Explanatory Statement
Broadcasting Services Act 1992
Broadcasting Services (Digital-Only Local Market Area for the Mildura/Sunraysia Licence Area) Determination (No. 1) 2010
Issued by the authority of the Minister for Broadband, Communications
and the Digital Economy
Purpose
The Broadcasting Services (Digital-Only Local Market Area for the Mildura/Sunraysia Licence Area) Determination (No. 1) 2010 (the Determination) is made by the Minister for Broadband, Communications and the Digital Economy (the Minister) under subclause 5F(1) of Schedule 4 to the Broadcasting Services Act 1992 (the BSA). The Determination is a legislative instrument for the purposes of section 5 of the Legislative Instruments Act 2003.
The purpose of the Determination is to determine that a specified area within the Mildura/Sunraysia licence area is to become a digital-only local market area from a specified time. This would allow commercial television broadcasting licensees holding a licence in that licence area to provide their services in digital mode only in the digital-only local market area. It would also allow a national broadcaster to broadcast a television service in digital mode only in the digital-only local market area of the corresponding coverage area.
Background
Legislative background
The Broadcasting Legislation Amendment (Digital Television Switch-over) Act 2008 amended the BSA to enable the Government to implement a phased, region-by-region digital television switchover timetable.
The dates for switchover are set through a transitional period, known as the ‘simulcast period’, during which national and commercial television broadcasters are required to transmit simultaneously in analog and standard definition digital mode, except in those areas that are digital-only local market areas. At the end of the simulcast period, or at a time an area becomes a digital-only local market area, analog transmissions will cease and digital-only transmissions will commence.
Clauses 6 and 19 of Schedule 4 to the BSA set out the framework for the making by the Australian Communications and Media Authority (ACMA) of a scheme for the conversion of commercial television broadcasting services and national television broadcasting services, respectively, from analog to digital mode. The ACMA has made the schemes as required. These are the Commercial Television Conversion Scheme 1999 and the National Television Conversion Scheme 1999.
Subclauses 6(3) and 19(3) of Schedule 4 to the BSA set out the policy objectives to which the schemes must be directed. One objective, specified in paragraphs 6(3)(c) and 19(3)(c), is that there should be a transitional period known as the simulcast period for metropolitan and regional licence areas. Under subclauses 6(7A) and 19(7A) of Schedule 4 to the BSA, the ACMA is responsible for determining the simulcast period for the remote licence areas (Remote and Regional Western Australia and Remote Central and Eastern Australia).
The Mildura/Sunraysia licence area is a regional licence area for the purposes of the BSA.
In the case of a holder of a commercial television broadcasting licence in a regional licence area, subparagraph 6(3)(c)(iia) provides that the simulcast period should run for eight years or for such other period as is determined by the Minister under subclause 6A(2). In the case of national broadcasters, subparagraph 19(3)(c)(iii) of Schedule 4 provides that the simulcast period for a coverage area will end at the end of the simulcast period (within the meaning of paragraph 6(3)(c) of Schedule 4) for the licence area that corresponds to that coverage area.
Subclause 6A(2) of Schedule 4 to the BSA gives the Minister the power to make determinations for the length of the simulcast period in specific regional television licence areas (that is, to determine a period for the purposes of the application of subparagraph 6(3)(c)(iia)). Subclause 6A(4) of Schedule 4 provides that a period determined under subclause 6A(2) must end before the end of 31 December 2013.
Clause 5F of Schedule 4 to the BSA gives the Minister the power to determine, by legislative instrument, ‘digital-only local market areas’ for a licence area. This is to provide for a switch-over timetable based on geographical areas other than licence areas, recognising that a single licence area may contain a variety of local geographic, technical and market circumstances. In practice, clause 5F allows multiple switch-over times within a single licence area. Any part of a licence area that is not determined to be a digital-only local market area will switch-over at the end of the simulcast period set for the licence area concerned in accordance with clause 6A.
Specifically, under subclause 5F(1) of Schedule 4, the Minister may determine that a specified area is a ‘local market area’ for the purposes of Schedule 4 and that that area will become a ‘digital-only local market area’ at a specified time (paragraphs 5F(1)(a) and (b) respectively). A local market area must be wholly included within a licence area (subclause 5F(2)) and a time specified for a local market area to become a digital-only local market area must fall within the simulcast period for the licence area concerned (subclause 5F(3)).
A determination under subclause 5F(1) is irrevocable (subclause 5F(4)). The Minister must consult the ACMA before making or varying a determination under subclause 5F(1) (subclause 5F(11)).
