Broadcasting Services (Exempt Digital Transmission Areas) Determination (No. 1) 2013

Explanatory Statement

 Broadcasting Services Act 1992

Broadcasting Services (Exempt Digital Transmission Areas) Determination (No. 1) 2013

Issued by the authority of the Minister for Broadband, Communications and the Digital Economy

Purpose

The Broadcasting Services (Exempt Digital Transmission Areas) Determination (No. 1) 2013 (the Determination) is made by the Minister for Broadband, Communications and the Digital Economy under subclause 9A(2) and subclause 21A(2) of Schedule 4 to the Broadcasting Services Act 1992 (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:

• specified areas within the Remote and Regional WA TV1, Kalgoorlie TV1 and Tasmania TV1 licence areas are exempt digital transmission areas, in relation to particular commercial television broadcasting licences;
• specified areas within the coverage areas that correspond to the Kalgoorlie TV1, Tasmania TV1 and Remote Central and Eastern Australia TV1 licence areas are exempt digital transmission areas, in relation to the Australian Broadcasting Corporation (ABC).

The detail of each specified area, including indicative maps, is set out in the attachments.

The broad effect of the Determination is to exempt commercial television broadcasting licensees and national broadcasters in these exempt digital transmission areas from requirements, imposed by the applicable digital television conversion scheme (or an implementation plan), to transmit services in the area in digital mode. It would also exempt the ABC from the requirement to submit an implementation plan relating to the exempt digital transmission area.

Background 

Subclause 9A(2) of Schedule 4 to the Broadcasting Services Act 1992 (BSA) allows the Minister, upon application from a commercial television broadcasting licensee, to determine that a specified area within the licence area is an exempt digital transmission area in relation to that licence. The effect of such a determination is to exempt the relevant licensee from the obligation to comply with the Commercial Television Conversion Scheme 1999 (CTCS), or an approved implementation plan, to the extent that the CTCS or plan requires that licensee to transmit a commercial television broadcasting service in digital mode in the exempt digital transmission area.

Similarly, subclause 21A(2) of Schedule 4 to the BSA allows the Minister, upon application from a national broadcaster, to determine that a specified area that is within a coverage area is an exempt digital transmission area in relation to that national broadcaster.  The effect of such a determination is to exempt the national broadcaster from the obligation to comply with the National Television Conversion Scheme 1999 (NTCS), or an approved implementation plan, to the extent that the NTCS or plan requires that broadcaster to transmit a national television broadcasting service in digital mode in the exempt digital transmission area. It would also exempt the national broadcaster from the requirement to submit an implementation plan that relates to the exempt digital transmission area, in accordance with clause 20 of Schedule 4 to the BSA.

There are a number of transmitters operated by national and commercial broadcasters that provide analog television services to populations of 500 people or fewer. There are also a number of analog transmission facilities from which not all national and commercial television broadcasting services (generally available in the licence area) are transmitted. 

Subclause 9A and 21A of Schedule 4 to the BSA recognise that digital conversion of these more marginal broadcasting transmitters is not always practical, or necessary, given the introduction of free-to-air satellite national and commercial digital television services (including commercial television broadcasting licences allocated under section 38C of the BSA).

There are certain criteria that must be met before the Minister can determine an area to be an exempt digital transmission area. The applicant must not already provide their television services in digital mode in the proposed exempt digital transmission area and, before making a determination, the Minister must be satisfied that:

• fewer than 500 people reside in the specified area (paragraphs 9A(3)(b)(i) and 21A(3)(b)(i)); or
• the area is an underserviced area (paragraphs 9A(3)(b)(ii) and 21A(3)(b)(ii)) – an underserviced area is defined in subclauses 9A(5)-(9) and 21A(5)-(9), noted below.

In addition, commercial television broadcasting services must be provided in the specified area under a section 38C licence (the Viewer Access Satellite Television service) (paragraph 9A(3)(c)) or, in the case of an exempt digital transmission area for a national broadcaster, national television broadcasting services must be provided in the coverage area with the use of a satellite (paragraph 21A(3)(c)).  Alternatively, the Minister may be satisfied that viewers in the proposed exempt digital transmission area have another way through which they can, or will be able to, access digital television (paragraphs 9A(3)(c)(ii) and 21A(3)(c)(ii)).

In considering whether there are fewer than 500 people residing in a specified area, subclauses 9A(4) and 21A(4) require that the Minister have regard to the latest resident population statistics published by the Australian Statistician. 

An area is an underserviced area if the specified area does not have coverage of one or more of the commercial television or national television services that are generally provided in the licence area (or corresponding ABC or SBS coverage area) in analog mode or digital mode.

In making the Determination, the Minister has formed the following view with regard to the specified exempt digital transmission areas:

• fewer than 500 people reside within 30km of the Koolyanobbing transmission site (Koolyanobbing is located in the 2011 Census district of Bullfinch, which has a total population of 378).  
• WIN Television WA Pty Ltd is the only analog service provided from the Perenjori transmitter and the area within 15km of that site is an underserviced area.
• The ABC is the only analog service available from the Mangana, Pyengana Valley, South Springfield and Weldborough transmitters, and the areas within 5km, 3km, 5km and 3km (respectively) of those sites are underserviced areas.
• The ABC and WIN Television TAS Pty Ltd operate the only analog services at the Strathgordon site, and the area within 5km of that site is an underserviced area.
• The ABC and Southern Cross Television (TNT9) Pty Ltd operate the only analog services at the Savage River site, and the area within 15km of that site is an underserviced area.

