Explanatory Statement
Issued by the authority of the Australian Communications and Media Authority
BROADCASTING SERVICES CLARIFICATION NOTICE 2001 VARIATION 2011 (NO. 1)
Broadcasting Services Act 1992
Background, purpose and legislative basis
This document provides an explanation of the Broadcasting Services Clarification Notice 2001 Variation 2011 (No. 1) (the Clarification Notice Variation) made under paragraph 19(1)(b) of the Broadcasting Services Act 1992 (the BSA).
The BSA allows the Australian Communications and Media Authority (the ACMA) to clarify the criteria for the different categories of broadcasting services specified in sections 14 to 18A of the BSA for the purpose of distinguishing between these categories of broadcasting services.
On 20 December 2001 the Australian Broadcasting Authority made the Broadcasting Services Clarification Notice 2001 (the Clarification Notice). The purpose of the Clarification Notice is to provide certainty about the category of service into which certain broadcasting services fall under the BSA. It does this by deeming services that conform to the criteria set out in the Clarification Notice to be open narrowcasting radio services.
Section 8 of the Clarification Notice relates to radio broadcasting services that broadcast pre-recorded and “looped” (regularly repeated) content. Specifically, section 8 sets out when such a service will be considered to be an open narrowcasting service for the purposes of the BSA.
An investigation conducted by the ACMA in 2008 indicated that there was some confusion among providers of open narrowcasting services regarding the application of section 8 of the Clarification Notice. In June 2008 the ACMA made a decision to conduct a review of section 8 of the Clarification Notice.
The Clarification Notice Variation makes amendments to the Clarification Notice in order to provide greater clarity to the narrowcasting radio industry as to which broadcasting services providing pre-recorded, regularly repeated audio content will be considered to be an open narrowcasting service for the purposes of the BSA. The Clarification Notice Variation also updates certain terminology to reflect changes in technology.
Consultation
Comments on the proposed variation were sought from Commercial Radio Australia (CRA) and the Australian Narrowcast Radio Association (ANRA), the national industry bodies representing the commercial radio industry and the open narrowcasting radio industry respectively.
The responses received from both of these parties were to the effect that neither had any objection to the proposed variation.
Regulatory Impact
On 9 August 2009 the Office of Best Practice Regulation agreed with the ACMA’s preliminary assessment that, as the proposed variation will have ‘minor and machinery impacts’, no Regulation Impact Statement would be required in relation to the proposed variation and provided advice to this effect (ID 11676). Accordingly no Regulation Impact Statement is required for the Clarification Notice Variation.
Notes on the instrument
Section 1 – Name of instrument
Section 1 provides that the Clarification Notice Variation is the Broadcasting Service Clarification Notice 2001 Variation 2011 (No. 1)
Section 2 – Commencement
Section 2 sets out that the Clarification Notice Variation commences on the day after it is registered.
Section 3 – Variation of Broadcasting Services Clarification Notice 2001
Section 3 provides that Schedule 1 varies the Clarification Notice.
Schedule 1 – Variation
[1] Section 8
Item 1 omits the section, including the heading, and replaces it with a new section 8. The new section 8 clarifies that, for the purposes of the BSA, certain services providing pre-recorded, regularly repeated audio content are open narrowcasting services. Such services must consist of no more than four hours of pre-recorded material, which is repeated in the same order. The material cannot be updated or otherwise varied more than once in any week.
Overview
The Broadcasting Services Clarification Notice 2001 Variation 2011 (No. 1) is a legislative instrument made under the Broadcasting Services Act 1992 (BSA). It was introduced by the Australian Communications and Media Authority (ACMA) to address confusion among providers of open narrowcasting services, particularly in relation to the criteria set out for radio broadcasting services that provide pre-recorded and regularly repeated content. The primary policy objective of this variation is to provide greater clarity to the narrowcasting radio industry regarding which broadcasting services fall under the category of open narrowcasting services as defined by the BSA. The variation also updates certain terminology to reflect advancements in technology. The instrument was enacted without the need for a Regulatory Impact Statement, as it was deemed to have minor and machinery impacts. The variation came into effect on the day after it was registered.
Scope and Application
The Broadcasting Services Clarification Notice 2001 Variation 2011 (No. 1) applies to entities and individuals providing broadcasting services in Australia, particularly those offering pre-recorded and regularly repeated content. This instrument is an amendment to the Broadcasting Services Clarification Notice 2001, which was initially issued by the Australian Broadcasting Authority and later varied by the Australian Communications and Media Authority (ACMA) under the Broadcasting Services Act 1992. The variation aims to provide clarity to the narrowcasting radio industry, ensuring that services that broadcast pre-recorded, regularly repeated audio content are correctly identified as open narrowcasting services. The variation is effective from the day after it is registered and it amends the original notice to include updated terminology and clarify that such services must consist of no more than four hours of pre-recorded material that is repeated in the same order, and cannot be updated or varied more than once a week. The ACMA, as the regulator, ensures compliance with these provisions across all states and territories of Australia.
Key Provisions
The Broadcasting Services Clarification Notice 2001 Variation 2011 (No. 1) (Clarification Notice Variation) amends the Broadcasting Services Clarification Notice 2001, providing further clarity to the narrowcasting radio industry regarding which broadcasting services are classified as open narrowcasting services under the Broadcasting Services Act 1992 (BSA). This variation specifically addresses section 8 of the original Clarification Notice, which deals with radio broadcasting services that broadcast pre-recorded and "looped" (regularly repeated) content. Under the new section 8, for a service to be considered an open narrowcasting service, it must consist of no more than four hours of pre-recorded material that is repeated in the same order, and the material cannot be updated or otherwise varied more than once in any week.
The primary obligations imposed by the Clarification Notice Variation are on the entities providing broadcasting services that fall under the category of open narrowcasting services. These entities must ensure that their services meet the criteria set out in the new section 8. Specifically, they must limit their pre-recorded content to a maximum of four hours, which is repeated in the same order, and they must not update or vary this content more than once per week. This variation aims to provide certainty and compliance for broadcasters to avoid misclassification under the BSA.
Failure to comply with the provisions outlined in the Clarification Notice Variation may result in civil consequences. While the BSA does not explicitly list offences or penalties for breaches of the Clarification Notice Variation itself, non-compliance could potentially lead to a broadcaster being classified under a different category of service, such as commercial radio or community radio, which may attract different regulatory requirements and compliance obligations. Additionally, ongoing non-compliance might result in enforcement actions by the Australian Communications and Media Authority (ACMA), including the issuance of infringement notices or more severe penalties under the BSA for misclassified broadcasting services.
The Clarification Notice Variation seeks to provide greater clarity to broadcasters and regulatory bodies by updating the criteria for open narrowcasting services and aligning them with technological advancements. By doing so, it aims to minimise confusion and ensure that broadcasters operate within the correct regulatory framework, thereby maintaining the integrity of the broadcasting services classification system.