 simulcast 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
Subclauses 6(8)
and (13) of proposed Schedule 4 to the BSA provide that the simulcasting
requirements in paragraph 6(3)(c) and subclause 6(7) 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.
Subclause 6(9) of proposed Schedule 4 to the BSA, 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 6(10) of proposed Schedule 4 to
the BSA, 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 6(9) or
(10) unless it is satisfied that, on the assumption that the determination were
made, the digital version of the commercial television broadcasting service
concerned will be ‘substantially the same’ as the analog version of
that service (proposed subclause 6(11)).
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
6(9) and (10). 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 16(2) of proposed
Schedule 4 to the BSA).
Proposed subclause 6(12) provides that the
ABA’s determination under subclause 6(9) or (10) 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.
Clause 7 – Scheme may confer administrative powers
on the ABA
Clause 7 of proposed Schedule 4 to the BSA enables the
commercial television conversion scheme to make provision with respect to a
matter by conferring on the ABA a power to make a decision of an administrative
character.
Clause 8 – Transmitter licences
Grant
of additional spectrum for digital transmission
Subclause 8(1) of
proposed Schedule 4 to the BSA provides that 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. The issue of these licences is dealt with in proposed
section 102A of the Radcom Act (see item 8 of Schedule 2 to the
Bill).
Return of spectrum if digital transmission does not
begin
Subclause 8(2) of proposed Schedule 4 to the BSA provides that
Part A of the commercial television conversion scheme (dealing with non-remote
licence areas) must make provision for requiring a commercial television
broadcasting licensee to surrender its digital transmitter licence or licences
if the licensee does not commence digital transmission in accordance with
paragraph 6(3)(a) or (b) of proposed Schedule 4 to the BSA and the licensee does
not satisfy the ABA that there are exceptional circumstances. The term
‘exceptional circumstances’ is usually construed as meaning
something like ‘quite out of the ordinary’: Awa v Independent
News Auckland Ltd [1966] 2 NZLR 184 at 186 per Hammond J, and see also
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
at 684 per McHugh J. This accords with the definition of
‘exceptional’ in the Macquarie Dictionary which is ‘forming an
exception or unusual instance; unusual; extraordinary’.
The
exceptional circumstances must relate to the particular broadcaster concerned
and not merely to a class of broadcasters (ie commercial television broadcasting
licensees) to which the broadcaster belongs: cf. Re SG (1968) 11 FLR 326
at 328 per Blackburn J.
Unless the ABA’s decision is manifestly
unreasonable, it is for the ABA and not for the courts to say whether there are
exceptional circumstances available to justify its decision not to require the
surrender of a digital transmitter licence because of a contravention of a
matter mentioned in subclauses 8(3) and 8(7): cf. Haoucher v Minister for
Immigration and Ethnic Affairs (1990) 169 CLR 648 at 684 per McHugh
J.
Possible exceptional circumstances might include circumstances beyond
a broadcaster’s control such as extreme weather conditions, landslides,
earthquakes or other acts of God, prolonged labour disputes or serious technical
difficulties that could not have been reasonably foreseen.
Return of
spectrum if digital transmission does not continue throughout the simulcast
period
Under subclause 8(3) of proposed Schedule 4 to the BSA, Part A
of the conversion scheme 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.
Return of
spectrum at end of simulcast period
At the end of the simulcast
period for a non-remote licence area, analog transmissions of a commercial
television broadcasting service are to cease and each commercial television
broadcasting licensee for a particular licence area is either:
(a) to
continue transmitting the service in digital mode in that area using the
additional channels that were used for digital transmission during the simulcast
period (ie retain its digital transmitter licence) and surrender its analog
transmitter licence; or
(b) to 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 its digital transmitter licence.
In these
circumstances, subclause 8(9) of proposed Schedule 4 to the BSA will require the
scheme to make provision to require the ACA to vary the conditions of the analog
licence to allow digital transmission.
Subclauses 8(4) and (5) of
proposed Schedule 4 to the BSA provide that Part A of the commercial television
conversion scheme must make provision for requiring the surrender of a
transmitter licence or transmitter licences in accordance with paragraphs (a) or
(b) above.
Subclause 8(6) of proposed Schedule 4 to the BSA provides that
Part A of the commercial television conversion scheme must provide that, if a
commercial television broadcasting licensee 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 licensee intends to pursue the outcome referred to in paragraph (a)
or (b) above, the licensee is taken to have pursued the outcome referred to in
paragraph (a).
Subclause 8(10) of proposed Schedule 4 to the BSA 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.
Return
of spectrum if High Definition Television (HDTV) standards
contravened
Under subclause 8(7) of proposed Schedule 4 to the BSA,
Part A of the conversion scheme 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.
If a licensee has failed to
meet HDTV standards and is required to surrender a digital transmitter licence,
the scheme 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
(subclause 8(8) of proposed Schedule 4 to the BSA). The intention behind this
provision 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. In accordance with clause 12 of proposed Schedule 4 to the BSA (which
deals with ancillary or incidental provisions), the commercial television
conversion scheme will be able to contain rules about how much transmission
capacity is to be covered by the replacement licence.
Variation of
analog transmitter licence to allow digital transmission
Subclause
8(9) of proposed Schedule 4 to the BSA will require Part A of the conversion
scheme to make provision for requiring that, if a commercial television
broadcasting licensee surrenders its digital transmitter licence for a
particular non-remote licence area at the end of the simulcast period, the ACA
must vary the conditions of the licensee’s analog transmitter licence to
ensure that the licence authorises digital (but not analog) transmission of
television programs in the area concerned after the end of the simulcast
period.
Remote licence areas
Subclause 8(10) of proposed
Schedule 4 to the BSA 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.
Subclause 8(11) of
proposed Schedule 4 to the BSA 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.
Clause 9 – Submission of implementation plans to
the ABA
Subclause 9(1) of proposed Schedule 4 to the BSA will require
the commercial television conversion scheme to make provision for requiring the
commercial television broadcasting licensees to prepare, and submit to the ABA,
one or more implementation plans relating to digital transmission, where the
plans are in accordance with the scheme. It is envisaged that these plans would
set out a timetable for the installation and operation of digital
transmitters.
Subclause 9(2) will allow the scheme to provide for the
variation of implementation plans submitted to the ABA.
Clause 10
– Amendment of certain plans and guidelines
Subclauses 10(1)
and (2) of proposed Schedule 4 to the BSA will permit the commercial television
conversion scheme to amend:
(a) the frequency allotment plan or a licence
area plan; or
(b) technical planning guidelines in force under section 33
of the BSA.
In this way, the scheme can operate to amend the key
instruments of ‘analog’ planning and maintain consistency between
these instruments and the conversion scheme.
Subclause 10(3) of proposed
Schedule 4 to the BSA provides that subclauses 10(1) and (2) will not limit the
ABA’s powers under sections 25, 26 and 33 of the BSA.
Subsection
26(1) of the BSA requires the ABA to prepare licence area plans determining the
number and characteristics, including technical specifications, of broadcasting
services that are to be available in particular areas of Australia with the use
of the broadcasting services bands. The following are included in the
‘precise detail’ of each licence area plan:
• the areas
covered by the licence area;
• the nominal carrier frequencies of
the services;
• the nominal transmitter sites for each
service;
• the nominal technical conditions for each service,
including operating power and radiation pattern.
Licence area plans must
be consistent with the relevant frequency allotment plan. (Section 25 of the
BSA provides that where the Minister has, under section 31 of the Radcom Act,
referred a part of the radiofrequency spectrum to the ABA for planning, the ABA
must prepare a frequency allotment plan that determines the number of channels
that are to be available in particular areas of Australia to provide
broadcasting services using that part of the radiofrequency spectrum. In
preparing or varying this plan, the ABA must comply with any directions given to
it by the Minister.)
Section 33 of the BSA requires the ABA to develop
written guidelines for the technical planning of individual services that use
the broadcasting services bands as a means of delivery.
The ABA may
therefore make technical planning guidelines that apply to individual services
under the commercial television conversion scheme. Compliance with these
guidelines and with technical specifications determined by the ABA under
subsection 26(1) of the BSA is made a condition of a transmitter licence by
reason of paragraphs 109(1)(d) and (e) of the Radcom Act.
Clause 11
– Reviews and reports
Clause 11 of proposed Schedule 4 to the
BSA permits the commercial television conversion scheme to provide for the ABA
to conduct reviews, and report to the Minister, on specified
matters.
Clause 12 – Ancillary or incidental
provisions
Clause 12 of proposed Schedule 4 to the BSA permits the
commercial television conversion scheme to contain such ancillary or incidental
provisions as the ABA considers appropriate.
Clause 13 – ABA to
have regard to datacasting allocation power
Subclause 13(1) of
proposed Schedule 4 to the BSA provides that in formulating or varying the
commercial television conversion scheme, the ABA will be required to have regard
to its power under proposed subsection 34(3) of the BSA (see item 5 of Schedule
1 to the Bill). New subsection 34(3) will allow the ABA to decide that a part
or parts of the broadcasting services bands spectrum is or are available for
allocation for the purposes of the provision of datacasting services. This
provision is designed to allow the ABA, in formulating the spectrum planning
phase of the scheme, to provide for mechanisms to identify spectrum which would
be suitable for allocation for the purposes of the provision of datacasting
services.
Subclause 13(2) provides that subclause 13(1) does not limit
the matters to which the ABA may have regard.
Clause 14 – ABA to
have regard to special circumstances that apply in remote licence
areas
Clause 14 of proposed Schedule 4 to the BSA provides that 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.
Clause 15 – Minister may give directions to the
ABA
Subclause 15(1) of proposed Schedule 4 to the BSA requires the
ABA, in formulating or varying the commercial television conversion scheme, to
comply with any written Ministerial directions given to it.
Subclause
15(2) provides that a Ministerial direction may be of a general or specific
nature. Any Ministerial direction will need to be consistent with the policy
objectives of the conversion scheme set out in clause 6 of proposed Schedule 4
to the BSA. This is because in formulating or varying the scheme the ABA cannot
act in a way contrary to these objectives.
Subclause 15(3) requires the
Minister to arrange for a copy of a direction under subclause 15(1) to be
published in the Commonwealth Gazette within 14 days after the direction
is given.
Clause 16 – Variation of scheme
Subclause
16(1) of proposed Schedule 4 to the BSA permits the commercial television
conversion scheme to be varied, but not revoked, in accordance with subsection
33(3) of the Acts Interpretation Act 1901. This will permit variations
of the scheme in the same manner and subject to the same conditions applying to
the formulation of the original scheme.
Subclause 16(2) of proposed
Schedule 4 to the BSA provides that subclause 16(1) will not limit the
application of subsection 33(3) of the Acts Interpretation Act 1901 to
other instruments under the BSA (see, for example, subclauses 6(9) and (10) and
19(9) and (10) and clauses 51 and 61 of proposed Schedule 4 to the BSA). This
will allow the ABA to revoke or vary any such instruments in the same manner and
subject to the same conditions (if any) as applied to the making of the original
instruments.
Clause 17 – Scheme to be a disallowable
instrument
Clause 17 of proposed Schedule 4 to the BSA provides that
the commercial television conversion scheme formulated by the ABA under
subclause 6(1) of that Schedule is a disallowable instrument. The scheme must
therefore be notified in the Commonwealth Gazette, tabled in the
Parliament and will be subject to Parliamentary disallowance.
Clause
18 – Processes to be public
Clause 18 of proposed Schedule 4 to
the BSA provides that in formulating or varying the commercial television
conversion scheme, the ABA must make provision for public consultation as well
as consultation with the free to air television broadcasters, the ACA and owners
and operators of broadcasting transmission towers.
Provision has been
made for consultation with owners and operators of broadcasting transmission
towers because the digital conversion scheme will affect their legal
obligations, 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.
It is intended that the requirement for
public consultation would include consultation with those persons interested in
providing datacasting services. It is also intended that all those consulted
would be given an adequate opportunity to comment.
Part 3––ABC/SBS
television
Clause 19 – National television conversion
scheme
Overview
Clause 19 of proposed Schedule 4 to the
BSA will require the ABA, as soon as practicable after the Bill receives Royal
Assent, to formulate in writing a legally binding scheme for the conversion,
over time, of the transmission of national television broadcasting services from
analog mode to digital mode.
