Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2011 (No. 2)

Administered by Department of Communications and the Arts

Legislation au F2011L00674 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 2011 (No.2) 

Broadcasting Services Act 1992

Purpose

The purpose of the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2011 (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 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

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 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]

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 for these licences will ensure that the regulation of content is consistent with that of other 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 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, during the simulcast period for the two licence areas, being Remote Central and Eastern Australia TV2 and Mt Isa 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.

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 consulted the licensee in each of the Remote Central and Eastern Australia TV2 and Mt Isa TV1, being Central Digital Television Pty Ltd (CDT).

The ACMA also released a Consultation Paper for public and industry comment on declaring Primary Services in the Remote Central and Eastern Australia TV2 and Mt Isa TV1 licence areas on 5 April 2011. The closing date for submissions was on 22 April 2011.

One submission was received in response to the consultation paper from CDT which supported declaring the Primary Services proposed by the ACMA in each licence area.

The ACMA is satisfied that consultation has been conducted in accordance with the requirements 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 2011 (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 Declaration.

Schedule 1 Amendment

[Item 1] Schedule 2, table 1, after item 6

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 CDT (Ten) is the Primary Service for holder of
SL 1130050 in the Remote Central and Eastern Australia TV2 licence area (new item 7) and for the holder of SL 1130051 in the Mt Isa TV1 licence area (new item 8). 

 

 

[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 2011 (No.2) was enacted to address the issue of designating a primary commercial television broadcasting service for certain digital-only commercial television broadcasters. This legislative instrument was introduced under the Broadcasting Services Act 1992 by the Australian Communications and Media Authority (ACMA), aiming to ensure consistency in the regulation of content across all commercial television broadcasting services. The primary objective of this amendment was to declare particular standard definition television multi-channel services as the primary commercial television broadcasting services for specific licence areas, thereby aligning the regulatory framework for these broadcasters with that of others. This was particularly relevant for broadcasters operating in the Remote Central and Eastern Australia TV2 and Mt Isa TV1 licence areas, where the ACMA consulted with the licensee, Central Digital Television Pty Ltd, and received support for the proposed amendments.

Scope and Application

The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2011 (No. 2) applies to commercial television broadcasting licensees in specific licence areas, namely the Remote Central and Eastern Australia TV2 and Mt Isa TV1 areas. This legislative instrument amends the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 to declare particular SDTV multi-channelled commercial television broadcasting services provided by certain licensees as the primary commercial television broadcasting services. This is done to ensure consistency in the regulation of content across all commercial television broadcasting licences, including those that provide services in digital mode only. The Amendment Declaration applies nationally as it is a Commonwealth legislative instrument under the Broadcasting Services Act 1992. There are no stated exclusions, exemptions, or thresholds in this particular Amendment Declaration. The application of the Act can be extended or restricted through subordinate instruments, such as legislative instruments or regulations, which may further specify the details of the services or impose additional requirements.

Key Provisions

The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2011 (No.2) amends the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010. The main operative sections of this Amendment Declaration, particularly clauses 41G(1) and 41G(1A) of Schedule 4 to the Broadcasting Services Act 1992 (the Act), provide the Australian Communications and Media Authority (ACMA) with the authority to declare one of the SDTV multi-channel services provided by certain commercial television broadcasting licensees as the 'primary commercial television broadcasting service' (Primary Service) for the licence area of the licence. This declaration must be made by legislative instrument and must occur as soon as practicable after the licensee begins to provide a SDTV multi-channel service and the commencement of subclause 41G(1A). The Amendment Declaration specifically identifies the SDTV multi-channels for the Remote Central and Eastern Australia TV2 and Mt Isa TV1 licence areas as the Primary Services for the respective licensees. The obligations and requirements imposed by this Amendment Declaration on the parties it governs include ensuring that the ACMA consults with the relevant licensees, as mandated by section 17 of the Legislative Instruments Act 2003. The ACMA must be satisfied that any appropriate and reasonably practicable consultation has been undertaken. In this case, the ACMA consulted Central Digital Television Pty Ltd (CDT), the licensee for the Remote Central and Eastern Australia TV2 and Mt Isa TV1 licence areas, and released a Consultation Paper for public and industry comment. The ACMA received one submission from CDT supporting the proposed declarations. Additionally, the Amendment Declaration requires that the ACMA must ensure that the declaration of the Primary Services aligns with the regulatory requirements and content regulations applicable to commercial television broadcasting services under the Act. There are no specific offences, penalties, or civil/criminal consequences for breach outlined in the Amendment Declaration itself. However, the overarching legal framework provided by the Broadcasting Services Act 1992 and the Legislative Instruments Act 2003 would apply to any breaches of the regulations and obligations associated with the operation of commercial television broadcasting services. Non-compliance with the content regulations and obligations specified in the Act could potentially lead to enforcement actions, fines, or other sanctions as determined by the relevant authorities. The precise penalties would depend on the nature and severity of the breach, as well as the specific provisions of the Act and other applicable laws.

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