EXPLANATORY STATEMENT
Issued by the authority of the Australian Communications and Media Authority
Datacasting Charge (Amount) Amendment Determination 2008 (No.1)
Datacasting Charge (Imposition) Act 1998
Purpose
The Datacasting Charge (Amount) Amendment Determination 2008 (No.1) (the Amendment Determination) amends the amount of charge set by the Datacasting Charge (Amount) Determination 2001 (the 2001 Determination).
Legislative Provisions
Section 6 of the Datacasting Charge (Imposition) Act 1988 (the Act) imposes a charge on a transmitter licence held by a commercial television broadcasting licensee in respect of a financial year during at least part of which the transmitter was used to transmit datacasting services in digital mode under the authority of a datacasting licence issued pursuant to Schedule 6 of the Broadcasting Services Act 1992.
Subsection 7(1) of the Act empowers Australian Communications and Media Authority (ACMA) to determine the amount of charge imposed on such a transmitter licence in respect of a financial year.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make an instrument, that power shall, unless the contrary intention appears, be construed as including a power exercisable in a like manner and subject to like conditions, to vary that instrument.
Background
Charges for Free to Air (FTA) broadcasters for their datacasting services are based on revenue, and set by the 2001 Determination, made under subsection 7(1) of the Act.
The Explanatory Statement for the 2001 Determination (at Attachment 2) specified that the datacasting charge should be imposed at the same rate as the charge for broadcasting revenue. A key reason for this was to avoid potential revenue shifting. However, the 2001 Determination contains a drafting error that has the effect of imposing a datacasting charge that is 100th of the intended rate. This comes about because the formula for calculating the charge is divided by a denominator of 100, while expressions within the formula are already expressed as percentages, meaning that they have already been divided by 100.
Operation
The Amendment Determination corrects a drafting error in the 2001 Determination by removing the final division by 100 in the formula in subsection 4(1). This has the effect of establishing charges on datacasting revenue at the same rate as charges on broadcasting revenue.
Consultation
In January 2008 ACMA provided the draft amendment determination to active and potential affected industry with a two week period in which to comment on the proposed amendment to the charge set by the 2001 Determination.
There were no submissions received during the consultation period.
Regulation Impact
ACMA obtained advice from its SES contact officer for the Government’s regulation impact analysis arrangements that the Amendment Determination has no or low impact. Consequently under the self-assessment regime administered by the Office of Best Practice Regulation, ACMA has determined that there is no need to produce a Business Cost Calculator report or to prepare a Regulation Impact Statement. The ACMA RIS exemption reference number is ACMA 033.
The Department of Finance and Deregulation advised in November 2007 that ACMA is not required to prepare a Cost Recovery Impact Statement.
Attachments
Details of the Amendment Determination are in Attachment 1.
The Explanatory Statement for the 2001 Determination is at Attachment 2.
ATTACHMENT 1
NOTES ON SECTIONS
Section 1 Name of Determination
This section provides for the name of the Determination.
Section 2 Commencement
This section provides for the Determination to commence on the day after it is registered.
Section 3 Amendment of the Datacasting Charge (Amount) Determination 2001
This section provides that Schedule 1 amends the Datacasting Charge (Amount) Determination 2001.
Schedule 1 Amendment
Item 1 Amount of charge
Item 1 replaces the formula in subsection 4(1), which sets out the way in which the amount of datacasting charge imposed on a transmitter licence in respect of a financial year is to be calculated, with the amended formula.
ATTACHMENT 2
Overview
The Datacasting Charge (Amount) Amendment Determination 2008 (No.1) was enacted to correct a drafting error in the Datacasting Charge (Amount) Determination 2001, which had inadvertently set the charge at a rate that was 100th of the intended rate due to a division by 100 in the formula. This error was identified and subsequently addressed by the Australian Communications and Media Authority (ACMA) to ensure that charges for datacasting services would align with those for broadcasting revenue, thereby avoiding potential revenue shifting. The determination was made under the authority of the Datacasting Charge (Imposition) Act 1998, which empowers ACMA to set the amount of charge imposed on transmitter licences for datacasting services. The amendment was made with no submissions from industry during the consultation period, and ACMA assessed that the amendment had no or low impact, thus exempting it from further regulatory impact analysis.
Scope and Application
The Datacasting Charge (Amount) Amendment Determination 2008 (No.1) amends the amount of charge set by the Datacasting Charge (Amount) Determination 2001, as required under the Datacasting Charge (Imposition) Act 1988. This Act imposes a charge on transmitter licences held by commercial television broadcasting licensees for financial years during which the transmitter was used for datacasting services in digital mode under a datacasting licence issued under the Broadcasting Services Act 1992. The Australian Communications and Media Authority (ACMA), empowered by the Act, determines the charge amount, and the Amendment Determination corrects a drafting error in the 2001 Determination by removing a division by 100 in the formula, ensuring the charge is set at the same rate as broadcasting revenue. This amendment applies nationwide and affects commercial television broadcasters with datacasting licences, correcting an oversight that had previously resulted in a charge set at a significantly lower rate than intended. The Amendment Determination commenced on the day after it was registered and has been deemed to have no or low regulatory impact, thus exempt from further regulatory impact assessments.
Key Provisions
The main operative sections of the Datacasting Charge (Amount) Amendment Determination 2008 (No.1) pertain to the amendment of the Datacasting Charge (Amount) Determination 2001. Specifically, Section 3 of the Amendment Determination (referenced in Attachment 1) modifies the formula in subsection 4(1) of the 2001 Determination, which calculates the amount of charge imposed on a transmitter licence in respect of a financial year. This amendment corrects a drafting error that was present in the 2001 Determination, where the formula for calculating the charge was divided by 100, despite the expressions within the formula already being expressed as percentages. By removing this final division by 100, the Amendment Determination ensures that charges on datacasting revenue are imposed at the same rate as charges on broadcasting revenue, thereby rectifying the error and aligning the charge structure as intended.
The Amendment Determination imposes specific obligations on the Australian Communications and Media Authority (ACMA) and commercial television broadcasting licensees. ACMA is responsible for ensuring the accuracy and fairness of the charge structure as outlined in the Determination. This involves amending the Datacasting Charge (Amount) Determination 2001 to correct the identified error, which was a drafting oversight leading to a charge that was 100th of the intended rate. Commercial television broadcasting licensees, on the other hand, must comply with the amended charge structure as set forth in the Amendment Determination. This means they are subject to the corrected formula for calculating the datacasting charge, ensuring that the charges imposed align correctly with broadcasting revenue charges.
Breaches of the provisions set out in the Datacasting Charge (Amount) Amendment Determination 2008 (No.1) may lead to various consequences. While the legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for non-compliance, it is reasonable to infer that failure to adhere to the amended charge structure could result in disputes or legal challenges. ACMA, as the regulatory authority, would likely address such issues through administrative or legal means to ensure compliance. The determination does not provide explicit maximum penalties for breach, but it is within the purview of ACMA to enforce compliance and impose sanctions where necessary. This might include fining, legal proceedings, or other regulatory actions to enforce the corrected charge structure and ensure the integrity of the broadcasting fee system.