The national
television conversion scheme is to be divided into two Parts. Part A of the
scheme will deal with metropolitan and regional coverage areas (being areas that
correspond to metropolitan and regional licence areas) that are not remote
coverage areas. Part B of the scheme will deal with remote coverage areas. A
remote coverage area is an area in relation to a national broadcasting service
that corresponds to a remote licence area as defined in clause 5 of proposed
Schedule 4 to the BSA.
Part A of the scheme to be formulated by the ABA
must be directed to ensuring the achievement of the policy objectives set out in
subclause 19(3) of proposed Schedule 4 to the BSA. In formulating or varying
Part B of the national television conversion scheme, 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 (see clause 28 of proposed Schedule 4 to the BSA).
In formulating
or varying the scheme the ABA is required to consult with the public, the
national television broadcasters, commercial television broadcasting licensees,
the ACA and owners and operators of broadcasting transmission towers.
The
scheme, once formulated, must be submitted by the ABA to the Minister for
approval. Once approved the scheme must be tabled in Parliament and will be
subject to Parliamentary disallowance.
Clause 32 of proposed Schedule 4
to the BSA provides that the national television conversion scheme, or a
variation of the scheme, will not take effect unless and until it is approved by
the Minister.
Clause 34 of proposed Schedule 4 to the BSA requires a
national broadcaster to comply with the national television scheme. Paragraph
8(1)(d) of the Australian Broadcasting Corporation Act 1983 provides that
one of the duties of the ABC Board is to ensure that the ABC does not
contravene, or fail to comply with, any of the provisions of a Commonwealth Act
that are applicable to the ABC (see also subsection 38(1) of the Acts
Interpretation Act 1901). Paragraph 10(1)(d) of the Special Broadcasting
Service Act 1991 provides that one of the duties of the SBS Board is to
ensure that the SBS does not contravene any Commonwealth Act. Accordingly, it
is part of the duties of the ABC Board and the SBS Board to comply with clause
34 of proposed Schedule 4 to the BSA.
Once the scheme is in place, the
ABC and the SBS will be able, of their own volition or if directed to do so by
the Minister, to submit an implementation plan to the Minister indicating the
stages and a timetable for the conversion of ABC or SBS television services from
transmitting in analog to transmitting in digital mode.
The Minister must
either approve or refuse to approve the proposed plan. In the event that the
Minister refuses to approve the plan, the ABC or the SBS may submit further
plans.
In deciding whether to approve an implementation plan relating to
a non-remote coverage area, the Minister must have regard to the objectives for
the national television conversion scheme mentioned in subclause 19(3) of
proposed Schedule 4 to the BSA, the objective that the ABC and the SBS should be
required to commence transmitting television in digital mode on 1 January 2001
in metropolitan coverage areas and on or after 1 January 2001 but before 1
January 2004 in regional coverage areas (other than remote coverage areas) and
such other matters that the Minister considers relevant (taking into account the
Minister’s overall planning responsibilities for national broadcasting
services and the Minister’s accountability to Parliament for the operation
of the ABC and the SBS).
In deciding whether to approve an implementation
plan relating to a remote coverage area, the Minister must have regard to the
special circumstances that apply to the transmission of national broadcasting
services in that area and such other matters that the Minister considers
relevant.
Once the implementation plan is approved by the Minister, it
comes into force and the boards of the SBS and the ABC will be bound to comply
with the plan (see paragraph 8(1)(d) of the Australian Broadcasting
Corporation Act 1983 and paragraph 10(1)(d) of the Special Broadcasting
Service Act 1991).
Digital national television broadcasting services
in the metropolitan coverage areas of Sydney, Melbourne, Brisbane, Perth and
Adelaide must commence by 1 January 2001. In regional coverage areas (other
than remote coverage areas), these services must start on a date to be approved
by the Minister in the implementation plan, such date being on or after 1
January 2001 but so that all other areas have digital transmission of the
service by 1 January 2004. In remote coverage areas, there is no set
commencement date but Part B of the national television conversion scheme may
provide for one.
National broadcasters in non-remote coverage areas are
required to continue provision of a national television broadcasting service
throughout a simulcast period for a particular coverage area which is to end on
the same date as the simulcast period for commercial television licence areas.
In relation to remote coverage areas, Part B of the national television
conversion scheme may deal with the duration of the simulcast period.
If
a national broadcaster fails to commence digital transmission at the beginning
of the simulcast period in accordance with an approved implementation plan, then
the scheme will provide that the national broadcaster must surrender its digital
transmitter licence (unless the national broadcaster can satisfy the ABA that
exceptional circumstances exist). The ABA will be required to afford a national
broadcaster that has complied with its commencement obligations an opportunity
to rectify a breach of its digital transmission requirements before being
required to surrender its digital transmitter licence.
Standards must be
determined by regulations under clause 37 of proposed Schedule 4 to the BSA
which will require a national broadcaster in non-remote coverage areas to meet
specified goals or targets for transmission of programs in High Definition
(HDTV) format. In relation to remote coverage areas, similar standards may be
determined by regulations under clause 37. The conversion scheme must also make
provision for either requiring surrender of the transmitter licence(after the
ABA has given the national broadcaster an opportunity to rectify any breach of
an HDTV standard), or issuing a replacement licence which is sufficient to
enable transmission of a digital television service, but which does not enable
transmission in HDTV format.
Commencement of digital
television
The first policy objective of Part A of the conversion
scheme (dealing with non-remote coverage areas) is that the ABC and the 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 19(3)(a) and 20(3)(a) of proposed Schedule 4 to the BSA). A
metropolitan coverage area is defined in clause 2 of proposed Schedule 4 to mean
an area that corresponds to a metropolitan licence area. A metropolitan licence
area is defined in clause 2 of proposed Schedule 4 to mean, in effect, a licence
area that includes the GPO of the capital city of a mainland State.
The
second policy objective of Part A of the conversion scheme is that the ABC and
the SBS be required to commence transmitting the national television
broadcasting service concerned in digital mode in regional coverage areas (other
than remote coverage areas) on or after 1 January 2001 so that all such areas
have digital transmission of the service by 1 January 2004 (paragraphs 19(3)(b)
and 20(3)(a) of proposed Schedule 4 to the BSA). A regional coverage area is
defined in clause 2 of proposed Schedule 4 to mean an area that corresponds to a
regional licence area. A regional licence area is defined to mean a licence
area that is not a metropolitan licence area. Different commencement dates for
different regional coverage areas may be specified in an implementation plan
approved by the Minister.
Simulcast period
The third policy
objective of Part A of the conversion scheme is that there should be a
transitional period for metropolitan and non-remote regional coverage areas
throughout which the ABC and the SBS will be required to simulcast their
television programs in both analog mode and digital mode.
In a
metropolitan coverage area the simulcast period is to begin on 1 January 2001.
In a non-remote regional coverage area, the simulcast period is to begin on or
after 1 January 2001 with the aim of ensuring that all non-remote regional
coverage areas have digital transmission of national broadcasting services by 1
January 2004. The end of the simulcast period for a metropolitan or regional
coverage area (other than a remote coverage area) will be the same as that
applicable to commercial television broadcasting services in the licence area
corresponding to the coverage area concerned (paragraph 19(3)(c) of proposed
Schedule 4 to the BSA).
Clause 35 deals with additional simulcasting
requirements for the ABC and the SBS.
Additional
channels
The fourth policy objective of Part A of the conversion
scheme is that, throughout the simulcast period for a non-remote coverage area,
the ABC and the SBS should be authorised, under one or more transmitter
licences, to use additional spectrum to transmit the national television
broadcasting service concerned in digital mode in that area (paragraph 19(3)(d)
of proposed Schedule 4 to the BSA).
The fifth policy objective of Part A
of the conversion scheme is that the additional channels should occupy the same
amount of bandwidth as the channels used by the ABC and the SBS for a particular
coverage area to transmit the national broadcasting service concerned in analog
mode in that area (paragraph 19(3)(e) of proposed Schedule 4 to the
BSA).
The intention underlying these policy objectives is that the ABC
and the SBS are to be required to be allocated sufficient additional television
spectrum to enable them to simulcast their analog television programs in digital
mode.
Coverage and potential reception quality
The sixth
policy objective of Part A of the conversion scheme is that, as soon as is
practicable after the start of the simulcast period for a metropolitan or
non-remote 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 (paragraph 19(3)(f) of proposed Schedule 4 to the
BSA).
Reception quality can only be specified as ‘potential’
as the actual reception quality will depend on the quality of the receiver and
antennae being used.
This objective is intended to allow national
broadcasters in non-remote licence areas 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 Minister, rather than
having to install all digital transmitters or to replicate analog coverage from
the commencement of digital transmission.
A further policy objective in
paragraph 19(3)(j) of proposed Schedule 4 to the BSA is aimed at ensuring that
coverage and reception quality objectives applying throughout the simulcast
period will continue to apply after the end of the simulcast
period.
Co-location
The seventh policy objective of Part A
of the conversion scheme is that, during the simulcast period for a non-remote
coverage area, there should, as far as is practicable, be co-location of digital
and analog transmitters (paragraph 19(3)(g) of proposed Schedule 4 to the BSA).
This is intended to ensure that national broadcasters can be approved by the ABA
to use existing transmission infrastructure to transmit their television
programs in digital mode. The access regime in Part 5 of proposed Schedule 4 to
the BSA is intended to further this objective.
This policy objective is
expressed as being required to be achieved ‘as far as is
practicable’ because it is recognised that there are certain circumstances
where co-location of analog and digital transmitters is not technically
possible.
To ensure that the co-location objective is not unduly
restrictive, subclause 19(6) makes it clear that Part A of scheme may make
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 19(3), to the
costs involved for the national broadcaster concerned and to such other matters
as the ABA considers relevant.
End of simulcast period
The
eighth policy objective of Part A of the conversion scheme (paragraph 19(3)(h)
of proposed Schedule 4 to the BSA) is that at the end of the simulcast period
for a non-remote coverage area, analog transmissions of national television
broadcasting services are to cease and the ABC and the SBS are
either:
(a) to continue transmitting the service concerned in digital
mode in that area using the additional channels that were used for digital
transmission during the simulcast period (ie retain their digital transmitter
licences) and surrender their analog transmitter licences; or
(b) to
transmit the national 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 their digital transmitter
licences.
If the ABC or the SBS elects to surrender its digital
transmitter licence, subclause 23(9) of proposed Schedule 4 to the BSA will
require the conversion scheme to make provision for the ACA to vary the
conditions of the ABC’s or the SBS’s analog transmitter licence to
ensure that the licence authorises digital (but not analog) transmission of the
national broadcasting service concerned in the area concerned after the end of
the simulcast period.
Continuation of coverage and potential reception
quality
The ninth policy objective of Part A of the digital
conversion scheme is 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 (paragraph 19(3)(j)
of proposed Schedule 4 to the BSA).
Datacasting
services
The tenth policy objective of Part A of the digital
conversion scheme is that the ABC and the SBS should 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 (paragraph
19(3)(k) of proposed Schedule 4 to the BSA).
The term
‘datacasting service’ is defined in clause 2 of proposed Schedule 4
to the BSA to mean a service (other than a broadcasting service as defined in s.
6 of the BSA) 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 the delivery of the service uses the
broadcasting services bands and the service is not of a kind specified in the
regulations. Paragraph 59(1)(a) of proposed Schedule 4 to the BSA provides that
before 1 January 2001 the Minister is to arrange for a review to be conducted to
determine the scope of the term ‘datacasting service’. Clause 40 of
proposed Schedule 4 to the BSA allows datacasting standards to be determined by
the regulations.
Consultation
The eleventh policy objective
of Part A of the national television conversion scheme is that the ABA is to
consult the ABC and the SBS about the implementation of the scheme (paragraph
19(3)(l) of proposed Schedule 4 to the BSA).
The twelfth policy
objective is that Part A of the scheme 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. This recognises that 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.
These policy objectives are
supplemented by the consultation requirements contained in clause 33 of proposed
Schedule 4 to the BSA in connection with the formulation or variation of the
scheme.
Early commencement of digital
transmission
Subclause 19(4) of proposed Schedule 4 to the BSA makes
it clear that nothing in subclause 19(3) prevents the national television
conversion scheme from allowing the ABC or the 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 the SBS to commence digital
transmission in a regional coverage area before the formal simulcast period
begins.
