Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009 (Amendment No. 1 of 2012)

Administered by Department of Communications and the Arts

Legislation au F2012L01858 Not in force Legislative Instrument

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Explanatory Statement

 

Broadcasting Services Act 1992

 

Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) 

Determination (No. 1) 2009 (Amendment No. 1 of 2012)

 

 

 

Issued by the authority of the Minister for Broadband, Communications

and the Digital Economy

 

Purpose

 

The Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009 (Amendment No. 1 of 2012) (the Determination) is made by the Minister for Broadband, Communications and the Digital Economy (the Minister) under paragraph 6A(7)(a) of Schedule 4 to the Broadcasting Services Act 1992 (the BSA). The Determination is a legislative instrument for the purposes of section 5 of the Legislative Instruments Act 2003.

 

The purpose of this Determination is to amend the Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009 made under subclause 6A(1) of Schedule 4 to the BSA (the Principal Determination) to vary the end of the simulcast period for the metropolitan licence areas.

 

Background

 

Legislative background

 

The BSA allows the Minister to implement a phased, region-by-region digital television switchover timetable for metropolitan and regional licence areas.

 

The dates for digital television switchover are set through a transitional period, known as the ‘simulcast period’, during which national and commercial television broadcasters are required to transmit simultaneously in analog and standard definition digital mode (unless an area is a digital-only local market area). At the end of the simulcast period, or at a time an area becomes a digital-only local market area, analog transmissions will cease. Only digital television transmissions are permitted after that time.

 

Clauses 6 and 19 of Schedule 4 to the BSA set out the framework for the making by the Australian Communications and Media Authority (ACMA) of a scheme for the conversion of commercial television broadcasting services and national television broadcasting services, respectively, from analog to digital mode. The ACMA has made the Commercial Television Conversion Scheme 1999 and the National Television Conversion Scheme 1999.

 

Subclauses 6(3) and 19(3) of Schedule 4 to the BSA set out the policy objectives towards which the schemes must be directed. One objective, specified in paragraphs 6(3)(c) and 19(3)(c), is that there should be a transitional period known as the simulcast period for metropolitan and regional licence areas. Under subclauses 6(7A) and 19(7A) of Schedule 4 to the BSA, the ACMA is responsible for determining the simulcast period for the remote licence areas (Remote and Regional Western Australia and Remote Central and Eastern Australia).

 

In the case of a holder of a commercial television broadcasting licence in a metropolitan licence area, subparagraph 6(3)(c)(iia) of Schedule 4 to the BSA provides that the simulcast period should run until 31 December 2013, or for such other period as is determined by the Minister under subclause 6A of Schedule 4 to the BSA (see subclause 6A(2)). Subclause 6A(4) provides that a period determined by the Minister under subclause 6A(2) must end before the end of 31 December 2013.

 

The Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009 (Principal Determination) set the date for the end of the simulcast period in the Brisbane TV1 and Perth TV1 licence areas as 30 June 2013, and for the Adelaide TV1, Melbourne TV1 and Sydney TV1 licence areas as 31 December 2013.

 

The Minister can vary the Principal Determination under paragraph 6A(7)(a) of Schedule 4 to the BSA. The purpose of this Determination is to vary the dates in the Principal Determination.

 

In the case of national broadcasters, subparagraph 19(3)(c)(iii) of Schedule 4 to the BSA provides that the simulcast period for a coverage area will end at the end of the simulcast period for the corresponding commercial television licence area (determined in accordance with paragraph 6(3)(c) of Schedule 4 to the BSA).

 

As a result, the end of the simulcast period in the metropolitan coverage areas that correspond to the metropolitan licence areas of Brisbane TV1, Perth TV1, Adelaide TV1, Melbourne TV1 and Sydney TV1 will end at the same time as the simulcast period determined for those licence areas.

 

A phased, region-by-region digital switchover timetable

 

On 19 October 2008, the Minister announced a phased, region-by-region timetable for the switchover to digital television.  The timetable proposes to progress switchover through regional areas on a state basis, then metropolitan areas and remote Australia in 2013.

 

Criteria for prioritisation of particular switchover areas

 

The digital television switchover timetable was developed by identifying six key criteria for prioritisation and applying them to the identified switchover areas. The prioritisation operates such that the areas which require more time to prepare for switchover are later in the timetable. The key criteria are:

  • Population: the number of households and other dwellings in a particular switchover area impacts on the level of resources required by industry and government to facilitate switchover in that area.
  • Number of multi dwelling units and communal aerial systems: the added complexity of converting multi dwelling units (MDUs) may impact on planning and preparation for digital switchover in a particular area.  MDUs include apartment and townhouse complexes, boarding houses and hostels in both private and public ownership. A significant proportion of these MDUs have communal television aerial systems. Communal aerial systems are also used in public buildings such as hospitals and schools, as well as commercial properties such as hotels. A proportion of these aerial systems will require upgrading or reconfiguration to adequately receive digital free to air transmissions. MDUs are more common in urban and metropolitan areas.
  • The number of sites of potential digital signal deficiency: the number of sites of potential digital signal deficiency in an area and the measures required to address signal deficiency may impact on planning and preparation for digital switchover.
  • Ongoing cost of the analog-digital simulcast: the requirement to provide analog and digital transmissions until the end of the simulcast period represents an ongoing cost for commercial television broadcasters, and for the Government in relation to the transmission costs for national broadcasters. The cost impact is particularly significant for broadcasters operating in regional areas.
  • Digital conversion: the consumer digital take-up rate in a particular area may reflect the preparedness of a particular area to switch to digital. The Government’s information campaign is designed to educate consumers, and increase community awareness, about the switch to digital television.
  • Instances of VHF to UHF transition for digital transmitters: digital signals transmitted in the Ultra High Frequency (UHF) band of spectrum may have potentially less digital coverage than the existing analog service transmitted in the Very High Frequency (VHF) band. There may be some reception issues in some switchover areas where VHF analog signals are replaced by UHF digital signals.
     

Simulcast period in the metropolitan licence areas

 

The switchover timetable released by the Minister on 19 October 2008 provided for the simulcast period in the Brisbane and Perth to end in the first half of 2013, and the simulcast period in Melbourne, Adelaide and Sydney to end in the second half of 2013.

 

On 2 November 2009, exercising his powers under subclause 6A(1) of Schedule 4 to the BSA, the Minister made the Principal Determination. This determination set the switchover dates in the metropolitan markets to reflect the timetable announced by the Minister. The Principal Determination provides for the simulcast period for Brisbane TV1 and Perth TV1 licence areas to end on 30 June 2013 and for the simulcast period in the Adelaide TV1, Melbourne TV1 and Sydney TV1 licence areas to end on 31 December 2013.

 

As switchover in Australia has progressed, it has become apparent that the metropolitan timetable will need to be amended. This is necessary to avoid switchover occurring in all metropolitan areas on one of two days. A tight clustering of switchover dates in metropolitan areas would present significant challenges for the deployment of broadcast engineers, the antennae installation workforce and to the government in providing assistance to vulnerable Australians under the Household Assistance Scheme. In order to facilitate this more staggered approach, it has been necessary to move the switchover date for Adelaide to the first half of 2013.  

 

Results in the Digital Tracker report released quarterly by the Digital Switchover Taskforce within the Department of Broadband, Communications and the Digital Economy indicate that, in the first quarter of 2012, approximately 95% of households in Adelaide, Brisbane, Perth, Sydney and Melbourne were aware of switchover and approximately 4 in 5 households in those areas had already converted at least their main television set.

 

The Minister has decided to vary the switchover date for the Adelaide TV1 licence area to 2 April 2013, the switchover date for the Perth TV1 licence area to 16 April 2013, the switchover date for the Brisbane TV1 licence area to 28 May 2013, the switchover date for the Sydney TV1 licence area to 3 December 2013 and the switchover date for the Melbourne TV1 licence area to 10 December 2013.


Notes on Clauses

 

Clause 1 provides that the name of the Determination is the Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009 (Amendment No. 1 of 2012) (the Determination).

 

Clause 2 provides that the Determination takes effect from the day after it is registered on the Federal Register of Legislative Instruments.

 

Clause 3 is a definitions clause.

 

Clause 4 is the main operative clause.

 

Clause 4 provides that the simulcast period for the Adelaide TV1 licence area is to run until and including 2 April 2013; that the simulcast period for the Perth TV1 licence area is to run until and including 16 April 2013; that the simulcast period for the Brisbane TV1 licence area is to run until and including 28 May 2013; that the simulcast period for the Sydney TV1 licence area is to run until and including 3 December 2013; and that the simulcast period for the Melbourne TV1 licence area is to run until and including 10 December 2013.

 

Statement of Compatibility with Human Rights (prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

 

This Determination 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.

 

Australia is a signatory to the International Covenant on Civil and Political Rights (one of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011) (the ICCPR). Article 19(2) of the ICCPR protects freedom of expression, including the right to seek, receive and impart information and ideas of all kinds, and the means of their dissemination. Article 15(1) of the ICESCR protects the right of everyone to take part in cultural life.

 

The effect of this Determination is that analog transmissions in the metropolitan licence areas will cease once the simulcast period ends on the dates set out in Clause 4 of the Determination. From then on, transmissions in these areas will be digital only. The change in the mode of transmission does not limit the fundamental human right to freedom of expression as the viewer continues to have free access to television broadcasting services, albeit in digital mode only.

 

The move to digital television is reasonably accessible to all Australians and where vulnerable Australians need support to access digital television they are provided practical assistance by the Australian government through various programs.

 

The cessation of analog mode television is a necessary technological change, which has been occurring around the world. Digital television is more spectrally efficient and delivers television programs using a higher quality of transmission service and thus enhances the viewing experience for Australian audiences.

 

Based on this, this Determination is compatible with the rights protected by Article 15(1) of the ICESCR and Article 19(2) of the ICCPR.