Commercial television broadcasting services are currently provided under a section 38C licence in each of the specified areas in the Remote and Regional WA TV1, Kalgoorlie TV1 and Tasmania TV1 licence areas.  National television broadcasting services are provided with the use of a satellite in each of the specified areas in coverage areas corresponding to the Kalgoorlie TV1, Tasmania TV1 and Remote Central and Eastern Australia TV1 licence areas. 

Details of the accompanying determination are set out in Attachment A.

Consultation

Each affected commercial television broadcasting licensee has been consulted in the preparation of the Determination.  The ABC and the ACMA have also been consulted.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Broadcasting Services (Exempt Digital Transmission Areas) Determination (No. 1) 2013

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Determination

The effect of the Determination is to exempt commercial television broadcasting licensees, and the ABC, from requirements imposed by the applicable digital television conversion scheme (or an implementation plan) to transmit television services in digital mode in certain specified areas. The Determination also exempts the ABC from the requirement to submit an implementation plan relating to the exempt digital transmission area.

Human rights implications

Australia is a signatory to the International Covenant on Civil and Political Rights (the ICCPR), one of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Article 19(2) of the ICCPR protects freedom of expression, including the right to seek, receive and impart information and ideas of all kinds, and the means of their dissemination. Article 15(1) of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) protects the right of everyone to take part in cultural life.

Access to free-to-air television services is relevant to the enjoyment of these rights and freedoms.

While the measures will exempt certain broadcasters from requirements to transmit in digital mode in specified areas, people in those areas have (or will have) alternative access to national and commercial television services delivered by satellite. 

Based on this, this Determination is compatible with the rights protected by Article 15(1) of the ICESCR and Article 19(2) of the ICCPR.

Attachment A

Notes on Clauses

Clause 1 provides that the name of the Determination is the Broadcasting Services (Exempt Digital Transmission Areas) Determination (No. 1) 2013.

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 4.1 provides that certain specified areas within the Remote and Regional WA TV1, Kalgoorlie TV1 and Tasmania TV1 licence areas are exempt digital transmission areas, in relation to particular commercial television broadcasting licences. The specified areas, and the licences to which the areas relate, are outlined in the table in Schedule 1 to the Determination.

Specifically, the effect of subclause 4.1 is to determine that, for the purposes of clause 9A of Schedule 4 to the BSA:

• the area within the Remote and Regional WA TV1 licence area that is within a 30km radius of the Koolyanobbing Transmission Site (as defined in clause 3) is an exempt digital transmission area in relation to the commercial television broadcasting licence with the service licence number 10048, currently held by WIN Television WA Pty Ltd;
• the area within the Kalgoorlie TV1 licence area that is within a 30km radius of the Koolyanobbing Transmission Site (as defined in clause 3) is an exempt digital transmission area in relation to the commercial television broadcasting licence with the service licence number 10416, currently held by Mid-Western Television Pty Ltd;
• the area within the Remote and Regional WA TV1 licence area that is within a 15 km radius of the Perenjori Transmission Site (as defined in clause 3) is an exempt digital transmission area in relation to the commercial television broadcasting licence with the service licence number 10048, currently held by WIN Television WA Pty Ltd;
• the area within the Tasmania TV1 licence area that is within a 5 km radius of the Strathgordon Transmission Site (as defined in clause 3) is an exempt digital transmission area in relation to the commercial television broadcasting licence with the service licence number 132, currently held by WIN Television TAS Pty Ltd;
• the area within the Tasmania TV1 licence area that is within a 15 km radius of the Savage River Transmission Site (as defined in clause 3) is an exempt digital transmission area in relation the commercial television broadcasting licence with the service licence number 133, currently held by Southern Cross Television (TNT9) Pty Ltd.

Subclause 4.2 provides that certain specified areas within coverage areas that correspond to the Kalgoorlie TV1, Tasmania TV1 and Remote Central and Eastern Australia TV1 licence areas are exempt digital transmission areas, in relation to the ABC. The areas to be exempt are outlined in the table in Schedule 2 to the Determination.

Specifically, the effect of subclause 4.2 is to determine that, for the purposes of clause 21A of Schedule 4 to the BSA:

• the area within the coverage area that corresponds to the Kalgoorlie TV1 licence area that is within a 30 km radius of the Koolyanobbing Transmission Site (as defined in clause 3) is to become an exempt digital transmission area in relation to the ABC;
• the area within the coverage area that corresponds to the Tasmania TV1 licence area that is within a 5 km radius of the Mangana Transmission Site (as defined in clause 3) is to become an exempt digital transmission area in relation to the ABC;
• the area within the coverage area that corresponds to the Tasmania TV1 licence area that is within a 3 km radius of the Pyengana Valley Transmission Site (as defined in clause 3) is to become an exempt digital transmission area in relation to the ABC;
• the area within the coverage area that corresponds to the Tasmania TV1 licence area that is within a 5 km radius of the South Springfield Transmission Site (as defined in clause 3) is to become an exempt digital transmission area in relation to the ABC;
• the area within the coverage area that corresponds to the Tasmania TV1 licence area that is within a 3 km radius of the Weldborough Transmission Site (as defined in clause 3) is to become an exempt digital transmission area in relation to the ABC;
• the area within the coverage area that corresponds to the Tasmania TV1 licence area that is within a 5 km radius of the Strathgordon Transmission Site (as defined in clause 3) is to become an exempt digital transmission area in relation to the ABC;
• the area within the coverage area that corresponds to the Remote Central and Eastern Australia TV1 licence area that is within a 5 km radius of the Avoca Transmission Site (as defined in clause 3) is to become an exempt digital transmission area in relation to the ABC.

The areas described above are illustrated in the maps at Attachments B to J. The maps identify the location of each of the transmission sites and the areas that are within the specified distance of those sites. The exempt digital transmission areas are illustrated in blue.