In addition, subclause 19(5) of proposed Schedule 4 to the BSA
will permit Part A of the conversion scheme to allow the ABC and the SBS to
conduct temporary test transmissions of its national television broadcasting
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 the ABC and the 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
To ensure that the
co-location objective in paragraph 19(3)(g) of proposed Schedule 4 to the BSA is
not unduly restrictive, subclause 19(6) of that Schedule makes it clear that
Part A of the national television conversion scheme may make 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 19(3), to the costs involved for the
national broadcaster concerned and to such other matters as the ABA considers
relevant.
Remote coverage areas––simulcast
period
Subclause 19(7) of proposed Schedule 4 to the BSA 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 a national broadcaster is required to simulcast 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
Subclauses 19(8) and (13) of proposed Schedule 4 to the
BSA provide that the simulcasting requirements in paragraph 19(3)(c) and
subclause 19(7) of proposed Schedule 4 to the BSA do not apply in relation to
the broadcast of television programs by the ABC or the 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 the 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 19(9), 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 19(10), 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 19(9) or (10) 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 19(11)).
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 19(9) and
(10). 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 30(2) of proposed
Schedule 4 to the BSA).
Proposed subclause 19(12) provides that the
ABA’s determination under subclause 19(9) or (10) 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.
Clause 20 – National broadcasters to give
implementation plans to the Minister
The ABC and the
SBS:
(a) will be able, of their own volition; and
(b) will be
required, if and when required to do so by the Minister;
to 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 (subclause 20(1) of proposed Schedule 4 to the
BSA).
It is envisaged that these plans would set out a timetable for the
installation and operation of digital transmitters.
The Minister must
either approve or refuse to approve an implementation plan given to him under
clause 20 (subclause 20(2)).
In deciding whether to approve an
implementation plan that relates to a non-remote coverage area, the Minister
must have regard to the following matters:
(a) whether the implementation
plan is directed towards ensuring the achievement of the following policy
objectives:
(i) the objective that the ABC and the SBS 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 the ABC and the SBS should be required, on or after
1
January 2001, to commence transmitting the national television broadcasting
service concerned in digital mode to regional coverage areas (other than remote
coverage areas) so that all digital transmission is commenced in such areas by 1
January 2004; and
(b) the policy objectives mentioned in subclause 19(3);
and
(c) such other matters (if any) as the Minister considers relevant
(paragraphs 20(3)(a), (b) and (d)).
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 broadcasting services in that areas as well as such other matters (if
any) as the Minister considers relevant (paragraphs 20(3)(c) and
(d)).
Before deciding whether to approve an implementation plan, the
Minister may direct the ABA to give the Minister a report about the matter
(subclause 20(4)).
An implementation plan comes into force once it is
approved by the Minister (subclause 20(5)).
If the Minister refuses to
approve an implementation plan, the Minister may require the ABC and the SBS to
give him a fresh implementation plan (subclause 20(6)).
If the
implementation plan is to be varied, subclauses 20(1) to (6) apply to the giving
or approval of a variation of the plan in a corresponding way to the way in
which they apply to the giving or approval of a plan (subclause
20(7)).
Clause 21 – Compliance with implementation
plans
Clause 21 of proposed Schedule 4 to the BSA provides that if an
implementation plan given to the Minister by the ABC or the SBS is in force, the
ABC or the SBS must comply with the plan.
Paragraph 8(1)(d) of the
Australian Broadcasting Corporation Act 1983 provides that one of the
duties of the ABC Board is to ensure that the ABC does not contravene, or fail
to comply with, any of the provisions of a Commonwealth Act that are applicable
to the ABC (see also subsection 38(1) of the Acts Interpretation Act
1901).
Paragraph 10(1)(d) of the Special Broadcasting Service
Act 1991 provides that one of the duties of the SBS Board is to ensure that
the SBS does not contravene any Commonwealth Act.
Accordingly, it will
be part of the duties of the ABC Board and the SBS Board to comply with its
implementation plan in accordance with clause 21 of proposed Schedule 4 to the
BSA.
Clause 22 – Scheme may confer administrative powers on the
ABA
Clause 22 of proposed Schedule 4 to the BSA enables the national
television conversion scheme to make provision with respect to a matter by
conferring on the ABA a power to make a decision of an administrative
character.
Clause 23 – Transmitter licences
Grant
of additional spectrum for digital transmission
Subclause 23(1) of
proposed Schedule 4 to the BSA provides that 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. The issue of these licences is dealt with in proposed section
100B of the Radcom Act (see item 6 of Schedule 2 to the Bill).
Return
of spectrum if digital transmission does not begin
Subclause 23(2) of
proposed Schedule 4 to the BSA provides that Part A of the national television
conversion scheme (dealing with non-remote coverage areas) must make provision
for requiring the ABC or SBS to surrender its digital transmitter licence or
licences if it does not commence digital transmission in accordance with
paragraph 19(3)(a) or (b) of proposed Schedule 4 to the BSA and it does not
satisfy the ABA that there are exceptional circumstances. The term
‘exceptional circumstances’ is usually construed as meaning
something like ‘quite out of the ordinary’: Awa v Independent
News Auckland Ltd [1966] 2 NZLR 184 at 186 per Hammond J, and see also
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
at 684 per McHugh J. This accords with the definition of
‘exceptional’ in the Macquarie Dictionary which is ‘forming an
exception or unusual instance; unusual; extraordinary’.
The
exceptional circumstances must relate to the particular broadcaster concerned
and not merely to a class of broadcasters (ie national broadcasters) to which
the broadcaster belongs: cf. Re SG (1968) 11 FLR 326 at 328 per Blackburn
J.
Unless the ABA’s decision is manifestly unreasonable, it is for
the ABA and not for the courts to say whether there are exceptional
circumstances available to justify its decision not to require the surrender of
a digital transmitter licence because of a contravention of a matter mentioned
in subclauses 23(3) and 23(7): cf. Haoucher v Minister for Immigration and
Ethnic Affairs (1990) 169 CLR 648 at 684 per McHugh J.
Possible
exceptional circumstances might include circumstances beyond a
broadcaster’s control such as extreme weather conditions, landslides,
earthquakes or other acts of God, prolonged labour disputes or serious technical
difficulties that could not have been reasonably foreseen.
Return of
spectrum if digital transmission does not continue throughout the simulcast
period
Under subclause 23(3) of proposed Schedule 4 to the BSA, 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.
Return of spectrum at end of
simulcast period
At the end of the simulcast period for a non-remote
coverage area, analog transmissions of national television broadcasting services
are to cease and the ABC and the SBS are either:
(a) to continue
transmitting these services in digital mode using the additional channels that
were used for digital transmission during the simulcast period (ie retain their
digital transmitter licences) and surrender their analog transmitter licences;
or
(b) to transmit these services in digital mode using the channels that
were used during the simulcast period to transmit that service in analog mode
and surrender their digital transmitter licences.
Subclauses 23(4) and
(5) of proposed Schedule 4 to the BSA provide that Part A of the national
television conversion scheme must make provision for requiring the surrender of
a transmitter licence or transmitter licences in accordance with paragraphs (a)
or (b).
Subclause 23(6) of proposed Schedule 4 to the BSA provides that
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 non-remote coverage area, whether the broadcaster
intends to pursue the outcome referred to in paragraph (a) or (b) above, the
broadcaster is taken to have pursued the outcome referred to in paragraph
(a).
Subclause 23(10) of proposed Schedule 4 to the BSA 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.
Return of spectrum
if High Definition Television (HDTV) standards contravened
Under
subclause 23(7) of proposed Schedule 4 to the BSA, Part A of the conversion
scheme 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.
If the ABC or the SBS has failed to meet HDTV standards and is
required to surrender a digital transmitter licence, the scheme 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 (subclause 23(8) of
proposed Schedule 4 to the BSA). The intention behind this provision 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. In
accordance with clause 26 of proposed Schedule 4 to the BSA (which deals with
ancillary or incidental provisions), the national television conversion scheme
will be able to contain rules about how much transmission capacity is to be
covered by the replacement licence.
Variation of analog transmitter
licence to allow digital transmission
Subclause 23(9) of proposed
Schedule 4 to the BSA will require Part A of the conversion scheme to make
provision for requiring that, if the ABC or the SBS surrenders its digital
transmitter licence for a particular non-remote coverage area at the end of the
simulcast period, the ACA must vary the conditions of the ABC’s or the
SBS’s analog transmitter licence to ensure that the licence authorises
digital transmission of television programs in the area concerned after the end
of the simulcast period.
Remote coverage areas
Subclause
23(10) of proposed Schedule 4 to the BSA 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.
Subclause 23(11) of proposed Schedule 4 to the BSA 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.
Clause 24 – Amendment of
certain plans and guidelines
Subclauses 24(1) and (2) of proposed
Schedule 4 to the BSA will permit the national television conversion scheme to
amend:
(a) the frequency allotment plan or a licence area plan;
or
(b) technical planning guidelines in force under section 33 of the
BSA.
In this way, the scheme can operate to amend the key instruments of
‘analog’ planning and maintain consistency between these instruments
and the conversion scheme.
Subclause 24(3) of proposed Schedule 4 to the
BSA provides that subclauses 24(1) and (2) will not limit the ABA’s powers
under sections 25, 26 and 33 of the BSA.
Subsection 26(1) of the BSA
requires the ABA to prepare licence area plans determining the number and
characteristics, including technical specifications, of broadcasting services
that are to be available in particular areas of Australia with the use of the
broadcasting services bands. The following are included in the ‘precise
detail’ of each licence area plan:
• the areas covered by the
licence area;
• the nominal carrier frequencies of the
services;
• the nominal transmitter sites for each
service;
• the nominal technical conditions for each service,
including operating power and radiation pattern.
Licence area plans must
be consistent with the relevant frequency allotment plan. (Section 25 of the
BSA provides that where the Minister has, under section 31 of the Radcom Act,
referred a part of the radiofrequency spectrum to the ABA for planning, the ABA
must prepare a frequency allotment plan that determines the number of channels
that are to be available in particular areas of Australia to provide
broadcasting services using that part of the radiofrequency spectrum. In
preparing or varying this plan, the ABA must comply with any directions given to
it by the Minister.)
Section 33 of the BSA requires the ABA to develop
written guidelines for the technical planning of individual services that use
the broadcasting services bands as a means of delivery.
Clause 25
– Reviews and reports
Clause 25 of proposed Schedule 4 to the
BSA permits the national television conversion scheme to provide for the ABA to
conduct reviews, and report to the Minister, on specified
matters.
Clause 26 – Ancillary or incidental
provisions
Clause 26 of proposed Schedule 4 to the BSA permits the
national television conversion scheme to contain such ancillary or incidental
provisions as the ABA considers appropriate.
Clause 27 – ABA to
have regard to datacasting allocation power
Subclause 27(1) of
proposed Schedule 4 to the BSA provides that in formulating or varying the
national television conversion scheme, the ABA will be required to have regard
to its power under proposed subsection 34(3) of the BSA (see item 5 of Schedule
1 to the Bill). New subsection 34(3) will allow the ABA to decide that a part
or parts of the broadcasting services bands spectrum is or are available for
allocation for the purposes of the provision of datacasting services. This
provision is designed to allow the ABA, in formulating the spectrum planning
phase of the scheme, to provide for mechanisms to identify spectrum which would
be suitable for allocation for the purposes of the provision of datacasting
services.
Subclause 27(2) provides that subclause 27(1) does not limit
the matters to which the ABA may have regard.
Clause 28 – ABA to
have regard to special circumstances that apply in remote coverage
areas
Clause 28 of proposed Schedule 4 to the BSA provides that 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.
Clause 29 – Minister may give directions to the
ABA
Subclause 29(1) of proposed Schedule 4 to the BSA requires the
ABA, in formulating or varying the national television conversion scheme, to
comply with any written Ministerial directions given to it.
Subclause
29(2) provides that a Ministerial direction may be of a general or specific
nature. Any Ministerial direction will need to be consistent with the policy
objectives of the conversion scheme set out in clause 19 of proposed Schedule 4
to the BSA. This is because in formulating or varying the scheme the ABA cannot
act in a way contrary to these objectives.