 

Consultation

 

As required by subclause 6A(13) of Schedule 4 to the BSA, the Minister has consulted with the ACMA about varying the timing of the end of the simulcast period in the metropolitan licence areas. The ACMA has indicated that it is unaware of any significant difficulties that might affect the decision to vary the switchover dates as set out in clause 4 of the Determination.  

 

The Minister has also consulted with broadcasters on the proposed switchover dates in the metropolitan licence areas.

Overview

The Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009 (Amendment No. 1 of 2012) is an amendment made by the Minister for Broadband, Communications and the Digital Economy under the Broadcasting Services Act 1992, aiming to adjust the end dates of the simulcast period for metropolitan licence areas in Australia. This adjustment is necessary to avoid a tight clustering of switchover dates in metropolitan areas, which would pose challenges for deployment of broadcast engineers, antenna installation workforce, and government assistance to vulnerable Australians. The original determination set the end of the simulcast period for Brisbane and Perth at 30 June 2013, and for Adelaide, Melbourne and Sydney at 31 December 2013. This amendment reschedules the dates to stagger the switchover, thus facilitating a more manageable transition to digital-only transmissions. The policy objective remains consistent with the overarching goal of the BSA, which includes providing a transitional period for the conversion from analog to digital mode in broadcasting services. The amendment was developed following consultation with the Australian Communications and Media Authority and broadcasters, ensuring that the new dates do not present significant difficulties and align with the broader switchover strategy. This approach seeks to optimise the switchover process while respecting the fundamental human rights to freedom of expression and cultural participation, as protected by international covenants.

Scope and Application

The Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009 (Amendment No. 1 of 2012) applies to broadcasters operating within the metropolitan licence areas in Australia, specifically targeting holders of commercial television broadcasting licences in areas such as Brisbane, Perth, Adelaide, Melbourne, and Sydney. The determination is made by the Minister for Broadband, Communications and the Digital Economy under the Broadcasting Services Act 1992 (BSA), providing authority for a staggered digital television switchover process. The geographic reach of this Act is national, as it pertains to the implementation of the digital switchover timetable across various metropolitan areas in Australia. This Determination varies the end dates of the simulcast period, during which broadcasters must transmit both analog and digital signals, in these metropolitan areas. The Determination excludes any areas designated as digital-only local market areas. The act does not explicitly mention any exclusions or exemptions, but it does provide a phased timetable that considers various factors such as population density, the number of multi-dwelling units, and the cost of maintaining analog and digital transmissions. The BSA allows for the extension or restriction of the application of this Determination through subordinate instruments, ensuring flexibility in the implementation of the digital switchover process.

Key Provisions

The Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009 (Amendment No. 1 of 2012) is a legislative instrument made by the Minister for Broadband, Communications and the Digital Economy under the Broadcasting Services Act 1992 (BSA). This Determination serves to amend the original simulcast period end dates set in the Principal Determination (Clause 4). The key change is the alteration of the end dates for the simulcast period in various metropolitan licence areas, which were originally set for 30 June 2013 for Brisbane and Perth, and 31 December 2013 for Adelaide, Melbourne, and Sydney. The new dates are 2 April 2013 for Adelaide, 16 April 2013 for Perth, 28 May 2013 for Brisbane, 3 December 2013 for Sydney, and 10 December 2013 for Melbourne. These dates reflect a more staggered approach to the digital switchover to manage logistical challenges and better support the industry and consumers. Under the BSA, the Minister has the authority to implement a phased digital television switchover, which involves a transitional period known as the simulcast period. During this period, broadcasters must transmit both analog and digital signals. Once the simulcast period ends, only digital transmissions are permitted. The BSA mandates a simulcast period for metropolitan and regional licence areas, with the Australian Communications and Media Authority (ACMA) responsible for determining these periods for remote licence areas. For metropolitan areas, the Minister can set the end date of the simulcast period, provided it concludes before 31 December 2013. This Determination exercises that power to adjust the end dates for the metropolitan areas. The Determination imposes obligations on broadcasters in the affected metropolitan licence areas to comply with the new simulcast period end dates. Broadcasters must ensure that their transmissions are in both analog and digital modes until the specified dates and switch exclusively to digital thereafter. The ACMA plays a role in overseeing compliance with these requirements and ensuring that the transition to digital broadcasting is managed effectively. Failure to comply with the requirements of the Determination could result in enforcement actions by the ACMA. While the Determination does not explicitly outline specific penalties for non-compliance, broadcasters found in breach of broadcasting regulations under the BSA could face penalties, including fines and other sanctions. The exact penalties would depend on the specific provisions of the BSA that are contravened. This Determination has been deemed compatible with human rights, particularly the right to freedom of expression and cultural participation, as it does not restrict access to television services but rather enhances the quality of the transmission and viewing experience by transitioning to digital. The move to digital broadcasting is supported by government programs to assist vulnerable Australians, ensuring the transition is accessible to all.

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