Explanatory Statement
Issued by the authority of the Australian Communications and Media Authority
NATIONAL TELEVISION CONVERSION SCHEME VARIATION 2009 (No. 1)
Broadcasting Services Act 1992
Background, purpose and legislative basis
This document provides an explanation of the National Television Conversion Scheme Variation 2009 (No. 1) (the Variation), made under subclause 19(1) of Schedule 4 to the Broadcasting Services Act 1992 (the BSA).
In 1998, the Television Broadcasting Services (Digital Conversion) Act 1998 inserted Schedule 4 into the BSA. Schedule 4 provides for the conversion of transmission of television broadcasting services from analog mode to digital mode.
Subclause 19(1) of Schedule 4 required the Australian Broadcasting Authority (ABA) to formulate a scheme for the gradual conversion of the transmission of national television broadcasting services from analog mode to digital mode.
Consequently, in 1999 the ABA made the National Television Conversion Scheme 1999 (the Scheme) applicable to national television broadcasting services (as defined in clause 2 of Schedule 4 to the BSA) throughout Australia. An equivalent Conversion Scheme applying to commercial television broadcasting services, the Commercial Television Conversion Scheme 1999 (the Commercial Scheme), was also made in the same year.
Under Schedule 4 to the BSA, the Scheme must be directed towards various policy objectives of digital transmissions achieving the same level of coverage and potential reception quality as analog transmissions. The ABA prepared a document explaining the technical assumptions to which it will have regard when considering whether digital transmissions achieve these objectives. The document, the Digital Terrestrial Television Broadcast Planning Handbook, is available from the Australian Communications and Media Authority (ACMA) website.
From 1 July 2005, the ACMA was formed, and took over the performance of the powers and functions under the BSA previously performed by the ABA, including all powers and functions in relation to the two Schemes.
The Scheme is divided into two Parts (Part A and Part B). Part A applies to national television broadcasting services in non-remote (ie regional and metropolitan) coverage areas, and Part B applies to remote coverage areas. Each part contains rules for:
● the creation of digital channel plans by ACMA, which allot digital channels to national broadcasters for the transmission of television services in digital mode;
● the creation of implementation plans by national broadcasters which outline the roll-out process for digital television services by national broadcasters;
● test transmissions of digital services; and
● other matters necessary for the conversion of the transmission of television broadcasting services from analog to digital mode.
Over time, both Schedule 4 to the BSA and the Scheme have been varied in response to the changing broadcasting environment. The amendments made by the Variation are intended to update the Scheme to reflect recent amendments to Schedule 4 to the BSA by the Broadcasting Legislation Amendment (Digital Television Switch-over) Act 2008 (the DTSA).
Amendments to Schedule 4 to the Broadcasting Services Act 1992
The DTSA received Royal Assent on 18 December 2008. The DTSA amended parts of Schedule 4 to the BSA, including provisions relating to Government policies for achieving switch-over to digital television by 31 December 2013.
In particular, the DTSA amendments allow the Minister for Broadband, Communications and the Digital Economy to determine a staggered, region-by-region digital television switch-over timetable[1]. Previously, digital television switch-over could only occur at the end of a simulcast period for an entire coverage area, meaning that switch-over could not occur separately in regions within a coverage area.
The amendments in the Variation are consequential on the changes made to Schedule 4 to the BSA by Schedule 2 to the DTSA. In summary, the Variation will insert into the Scheme provisions relating to:
● new and amended policy objectives for Part A and Part B of the Scheme to reflect new policy objectives inserted into Schedule 4 to the BSA by the DTSA;
● implementation plans connected with the creation of a ‘digital only local market area’ (DOLMA) and same level of coverage and potential reception quality requirements;
● the cessation of analog transmissions in part of a coverage area that is a DOLMA;
● the variation of a digital channel plan (DCP) in a coverage area where a ‘local market area’ (LMA) has been determined for the purposes of allotting channels for transmission of television services in digital mode in the DOLMA;
● the surrender of transmitter licences as necessary following the cessation of analog transmission or the variation of a DCP; and
● the definition of new terms introduced into Schedule 4 to the BSA by the DTSA.