Subclause 29(3) requires the
Minister to arrange for a copy of a direction under subclause 29(1) to be
published in the Commonwealth Gazette within 14 days after the direction
is given.
Clause 30 – Variation of scheme
Subclause
30(1) of proposed Schedule 4 to the BSA permits the national television
conversion scheme to be varied, but not revoked, in accordance with subsection
33(3) of the Acts Interpretation Act 1901. This will permit variations
of the scheme in the same manner and subject to the same conditions applying to
the formulation of the original scheme.
Subclause 30(2) of proposed
Schedule 4 to the BSA provides that subclause 30(1) will not limit the
application of subsection 33(3) of the Acts Interpretation Act 1901 to
other instruments under the BSA (see, for example, subclauses 6(9) and (10) and
19(9) and (10) and clauses 51 and 61 of proposed Schedule 4 to the BSA). This
will allow the ABA to revoke or vary any such instruments in the same manner and
subject to the same conditions (if any) as applied to the making of the original
instruments.
Clause 31 – Scheme to be a disallowable
instrument
Clause 31 of proposed Schedule 4 to the BSA provides that
the national television conversion scheme formulated by the ABA under subclause
19(1) of that Schedule is a disallowable instrument. The scheme must therefore
be notified in the Commonwealth Gazette, tabled in the Parliament and
will be subject to Parliamentary disallowance.
Clause 32 –
Scheme does not take effect until approved by the Minister
Clause 32
of proposed Schedule 4 to the BSA provides that the national television
conversion scheme, or a variation of the scheme, will not take effect unless and
until it is approved by the Minister.
Clause 33 – Processes to
be public
Clause 33 of proposed Schedule 4 to the BSA provides that
in formulating or varying the national television conversion scheme, the ABA
must make provision for public consultation as well as consultation with the
free to air television broadcasters, the ACA and owners and operators of
broadcasting transmission towers.
Provision has been made for
consultation with owners and operators of broadcasting transmission towers
because the digital conversion scheme will affect their legal obligations, 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.
It is intended that the requirement for public
consultation would include consultation with those persons interested in
providing datacasting services. It is also intended that those consulted would
be given an adequate opportunity to comment.
Clause 34 –
Compliance with scheme
Clause 34 of Schedule 4 to the BSA requires a
national broadcaster to comply with the national television conversion scheme.
In accordance with paragraph 8(1)(d) of the Australian Broadcasting
Corporation Act 1983 and paragraph 10(1)(d) of the Special Broadcasting
Service Act 1991 it will be part of the duties of the ABC Board and the SBS
Board to comply with the scheme.
Clause 35 – Simulcasting
requirements
Clause 35 of proposed Schedule 4 to the BSA provides
that if there is a simulcast period for a coverage area, the ABC or the SBS will
not be able to broadcast a television program in digital mode during the
simulcast period for that area unless:
(a) the program is broadcast
simultaneously by the ABC or the SBS 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 ABC or the
SBS 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 clause
35.
The term ‘incidental’ in connection with a simulcast
program is intended to mean something happening or likely to happen ‘in
fortuitous or subordinate conjunction with’ the program: Rothmans v
Australian Broadcasting Tribunal (1985) 58 ALR 675 at 691 per Bowen CJ,
Toohey and Wilcox JJ; and Director of Public Prosecutions v United
Telecasters Sydney Ltd (1990) 91 ALR 1 at 14 per Toohey and McHugh JJ. The
words ‘directly linked’ in conjunction with ‘incidental’
are intended to emphasise the direct relationship between the simulcast program
and the incidental program.
Subject to the Ministerial review to be
conducted to determine the scope of the regulations concerning what programs are
to be treated as ‘incidental and directly linked’ to simulcast
programs (see paragraph 59(1)(a) of proposed Schedule 4 to the BSA), it is
envisaged that the following might be considered ‘incidental and directly
linked’ to a simulcast program:
• replays and progress
summaries of a sports match in progress that is simulcast (perhaps also
highlights of elimination matches that brought the players or teams to the
simulcast match);
• more detailed coverage of news items,
infotainment items, speeches or interviews that are being simulcast;
and
• different views of the event that is being simulcast, filmed
within the confines of the event, such as the ability to view the event from
different camera angles.
Regulations will also be able to be made under
paragraph (c) above to exempt a specified kind of program from the operation of
clause 35. This is intended to enable regulations to be made which authorise
the provision of multi-channel programming which is consistent with the national
broadcasters’ Charter and functions and which will not unfairly compete
with multi-channel programming provided by subscription television broadcasting
licensees. The statutory review referred to in paragraph 59(1)(a) of proposed
Schedule 4 to the BSA will include a review into the appropriate content of
regulations under paragraph (c) above.
The effect of subclause 35(2) of
proposed Schedule 4 to the BSA is that the simulcasting requirements of clause
35 will not apply to advertising, sponsorship matter or television programs
covered by an ABA determination.
Clause 36 – Digital
transmitter not to be used to provide a subscription television broadcasting
service etc.
Clause 36 of proposed Schedule 4 to the BSA contains a
prohibition on the use of digital transmitters by national broadcasters that
corresponds to the prohibition to be imposed on commercial television
broadcasting licensees under proposed paragraph 7(1)(p) of Schedule 2 to the
BSA).
Under clause 36, if a national broadcaster holds a broadcasting
transmitter licence required to be issued under s. 100B of the Radcom Act (which
deals with NBS transmitter licences required to be issued under digital
conversion schemes) 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 commercial
broadcasting service that provides radio programs –
commercial radio broadcasting is governed by commercial radio
broadcasting licences granted by the ABA under Part 4 of the
BSA;
• a subscription television broadcasting
service – this service is governed by the
licensing provisions in Part 7 of the BSA that apply to ‘subscription
television broadcasting services’; or
• a subscription radio
broadcasting service or an open or subscription narrowcasting
service – these services are governed by class
licences under Part 8 of the BSA.
It is arguable that there is a
potential conflict between clause 36 and any regulations that may made under
paragraph 35(c) (ie. the ABC or the SBS may be in breach of the narrowcasting
prohibition in clause 36, notwithstanding it is able to transmit some
multi-channel programming under paragraph 35(c)). For avoidance of doubt,
subclause 36(2) therefore makes it clear that the restrictions in subclause
36(1) do not prevent the ABC or the SBS doing anything it is authorised to do
under paragraph 35(1)(c).
Part
4––Standards
Clause 37 – Digital television format
standards
HDTV standards––non-remote
areas
Standards will be required to be determined by regulations
under clause 37 of proposed Schedule 4 to the BSA requiring commercial
television broadcasting licensees and national broadcasters in non-remote areas
to meet specified goals or targets for digital transmission of programs in High
Definition Television (HDTV) format (subclauses 37(1) and (2) of proposed
Schedule 4 to the BSA).
Subclauses 37(3) and (4)) 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) subclause 8(8) or 23(8) of proposed Schedule 4 to the BSA applies
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
Subclause 37(5) of proposed Schedule 4 to the BSA 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.
Subclauses 37(6) and (7) of proposed Schedule 4
to the BSA provide that subclause 37(5) 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 8(8) or 23(8) (which
will not permit transmission in HDTV format).
Non-HDTV
standards
The regulations will also be able to determine other
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 (subclause 37(8)).
These other standards will only apply to
the digital transmission of a commercial television broadcasting service or a
national television broadcasting service (subclauses 37(9) and
(10)).
Compliance
The ABC and the SBS will be required to
comply with digital television format standards (proposed subclause 37(11)). In
accordance with paragraph 8(1)(d) of the Australian Broadcasting Corporation
Act 1983 and paragraph 10(1)(d) of the Special Broadcasting Service Act
1991 it will be part of the duties of the ABC Board and the SBS Board to
comply with such standards.
Under proposed paragraph 7(1)(n) of Schedule
2 to the BSA (see item 10 of Schedule 1 to the Bill) it will be a standard
licence condition of a commercial television broadcasting licence that the
licensee comply with standards applicable to the licence under clause 37 of
proposed Schedule 4 to the BSA. A breach of this licence condition will
attract, in the case of an individual, a pecuniary penalty of 2,000 penalty
units and, in the case of a body corporate, 10,000 penalty units: see BSA s.
139(1) and the Crimes Act 1914, s. 4B(3).
Clause 38 –
Captioning standards
Subclause 38(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. It is intended that
these standards would be required to be observed by free to air television
broadcasters in relation to programs transmitted in both analog and digital
mode.
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 38. Accordingly, subclause
38(8) provides that in clause 38 the term ‘program’ does not include
advertising or sponsorship matter (whether or not of a commercial
kind).
Without limiting the generality of subclause (1), captioning
standards must require free to air 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
(proposed subclauses 38(2) and (3)).
Captioning standards are to be
directed towards ensuring the achievement of the objectives that, as far as is
practicable, the free to air television broadcasters should:
(a) provide
a captioning service for television programs transmitted during prime viewing
hours; and
(b) provide a captioning service for television news programs,
and television current affairs programs, transmitted outside prime viewing hours
(proposed subclause 38(4)).
The captioning standards requirement has been
formulated in a way which takes into account possible practical difficulties in
providing a captioning service for all program material (eg. television programs
transmitted ‘live to air’).
For the purposes of subclause
38(4), ‘prime viewing hours’ are the hours:
(a) beginning at
6pm each day or, if another time is prescribed by the regulations, beginning at
that prescribed time each day; and
(b) ending at 10.30pm on the same day
or, if another time is prescribed by the regulations, ending at that prescribed
time on the same day (proposed subclause 38(5)).
Subclause 38(6) makes it
clear, however, that a particular free to air television broadcaster will not be
required to observe captioning standards provided for in the regulations before
the first occasion on or after 1 January 2001 on which the broadcaster
broadcasts television programs in digital mode.
Under current
arrangements, captioning may be either ‘open’ or
‘closed’. Closed captioning constitutes teletext based supertext
subtitles on television programs for the benefit of people with a hearing loss.
Closed captions are more extensive than subtitles, because they give a written
description of background noises as well as what is actually being said. Being
a teletext service, closed captioning is not a broadcasting service for the
purposes of the BSA. Closed captions require a decoder in order for the
captions to be seen. By contrast, open captions are ‘burned in’ to
program footage and can be seen at any time.
Closed captioning is
currently dealt with in industry codes of practice developed by representatives
of commercial broadcasting licensees in consultation with the ABA. Codes of
practice may relate, amongst other things, to captioning of programs for the
hearing impaired (paragraph 123(2)(i) of the BSA).
It is envisaged that
these current Codes of Practice will remain and will elaborate upon the
standards set out in the regulations.
The ABC and the SBS will be
required to comply with captioning standards (proposed subclause 38(7)). In
accordance with paragraph 8(1)(d) of the Australian Broadcasting Corporation
Act 1983 and paragraph 10(1)(d) of the Special Broadcasting Service Act
1991 it will be part of the duties of the ABC Board and the SBS Board to
comply with such standards.
Under proposed paragraph 7(1)(o) of Schedule
2 to the BSA (see item 10 of Schedule 1 to the Bill) it will be a standard
licence condition of a commercial television broadcasting licence that the
licensee comply with standards applicable to the licence under clause 38 of
proposed Schedule 4 to the BSA. A breach of this licence condition will
attract, in the case of an individual, a pecuniary penalty of 2,000 penalty
units and, in the case of a body corporate, 10,000 penalty units: see BSA s.
139(1) and the Crimes Act 1914, s. 4B(3).
Clause 39 –
Technical standards for digital transmission of television broadcasting
services
Subclause 39(1) of proposed Schedule 4 to the BSA enables
regulations to determine technical standards that:
(a) relate to the
transmission of free to air television programs 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.
The power under clause 39 to make technical standards is intended
as a reserve power to be used in circumstances where industry agreement on such
standards is not achieved.
Subclauses 39(3) and (4) require the
commercial television scheme and the national television conversion scheme to be
consistent with any technical standards determined under subclause
39(1).
Subclause 39(2) provides that to the extent that technical
standards for digital transmission of television broadcasting services
determined under subclause 39(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.
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.
Subclause 39(5)
provides that, in clause 39, ‘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.
Clause 40 – Datacasting standards
Subclause
40(1) of proposed Schedule 4 to the BSA allows the regulations to determine
standards to be observed by the free to air television broadcasters and others
in relation to the provision by them of datacasting services transmitted in
digital mode. This power is intended as a reserve power to be used in
circumstances where industry agreement on such standards is not
achieved.
