ABA DETERMINATION OF REMOTE LICENCE AREAS
EXPLANATORY PAPER
Introduction
Clause 5 of Schedule 4 to the Broadcasting Services Act 1992 (‘the Act’) provides that the Australian Broadcasting Authority (the ‘ABA’) may determine that a specified licence area is a remote licence area for the purposes of Schedule 4. Schedule 4 sets out arrangements for the conversion, over time, of the transmission of television broadcasting services from analog mode to digital mode.
Under the arrangements, the ABA is required to formulate two conversion schemes – a Commercial Television Conversion Scheme (‘CTC Scheme’), and a National Television Conversion Scheme (‘NTC Scheme’). The conversion schemes must be divided into a Part A, governing the services in metropolitan and regional licence areas and a Part B, for remote licence areas. The Act specifies a set of clear objectives for Part A of the conversion schemes, but in relation to Part B, prescribes only a few matters.
In formulating or varying Part B of the conversion schemes the ABA must have regard to the special circumstances that apply to the transmission of broadcasting services in remote areas (Sched.4, Cl. 14 and Cl. 28).
The Act defines metropolitan licence areas explicitly and deems all other licence areas to be regional licence areas, except those the ABA determines to be remote licence areas.
Remote licence areas must be determined at this time because amendments to the Act which will significantly affect remote area broadcasters come into effect on 1 January 2001, with the commencement of the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 (the Digital Television and Datacasting Bill).
Specifically, the Digital Television and Datacasting Bill inserts new section 38B, which provides for the allocation of additional commercial television licences to incumbent broadcasters in certain two-station markets.
The timing provisions of section 38B apply differently to affected licensees, depending on whether they are licensed to serve remote or non-remote licence areas.
Purpose of this document
The purpose of this document is to explain the determination of remote licence areas and the implications of the determinations for television broadcasters in both remote licence areas and in licence areas overlapped by the remote licence areas.
Determination of remote licence areas
In order that the circumstances that apply to the transmission of broadcasting services in remote areas can be taken into account in their conversion to the digital mode of transmission, the ABA may determine which licence areas are remote licence areas.
The television broadcasting services in remote licence areas will not be subject to Part A of the conversion schemes, which impose strict requirements likely to be unsuitable for remote area broadcasting services. For example, regional services must commence transmission in SDTV (standard definition format) digital mode before 1 January 2004; must simulcast their digital and analog services for at least eight years; and are to be subject to mandatory quotas for the transmission of programs in HDTV (high definition format) digital mode.
Clause 6A of Schedule 4 requires the ABA to set a date for the commencement of standard definition digital television in remote licence areas under Part B of the CTC scheme.[1] The ABA otherwise has wide discretion to develop the rules governing digital conversion of remote broadcasting services.
Part B of the conversion schemes presently provides only for the ABA to develop Part B over time, in light of its experience with the areas affected by Part A of the schemes, and for consultation and research.
The Act does not require the ABA to determine any remote licence areas. Accordingly, it contains no specified time by which such determinations must be made. However, it specifies the latest date for the commencement of SDTV in regional licence areas as 1 January 2004. This effectively sets the absolute time frame for the determination of any remote licence areas.
It has been assumed that the ABA would determine certain remote licence areas, at an appropriate time. However, the primary objective of the ABA in determining remote licence areas at this time is to enable the proper operation of s.38B in relation to broadcasting services in remote areas. This is because the timing provisions of section 38B apply differently in remote and non-remote licence areas.
Section 38B - Additional commercial television licences in two‑station markets
Section 38B of the Act provides that if there are only two commercial television broadcasting licences in a particular licence area, and neither licence was allocated under s.38A of the Act[2], an additional commercial television licence can be allocated for that licence area[3].
The only persons eligible to be allocated the third licence are one or other of the existing licensees or a joint-venture company of the existing licensees. Also, a service provided under a s.38B licence can only be transmitted in digital mode.
The Act provides that eligible licensees must give to the ABA a written notice of their intentions within 90 days of the designated time for the licence area in order to take up this option. The designated time, in relation to a licence area, means:
(a) if the licence area is wholly outside a remote licence area (within the meaning of Schedule 4)—the commencement of this section [38B]; or
(b) if any part of the licence area is within a remote licence area (within the meaning of Schedule 4)—the time determined by the ABA in relation to the remote licence area for the purposes of this paragraph.
Section 38B came into effect on 1 January 2001.
The remote licence areas referred to in s.38B(26) are those the ABA determines under Cl. 5 of Schedule 4.
This means that eligible licensees in non-remote licence areas who wish to apply for additional licences, must give notice within 90 days of the commencement of s.38B, that is, before 31 March 2001.
On the other hand, licensees in remote licence areas need to give this notice within 90 days of a designated time to be determined by the ABA.
Note also that eligible licensees in non-remote licence areas that overlap with remote licence areas, are bound to the same designated time as that for the remote licence area.
The ABA will determine the time for the purposes of s.38B(26) following consultation with affected licensees.
Because s.38B licensed services can only be transmitted in digital mode, their planning and licensing is both logically and legally tied to the development of Part B of the conversion schemes and the subsequent digital channel plan (DCP).
Summary
The ABA has the power to determine remote licence areas to ensure that appropriate rules and time frames apply to the digital conversion of remote broadcasting services.
Remote licence areas need to be determined at this time to ensure the proper operation of s.38B for the allocation of additional commercial television licences in remote area two-station markets. This is because the timing provisions on applications for s.38B licences apply differently in remote and non-remote licence areas, with the statutory time frame for notices by non-remote area licensees expiring on 31 March 2001.
[1] The equivalent provision for national services is at Cl. 19(6A), but refers to the national broadcasters’ implementation plans under Cl. 20. The ABA has no power to set a start date for SDTV on National services.
[2] Section 38A provides for the allocation of a second commercial television licence to a licensee in a licence area in which there is only one commercial television broadcasting licence in force.
[3] It is also necessary that a licence ‘can be allocated’, that is, that there is technical capacity in the radiofrequency spectrum to allot a channel.