Consultation
Section 17 of the Legislative Instruments Act 2003 (the LIA) states that where a legislative instrument is likely to have a direct, or substantially indirect, effect on business, or to restrict competition, ACMA must be satisfied that any consultation it considers to be appropriate and that is reasonably practicable to undertake has been undertaken. Additionally, under clause 33 of Schedule 4 to the BSA, ACMA must make provision for wide public consultation when varying the Scheme.
Normally, clause 33 of Schedule 4 to the BSA would apply to any variation of the Scheme. However, Item 22 of Schedule 2 to the DTSA excludes from the operation of this provision any variations to the Scheme that deal with transitional and/or consequential matters in connection with amendments made by Schedule 2 to the DTSA, provided that they are made within 90 days from the day upon which the DTSA received Royal Assent (ie by 18 March 2009). Instead, the DTSA requires ACMA to make a copy of the proposed variations available on ACMA’s website for at least five business days.
Consequently, ACMA released a consultation draft Variation to the Scheme for public comment on its web site on 13 February 2009. The closing date for submissions was at midnight on 20 February 2009. Concurrently with this consultation process ACMA consulted on an equivalent variation to the Commercial Scheme.
ACMA received written submissions from, amongst others, the Australian Broadcasting Corporation and from the Special Broadcasting Service, which have been placed on the ACMA web site. Some changes were made to the consultation draft Variation as a result of the comments received.
In these circumstances, ACMA is satisfied that the publication of the Variation in draft form on its website in accordance with Item 22 of Schedule 2 to the DTSA amounts to appropriate consultation for the purposes of section 17 of the LIA
Regulatory Impact
ACMA has undertaken a regulatory impact analysis process and considers that the proposed variation to the Scheme is likely to have no or low impact on business or the economy and is not anti-competitive. Consequently, neither a Regulation Impact Statement, nor a Business Cost Calculator Report, is considered necessary in relation to the regulatory proposal. The reference number for the regulatory impact analysis process is ACMA 083.
Commencement
Clause 32 of Schedule 4 to the BSA specifies that a variation of the Scheme does not take effect unless and until it is approved, in writing, by the Minister. However, Item 22 of Schedule 2 to the DTSA excludes the operation of clause 32 for variations to the Scheme that deal with transitional and/or consequential matters in connection with amendments made by Schedule 2 to the DTSA, provided that they are made within 90 days from the day upon which the DTSA received Royal Assent.
Consequently, and in accordance with section 2 of the Variation, the National Television Conversion Scheme Variation 2009 (No. 1) will commence the day after it is registered on the Federal Register of Legislative Instruments.
Notes on the Instrument
Section 1 – Name of Instrument
This section sets out the title of the National Television Conversion Scheme Variation 2009 (No. 1).
Section 2 – Commencement
This section provides that the National Television Conversion Scheme Variation 2009 (No.1) commences the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 – Variation of the Scheme
This section sets out that the Schedule to the National Television Conversion Scheme Variation 2009 (No. 1) varies the Scheme.
Schedule
Amendments to Part A of the Scheme
Item [1] – Paragraph 14 (1) (b)
Item [1] amends paragraph 14(1)(b) so that section 14 only applies where both the new section 49B and the existing section 51 of the Scheme do not apply. This amendment is consequential to the new requirements for LMAs and DOLMAs inserted by Item [5] of the Schedule to the Variation. Section 14 relates to general amendments to a digital channel plan (DCP). New section 49B relates to amendments to DCPs specifically made because of the determination of a DOLMA.
Item [2] – After section 37
Item [2] inserts two new provisions into the Scheme, section 37AA and section 37AB, which relate to the new objective at paragraph 19(3)(ja) of Schedule 4 to the BSA, inserted by Item 17 of Schedule 2 to the DTSA.
Section 37AA requires a national broadcaster to apply to the Minister for the approval of a variation of the national broadcaster’s implementation plan for that coverage area in certain circumstances.
Subsection 37AA (1) requires a national broadcaster to apply to the Minister for the approval of a variation of the national broadcaster’s implementation plan for a coverage area where:
● the Minister has made a determination under subclause 5F(1) of Schedule 4 to the BSA (inserted by Item 4 of Schedule 2 to the DTSA) that a specified area within that coverage area is an LMA that will become a DOLMA; and
● the national broadcaster has increased or increases the level of coverage and potential reception quality of its service in analog mode within that specified area.