Subclauses 5F(5) to (10) deal with the Minister’s ability to vary a subclause 5F(1) determination. Subclauses 5F(5) and (6) provide that the Minister may vary a subclause 5F(1) determination but must not do so retrospectively. Subclause 5F(7) provides that the time specified in a varied subclause 5F(1) determination must not be earlier than three months before the time specified in the original determination. Subclause 5F(8) provides that the time specified in a subclause 5F(1) determination as varied must not be later than three months after the time specified in the original determination. Subclause 5F(9) sets out particular circumstances in which the restriction in subclause 5F(8) would not apply. Such circumstances relate to significant difficulties of a technical or engineering nature for a commercial television broadcasting licensee operating in the licence area concerned or for a national broadcaster in the corresponding coverage area resulting from the time for switch-over specified in the determination.
Part 3 of Schedule 2 to the BSA sets out statutory licence conditions for commercial television broadcasting licensees. Relevantly, in accordance with paragraph 7(1)(m) of Schedule 2, if there is a simulcast period for the licence area of a licence, licensees that provide core commercial broadcasting services in that licence area are required to broadcast their core services both in analog and standard television digital mode for the duration of the simulcast period across the whole licence area, except in those areas that are digital-only local market areas. Clause 35 of Schedule 4 to the BSA imposes similar obligations on national broadcasters in relation to coverage areas for which there is a simulcast period.
Simulcast period and establishment of new digital-only services in the Mildura/Sunraysia Licence Area
The Mildura/Sunraysia licence area is a regional licence area for the purposes of the BSA.
The Broadcasting Services (Simulcast Period for Mildura/Sunraysia Licence Area) Determination (No. 2) 2009 set the end of the simulcast period for the Mildura/Sunraysia licence area at 30 June 2010 (prior to that, the end of the simulcast period for the Mildura/Sunraysia licence area was 30 December 2011).
Under an agreement with the Australian Government, announced on 5 January 2010, commercial free-to-air television broadcasters have undertaken to upgrade selected analog television ‘self-help’ re-transmission facilities to operate in digital mode and establish new digital transmission ‘in-fill’ sites to serve selected areas of digital television signal deficiency. Analog self-help re-transmission sites are generally owned and operated by local councils or community organisations and are not subject to the regulatory framework established by the BSA. They operate to serve areas where no adequate service is provided by free-to-air broadcasters.
Pursuant to this agreement, commercial free-to-air broadcasters in the Mildura/Sunraysia licence area propose to transmit new digital-only national and commercial broadcasting television services to Ouyen, where there is currently no local analog television transmission site, and Underbool, where analog television services are provided by a self-help re-transmission facility. The installation to serve Underbool will involve the end of analog transmissions from the local self-help site, followed by the commencement of digital transmissions only (that is, there will be no analog-digital simulcast). The digital services in Ouyen are expected to commence on 4 May 2010, and by the end of May 2010 in Underbool that is, before the end of the simulcast period for the Mildura/Sunraysia licence area.
Notes on Clauses
Clause 1 provides that the name of the Determination is the Broadcasting Services (Digital-Only Local Market Area for the Mildura/Sunraysia Licence Area) Determination (No. 1) 2010.
Clause 2 provides that the Determination takes effect on the day it is registered on the Federal Register of Legislative Instruments.
Clause 3 is a definitions clause.
Clause 4 is the main operative clause.
Subclause 5F(1) of Schedule 4 to the BSA gives the Minister the power to determine that a specified area is a local market area for the purposes of Schedule 4 and that that area becomes a digital-only local market area for the purposes of Schedule 4 at a specified time (paragraphs 5F(1)(a) and (b) respectively). An area must not be specified unless it is wholly included in a licence area and a time must not be specified unless it falls within the simulcast period for the licence area concerned (subclauses 5F(2) and (3) respectively).
Clause 4 provides that the area within the Mildura/Sunraysia licence area that is to the south of 34.870957 degrees south latitude is a local market area for the purposes of Schedule 4 to the BSA, and that that area is to become a digital-only local market area from 4 May 2010. The area is illustrated in the map below. Both Ouyen and Underbool would be within the digital-only local market area.
Consultation
In accordance with subclause 5F(11) of Schedule 4 to the BSA, the Minister consulted with the ACMA before making this Determination. The ACMA has raised no concerns about the making of this Determination. The ACMA has further advised that it is not aware of any issues or technical concerns raised by the relevant broadcasters.
Map of the digital-only local market area in the Mildura/Sunraysia Licence Area