The term ‘datacasting service’ is defined in clause
2 of proposed Schedule 4 to the BSA to mean a service (other than a broadcasting
service as defined in s. 6 of the BSA) 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 the delivery of the
service uses the broadcasting services bands and the service is not of a kind
specified in the regulations. Paragraph 59(1)(a) in proposed Schedule 4 to the
BSA provides that before 1 January 2001 the Minister is to arrange for a review
to be conducted to determine the scope of the term ‘datacasting
service’.
Subclause 40(2) provides that to the extent that
datacasting standards determined under subclause 40(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.
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.
Subclause 40(4) provides that, in clause
40, ‘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.
Subclause 40(3) of proposed Schedule 4 to the BSA provides that 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 licensee and any person authorised by the
licensee, must comply with datacasting standards under subclause
40(1).
Clause 41 – Standards may incorporate other
instruments
Clause 41 of proposed Schedule 4 to the BSA provides that
section 589 of the Telecommunications Act 1997 will apply to regulations
made for the purposes of Part 4 of proposed Schedule 4 to the BSA in a
corresponding way to the way in which it applies to an instrument under the
Telecommunications Act.
This means that notwithstanding anything in the
Acts Interpretation Act 1901 (see in particular s. 49A of that Act) or in
the proposed Legislative Instruments Act 1997, regulations made for the
purposes of Part 4 of proposed Schedule 4 to the BSA will be able to make
provision in relation to a matter by applying, adopting, or incorporating (with
or without modifications) provisions of any Commonwealth Act as in force at a
particular time or as in force from time to time.
In addition,
notwithstanding anything in the Acts Interpretation Act or in the proposed
Legislative Instruments Act, regulations made for the purposes of Part 4 of
proposed Schedule 4 to the BSA will be able to make provision in relation to a
matter by applying, adopting or incorporating (with or without modifications)
matter contained in any other instrument or writing whatever as in force or
existing at a particular time or from time to time even if the other instrument
or writing does not yet exist when the regulations under Part 4 of proposed
Schedule 4 to the BSA are made. The reference to ‘writing’ will
include any mode of representing or reproducing words, figures, drawings or
symbols in a visible form (see s. 25 of the Acts Interpretation Act
1901).
The reference in the preceding paragraph to any other
instrument or writing is defined widely in subsection 589(3) of the
Telecommunications Act 1997 to include a reference to an instrument or
writing made by any person or body in Australia or elsewhere (including, for
example, the Commonwealth, a State or Territory or one of its officers or
authorities or an overseas entity) whatever its nature and whether or not it has
legal force or effect. Examples will include:
• regulations or
rules under a Commonwealth Act;
• a State Act, a Territory law or
regulations or any other instrument made under such an Act or
law;
• an international technical standard or performance
indicator; or
• a written agreement such as a contract or an
arrangement or an instrument or writing made unilaterally.
Part 5––Transmitter access
regime
Part 5 of proposed Schedule 4 to the BSA imposes obligations on the owner
or operator of a broadcasting transmission tower to
provide:
• commercial television broadcasting licensees and the ABC
and the SBS with access to the tower, and the site of the tower, for the purpose
of installing or maintaining a transmitter and associated facilities for use in
transmitting the broadcasters’ television broadcasting services in digital
mode; and
• a datacaster with access to the tower, and the site of
the tower, for the purpose of installing or maintaining a transmitter and
associated facilities for use in providing datacasting services in digital
mode.
Part 7 of proposed Schedule 4 to the BSA provides an access seeker
or the ABA with a right to seek an injunction from the Federal Court if the
access requirements of Part 5 have been contravened, are being contravened, or
are proposed to be contravened.
The Part 5 access regime is based on the
relatively simple and robust access regime in Part 5 of Schedule 1 to the
Telecommunications Act 1997, which gives telecommunications carriers
rights of access to other carriers’ transmission towers and
sites.
The National Transmission Network Sale Bill uses a different
access regime based on Part XIC of the Trade Practices Act 1974. The
National Transmission Network Sale Bill access regime gives access rights to
certain public interest users for both:
• access to transmission
services for the carriage of signals; and
• access to sites and
towers to install facilities.
Rather than applying two different access
regimes for access to services and facilities, the National Transmission Network
access regime used the access to services model in Part XIC of the Trade
Practices Act as that model was more appropriate to apply in the context of
provisions giving access to services and as a means of simplifying the
legislation involved.
Clause 42 – Simplified
outline
Clause 42 of proposed Schedule 4 to the BSA provides a
simplified outline of Part 5 of that Schedule to assist
readers.
Clause 43 – Definitions
Clause 43 of proposed Schedule 4 to the BSA sets out the key definitions used in Part 5.
A ‘datacaster’ is defined to mean a person who provides a
datacasting service. ‘Datacasting service’ is defined in clause 2
of Schedule 4 to mean a service (other than a broadcasting service as defined in
s. 6 of the BSA) 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 the delivery of the service uses the
broadcasting services bands and the service is not of a kind specified in the
regulations. Paragraph 59(1)(a) in proposed Schedule 4 provides that before 1
January 2001 the Minister is to arrange for a review to be conducted to
determine the scope of the term ‘datacasting
service’.
‘Facility’ is defined to include apparatus,
equipment, a structure or a line. Section 6 of the BSA provides that unless the
contrary intention appears ‘line’ has the same meaning as in the
Telecommunications Act 1997. That Act defines ‘line’ to mean
a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium
used, or for use, as a continuous artificial guide for or in connection with
carrying communications by means of guided or unguided electromagnetic
energy.
A ‘site’ is defined to mean land or a building or
structure on land.
Other terms used in Part 5, and elsewhere in proposed
Schedule 4 to the BSA, are defined in clause 2 of that Schedule. For example,
in clause 2, a ‘broadcasting transmission tower’ is defined to mean
any tower, pole, mast or similar structure that is used to supply a broadcasting
service by means of radiocommunications using the broadcasting services bands
and ‘radiocommunication’ is defined to have the same meaning as in
the Radcom Act, being a concept that is dealt with in s. 6 of that
Act.
Clause 44 – Extended meaning of
access
Clause 44 of proposed Schedule 4 to the BSA provides an
extended meaning of the word ‘access’ for the purposes of Part 5.
It is not intended that access to a tower be refused on the grounds that
proposed modifications to the tower are not technically feasible where access
could be achieved by an existing tower on a site being replaced with another
tower located on the site and access being given to the replacement tower.
Note, however, that any such access must be on agreed terms or conditions or,
failing agreement, determined by arbitration (see clause 47 of proposed Schedule
4 to the BSA).
Clause 45 – Access to broadcasting transmission
towers
Clause 45 of proposed Schedule 4 to the BSA requires the owner
or operator of a broadcasting transmission tower, on the request of a commercial
television broadcasting licensee or the ABC or the SBS (an ‘access
seeker’), to provide access to the tower where:
• 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;
• the access
seeker gives reasonable notice that it requires access; and
• the
ABA has not certified that the proposed access is not technically
feasible.
Clause 45 also requires the owner or operator of a broadcasting
transmission tower, on the request of a datacaster, to provide access to the
tower where:
• the access is provided for the sole purpose of
enabling the datacaster 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;
• the datacaster gives reasonable notice
that it requires access; and
• the ABA has not certified that the
proposed access is not technically feasible.
Subclause 45(5) deals with
the ability of the ABA to certify that, in its opinion, compliance with the
above access requirements is not technically feasible.
Subclause 45(6)
sets out matters to which the ABA must have regard in determining whether
compliance is technically feasible. These matters include whether compliance is
likely to result in significant technical or engineering difficulties or in a
significant threat to the health or safety of persons who operate, or work on,
the tower.
Subclause 45(7) requires the ABA to use its best endeavours to
decide whether to issue such a certificate within 10 business days after being
requested to issue the certificate.
Clause 46 – Access to sites
of broadcasting transmission towers
Clause 46 of proposed Schedule 4
to the BSA requires the owner or operator of a broadcasting transmission tower,
on the request of a commercial television broadcasting licensee or the ABC or
the SBS (an ‘access seeker’), to provide access to a site if the
tower is situated on the site and:
• either:
– the
site is owned, occupied or controlled by the owner or operator of the tower;
or;
– the owner or operator of the tower has a right (either
conditional or unconditional) to use the site; and
• 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;
• the access
seeker gives reasonable notice that it requires access; and
• the
ABA has not certified that the proposed access is not technically
feasible.
Clause 46 also requires the owner or operator of a broadcasting
transmission tower, on the request of a datacaster, to provide access to the
tower if the tower is situated on the site and:
• the access is
provided for the sole purpose of enabling the datacaster 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;
• the
datacaster gives reasonable notice that it requires access;
and
• the ABA has not certified that the proposed access is not
technically feasible.
Subclause 46(5) deals with the ability of the ABA
to certify that, in its opinion, compliance with the above access requirements
is not technically feasible.
Subclause 46(6) sets out matters to which
the ABA must have regard in determining whether compliance is technically
feasible. These matters include whether compliance is likely to result in
significant technical or engineering difficulties or in a significant threat to
the health or safety of persons who operate, or work on, a facility situated on
the site.
Subclause 46(7) requires the ABA to use its best endeavours to
decide whether to issue such a certificate within 10 business days after being
requested to issue the certificate.
Clause 47 – Terms and
conditions of access
Clause 47 of proposed Schedule 4 to the BSA
provides that the terms and conditions on which the owner or occupier of a
broadcasting transmission tower under subclauses 45(1) and (3) and subclauses
46(1) and (3) of proposed Schedule 4 to the BSA are to be as agreed between the
owner or operator and an access seeker (being a commercial television
broadcasting licensee, the ABC, the SBS or a datacaster), or, where agreement
cannot be reached, determined by an arbitrator appointed by the parties. Where
the parties cannot agree on an arbitrator, the Australian Competition and
Consumer Commission (ACCC) is to be the arbitrator.
Clause 47 further
provides that regulations may be made for the conduct of an arbitration under
this clause. These include regulations that may deal with the constitution of
the ACCC for the purposes of such an arbitration.
Clause 48 –
Code relating to access
Subclauses 48(1), (3) and (4) of proposed
Schedule 4 to the BSA provide 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.
Before the ACCC makes the
Code, subclause 48(2) requires that it consult commercial television
broadcasting licensees, national broadcasters and owners and operators of
broadcasting transmission towers.
If the Code is not complied with, an
access seeker or the ABA will be able to seek injunctions from the Federal Court
under Part 7 of proposed Schedule 4 to the BSA.
A Code is a disallowable
instrument which must be notified in the Commonwealth Gazette, tabled in
the Parliament and is subject to Parliamentary disallowance (subclause
48(5)).
Clause 49 – Arbitration––acquisition of
property
Clause 49 of proposed Schedule 4 to the BSA provides that
any provision of Part 5 of proposed Schedule 4 to the BSA that authorises the
conduct of arbitration by the ACCC or another person (see clause 47 of proposed
Schedule 4 to the BSA) will have no effect to the extent (if any) to which it
purports to authorise the acquisition of property otherwise than on just terms
in contravention of paragraph 51(xxxi) of the Constitution.
Clause 50
– Relationship between this Part and the National Transmission Network
Sale Act 1998
Part 5 of the proposed Schedule 4 to the BSA
provides an access regime for commercial television broadcasting licensees,
national broadcasters and datacasters to gain access to broadcasting
transmission towers and tower sites for the purpose of installing or maintaining
digital transmitters.
Part 3 of the proposed National Transmission
Network Sale Act 1998 provides access to certain sites or telecommunications
transmission towers for certain nominated customers for certain nominated
purposes.
The nominated customers and purposes include:
(a) access
by the ABC and the SBS for purposes connected with national broadcasting
services (paragraph 15(2)(b)); and
(b) access by commercial broadcasting
licensees for purposes connected with providing commercial broadcasting services
in declared remote areas (subclause 15(5)).
The ABC, the SBS and
commercial broadcasting licensees providing commercial television broadcasting
services in declared remote areas will also have access rights under the
proposed digital access regime to some or all of the same sites and towers
for:
(a) the purpose of installing or maintaining a transmitter for use
in transmitting television broadcasting services in digital mode;
or
(b) the purpose of installing or maintaining a transmitter for use in
providing datacasting services in digital mode (if they are also
datacasters).