That is, if a national broadcaster has improved the transmission of its service in analog mode in a part of a coverage area, and that part of the coverage area is a specified area that is determined to be an LMA that will become a DOLMA, the national broadcaster must vary its implementation plan. This requirement is designed to ensure that the national broadcaster transmits in digital mode in the DOLMA to the standard achieved by the improved transmission in analog mode.
Subsection 37AA (2) requires a national broadcaster to apply to the Minister for the approval of a variation of its implementation plan for a coverage area where:
● the Minister has made a determination under subclause 5F(1) of Schedule 4 to the BSA (inserted by Item 4 of Schedule 2 to the DTSA) that a specified area within that coverage area is an LMA that will become a DOLMA; and
● the impact of the Minister’s determination would be to prevent the national broadcaster from complying with all or part of the existing implementation plan for that coverage area (for example, where the determination would require the national broadcaster to cease the transmission of a service in analog mode earlier than is specified in the implementation plan).
Subsection 37AA(3) specifies the time in which a national broadcaster must apply to the Minister for the variation of an implementation plan. If a national broadcaster has to apply because it increases the level of coverage and potential reception quality of its service in analog mode after an LMA and DOLMA has been determined for the coverage area, the broadcaster has 30 days from the date of the increase, or a longer period if notified in writing by the Minister, to apply for approval of the variation. In the other two possible cases, the national broadcaster has 30 days from the date of the Minister’s determination, or a longer period if notified in writing by the Minister, to apply for approval of the variation.
Subsection 37AA(4) specifies that subsections 37(2) and (3) apply to applications for the variation of an implementation plan made under subsection 37AA(1) or (2). That is, strict compliance with the application form is required, and an application must deal with one implementation plan alone.
Subsection 37AA(5) provides that references to an approved implementation plan includes references to an approved implementation plan in a series of plans.
Section 37AB is intended to ensure that the objective in paragraph 19(3)(ja) of Schedule 4 to the BSA is met, where a national broadcaster applies under any section for approval of a variation to an approved implementation plan.
Subsection 37AB(1) sets out that the section applies if:
● the Minister has made a determination under subclause 5F(1) of Schedule 4 to the BSA that a specified area within a coverage area is an LMA that will become a DOLMA; and
● the national broadcaster for the relevant coverage area applies for approval for a variation of its implementation plan for that coverage area; and
● the national broadcaster has reduced, or proposes to reduce, the level of coverage and potential reception quality achieved by transmission of the national television broadcasting service in analog mode in the specified area for which the Minister made the determination from the level achieved before the determination was made; and
● the Minister has directed ACMA to give the Minister a report for subclause 20(5) of Schedule 4 to the BSA.
That is to say, where there is a degradation of transmission of a service in analog mode in a coverage area before an LMA becomes a DOLMA, and a national broadcaster has applied for approval of a variation to its implementation plan, then this section will apply if the Minister directs ACMA to give the relevant report.
Subsection 37AB(2) allows ACMA, for the purpose of providing a report to the Minister under subclause 20(5) of Schedule 4 to the BSA, to request an explanation from the national broadcaster if either the level of coverage and potential reception quality achieved by the transmission of the national television broadcasting service in analog mode has been reduced or it is proposed to be reduced. In either case, ACMA may ask the national broadcaster to explain how it will ensure that the objective in paragraph 19(3)(ja) of Schedule 4 to the BSA will be met.
Subsection 37AB(3) requires ACMA to send a copy of its request to the Minister.
Subsection 37AB(4) allows ACMA to refrain from having to prepare a report to the Minister under subclause 20(5) of Schedule 4 to the BSA while it is waiting for an explanation requested from a national broadcaster under subsection 37AB(2).
Subsection 37AB(5) specifies that if ACMA requests an explanation from a national broadcaster under subsection 37AB(2), then the national broadcaster’s implementation plan for the coverage area (as varied) must include provisions to ensure that the objective in paragraph 19(3)(ja) of Schedule 4 to the BSA will be met.
Subsection 37AB(6) allows the Minister to refrain from having to consider a national broadcaster’s application for the variation of an approved implementation plan while the Minister is waiting for ACMA’s report referred to in paragraph 37AB(1)(c).
Subsection 37AB(7) clarifies that the section applies to series of implementation plans just as it would to a single implementation plan.
Item [3] – Section 39
Item [3] makes a change consequential to Item [4] of the Schedule to Variation.
