EXPLANATORY STATEMENT

Issued by the Australian Communications and Media Authority
 

Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2012 (No.1) 

Broadcasting Services Act 1992

Purpose

The purpose of the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2012 (No.1) (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’ (Primary Services) for the commercial television broadcasting licensee in the Western Australia TV3 licence area.

Legislative Provisions

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 in the licence area. Subclause 41G(5) limits the number of services declared as Primary Services to three for a particular licensee. Subclause 41G(6) requires that the ACMA must ensure that such a declaration is in force at all times on and after the start date for the licence area concerned.

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

Background

Under the Act, commercial television broadcasting licensees are authorised to deliver multiple commercial television broadcasting services in digital mode under a single commercial television broadcasting service licence. This is referred to as ‘multi-channelling’.

Multi-channelling creates a two-track regulatory system for commercial television broadcasting services, in which some obligations apply to the analog service and its digital simulcast, but not to other streams of programs transmitted by the same licensee in digital mode.

During the period in which each analog service and its digital equivalent in a licence area must be simulcast, the concept of a ’core commercial television broadcasting service‘ (core service) is used by the legislation to identify the service to which certain regulatory provisions of the Act apply. Generally, the legislation identifies the core service as the digital simulcast service of the analog service.

The concept of a core service does not apply to 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 instances of licences allocated under section 38C of the Act, the ACMA may declare at least one, but no more than three, of the SDTV multi-channels provided by the section 38C licensee to be the licensee’s Primary Services for the licence area.

Declaring a Primary Service for a section 38C licensee ensures that the regulation of content on the satellite delivered service is consistent with the regulation of content provided by commercial television broadcasting licensees in terrestrial licence areas. In particular, a declared Primary Service will be subject to program standards for Australian content and children’s programs,[1] as well as captioning requirements, while restrictions on televising an anti-siphoning event apply to the SDTV and HDTV multi-channels (that is, the event must first be shown on the Primary Service).

Operation

The Amendment Declaration amends the Declaration to provide that, on and after the start date for the Western Australia TV3 licence area, the SDTV multi-channels specified in Schedule 1 to the Amendment Declaration are the Primary Services for the section 38C licensee in the licence area.

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 has consulted the section 38C licensee in the Western Australia TV3 licence area, being WA Satco Pty Ltd.  The ACMA also released a Consultation Paper, on 15 December 2011, for public comment on the proposed declaration of Primary Services in the Western Australia TV3 licence area. The closing date for submissions was 2 February 2012.

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

Statement of Compatibility (SOC) with human rights

As the declaration of Primary Commercial Television Broadcasting Services involves the preparation of a legislative instrument, the following Statement of Compatibility with Human Rights is included:

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

Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2012 (No.1)

This legislative instrument 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 legislative instrument

In the continuing transition to digital television, the government’s policy is to ensure all television viewers in Australia are able to receive free-to-air digital television broadcasting services following the switch-off of analog transmission, and to improve choice and quality of television services for people in remote and regional areas.

A key element of this strategy is the Viewer Access Satellite Television (VAST) service. The VAST service is a government-funded digital television broadcasting service delivered by satellite that provides access to a suite of metropolitan-equivalent free-to-air digital television broadcasting services to people in remote areas and in terrestrial digital television ‘black spots’.

The commercial television broadcasting services which form part of the VAST service are licensed under section 38C of the Broadcasting Services Act 1992 (the BSA). Under subclause 41G(4) of the BSA, the ACMA may declare up to three of the commercial television broadcasting services provided by a section 38C licensee to be the licensee’s Primary Services in the licence area.

Declaring a Primary Service for a section 38C licensee ensures that the regulation of content on the satellite delivered service is consistent with the regulation of content provided by commercial television broadcasting licensees in terrestrial licence areas. In particular, a declared Primary Service will be subject to program standards for Australian content and children’s programs, as well as captioning requirements, while restrictions on televising an anti-siphoning event apply to the SDTV and HDTV multi-channels.

The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2012 (No.1) declares three Primary Services for the section 38C licensee in the Western Australia TV3 licence area.

Human rights implications

This legislative instrument does not engage any of the applicable rights or freedoms.

Conclusion

This legislative instrument is compatible with human rights as it does not raise any human rights issues.

The rule-maker of the Legislative Instrument is the Australian Communications and Media Authority.

Regulatory Impact

The ACMA  has considered whether a regulatory impact analysis process is required by undertaking a preliminary assessment, Based on this preliminary assessment, the Office of Best Practice Regulation (OBPR) has determined that the proposed regulatory change in this submission is minor or machinery in nature and, therefore, 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

This section provides that the name of the Amendment Declaration is the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2012 (No.1).

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 3, Table 1, after item 2

Schedule 1 of the Amendment Declaration inserts a new item (Item 3) into Table 1 of Schedule 3 of the Declaration, specifying that the SDTV multi-channels, GWN7, WIN and TEN, are the Primary Services for the holder of the section 38C commercial television broadcasting licence (SL 1130166) in the Western Australia TV3 licence area. These are equivalent to the Primary Services that exist for the three terrestrial commercial television broadcasting licensees in metropolitan areas.

[1] e.g. Broadcasting Services (Australian Content) Standard 2005, Television Program Standard 23 – Australian Content in Advertising and the Children’s Television Standards 2009.