The relevant principle governing access should be that the
digital access rules displace the NTN Sale access rules to the extent of any
overlap.
Accordingly, clause 50 of proposed Schedule 4 to the BSA
provides that Part 3 of the proposed National Transmission Network Sale Act
1998 does not apply in relation to an access seeker seeking access to a
broadcasting transmission tower or site to the extent to which Part 5 of
proposed Schedule 4 to the BSA applies in relation to the access seeker seeking
access to that tower or site.
Part 6––Collection of
datacasting charge
Part 6 of proposed Schedule 4 to the BSA provides for the charge determined
by the ACA (and any late payment penalty determined by the ABA) to be payable to
the ABA on behalf of the Commonwealth. The ABA is to determine when a charge is
due and payable. It is anticipated that the ABA will consult with the ACA in
making this determination.
Clause 51 – Collection of datacasting
charge
Clause 51 of proposed Schedule 4 to the BSA provides for the
collection of a charge imposed by the proposed Datacasting Charge
(Imposition) Act 1998. That Act imposes a charge in relation to the
provision of datacasting services by the ABC, SBS and commercial television
broadcasting licensees.
The term ‘datacasting service’ is
defined in clause 2 of proposed Schedule 4 to the BSA to mean a service (other
than a broadcasting service as defined in s. 6 of the BSA) 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 the delivery of the service uses the broadcasting services bands and the
service is not of a kind specified in the regulations. Paragraph 59(1)(a) in
proposed Schedule 4 provides that before 1 January 2001 the Minister is to
arrange for a review to be conducted to determine the scope of the term
‘datacasting service’.
Subclause 51(1) defines terms used in
clause 51.
Subclauses 51(2) and (9) provide that datacasting charge is
due and payable in accordance with a disallowable written determination made by
the ABA. As the determination is a disallowable instrument, it must be notified
in the Commonwealth Gazette, tabled in the Parliament and will be subject
to Parliamentary disallowance.
Subclauses 51(3) and (9) allow the ABA to
make a disallowable written determination determining penalties for the late
payment of datacasting charge at the rate of up to a maximum of 20% per annum on
the amount unpaid. Such a determination will have effect accordingly (subclause
51(4)).
Subclause 51(5) makes it clear that a determination of late
payment penalties may also provide for the ABA to grant remissions of the whole
or a part of those penalties.
Subclause 51(6) makes it clear that
datacasting charge and late payment penalty are payable to the ABA on behalf of
the Commonwealth.
Subclause 51(7) provides that datacasting charge, and
any late payment penalty incurred, are debts due to the Commonwealth and may be
recovered as such by the ABA.
Subclause 51(8) provides that amounts
received by way of charge or late payment penalty must be paid into the
Consolidated Revenue Fund.
The provisions in subsections 33(3), (3A) and
(3B) of the Acts Interpretation Act 1901 in relation to instruments will
also apply to an ABA determination. This will allow the ABA, for example, to
revoke or vary any such determination in the same manner and subject to the same
conditions (if any) as applied to the making of the original determination (see
subclauses 16(2) and 30(2) of proposed Schedule 4 to the BSA).
Clause
52 – Cancellation of certain exemptions from datacasting
charge
Clause 52 of proposed Schedule 4 to the BSA ceases the
exemptions from payment of a charge payable under the proposed Datacasting
Charge (Imposition) Act 1998 (subclause 52(1)) where the exemptions are
provided by any Act or provision enacted before the commencement of this clause
(subclause 52(2)).
The ABC and the SBS have exemptions from taxation laws
under section 71 of the Australian Broadcasting Corporation Act 1983 and
section 68 of the Special Broadcasting Service Act 1991. The effect of
clause 52 is to modify these exemptions so that the ABC and the SBS will be
required to pay any charge payable under the proposed Datacasting Charge
(Imposition) Act 1998. That Act will provide for the imposition of a charge
in relation to the provision of datacasting services by both commercial and
national free to air television broadcasters.
Clause 53 – ACA to
report to the Minister on principles for determining the amount of datacasting
charge
Subclause 53(1) of proposed Schedule 4 to the BSA provides
that before the ACA makes its first determination of the amount of datacasting
charge under section 7 of the proposed Datacasting Charge (Imposition) Act
1998, the ACA will be required to prepare, and give to the Minister, a
written report about proposals that are to be embodied in that
determination.
Subclause 53(2) provides that the report must contain a
statement setting out the extent to which the ACA had regard to competitive
neutrality principles in formulating those proposals.
Subclause 53(3)
requires the Minister to arrange for copies of the ACA’s report to be
tabled before each House of Parliament within 15 sitting days of that House
after receiving the report.
Part
7––Injunctions
Part 7 of proposed Schedule 4 to the BSA enables the Federal Court to
grant injunctions in relation to contraventions or proposed contraventions
of:
(a) implementation plans which commercial television broadcasting
licensees have given to the ABA in accordance with the commercial television
conversion scheme and which have been accepted by the ABA; or
(b) Part 5
of proposed Schedule 4 to the BSA, which deals with the transmitter access
regime.
Clause 54 – Injunctions
If:
(a) a
commercial television broadcasting licensee has engaged, is engaging or is
proposing to engage in any conduct in contravention of an implementation plan
given to the ABA in accordance with the commercial television conversion scheme
dealt with in clause 6 of proposed Schedule 4 to the BSA, and that plan has been
accepted by the ABA; or
(b) a person has engaged, is engaging or is
proposing to engage in any conduct in contravention of Part 5 of proposed
Schedule 4 to the BSA (eg. by refusing to give an access seeker reasonable
access to a broadcasting transmission tower);
the ABA (in the case of
paragraph (a) above) and the ABA or the access seeker, being a free to air
broadcaster or the provider of a datacasting service (in the case of paragraph
(b) above) will be able to apply to the Federal Court for an injunction to
restrain the licensee or person from engaging in the conduct. If, in the
Federal Court’s opinion, it is desirable to do so, the Court will also be
able to require the licensee or person to do something (subclauses 54(1) and
(2)).
If a commercial television broadcasting licensee has refused or
failed, or is refusing or failing, or is proposing to refuse or fail, to do an
act or thing and the refusal or failure was, is or would be a contravention of
the implementation plan given to the ABA in accordance with the commercial
television conversion scheme and accepted by the ABA, the ABA will be able to
apply to the Federal Court for an injunction requiring the person to do that act
or thing (subclause 54(3)).
If 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 the refusal or failure was, is or would be a contravention of Part 5 of
proposed Schedule 4 to the Act (dealing with the transmitter access regime), the
ABA or the access seeker (being a free to air television broadcaster or a
datacaster) will be able to apply to the Federal Court for an injunction
requiring the person to do that act or thing (clause 54(4)).
Clause 55
– Interim injunctions
Provision is also made for the Federal
Court to grant interim injunctions before the Court considers an application for
an injunction (subclause 55(1)).
The Federal Court will not be able 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
(subclause 55(2)).
Clause 56 – Discharge etc. of
injunctions
The Federal Court will be able to discharge or vary an
injunction granted under Part 7 of proposed Schedule 4 to the BSA (clause
56).
Clause 57 – Certain limits on granting injunctions not to
apply
The power of the Federal Court to grant an injunction
restraining a person from engaging in conduct or requiring a person to do an act
or thing will be able to be exercised whether or not:
• it appears
to the Court that the person intends:
– to engage again, or
continue to engage, in conduct of that kind; or
– to refuse or fail
again, or to continue to refuse or fail, to do that act or
thing;
• the person has previously engaged in conduct of that kind
or has previously refused or failed to do that act or thing;
and
• there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of that kind or refuses
or fails to do that act or thing (clause 57).
Clause 58 – Other
powers of the court unaffected
The powers conferred on the Federal
Court under Part 7 of proposed Schedule 4 to the BSA will not limit any other
powers of the Court, whether conferred by the Bill or otherwise (clause
58).
Part
8––Reviews
Clause 59 – Reviews before 1 January 2001
Subclauses
59(1) and (2) of proposed Schedule 4 to the BSA provide that before
1
January 2001 the Minister will be required to arrange for a review to be
conducted into the following matters:
(a) the content of regulations made
for the purposes of the provisions dealing with programming during the simulcast
period and the scope of the term ‘datacasting
service’;
(b) whether any amendments of Commonwealth laws should be
made:
(i) to deal with convergence between broadcasting services and
other services;
(ii) to deal with the re-transmission, on subscription
television broadcasting services, of commercial television broadcasting services
transmitted in digital mode;
(iii) 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 – underserved regional licence areas are
defined in subclause 59(5) to mean those with fewer than 3 commercial television
broadcasting services;
(c) the regulatory arrangements that should apply
to:
(i) the allocation of spectrum in the broadcasting services bands for
the provision of datacasting services – a review into this matter is to be
conducted on the basis that free to air television broadcasters should not be
eligible for the allocation of the spectrum; 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.
The Minister will be required to arrange for the
preparation of a report of a review under subclause 59(1) (subclause
59(3)).
The Minister will also be required to arrange for copies of the
report to be laid before each House of the Commonwealth Parliament within 15
sitting days of that House after the completion of the report (subclause
59(4)).
Clause 60 – Reviews before 31 December
2005
Subclause 60(1) of proposed Schedule 4 to the BSA provides that
before 31 December 2005 the Minister will be required to arrange for a review to
be conducted of the following matters:
(a) whether section 28 of the BSA,
as proposed to be amended by item 1 of Schedule 1 to the Bill, should be amended
or repealed after 31 December 2008 to allow new commercial television
entrants;
(b) whether the simulcast requirements introduced by the Bill
should be amended or repealed;
(c) whether the prohibitions on digital
transmitters being used to provide subscription television broadcasting
services, radio or narrowcasting services should be amended or
repealed;
(d) the content of any regulations made in connection 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.
The Minister will be required to arrange for the preparation
of a report of a review under subclause 60(1) (subclause 60(2)).
The
Minister will also be required to arrange for copies of the report to be laid
before each House of the Commonwealth Parliament within 15 sitting days of that
House after the completion of the report (subclause 60(3)).
Part 9––Charges relating to
ABA’s costs
Clause 61 – Charges relating to ABA’s
costs
Subclause 61(1) 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:
(i) the commercial
television conversion scheme provided for in clause 6 of proposed Schedule 4 to
the BSA; or
(ii) the ABC/SBS television conversion scheme provided for in
clause 19 of that Schedule; or
(iii) subclauses 45(5) and 46(5) of that
Schedule (which permit 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); and
(b) specifying the
persons by whom, and the times when, the charges are payable.
Subclause
61(2) provides that a charge fixed under subclause (1) must not be such as to
amount to taxation.
Subclause 61(3) provides that a determination made by
the ABA under subclause (1) is a disallowable instrument. As such, it must be
notified in the Commonwealth Gazette, tabled in the Parliament and will
be subject to Parliamentary disallowance.
The provisions in subsections
33(3), (3A) and (3B) of the Acts Interpretation Act 1901 in relation to
instruments will also apply to an ABA determination. This will allow the ABA,
for example, to revoke or vary any such determination in the same manner and
subject to the same conditions (if any) as applied to the making of the original
determination (see subclauses 16(2) and 30(2) of proposed Schedule 4 to the
BSA).
With regard to transmitter licence tax payable under the
Radiocommunications (Transmitter Licence Tax) Act 1983, it is proposed to
make a regulation in accordance with section 8 of the Radiocommunications
Taxes Collection Act 1983 to exempt a digital transmitter licence from tax
during the simulcast period.
Part 10––Review of decisions
Clause 62 – Review by the AAT
Clause 62 of proposed
Schedule 4 to the BSA sets out the decisions made by the ABA under Schedule 4 to
the BSA (including references to the provisions under which they were made) in
respect of which a nominated person may apply to the Administrative Appeals
Tribunal (‘the AAT’) for review.
Commercial television
licensees
Paragraphs 62(1)(a) to (d) identify four categories of
decisions that may be made by the ABA under the commercial television conversion
scheme for which only a commercial television broadcasting licensee may apply to
the AAT for review (see subclause 62(2)).