Item [4] – Section 39
Item [4] inserts a new provision at subsection 39(2) that applies where the Minister refuses to approve an application for the variation of an approved implementation plan under subsection 37AA(1) or (2). This provision requires a national broadcaster to make a new application under the relevant subsection within 30 days of being told of the refusal, or within a longer period as notified in writing by the Minister. This Item is consequential to amendments made by Item [2] of the Schedule to the Variation.
Item [5] – Subsection 44 (2)
Item [5] amends subsection 44 (2) to require a national broadcaster transmitting in a coverage area to ensure that no transmissions of its national television broadcasting service are made in analog mode during a simulcast period in as much of the coverage area as has been determined as being a DOLMA by the Minister under subclause 5F (1) of Schedule 4 to the BSA (inserted by Item 4 of Schedule 2 to the DTSA). This Item is consequential to the new policy objective at paragraph 19(3)(ga) of Schedule 4 to the BSA (inserted by Item 15 of Schedule 2 to the DTSA). The national broadcaster must continue to simulcast its service in both digital and analog modes in the remainder of the coverage area.
Item [6] – After subsection 46(1)
Item [6] inserts subsection 46(1A) to limit the application of the ACMA process for surrender of a transmitter licence if SDTV digital transmission ceases in the coverage area during the simulcast period. Section 46 will not apply for so much of a coverage area that is a DOLMA determined by the Minister under subclause 5F (1) of Schedule 4 to the BSA.
Item [7] – Part A, after Division 7
Item [7] inserts new Division 7A into Part A of the Scheme. Division 7A is consequential to the new policy objective at paragraph 19(3)(ga) of Schedule 4 to the BSA.
Division 7A
The new Division 7A contains a series of provisions (sections 49A to 49D) that relate to parts of coverage areas that the Minister has determined to be LMAs or DOLMAs under subclause 5F(1) of Schedule 4 to the BSA.
Section 49A requires ACMA to consider whether to vary a DCP that allots digital channels in an area that the Minister has determined will be an LMA or a DOLMA, as soon as practicable after the area is determined to be an LMA and before it becomes a DOLMA. Subsection 49A(3) sets out the matters to which ACMA must have regard when considering whether to vary the DCP.
Section 49B applies if, as a result of the review conducted under section 49A of the Scheme, ACMA considers it appropriate or necessary to vary an existing DCP. In this case, ACMA must publish a notice stating where copies of the proposed variation may be obtained and inviting comments on the proposed variation.
The rules for the publication of a notice by ACMA are set out in section 4 of the Scheme. According to section 4, if the Scheme requires ACMA to publish a notice, ACMA must do so in one of the following ways:
● publishing it in a national newspaper;
● publishing it in each State and Territory in a daily newspaper circulating generally in the State or Territory; or
● publishing it in the Gazette.
Section 4 also permits ACMA to publish a notice in a daily newspaper circulating generally in each relevant State or Territory if it decides that the notice is of significance only to one or some States or Territories.
In addition to complying with the above requirements, ACMA may publish a notice, statement or document in other ways – for example on the Internet, or in an industry or consumer publication.
When considering the form of the variation ACMA must have regard to the criteria in subsection 49B(3). ACMA may also have regard to any of the matters mentioned in subsections 9(3), (4), (5), (6), and (7) of the Scheme.
Subsection 49B(5) specifies that ACMA must vary the DCP before an LMA becomes a DOLMA and in such a manner as to allow the DCP, as varied, to commence once the LMA becomes a DOLMA.
Subsection 49B(6) requires ACMA to publish a notice stating where copies of the variation may be obtained.
Section 49C requires all transmissions of national television broadcasting services in analog mode to cease in the part of a coverage area that is an LMA when it becomes a DOLMA.
Subsection 49C(2) requires a national broadcaster to surrender to ACMA all transmitter licences that authorised transmission of the service in the area in analog mode that are licensed to the national broadcaster (transmitter licences allocated to third parties for re-transmitting a national television broadcasting service are not covered by this provision). Additionally, subsection 49C(3) specifies that, if ACMA has varied a DCP under section 49B, the national broadcaster is to surrender to ACMA all transmitter licences that authorised the transmission of the service in the area in digital mode.
