EXPLANATORY STATEMENT

Issued by the Australian Communications and Media Authority
 

Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2013 (No.3)
 

Broadcasting Services Act 1992

Purpose

The purpose of the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2013 (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.

The declaration of a Primary Service is 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. The legislation identifies the core service as the digital simulcast service of the analog service.[1]

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.

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 Northern NSW TV1, Sydney TV1, Melbourne TV1, Remote Central and Eastern Australia TV1, Remote Central and Eastern Australia TV2 and Mt Isa TV1 licence areas, the SDTV multi-channels specified in Schedule 1 to the Declaration (to appear after item 52 in the Schedule), are the Primary Services for the relevant licensees of those services.

The Amendment Declaration also amends the Declaration to remove to remove column 3 from the following tables:

• Table 1 of Schedule 1;
• Table 1 of Schedule 2; and
• Table 1 of Schedule 3.

These variations to the Declaration will remove, from the tables, the names of the other multi-channelled commercial services broadcast by each licensee in their licence areas at the end of the simulcast period or simulcast-equivalent period. The information in this column was initially inserted into the Declaration for information only. These variations were made because:

• the information is not necessary for the instrument to have effect;
• these columns contained information that was out of date; and
• were this information to remain, the ACMA may be required to make further amendments in order to keep the information from becoming further out of date as licensees either change the on-air tags for services other than their Primary Services or add new services other than their Primary 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 relevant licensees in each of Northern NSW TV1, Sydney TV1, Melbourne TV1, Remote Central and Eastern Australia TV1, Remote Central and Eastern Australia TV2 and Mt Isa TV1 licence areas.

On 3 October 2013, the ACMA released a consultation paper for public and industry comment.

The paper sought comments on the ACMA’s proposal to make a declaration specifying Primary Services for each of the commercial television broadcasting licences in the Northern NSW TV1, Sydney TV1, Melbourne TV1, Remote Central and Eastern Australia TV1, Remote Central and Eastern Australia TV2 and Mt Isa TV1 licence areas.

The closing date for submissions was 25 October 2013.  One submission was received in response to this consultation paper.

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 Services involves the preparation of a disallowable legislative instrument, the following Statement of Compatibility with Human Rights is included:

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 2013 (No.3).

Section 2 – Commencement

This section provides that the Amendment Declaration commences on 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 1, Table 1, column 3

Item 1 amends Schedule 1 of the Declaration deleting Column 3 of Table 1. The information contained in this column removes from the Declaration the names of the other multi-channelled commercial services broadcast by each licensee in their licence area at the end of the simulcast period or simulcast-equivalent period.  Column 4 has not been renumbered, and remains as column 4.

[Item 2] Schedule 1, Table 1, after item 52

Item 2 inserts new items into Table 1 of Schedule 1 of the Declaration. For each of the new items 53 to 66, the SDTV multi-channel listed in column 3 of the table is declared to be the Primary Service for the holder of the respective commercial television broadcasting service licence listed in column 2, for the relevant licence area listed in column 1. The new items deal with the services provided under 14 licences:

• three in the Northern NSW TV1 licence area (new items 53 to 55 inclusive);
• three in the Sydney TV1 licence area (new items 56 to 58 inclusive);
• three in the Melbourne TV1 licence area (new items 59 and 61);
• one in the Remote Central and Eastern TV1 licence area (new item 62);
• two in the Remote Central and Eastern TV2 licence area (new items 63 and 64);
• two in the Mt Isa TV1 licence area (new items 65 and 66);

[Item 3] Schedule 1, Table 1, note appearing immediately after Table 1

Item 3 substitutes the note appearing immediately after Table 1 in Schedule 1 of the Determination. The substitute note accounts for the fact that the Determination has been amended to remove column 3 which listed the names of other multi-channelled commercial services broadcast by licensees in their licence areas.

[Item 4] Schedule 2, Table 1, column 3

Item 4 amends Schedule 2 of the Declaration deleting Column 3 of Table 1. The information contained in this column removes from the Declaration the names of the other multi-channelled commercial services broadcast by each licensee in their licence area at the end of the simulcast period or simulcast-equivalent period.  Column 4 has not been renumbered, and remains as column 4.

[Item 5] Schedule 2, Table 1, note appearing immediately after Table 1

Item 5 substitutes the note appearing immediately after Table 1 in Schedule 2 of the Determination. The substitute note accounts for the fact that the Determination has been amended to remove column 3 which listed the names of other multi-channelled commercial services broadcast by licensees in their licence areas.

[Item 6] Schedule 3, Table 1, column 3

Item 6 amends Schedule 3 of the Declaration deleting Column 3 of Table 1. The information contained in this column removes from the Declaration the names of the other multi-channelled commercial services broadcast by each licensee in their licence area at the end of the simulcast period or simulcast-equivalent period. Column 4 has not been renumbered, and remains as column 4.

[Item 7] Schedule 3, Table 1, note appearing immediately after Table 1

Item 7 substitutes the note appearing immediately after Table 1 in Schedule 3 of the Determination. The substitute note accounts for the fact that the Determination has been amended to remove column 3 which listed the names of other multi-channelled commercial services broadcast by licensees in their licence areas.

[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, and paragraph 7(1)(m), of Schedule 2 to the Act.