NOTICE OF RESERVATION OF CAPACITY FOR COMMUNITY
BROADCASTING TELEVISION SERVICES (No. 1 of 1999)
EXPLANATORY STATEMENT
Subsection 31(1) of the Broadcasting Services Act 1992 (the BSA) provides that the Minister may notify the Australian Broadcasting Authority (the ABA) in writing that capacity in the broadcasting services bands is to be reserved for a specified number of:
(a) national broadcasting services; or
(b) community broadcasting services.
Section 32 of the BSA provides that a notice under section 31 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Subsection 31(2) of the BSA prevents the ABA from allowing other broadcasting services to use the capacity in the broadcasting services bands which is reserved under subsection 31(1) for community or national broadcasting services. An exception is allowed under section 34.
Subsection 34(1) of the BSA provides, among other things, that if broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purposes for which it was reserved, the ABA may decide that part of or parts of the radiofrequency spectrum concerned is available for allocation for a period specified by the ABA to providers of open narrowcasting services.
On 17 March 1994, a notice was made under subsection 31(1) reserving capacity for an Australia-wide, sixth high power national television channel for the provision of national or community broadcasting services.
In accordance with subsection 34(1), the ABA determined that those parts of the spectrum were available for allocation for open narrowcasting services for community and educational non-profit purposes. In practice, the spectrum has been used in a number of cities and towns for open narrowcasting community television services on a trial basis.
The spectrum that had been reserved for a sixth television channel is now needed for planning the implementation of digital television broadcasting. However, it is proposed to continue to reserve capacity in those cities or towns where transmitter licences have been allocated for open narrowcasting services for community and educational purposes.
Paragraph (a) of the Notice of Reservation of Capacity for Community Broadcasting Television Services (No. 1 of 1999) (the new Notice) revokes the Notice dated 17 March 1994.
Paragraph (b) of the new Notice reserves capacity in the broadcasting services bands for one community broadcasting service that provides television programs in each of the relevant cities or towns.
The notice commences on notification in the Commonwealth Gazette in accordance with paragraph 48(1)(b) of the Acts Interpretation Act 1901.
Overview
The Notice of Reservation of Capacity for Community Broadcasting Television Services (No. 1 of 1999) was enacted to address the need for reserving capacity in the broadcasting services bands for community broadcasting television services, particularly in cities and towns where open narrowcasting services for community and educational purposes are operating. This notice revokes the earlier notice from 17 March 1994, which had reserved capacity for an Australia-wide sixth high power national television channel. The Broadcasting Services Act 1992 (BSA) enables the Minister to notify the Australian Broadcasting Authority (ABA) to reserve broadcasting capacity for national or community broadcasting services, as per subsection 31(1). The new notice reserves capacity for one community broadcasting service providing television programs in specified cities and towns, and it takes effect upon notification in the Commonwealth Gazette as per the Acts Interpretation Act 1901. This legislative action ensures that the spectrum reserved for digital television broadcasting is not disrupted while continuing to support community and educational narrowcasting services.
Scope and Application
The Notice of Reservation of Capacity for Community Broadcasting Television Services (No. 1 of 1999) operates under the Broadcasting Services Act 1992 (BSA), specifically targeting the allocation and reservation of capacity in broadcasting services bands for community broadcasting television services. This notice applies to the Australian Broadcasting Authority (ABA), which is responsible for managing the broadcasting services bands and ensuring that reserved capacity is not used for purposes other than those specified. The notice revokes a previous notice dated 17 March 1994 that had reserved capacity for a sixth high power national television channel, and instead reserves capacity for one community broadcasting service providing television programs in specified cities or towns. This reservation is intended to facilitate the implementation of digital television broadcasting while continuing to support open narrowcasting services for community and educational purposes. The application of this notice is national in scope, affecting all entities and services operating within the broadcasting services bands in Australia. However, the notice does not specify any exclusions or exemptions, implying that its application is broad and inclusive of all relevant community broadcasting services. The notice’s commencement is governed by its notification in the Commonwealth Gazette, in line with the Acts Interpretation Act 1901.
Key Provisions
The Notice of Reservation of Capacity for Community Broadcasting Television Services (No. 1 of 1999) amends the previous reservation made in 1994 under section 31(1) of the Broadcasting Services Act 1992 (BSA). The primary operative section of this notice is section 31(1), which allows the Minister to notify the Australian Broadcasting Authority (ABA) about reserving capacity in the broadcasting services bands for specified numbers of national or community broadcasting services. This notice revokes the earlier reservation for a sixth television channel and instead reserves capacity for one community broadcasting service providing television programs in each of the relevant cities or towns.
Under this Act, the ABA is obligated to ensure that the reserved capacity in the broadcasting services bands is not used by any other broadcasting services unless an exception applies under section 34. The ABA must also monitor the use of the reserved spectrum to ensure it is used for the purposes intended, namely community and educational non-profit purposes. The ABA has the authority to decide that part of the reserved spectrum can be allocated for open narrowcasting services, as stipulated in section 34(1) of the BSA, provided that the spectrum has not been utilised for its originally reserved purpose.
The Notice imposes specific obligations on the ABA and potentially on community broadcasters. The ABA must enforce the reservation of capacity as specified in the notice and prevent other broadcasting services from using the reserved spectrum unless authorised under section 34. Community broadcasters, on the other hand, must ensure that their services comply with the terms of the reservation and use the spectrum for community and educational purposes. The failure to comply with these obligations could result in the ABA taking action to enforce the terms of the reservation.
Under the BSA, any breach of the terms of the reservation can lead to significant consequences. While the explanatory statement does not explicitly detail the penalties for non-compliance, breaches of provisions under the BSA can typically result in civil or criminal penalties, depending on the nature and severity of the breach. The BSA provides for penalties including fines and, in severe cases, imprisonment. However, the specific maximum penalties are not detailed in this explanatory statement and would need to be referred to in the BSA or relevant regulatory guidelines.