These are:
(a) a
decision to refuse to accept an implementation plan, or a variation of an
implementation plan, given to the ABA by a commercial television broadcasting
licensee; and
(b) a decision that a commercial television broadcasting
licensee has failed to satisfy the ABA that exceptional circumstances exist such
that the ABA should not treat the licensee’s transmitter licence as
surrendered for a failure either:
(i) to meet mandatory commencement
dates for transmission; or
(ii) to continue to transmit in digital mode
throughout the simulcast period; or
(iii) to meet specified goals or
targets, set down by standards, in relation to the extent to which certain
television programs are transmitted in HDTV; and
(c) a decision by the
ABA that the ACA is required to issue a replacement transmitter licence to a
commercial television broadcasting licensee where the amount of transmission
capacity covered by the replacement licence is less than the amount covered by
the surrendered licence – this can only occur in circumstances where a
licensee has failed to meet specified goals or targets, set down by standards,
in relation to the extent to which certain television programs are transmitted
in HDTV; and
(d) a decision specified in the regulations that relates to
a commercial television broadcasting licensee – this is intended to enable
further decisions which may be made by the ABA under the commercial television
conversion scheme to be specified in regulations if it is appropriate that they
be subject to merits review.
National
broadcasters
Subclause 62(3) identifies three categories of decisions
that may be made by the ABA under the national television conversion scheme for
which only a national broadcaster may apply to the AAT for review (see subclause
62(4)).
These are:
(a) a decision that a national broadcaster has
failed to satisfy the ABA that exceptional circumstances exist such that the ABA
should not treat the ABC’s or SBS’s transmitter licence as
surrendered for a failure either:
(i) to meet mandatory commencement
dates for transmission; or
(ii) to continue to transmit in digital mode
throughout the simulcast period; or
(iii) to meet specified goals or
targets, set down by standards, in relation to the extent to which certain
television programs are transmitted in HDTV; and
(b) a decision by the
ABA that the ACA is required to issue a replacement transmitter licence to a
national broadcaster where the amount of transmission capacity covered by the
replacement licence is less than the amount covered by the surrendered licence
– this can only occur in circumstances where a national broadcaster has
failed to meet specified goals or targets, set down by standards, in relation to
the extent to which certain television programs are transmitted in HDTV;
and
(c) a decision specified in the regulations that relates to the ABC
or the SBS – this is intended to enable further decisions which may be
made by the ABA under the national television conversion scheme to be specified
in regulations if it is appropriate that they be subject to merits
review.
Transmitter access regime
Subclause 62(5)
identifies two decisions that may be made by the ABA under the transmitter
access regime for which only an access seeker concerned may apply to the AAT for
review (see subclause 62(6)). The access seekers concerned are the commercial
and national free to air television broadcasters and datacasters.
The
first is a decision by the ABA under subclause 45(5) to issue a certificate
stating that, in the opinion of the ABA, it is not technically feasible for the
owner or operator of a broadcasting transmission tower to give an access seeker
access to that tower.
The second is a decision by the ABA under subclause
46(5) to issue a certificate stating that, in the opinion of the ABA, it is not
technically feasible for the owner or operator of a broadcasting transmission
tower to give an access seeker access to a site if a tower is situated on that
site.
Subclauses 62(7) and (8) enable the owner or operator of the
broadcasting transmission tower concerned to apply to the AAT for a review of a
decision of the ABA to refuse to issue a certificate under subclauses 45(5) or
46(5).
Clause 63 – Notification of decisions to include
notification of reasons and appeal rights
Clause 63 of proposed
Schedule 4 to the BSA requires the ABA, when notifying a person of any one of
the decisions set out in clause 62, to include in the notification:
(a) a
statement of reasons for the decision; and
(b) a statement to the effect
that the person may apply to the AAT for review of that decision.
Schedule 2––Amendment of the Radiocommunications Act 1992
Item 1 – Amendment of section 5 –
Definitions
Item 1 of Schedule 2 to the Bill inserts a new definition
of ‘datacasting service’ in section 5 of the Radcom Act. This term
will have the same meaning as in proposed Schedule 4 to the BSA. The term is
defined in clause 2 of that Schedule to mean a service (other than a
broadcasting service as defined in s. 6 of the BSA) 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 the
delivery of the service uses the broadcasting services bands and the service is
not of a kind specified in the regulations. Paragraph 59(1)(a) in proposed
Schedule 4 provides that before 1 January 2001 the Minister is to arrange for a
review to be conducted to determine the scope of the term ‘datacasting
service’.
Examples of the use of the term ‘datacasting
service’ are in proposed new sections 100A, 100B and 102A of the Radcom
Act (see items 6 and 8 of Schedule 2 to the Bill).
Item 2 –
Insertion of new section 9B – Digital mode
Item 2 of Schedule 2
to the Bill inserts a new section 9B of the Radcom Act. This new section
provides that, for the purposes of the Radcom Act, a service is broadcast or
transmitted in digital mode if the service is broadcast or transmitted using a
digital modulation technique.
Examples of the use of the term
‘digital mode’ are in proposed new sections 100A, 100B and 102A of
the Radcom Act (see items 6 and 8 of Schedule 2 to the Bill).
Items 3
to 5 – Amendment of section 100 – Issuing apparatus
licences
Item 3 of Schedule 2 to the Bill makes a consequential
amendment as a result of amendments made by items 6 and 8 of that Schedule. The
effect of this amendment is that the discretion that the ACA has under section
100 of the Radcom Act to decide whether or not to issue an apparatus licence
will not apply to a digital NBS transmitter licence required to be issued to the
ABC or the SBS under proposed new section 100B of the Act or a digital
transmitter licence required to be issued to a commercial television
broadcasting licensee under proposed new section 102A of the Act or under
section 102 of the Act as proposed to be amended.
Items 4 and 5 make
amendments to subsection 100(2) consequential upon the amendments to section 34
of the BSA contained in items 2 to 5 of Schedule 1 to the Bill.
Item 6
– Insertion of new sections –
100A – NBS
transmitter licences––authorisation of datacasting
services
100B – NBS transmitter licences required to be issued
under digital conversion schemes
Item 6 of Schedule 2 to the Bill
adds new sections 100A and 100B to the Radcom Act to deal with NBS transmitter
licences issued or required to be issued to the ABC or the SBS authorising
datacasting and the operation of one or more specified digital
transmitters.
The ABC and the SBS transmit television programs in
accordance with transmitter licences issued by the ACA under section 100 of the
Radcom Act.
The National Transmission Network Sale (Consequential
Amendments) Bill 1997 currently before Parliament amends the Radcom Act to
provide for the concept of an ‘NBS transmitter licence’ issued under
section 100 of the Radcom Act. This is a transmitter licence for a transmitter
that is for use for transmitting, to the public, a national broadcasting service
within the meaning of the BSA. It is intended that this term mean only those
transmitters which transmit the relevant signal to the public directly,
including transmitters that transmit both to the public and to another
transmitter or translator which then transmits directly to the public, whether
the relevant transmitters are transmitting a signal in the broadcasting services
bands or not.
Proposed subsection 100(3A) of the Radcom Act (to be
inserted by that Bill) provides that an NBS transmitter licence cannot be issued
to any person other than the ABC, SBS or the Commonwealth. After the sale of
the national transmission network, the national broadcasters, rather than the
purchasers of the network, are to hold licences under section 100 of the Radcom
Act to operate transmitters for the purpose of providing national broadcasting
services to the public. This is to ensure that the national broadcasters retain
access in the long-term to frequencies for the provision of their national
broadcasting services and to ensure the national broadcasters are in a
reasonable position to negotiate with other transmission service providers after
the sale of the network.
Proposed section 100A of the Radcom Act (to be
inserted by item 6 of Schedule 2 to the Digital Conversion Bill) will have
effect on or after 1 January 2001. Proposed section 100A provides that if an
NBS transmitter licence is or was issued under section 100 of the Radcom Act and
the licence authorises the operation of one or more specified
radiocommunications transmitters for transmitting the national broadcasting
service concerned in digital mode, the licence is also taken to authorise the
operation of the transmitter or transmitters concerned for transmitting
datacasting services in digital mode using those channels.
Proposed
section 100B of the Radcom Act to be inserted by item 6 of Schedule 2 to the
Digital Conversion Bill provides that if the ACA is required under a national
television conversion scheme (see clause 19 of proposed Schedule 4 to the BSA)
to issue an NBS transmitter licence to a national broadcaster (ie the ABC and
the SBS), the ACA must issue to the broadcaster an NBS transmitter licence that
authorises the operation of one or more specified radiocommunications
transmitters for transmitting the national broadcasting service concerned in
digital mode.
If an NBS transmitter licence is issued under proposed
section 100B, the licence is also taken to authorise the operation of the
transmitter or transmitters concerned for transmitting datacasting services in
digital mode using the channel or channels concerned.
Item 7 –
Amendment of section 102 – Transmitter licences for
certain
broadcasting services
Under section 102 of the Radcom Act, the ACA is
required to issue a transmitter licence to entities that are allocated a
broadcasting services band licence by the ABA under Part 4 or Part 6 of the BSA.
(Part 4 of the BSA deals with commercial television broadcasting licences and
commercial radio broadcasting licences and Part 6 of the BSA deals with
community broadcasting service licences.) This transmitter licence authorises
operation of one or more specified radiocommunications transmitters for
transmitting the broadcasting service concerned in accordance with the
broadcasting services bands licence.
Item 7 of Schedule 2 to the Bill
amends section 102 of the Radcom Act by adding a new subsection 102(3). This
will provide that if a transmitter licence is or was issued under section 102 of
the Radcom Act and the licence authorises the operation of one or more specified
radiocommunications transmitters for transmitting the broadcasting service
concerned in digital mode using one or more channels, the licence is also taken
to authorise the operation of the transmitter or transmitters concerned for
transmitting datacasting services in digital mode using those
channels.
Item 8 – Insertion of new section 102A –
Transmitter licences required to be issued under digital conversion
schemes
Proposed section 102A of the Radcom Act to be inserted by
item 8 of Schedule 2 to the Bill provides that if the ACA is required under a
commercial television conversion scheme (see clause 6 of proposed Schedule 4 to
the BSA) to issue a transmitter licence to a commercial television broadcasting
licensee, the ACA must issue to the licensee a transmitter licence that
authorises the operation of one or more specified radiocommunications
transmitters for transmitting the broadcasting service concerned in digital mode
in accordance with the commercial television broadcasting licence.
If the
commercial television broadcasting licence is transferred, the transmitter
licence will be taken to be issued to the person to whom the commercial
television broadcasting licence is transferred.
If a transmitter licence
is issued under proposed section 102A, the licence is also taken to authorise
the operation of the transmitter or transmitters concerned for transmitting
datacasting services in digital mode using the channel or channels
concerned.
Item 9 – Amendment of section 103 – Duration of
apparatus licences
Item 9 of Schedule 2 to the Bill makes a
consequential amendment as a result of amendments made by item 8 of that
Schedule. The effect of this amendment is that a digital transmitter licence
issued under section 102 of the Radcom Act (as proposed to be amended) or under
section 102A of that Act under a digital conversion scheme will continue in
force while the related commercial television broadcasting licence remains in
force and will not have effect while that licence is suspended.
Item
10 – Amendment of section 106A – Issue of apparatus licence is to be
treated as acquisition of asset of a person for the purposes of section 50 of
the Trade Practices Act
Subsection 106A(1) of the Radcom Act provides
that for the purposes of section 50 and related sections of the Trade
Practices Act 1974, the issue of an apparatus licence to a person is taken
to be an acquisition by the person of an asset of another person. Section 50 of
the Trade Practices Act prohibits the acquisition of an asset by a person if the
acquisition would have the effect, or is likely to have the effect, of
substantially lessening competition in a market.
Subsection 106A(2)
provides that subsection 106A(1) does not apply to a transmitter licence issued
under section 102. Item 10 of Schedule 2 to the Bill amends subsection 106A(2)
to provide that subsection 106A(1) will also not apply to a transmitter licence
issued under a digital conversion scheme under proposed section
102A.
Item 11 – Amendment of section 107 – General
conditions
Section 107 of the Radcom Act sets out the general
conditions to which an apparatus licence is subject. Subsection 107(3)
provides, however, that this section does not apply to transmitter licences
issued under section 101A (transmitters for temporary community broadcasting) or
under section 102 (transmitter licences for certain broadcasting
services).
