LEGISLATIVE INSTRUMENTS ACT 2003
Section 26 - Explanatory Statement
Broadcasting Services (HDTV Demonstration Programs) Determination 2005
On 4 August 2005, the Australian Communications and Media Authority (ACMA) made the Broadcasting Services (HDTV Demonstration Programs) Determination 2005 (the instrument) under clause 37EA of Schedule 4 to the Broadcasting Services Act 1992 (the BSA).
Clause 37EA Determinations
Commercial television broadcasting licensees are subject to requirements in relation to the broadcast of digital television services. Those holding licences that were not
allocated under section 38B of the BSA[1] must simulcast the same television service
in analog, standard definition digital format mode (SDTV mode) and high definition digital format (HDTV mode).
Clause 37EA(2) of Schedule 4 of the BSA provides for ACMA to make a determination with the effect that HDTV demonstration programs will be ignored for the purpose of determining if the HDTV simulcast requirement is met.
HDTV demonstration programs are defined in clause 37EA(10) as being programs:
- broadcast on an HDTV version of a television service
- that are no longer than 60 minutes long; and
- that are produced for the sole purpose of demonstrating the benefits of transmission in HDTV mode to potential purchasers of equipment capable of receiving those transmissions.
A determination under clause 37EA must specify:
- the licensee to whom the determination will apply: and
- a period during which the determination is to apply.
Intended effect and impact
The instrument specifies that:
- the determination will apply to all commercial television broadcasting licensees, except those for services available in remote areas; and
- the determination will have effect from 7 August 2005 for twelve months.
An instrument with similar effect made by the Australian Broadcasting Authority (the ABA) ceases to have effect on 6 August 2004.[2]
ACMA intends the effect of the instrument to be to continue to allow the broadcast of HDTV demonstration programs for another 12 month period, as a way of demonstrating the benefits to consumers of receiving television services in HDTV mode.
The intended impact is to promote the use of digital television broadcasting services.
Consultation
Free TV Australia is the peak industry body for commercial television broadcasters. Free TV wrote to the ABA on 29 June 2005:
- noting the earlier determination in similar terms, referred to above,
- asking the ABA to make a new determination in similar terms.
ACMA has not undertaken any further consultation given that the instrument provides for existing rights of commercial television broadcasting licensees to continue, rather than creating completely new rights or obligations or limiting rights or obligations in any way.
Description of the provisions of the instrument
Clause (1) of the instrument names the instrument the Broadcasting Services (HDTV Demonstration Programs) Determination 2005.
Clause (2) of the instrument provides for it to commence on 7 August 2005 which is one day after the instrument in similar terms, referred to above, ceases to have effect.
Clause (3) of the instrument provides:
- a definition of specified commercial television broadcasting licensees that includes all commercial television broadcasting licensees, except those holding licences for services available in remote areas; and
- a definition of specified period as being from 7 August 2005 and ending twelve months from that date.
Clause 4 of the instrument determines that clause 37EA(1)(a) of Schedule 4 to the BSA will apply to demonstration programs broadcast by the specified commercial television broadcasting licensees during the specified period. Clause 37EA(1)(a) provides that demonstration programs must be ignored when determining whether the HDTV simulcast requirement has been met if there is a determination in force under clause 37EA(2).
[1] Section 38B permits ACMA to issue an additional licence in a two station market when specified conditions are met.
[2] In accordance with the Australian Communications and Media Authority Act 2005, from 1 July 2005 the Australian Communications and Media Authority (ACMA) exercises powers and functions under the Broadcasting Services Act 1992 (BSA) previously exercised by the Australian Broadcasting Authority.
Overview
The Broadcasting Services (HDTV Demonstration Programs) Determination 2005, enacted under clause 37EA of Schedule 4 to the Broadcasting Services Act 1992, addresses the need for commercial television broadcasting licensees to demonstrate the benefits of high-definition television (HDTV) mode to consumers. This instrument, created by the Australian Communications and Media Authority (ACMA), allows the continued broadcast of HDTV demonstration programs for a specified period, promoting the adoption of digital television services. The policy objective is to facilitate the transition to digital broadcasting by allowing broadcasters to demonstrate the technological advancements and benefits of HDTV, thereby encouraging consumer uptake of compatible equipment.
The Determination applies to all commercial television broadcasting licensees except those serving remote areas, and it has effect from 7 August 2005 for a duration of twelve months. This legislative measure ensures that the broadcast of demonstration programs does not interfere with the requirement for licensees to simulcast their services in both standard definition and high-definition modes, thus maintaining compliance with existing broadcasting standards while fostering technological innovation and consumer awareness in the digital broadcasting sector.
Scope and Application
The Broadcasting Services (HDTV Demonstration Programs) Determination 2005 applies to all commercial television broadcasting licensees except those holding licences for services available in remote areas. The instrument is intended to continue the allowance of broadcasting HDTV demonstration programs for another twelve-month period, effective from 7 August 2005, aiming to demonstrate the benefits of receiving television services in HDTV mode to consumers. This is made under clause 37EA of Schedule 4 to the Broadcasting Services Act 1992 and specifies that HDTV demonstration programs, which are defined as programs broadcast on an HDTV version of a television service, no longer than 60 minutes long, and produced solely to demonstrate the benefits of HDTV transmission, will be ignored when determining if the HDTV simulcast requirement is met. The instrument thus provides continuity from a similar instrument previously made by the Australian Broadcasting Authority, which ceases to have effect on 6 August 2004.
Key Provisions
The Broadcasting Services (HDTV Demonstration Programs) Determination 2005 (the instrument) under clause 37EA of Schedule 4 to the Broadcasting Services Act 1992 (BSA) aims to facilitate the broadcasting of high definition television (HDTV) demonstration programs. Clause 37EA(1)(a) of the BSA states that demonstration programs broadcast by specified commercial television broadcasting licensees during the specified period must be ignored when determining whether the HDTV simulcast requirement has been met if there is a determination in force under clause 37EA(2). The determination applies to all commercial television broadcasting licensees, excluding those for services available in remote areas, and is effective from 7 August 2005 for a period of twelve months.
This legislation imposes specific obligations on commercial television broadcasting licensees, requiring them to simulcast their television service in both analog, standard definition digital format mode (SDTV mode) and high definition digital format (HDTV mode). The determination specifies that HDTV demonstration programs, defined as programs broadcast on an HDTV version of a television service, which are no longer than 60 minutes long and produced for the sole purpose of demonstrating the benefits of transmission in HDTV mode to potential purchasers of equipment capable of receiving those transmissions, will be ignored when determining if the HDTV simulcast requirement is met.
Failure to comply with the requirements of the Broadcasting Services (HDTV Demonstration Programs) Determination 2005 may result in civil or criminal consequences, depending on the severity of the breach. The BSA provides for various penalties and sanctions for non-compliance with its provisions, including fines and imprisonment for serious breaches. However, the specific penalties for breaching the HDTV simulcast requirement are not explicitly stated within the instrument itself. Instead, they are governed by the general provisions of the BSA, which provide for a range of penalties, including financial penalties, depending on the nature and extent of the breach.
In summary, the Broadcasting Services (HDTV Demonstration Programs) Determination 2005 aims to allow commercial television broadcasting licensees to broadcast HDTV demonstration programs for a period of twelve months, while still meeting the HDTV simulcast requirement. The determination imposes obligations on licensees to simulcast their television service in both SDTV and HDTV modes and specifies that HDTV demonstration programs will be ignored when determining if the simulcast requirement is met. Failure to comply with the requirements of the instrument may result in civil or criminal consequences, as outlined in the general provisions of the BSA.