Subsection 49C(4) requires a licensee surrendering a licence under subsection 49C(2) or (3) to comply with any requirements of ACMA for surrendering the licence.
Where a national broadcaster has been affected by the variation of a DCP under section 49B, section 49D requires ACMA to issue to that national broadcaster one or more transmitter licences which take effect from the time an LMA becomes a DOLMA, and which authorises the transmission of the national television broadcasting service concerned in digital mode using the channel or channels allotted by ACMA under a DCP varied under section 49B.
In some circumstances, ACMA may also need to issue transmitter licences which authorise transmission in analog mode in the coverage area, but outside the DOLMA. In these circumstances the new transmitter licence for analog transmission issued by ACMA will generally be on the same terms as the previous licence except to the extent necessary to ensure that it does not authorise transmission in analog mode inside the DOLMA.
Subsection 49D(3) requires ACMA to identify the conditions which are to apply to such licences issued under subsection 49D(1) or (2) and to issue the licence with those conditions.
Amendments to Part B of the Scheme
Item [8] – Paragraph 84(b)
Item [9] – Paragraphs 84(g) and (h)
Items [8] and [9] amend the Part B policy objectives in section 84 of the Scheme as a consequence of subclause 5F of Schedule 4 to the BSA (inserted by Item 4 of Schedule 2 to the DTSA). They recognise that transmissions in analog mode should not be made in a DOLMA.
Item [10] – After paragraph 84(h)
Item [10] inserts a new policy objective for Part B of the Scheme at paragraph 84(ha) that is equivalent and consequential to the policy objective in paragraph 19(3)(ga) of Schedule 4 to the BSA (inserted by Item 15 of Schedule 2 to the DTSA). It, too, recognises that transmissions in analog mode should not be made in a DOLMA.
Item [11] – Paragraph 84(j)
Item [11] amends the Part B policy objective in paragraph 84(j) of the Scheme as a consequence of subclause 5F of Schedule 4 to the BSA (inserted by Item 4 of Schedule 2 to the DTSA). It recognises that transmissions in analog mode should not be made in a DOLMA.
Item [12] – After paragraph 84(j)
Item [12] inserts a new policy objective for Part B of the Scheme at paragraph 84(ja) that is equivalent and consequential to the policy objective in paragraph 19(3)(ja) of Schedule 4 to the BSA (inserted by Item 17 of Schedule 2 to the DTSA).
Item [13] – Subsection 92(1)
Item [13] amends subsection 92(1) so that section 92 only applies where new section 130B and the existing section 132 of the Scheme do not apply. This amendment is consequential to the new requirements for LMAs and DOLMAs inserted by Item [19] of the Schedule to the Variation. Section 92 relates to general amendments to a digital channel plan (DCP). New section 130B relates to amendments to DCPs specifically made because of the determination of a DOLMA.
Item [14] – After section 111
Item [14] inserts two new provisions into the Scheme at section 111A and section 111B which relate to the new objective at paragraph 84(ja) of the Scheme, inserted by Item [12] of the Schedule to the Variation.
Section 111A requires a national broadcaster to apply to the Minister for the approval of a variation of the national broadcaster’s implementation plan for a remote coverage area in certain circumstances set out in subsections 111A(1) and (2).
Subsection 111A(1) requires a national broadcaster to apply to the Minister for the approval of a variation of the national broadcaster’s implementation plan for a remote coverage area where:
● the Minister has made a determination under subclause 5F(1) of Schedule 4 to the BSA that a specified area within that coverage area is an LMA that will become a DOLMA; and
● the national broadcaster has increased the level of coverage and potential reception quality of its service in analog mode within the specified area that the Minister has determined is an LMA since the commencement of Schedule 4 to the BSA.
That is, if a national broadcaster has improved the transmission of its service in analog mode in a part of a remote coverage area, and that part of the remote coverage area is a specified area that is determined to be an LMA that will become a DOLMA, the national broadcaster must vary its implementation plan. This requirement is designed to ensure that the national broadcaster transmits in digital mode in the DOLMA to the standard achieved by the improved transmission in analog mode.
Subsection 111A(2) requires a national broadcaster to apply to the Minister for the approval of a variation of its implementation plan for a remote coverage area where:
● the Minister has made a determination under subclause 5F(1) of Schedule 4 to the BSA that a specified area within that coverage area is an LMA that will become a DOLMA; and
● the impact of the Minister’s determination would be to prevent the national broadcaster from complying with all or part of the existing implementation plan for that coverage area (for example, where the determination would require the national broadcaster to cease the transmission of a service in analog mode earlier than is specified in the implementation plan).
