Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No. 2)

Administered by Department of Communications and the Arts

Legislation au F2010L03004 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the Australian Communications and Media Authority
 

Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No.2) 

Broadcasting Services Act 1992

Purpose

The purpose of the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No.2) (the Amendment Declaration) is to amend the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 (the Declaration) in order to declare, under subclause 41G(1) of Schedule 4 to the Broadcasting Services Act 1992 (the Act), a particular ‘SDTV multi-channelled commercial television broadcasting service’ (SDTV multi-channel) to be the ‘primary commercial television broadcasting service’ for commercial television broadcasting licensees in their licence areas.

Legislative Provisions

Clause 41G of Schedule 4 to the Act provides that the Australian Communications and Media Authority (the ACMA) may declare one of the SDTV multi-channels provided by certain commercial television broadcasting licensees to be the ‘primary commercial television broadcasting service’ (Primary Service) during the simulcast period or simulcast-equivalent period for the licence area of the licence (subclause 41G(1)).

Subclause 41G(1A) requires that the ACMA must make such a declaration as soon as practicable after the later of when a licensee commences to provide a SDTV multi channel service and the commencement of that subclause.

The declaration of a Primary Service must be made by legislative instrument.

Background

The regulatory regime for commercial television broadcasting services is established by the Act. The Act sets out rules for the conversion, over time, of commercial television broadcasting services from analog to digital mode. These rules include the requirement for a ‘simulcast period’ for each licence area, during which time commercial television broadcasting licensees must simulcast their original analog service in both standard definition digital mode (SDTV) and analog mode. This simulcast service in SDTV is taken to be the core commercial television broadcasting service (the core service) for these licensees.[1]

However, the concept of a core service does not apply for licences allocated under section 38B of the Act on or after 1 January 2009. These licences authorise the provision of the following services in digital mode only during the simulcast period:

  • two SDTV multi-channels; and
  • one high-definition multi-channelled commercial television broadcasting service.

These licences do not authorise an analog service and consequently do not have an SDTV simulcast service or a core service (all services provided under such licences are regarded as multi-channels).

In these instances, the ACMA may declare one of the SDTV multi-channels provided by the commercial television broadcasting licensee to be the Primary Service for the licence in the relevant licence area.

Declaring a Primary Service will provide certainty in respect of the regulatory obligations applying to each service provided by a commercial television broadcasting licensee during the simulcast period or simulcast-equivalent period in the case of services provided by any digital-only commercial television broadcasting licences.

A decision by the ACMA to declare a Primary Service will affect the operation of certain content regulations that apply to commercial television broadcasting services in the Act. These include, for example, the anti-siphoning scheme, program standards (e.g. Broadcasting Services (Australian Content) Standard 2005, Television Program Standard 23 – Australian Content in Advertising and the Children’s Television Standards 2009) and captioning rules.

Operation

The Amendment Declaration provides that during the simulcast period for the two licence areas, being Broken Hill TV1 and Spencer Gulf TV1, the SDTV multi-channels specified in the amendments made to Schedule 2 to the Declaration are the Primary Services for the relevant licensees of those services.

There is one commercial television broadcasting licence allocated under section 38B of the Act on or after 1 January 2009 in each of the two licence areas, being SL1130143 held by Broken Hill Television Pty Limited in Broken Hill TV1 and SL1130142 held by Spencer Gulf Broadcasters Pty Limited in Spencer Gulf TV. Each licensee currently provides only one SDTV multi-channel, known as Nine.

Accordingly, the Amendment Declaration amends the Declaration to declare Nine to be the Primary Service of each of the licensees of SL1130143 and SL1130142. 

Consultation

Section 17 of the Legislative Instruments Act 2003 (the LIA) requires the ACMA to be satisfied that any consultation it considers to be appropriate and that is reasonably practicable to undertake has been undertaken.

The ACMA released a Consultation Paper for public and industry comment on
3 May 2010 on its proposed approach to declare the service that is currently the commercial television broadcaster’s ‘core’ service to be the Primary Service by reference to its on-air identification tag. The Consultation Paper also referred to digital-only licences and noted that, where appropriate, any declaration made in relation to these licences will be consistent with the process applying to commercial television broadcasting licences after the end of the simulcast period.

A period of approximately 4 weeks was provided for comment on the Consultation Paper. Three submissions were received from the commercial television broadcasting industry association Free TV, WIN Television Mildura Pty Ltd and the Australian Subscription Television and Radio Association (ASTRA). All submissions were published on the ACMA website. FreeTV and WIN Television Mildura Pty Ltd indicated that the Primary Services to be specified and the method of designating the Primary Services were appropriate.  ASTRA was also supportive of declaring Primary Services for commercial television broadcasting licensees prior to the end of a simulcast period.

As there is only one service in each licence area referred to in the Amendment Declaration that can be declared as the Primary Service, a further public consultation process was not undertaken. Instead the affected licensees, being Spencer Gulf Broadcasters Pty Limited and Broken Hill Television Pty Limited which also hold other commercial television broadcasting licences in each licence area, as well as Free TV, were consulted.

All comments received supported declaring Nine as the Primary Service in each licence area.

Accordingly, the ACMA is satisfied that consultation has been conducted in accordance with the requirements under section 17 of the LIA.

