EXPLANATORY STATEMENT

Issued by the Australian Communications and Media Authority
 

Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No.3) 

Broadcasting Services Act 1992

Purpose

The purpose of the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2010 (No.3) (the Amendment Declaration) is to amend the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 (the Declaration) in order to declare, under clause 41G of Schedule 4 to the Broadcasting Services Act 1992 (the Act), particular ‘SDTV multi-channelled commercial television broadcasting services’ (SDTV multi-channels) to be the ‘primary commercial television broadcasting services’ for commercial television broadcasting licensees in particular licence areas.

Legislative Provisions

Subclause 41G(2) 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 commercial television broadcasting licensees to be the ‘primary commercial television broadcasting service’ (Primary Service) after the end of the simulcast period or simulcast-equivalent period for the licence area of the licence. Subclause 41G(3) requires that such a declaration is in force at all times after the later of:

• the end of the simulcast period, or simulcast-equivalent period, for the licence area, and
• when a licensee commences to provide a SDTV multi-channel in the licence area.

Subclause 41G(4) of Schedule 4 to the Act provides that the ACMA may declare one or more of the SDTV multi-channels provided by a commercial television broadcasting licensee whose licence was allocated under section 38C of the Act to be the licensee’s Primary Services. Subclause 41G(5) limits the number of services to be declared as Primary Services to be three for any one licensee.

Subclause 41G(6) requires that the ACMA must ensure that such a declaration is in force at all times after the start date of the licence area concerned.

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 terrestrial 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]

The concept of a core service does not apply for licences allocated under section 38C of the Act. These licences authorise the provision of satellite delivered services in digital mode only and, as such, there are no analog simulcasts and, therefore, no core services provided.

In these instances, the ACMA may declare at least one but no more than three of the SDTV multi-channels provided by the commercial television broadcasting licensee to be the Primary Services 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 after the simulcast period or simulcast-equivalent period, or from the start date in the case of commercial television broadcasting licences allocated under section 38C of the Act.

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 or under 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 amends the Declaration to provide that, after the simulcast period for the Riverland TV1, Mount Gambier/South East TV1, Broken Hill TV1 and Spencer Gulf TV1 licence areas, and from the start date of the South Eastern Australia TV3 and Northern Australia TV3 licence areas, the SDTV multi-channels specified in Schedules 1 and Schedule 3 to the Declaration are the Primary Services for the relevant licensees of those services.

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 declaring Primary Services for commercial television broadcasting licences allocated under section 38C on 20 October 2010, and a Consultation Paper on declaring Primary Services in the Spencer Gulf and Broken Hill licence areas released on 4 November 2010. The closing date for submissions was on 12 November and 19 November 2010 respectively.

Three submissions in response to the consultation papers were made during this consultation process from Southern Cross Media Australia Pty Ltd (parent company of Spencer Gulf Telecasters Pty Ltd and Broken Hill Television Pty Ltd), Eastern Australia Satellite Broadcasters Pty Ltd (EASB) and Mr Alan Hughes. The submission from Southern Cross Media Australia Pty Ltd indicated that the Primary Services proposed to be specified for the licences in the Spencer Gulf and Broken Hill licence areas are appropriate. Spencer Gulf Telecasters Pty Ltd and Broken Hill Television Pty Ltd are the licensees of those licences. The submission from EASB indicated that the Primary Services proposed to be specified for the licences under section 38C are appropriate. EASB is the licensee of those licences.

There was no public consultation paper released in relation to the Riverland TV1 and Mount Gambier/South East TV1 licence areas, as the services to be provided under each of the commercial television broadcasting licences could not be finally confirmed until the third commercial television broadcasting licence had been allocated in each of these areas (which occurred on 1 December 2010). Given that, once the third commercial television broadcasting licence in each of these licence areas had been allocated, there was only one service provided under each licence in each licence area referred to in the Amendment Declaration that could be declared as the Primary Service, a further public consultation process was not undertaken. Instead, the affected licensee, being WIN Television SA Pty Limited (which holds all three commercial television broadcasting licences in each licence area), was consulted.

All comments received supported declaring the proposed Primary Services in each licence area.

Accordingly, the ACMA is satisfied with the consultation has been conducted for the purposes of section 17 of the LIA.

Regulatory Impact

The ACMA  has considered whether a regulatory impact analysis process is required by undertaking a preliminary assessment, and formed the view that the recommendation in this submission would give rise to a regulatory change with only minor or machinery impact on the business or not-for-profit sector. The Office of Best Practice Regulation (OBPR) has verified that no further regulatory impact analysis is required for this proposal – OBPR reference number 12066.

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.3).

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 Declaration.

Schedule 1 Amendment

[Item 1] Section 3

The definition of ‘start date’ is inserted into the Declaration.

[Item 2]

New subsection 6(1) declares, under subclause 41G(4) of Schedule 4 to the Act, that each of the SDTV multi-channels specified in the table in new Schedule 3 to be the Primary Service of the relevant licensee in that licence are, in this case the South Eastern Australia TV3 and the Northern Australia TV3 licence areas. The ‘CDT (Ten)’, ‘Imparja’ and ‘Southern Cross Television’ services are all declared to be the Primary Services for both of the commercial television broadcasting licences SL1130135 and SL1130136.

New subsection 6(2) provides that the declaration made in subsection (1) is effective from the start date of the licence area of each licence.

New subsection 6(3), sets out particular criteria that may be had regard to in determining which SDTV multi-channel provided by a licensee is the Primacy Service specified in Schedule 3, in order that a person is able to identify and differentiate the Primary Service from any other SDTV multi-channel provided by the licensee in the licence area.  Notably, watermarks or images displayed during provision of a service, as a means of identifying the service, may be used to distinguish between SDTV multi-channels.

New subsection 6(4) makes it clear that the matters that regard may be had to in identifying a Primary Service are not limited by the existence of subsection 6(3).

[Item 3] Schedule 1, table 1, after item 3

Item 3 inserts new items into the table at Schedule 1 of the Declaration, being a declaration that the SDTV multi-channel in Column 4 is the Primary Service for the holder of commercial television broadcasting service licence in Column 2 for the licence area in Column 1 for each of the Items 4 to 15 (inclusive).  The new items deal with the services provided under 12 licences – three in each of the Riverland TV1, Spencer Gulf TV1, Mount Gambier/South East TV1, and Broken Hill TV1 licence areas.

[Item 4]Schedule 3, table 1,

Item 4 inserts a new  Schedule 3 of the Declaration, specifying that the SDTV multi-channels ‘CDT (Ten)’, ‘Imparja’ and ‘Southern Cross Television’  are the Primary Services for both of the commercial television broadcasting licences SL1130135 and SL1130136, in the South Eastern Australia TV3 licence area (Item 1) and Northern Australia TV3 licence area (Item 2), respectively.

[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.