Subsection 111A(3) specifies the time in which a national broadcaster must apply to ACMA for the variation of an implementation plan. If a national broadcaster has to apply because it increases the level of coverage and potential reception quality of its service in analog mode after an LMA and DOLMA has been determined for the remote coverage area, the broadcaster has 30 days from the date of the increase, or a longer period if notified, in writing, by the Minister, to apply for approval of the variation. In the other two possible cases, the national broadcaster has 30 days from the date of the Minister’s determination, or a longer period if notified in writing by the Minister, to apply for approval of the variation.
Subsection 111A(4) specifies that subsections 111 (2) and (3) apply to applications for the variation of an implementation plan made under subsection 111A(1) or (2). That is, strict compliance with the application form is required, and an application must deal with one implementation plan alone.
Subsection 111A(5) provides that references to an approved implementation plan includes references to an approved implementation plan in a series of plans.
Section 111B is intended to ensure that the objective in paragraph 84(ja) (inserted by Item [12] of the Schedule to the Variation) of the Scheme is met, where a national broadcaster applies under any section for approval of a variation to an approved implementation plan.
Subsection 111B(1) sets out that the section applies if:
● the Minister has made a determination under subclause 5F (1) of Schedule 4 to the BSA (inserted by Item 4 of Schedule 2 to the DTSA) that a specified area within a remote coverage area is an LMA that will become a DOLMA; and
● the national broadcaster for the relevant coverage area applies for approval for a variation of its implementation plan for that coverage area; and
● the national broadcaster has reduced, or proposes to reduce, the level of coverage and potential reception quality achieved by transmission of the national television broadcasting service in analog mode in the specified area for which the Minister made the determination from the level achieved before the determination came into effect; and
● the Minister has directed ACMA to give the Minister a report for subclause 20 (5) of Schedule 4 to the BSA.
That is to say, where there is a degradation of transmission of a service in analog mode in a remote coverage area before an LMA becomes a DOLMA, and a national broadcaster has applied for approval of a variation to its implementation plan, then this section will apply if the Minister directs ACMA to give the relevant report.
Subsection 111B(2) allows ACMA, for the purpose of providing a report to the Minister under subclause 20(5) of Schedule 4 to the BSA, to request an explanation from the national broadcaster where either the level of coverage and potential reception quality achieved by the transmission of the commercial television broadcasting service in analog mode has been reduced or where it is proposed to be reduced. In either case, ACMA may ask the holder to explain how it will ensure that the objective in paragraph 84(ja) of the Scheme will be met.
Subsection 111B(3) requires ACMA to send a copy of its request to the Minister.
Subsection 111B(4) allows ACMA to refrain from having to prepare a report to the Minister under subclause 20(5) of Schedule 4 to the BSA while it is waiting for an explanation requested from a national broadcaster under subsection 111B(2).
Subsection 111B(5) specifies that if ACMA requests an explanation from a national broadcaster under subsection 111B (2), then the national broadcaster’s implementation plan for the remote coverage area (as varied) must include provisions to ensure that the objective in paragraph 84(ja) of Schedule 4 of the Scheme will be met.
Subsection 111B(6) allows Minister to refrain from having to consider a national broadcaster’s application for the variation of an approved implementation plan while the Minister is waiting for ACMA’s report referred to in paragraph 111B(1)(c).
Subsection 111B(7) clarifies that the section applies to series of implementation plans just as it would to a single implementation plan.
Item [15] – Section 115
Item [15] makes a change consequential to Item [16] of the Variation.
Item [16] – Section 115
Item [16] inserts a new provision at subsection 115(2) that applies where the Minister refuses to approve an application for the variation of an approved implementation plan under subsection 111A(1) or (2). This provision requires a national broadcaster to make a new application under the relevant subsection within 30 days of being told of the refusal, or within a longer period as notified, in writing, by the Minister. This Item is consequential to amendments made by Item [14] of the Variation.