Regulatory Impact

The ACMA obtained advice prior to 1 July 2010 from its SES contact officer for the Government’s regulation impact analysis arrangements that the Amendment Declaration has no or low impact. Accordingly, the ACMA has determined that there is no need to produce a Business Cost Calculator Report or to prepare a Regulation Impact Statement. The ACMA RIS exemption number is ACMA 134.

Attachment

Further details of the Amendment Declaration are in the Attachment.


Attachment

NOTES ON SECTIONS

Section 1 – Name of Declaration

Section 1 provides that the name of the Amendment Declaration is the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No.2).

Section 2 – Commencement

This section provides that the Amendment Declaration commences the day after it is registered on the Federal Register of Legislative Instruments.

Section 3 – Amendment of Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010

This section provides that Schedule 1 of the Amendment Declaration amends the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010.

Schedule 1 Amendment

[Item 1] Schedule 2, table 1, after item 4

Item 1 inserts two new items into the table at Schedule 2 of the Declaration, being a declaration that the SDTV multi-channel known as ‘Nine’ is the Primary Service for the holder of SL1130142 in the Spencer Gulf TV1 licence area (new item 5) and that the SDTV multi-channel known as ‘Nine’ is the Primary Service for the holder of SL1130143 in the Broken Hill TV1 licence area (new item 6).

 

[1] Licences allocated under section 38B of the Act before 1 January 2009 authorise the provision of commercial television broadcasting services in digital mode only. In these cases, the core service is the sole SDTV multi-channel that could be provided before 1 January 2009.  See sections 41A to 41C of, and paragraph 7(1)(m) of Schedule 2 to, the Act.

Overview

The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No.2) was enacted by the Australian Communications and Media Authority (ACMA) under the Broadcasting Services Act 1992. This amendment aims to address the problem of designating a primary commercial television broadcasting service during the simulcast period for certain digital-only commercial television broadcasting licences. The simulcast period refers to the transitional phase where broadcasters provide their services in both analog and digital formats. The amendment specifically targets the licences issued under section 38B of the Broadcasting Services Act 1992 on or after 1 January 2009, which only allow for digital broadcasting without an analog simulcast. By declaring a particular SDTV multi-channel as the primary service, the amendment ensures regulatory clarity and continuity in the application of content regulations, such as anti-siphoning provisions and program standards, to these digital-only services. The policy objective is to provide certainty for broadcasters and the public regarding the regulatory obligations during this transitional period.

Scope and Application

The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No.2) amends the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 to specify the primary commercial television broadcasting service for certain digital-only commercial television broadcasting licensees. This amendment is made under subclause 41G(1) of Schedule 4 to the Broadcasting Services Act 1992. The Amendment Declaration applies to commercial television broadcasting licensees in the Broken Hill TV1 and Spencer Gulf TV1 licence areas, specifically Broken Hill Television Pty Limited and Spencer Gulf Broadcasters Pty Limited, which are the holders of licences SL1130143 and SL1130142, respectively. It declares that the SDTV multi-channel service known as 'Nine' provided by these licensees is the primary commercial television broadcasting service for their respective licence areas during the simulcast period or simulcast-equivalent period. The Amendment Declaration's regulatory impact is considered low, and thus, no further regulatory impact analysis was deemed necessary by the Australian Communications and Media Authority. The Amendment Declaration is set to commence on the day following its registration on the Federal Register of Legislative Instruments.

Key Provisions

The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No.2) primarily focuses on amending the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 to specify which SDTV multi-channel will be considered the 'Primary Service' for commercial television broadcasting licensees in their respective licence areas (section 41G). According to subclause 41G(1) of Schedule 4 to the Broadcasting Services Act 1992 (the Act), the Australian Communications and Media Authority (ACMA) can declare one of the SDTV multi-channels provided by certain commercial television broadcasting licensees as the 'Primary Service' during the simulcast period or simulcast-equivalent period for the licence area of the licence. This declaration is crucial as it will determine the regulatory obligations that apply to each service provided by a commercial television broadcasting licensee during the simulcast period or simulcast-equivalent period, especially for digital-only commercial television broadcasting licences. The Amendment Declaration specifies that during the simulcast period for the two licence areas, Broken Hill TV1 and Spencer Gulf TV1, the SDTV multi-channels specified in the amendments made to Schedule 2 to the Declaration are the Primary Services for the relevant licensees of those services. In this case, the SDTV multi-channel known as 'Nine' is declared as the Primary Service for the licensees of SL1130143 in Broken Hill TV1 and SL1130142 in Spencer Gulf TV1. By making this declaration, the ACMA aims to provide certainty in respect of the regulatory obligations applying to each service provided by a commercial television broadcasting licensee during the simulcast period or simulcast-equivalent period. The Amendment Declaration imposes certain obligations on the parties it governs. Primarily, it requires the ACMA to declare a Primary Service for commercial television broadcasting licensees during the simulcast period or simulcast-equivalent period in their licence areas. The ACMA must make such a declaration as soon as practicable after the later of when a licensee commences to provide a SDTV multi-channel service and the commencement of subclause 41G(1A) of the Act. The declaration of a Primary Service must be made by legislative instrument. Breaching the provisions of the Amendment Declaration may result in civil and/or criminal consequences for the parties involved. While the specific penalties are not outlined in the text, the Act may provide for penalties for non-compliance with the regulatory requirements imposed by the Amendment Declaration. It is essential for commercial television broadcasting licensees to adhere to the declared Primary Service to avoid any potential legal repercussions.

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