Item 11 of Schedule 2 to the Bill amends subsection 107(3) to
provide that section 107 will also not apply to transmitter licences issued
under proposed section 102A (transmitter licences required to be issued under
digital conversion schemes). These transmitter licences will be subject to the
conditions set out in section 109 of the Radcom Act (see item 13
below).
Item 12 – Amendment of section 108 – Additional
conditions of transmitter licences
Section 108 of the Radcom Act sets
out conditions for transmitter licences additional to those set out in section
107 of that Act. Subsection 108(5) provides, however, that this section does
not apply to transmitter licences issued under section 101A (transmitters for
temporary community broadcasting) or under section 102 (transmitter licences for
certain broadcasting services).
Item 12 of Schedule 2 to the Bill amends
subsection 108(5) to provide that section 108 will also not apply to transmitter
licences issued under proposed section 102A (transmitter licences required to be
issued under digital conversion schemes). These transmitter licences will be
subject to the conditions set out in section 109 of the Radcom Act (see item 13
below).
Item 13 – Amendment of section 109 – Conditions of
transmitter licences for certain broadcasting services
A broadcasting
transmitter licence issued under section 102 of the Radcom Act is subject to
conditions specified in section 109 of the Radcom Act. These conditions
include:
• a condition that the licensee, and any person authorised
to operate a radiocommunications transmitter under the licence, must not
operate, or permit operation of, such a transmitter otherwise than in accordance
with any technical specifications determined by the ABA under subsection 26(1)
of the BSA; and
• a condition that the licensee, and any person so
authorised, must comply with technical guidelines developed by the ABA under
section 33 of the BSA (see paragraphs 109(1)(d) and (e)) – these
guidelines deal with the planning of individual services which use the
broadcasting services bands as a means of delivery and are intended to cover
matters such as emission standards applying to services, minimum field strength
required within services’ licence areas and permitted maximum field
strength of services’ transmissions outside their licence
areas.
The conditions of a transmitter licence issued under section 102
of the Radcom Act, including any further conditions imposed under paragraph
111(a) of that Act, must not be inconsistent with a related broadcasting
services bands licence (subsection 109(2) of the Radcom Act).
Item 13 of
Schedule 2 to the Bill amends subsections 109(1) and (2) to provide that in
relation to a digital transmitter licence issued under proposed section 102A
(transmitter licences required to be issued under digital conversion
schemes):
• the licence is subject to the conditions set out in
subsection 109(1) of the Radcom Act; and
• the conditions of the
licence, including any further conditions imposed under paragraph 111(a), must
not be inconsistent with the related commercial television broadcasting licence
referred to in proposed section 102A.
Items 14 and 15 –
Amendment of section 111 – Changes to licence
conditions
Paragraph 111(1)(d) of the Radcom Act provides that the
ACA may vary certain section 108 licence conditions to which a transmitter
licence is subject other than a licence issued under section 101A (transmitter
licences for temporary community broadcasting) or section 102 (transmitter
licences for certain broadcasting services). Transmitter licences issued under
sections 101A and 102 are not subject to section 108 licence conditions (see
subsection 108(5) of the Radcom Act).
Item 14 of Schedule 2 to the Bill
amends paragraph 111(1)(d) of the Radcom Act to provide that that paragraph will
also not apply to a digital transmitter licence issued under section 102A
(transmitter licences required to be issued under digital conversion
schemes).
Item 15 inserts a new subsection 111(5) in the Radcom Act.
This provides that if the ACA is required to vary the conditions of a
transmitter licence under a commercial television conversion scheme (see clause
6 of proposed Schedule 4 to the BSA) or a national television conversion scheme
(see clause 19 of proposed Schedule 4 to the BSA), the ACA must, by written
notice given to the licensee, vary those conditions accordingly.
Item
16 – Amendment of section 125 – Application of Division 6 of Part
3.3 – Suspending and cancelling apparatus licences
Section 125
of the Radcom Act deals with the application of Division 6 of Part 3.3 of that
Act, which deals with suspending and cancelling apparatus licences. Subsection
125(2) provides that Division 6 does not apply to transmitter licences issued
under section 101A (transmitter licences for temporary community broadcasting)
or section 102 (transmitter licences for certain broadcasting
services).
Item 16 of Schedule 2 to the Bill provides that Division 6
will also not apply to digital transmitter licences issued under proposed
section 102A (transmitter licences required to be issued under digital
conversion schemes).
Item 17 – Amendment of section 129 –
Applications for renewal of apparatus licences
Section 129 of the
Radcom Act deals with applications for renewal of apparatus licences. This
section does not apply to transmitter licences issued under section 101A
(transmitter licences for temporary community broadcasting) or section 102
(transmitter licences for certain broadcasting services). These licences
continue in force while the related broadcasting licence remains in force and do
not have effect while the related licence is suspended.
Item 17 of
Schedule 2 to the Bill amends section 129 to provide that it also will not apply
to digital transmitter licences issued under proposed section 102A (transmitter
licences required to be issued under digital conversion schemes).
A
digital transmitter licence issued under section 102 of the Radcom Act (as
proposed to be amended) or under section 102A of that Act under a digital
conversion scheme will continue in force while the related commercial television
broadcasting licence remains in force and will not have effect while that
licence is suspended (see item 9 of Schedule 2 to the Bill).
Item 18
– Amendment of section 130 – Renewing apparatus
licences
Section 130 of the Radcom Act empowers the ACA to renew an
apparatus licence by issuing the applicant with a new apparatus licence.
Subsection 130(3) provides that, in deciding whether to renew the licence, the
ACA:
(a) must have regard to the same matters to which it must have
regard under subsections 100(4) and (6) of the Act in deciding whether to issue
an apparatus licence – these matters include all matters the ACA considers
relevant, including interference, health and safety issues; and
(b) may
have regard to the same matters to which it may have regard under subsection
100(5) in deciding whether to issue an apparatus licence ie. whether in the past
2 years the applicant’s apparatus licence has been cancelled (except as a
result of a spectrum re-allocation declaration under Part 3.6 of the
Act).
Item 18 of Schedule 2 to the Bill amends section 130 to provide
that these requirements will not apply in the case of a licence issued under
proposed section 100B of the Radcom Act. Section 100B deals with NBS
transmitter licences required to be issued under ABC/SBS digital conversion
schemes. As a result of item 3 of Schedule 2 to the Bill, the discretions that
the ACA has under section 100 of the Radcom Act to decide whether or not to
issue an apparatus licence will not apply to a digital NBS transmitter licence
required to be issued under proposed section 100B. Accordingly, it is not
appropriate for the ACA to have similar discretions in deciding whether to renew
a section 100B licence.
In deciding whether to renew a section 100B
licence, the ACA will, however, be required to have regard to the national
television conversion scheme in force under clause 19 of proposed Schedule 4 to
the BSA.
Item 19 – Amendment of section 131AB – Transfer
of apparatus licences
Section 131AB of the Radcom Act deals with
applications for transfer of apparatus licences.
Subsection 131AB(2)
provides that, in deciding whether to transfer an apparatus licence, the
ACA:
(a) must have regard to the same matters to which it must have
regard under subsections 100(4) and (6) of the Act in deciding whether to issue
an apparatus licence – these matters include all matters the ACA considers
relevant, including interference, health and safety issues; and
(b) may
have regard to the same matters to which it may have regard under subsection
100(5) in deciding whether to issue an apparatus licence ie. whether in the past
2 years the applicant’s apparatus licence has been cancelled (except as a
result of a spectrum re-allocation declaration under Part 3.6 of the
Act).
Item 19 amends section 131AB by adding a new subsection 131AB(2).
This will provide that the above requirements will not apply in the case of a
licence issued under proposed section 100B of the Radcom Act. Section 100B
deals with NBS transmitter licences required to be issued under digital
conversion schemes. As a result of item 3 of Schedule 2 to the Bill, the
discretions that the ACA has under section 100 of the Radcom Act to decide
whether or not to issue an apparatus licence will not apply to a digital NBS
transmitter licence required to be issued under proposed section 100B.
Accordingly, it is not appropriate for the ACA to have similar discretions in
deciding whether to transfer a section 100B licence.
In deciding whether
to transfer a section 100B licence, the ACA will, however, be required to have
regard to the national television conversion scheme in force under clause 19 of
proposed Schedule 4 to the BSA.
DATACASTING CHARGE (IMPOSITION) BILL
1998
The Datacasting Charge (Imposition) Bill 1998 provides for the imposition of
a charge in relation to the provision of datacasting services, using residual
transmission capacity on channels allocated for digital conversion, by
commercial and national free to air television broadcasters. The amount of this
charge will be determined by the ACA, having regard to any directions issued by
the Minister. Before determining a charge under the Bill, the ACA will be
required to provide a report to the Minister on whether the proposed charge
meets competitive neutrality principles.
Clause 1 – Short
title
Clause 1 provides for the citation of the Datacasting Charge
(Imposition) Act 1998.
Clause 2 –
Commencement
Clause 2 provides for the Bill to commence on Royal
Assent.
Clause 3 – Interpretation
Clause 3 sets out
definitions of key terms used in the Bill.
One of these key terms is
‘datacasting service’. This is defined to have the same meaning as
in proposed Schedule 4 to the BSA. The term is defined in clause 2 of that
Schedule to mean a service (other than a broadcasting service as defined in s. 6
of the BSA) 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 the delivery of the service uses the
broadcasting services bands and the service is not of a kind specified in the
regulations. Paragraph 59(1)(a) in proposed Schedule 4 provides that before 1
January 2001 the Minister is to arrange for a review to be conducted to
determine the scope of the term ‘datacasting
service’.
Clause 4 – Digital mode
Clause 4
provides that, for the purposes of the Bill, a datacasting service is
transmitted in digital mode if the service is transmitted using a digital
modulation technique.
Clause 5 – External
Territories
Clause 5 provides for the Bill to extend to all the
external Territories.
Clause 6 – Imposition of
charge
Clause 6 imposes charge on a transmitter licence in respect of
a financial year if:
(a) the licence authorises the holder to transmit
datacasting services in digital mode; and
(b) the licence is held by a
free to air television broadcaster; and
(c) the licence is in force
throughout the whole or a part of a particular financial year; and
(d) at
any time during the whole or the part of that year, as the case may be, the
transmitter or transmitters concerned were used by the licence holder, or by a
person authorised by the licence holder, to transmit datacasting services in
digital mode; and
(e) an ACA determination under proposed section 7 is in
force at the beginning of the financial year.
Clause 7 – Amount
of charge
Clause 7 provides that the amount of charge imposed on a
transmitter licence in respect of a financial year is the amount ascertained in
accordance with a written determination made by the ACA.
Given the
ACA’s responsibilities for the setting of other charges relating to the
use of the radiofrequency spectrum, it will be best placed to determine the
appropriate datacasting charge to be imposed. Because of the uncertainties
surrounding the uses and value of the radiofrequency spectrum in 2001, no upper
limit has been set in relation to the datacasting charge.
Section 12 of
the Australian Communications Authority Act 1997 will empower the
Minister to give the ACA directions in relation to the setting of the
charge.
The ACA’s determination will be a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act 1901. As
such it must be notified in the Commonwealth Gazette, tabled in the
Parliament and will be subject to Parliamentary disallowance.
Clause 53
of proposed Schedule 4 to the BSA (contained in Schedule 1 to the Television
Broadcasting Services (Digital Conversion) Bill 1998) provides that before the
ACA makes its first determination of the amount of datacasting charge under
clause 7, the ACA will be required to prepare, and give to the Minister, a
written report about proposals that are to be embodied in that determination.
The report will be required to contain a statement setting out the extent to
which the ACA had regard to competitive neutrality principles in formulating
those proposals. The Minister is required also to arrange for copies of the
ACA’s report to be tabled before each House of Parliament within 15
sitting days of that House after receiving the report.
Part 6 of proposed
Schedule 4 to the BSA provides for the charge determined by the ACA (and any
late payment penalty determined by the ABA) to be payable to the ABA on behalf
of the Commonwealth. The ABA is to determine when a charge is due and payable.
It is anticipated that the ABA will consult with the ACA in making this
determination.
Clause 8 – By whom charge is
payable
Clause 8 provides that charge imposed on a transmitter
licence is payable by the holder of the licence.