Item [17] – Subsection 124 (2)
Item [17] amends subsection 124(2) to require a national broadcaster transmitting in a remote coverage area to ensure that no transmissions of its national television broadcasting service are made in analog mode during a simulcast period in as much of the coverage area as has been determined as being a DOLMA by the Minister under subclause 5F(1) of Schedule 4 to the BSA. This Item is consequential to the new policy objective at paragraph 84(ha) of the Scheme (inserted by Item [10] of the Schedule to the Variation). The national broadcaster must continue to simulcast its service in both digital and analog modes in the remainder of the remote coverage area.
Item [18] – After Subsection 126 (1)
Item [18] inserts subsection 126(1A) to limit the application of the ACMA process for surrender of a transmitter licence if SDTV digital transmission ceases in the remote coverage area during the simulcast period. Section 126 will not apply for so much of a coverage area that is a DOLMA determined by the Minister under subclause 5F (1) of Schedule 4 to the BSA.
Item [19] – Part B, after Division 7
Item [19] inserts a new Division 7A into Part B of the Scheme. Division 7A is consequential to the new policy objective at paragraph 84(ha) of the Scheme (inserted by Item [10] of the Schedule to the Variation).
Division 7A
The new Division 7A contains a series of provisions (sections 130A to 130D) that relate to parts of remote coverage areas that the Minister has determined to be LMAs or DOLMAs under subclause 5F(1) of Schedule 4 to the BSA (inserted by Item 4 of Schedule 2 to the DTSA).
Section 130A requires ACMA to consider whether to vary a DCP that allots digital channels in an area that the Minister has determined will be an LMA or a DOLMA, as soon as practicable after the area is determined to be an LMA and before it becomes a DOLMA. Subsection 130A(3) sets out the matters to which ACMA must have regard when considering whether to vary the DCP.
Section 130B applies if, as a result of the review conducted under section 130A, ACMA considers it appropriate or necessary to vary an existing DCP pertaining to a remote coverage area. In this case, ACMA must publish a notice, as described in relation to section 49B in Item [7].
When considering the form of the variation ACMA must have regard to the criteria in subsection 130B(3). ACMA may also have regard to any of the matters mentioned in subsection 88(3) of the Scheme.
Subsection 130B(5) specifies that ACMA must vary the DCP before an LMA becomes a DOLMA and in such a manner as to allow the DCP, as varied, to commence once the LMA becomes a DOLMA. Subsection 130B(6) requires ACMA to publish a notice stating where copies of the variation may be obtained.
Section 130C requires all transmissions of national television broadcasting services in analog mode to cease in the part of a remote coverage area that is an LMA when it becomes a DOLMA.
Subsection 130C(2) requires a national broadcaster to surrender all transmitter licences that authorised transmission of the service in the area in analog mode that are licensed to the national broadcaster (transmitter licences allocated to third parties for re-transmitting a national television broadcasting service are not covered by this provision). Additionally, subsection 130C(3) specifies that, if ACMA has varied a DCP under section 130B, the national broadcaster is to surrender to ACMA all transmitter licences that authorised the transmission of the service in the area in digital mode.
Subsection 130C(4) requires a licensee surrendering a licence under subsection 130C(2) or (3) to comply with any requirements of ACMA for surrendering the licence.
Where a national broadcaster has been affected by the variation of a DCP under section 130B, section 130D requires ACMA to issue to that national broadcaster one or more transmitter licences which take effect from the time an LMA becomes a DOLMA, and which authorises the transmission of the national television broadcasting service concerned in digital mode using the channel or channels allotted by ACMA under a DCP varied under section 130B.
In some circumstances, ACMA may also need to issue transmitter licences which authorise transmission in analog mode in the remote coverage area, but outside the DOLMA. In these circumstances the new transmitter licence for analog transmission issued by ACMA will generally be on the same terms as the previous licence except to the extent necessary to ensure that it does not authorise transmission in analog mode inside the DOLMA.
Subsection 130D(3) requires ACMA to identify the conditions which are to apply to such licences issued under subsection 130D(1) or (2) and to issue the licence with those conditions.
Item [20] – Dictionary, after definition of designated HDTV multi-channelled national television broadcasting service
Item [21] – Dictionary, after definition of licence area
Items [20] and [21] amend the dictionary of the Scheme to include new terms inserted into Schedule 4 to the BSA.
[1] A more detailed explanation of the DTSA amendments may be found in the Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television Switch-over) Bill 2008.