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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING LEGISLATION AMENDMENT (DIGITAL DIVIDEND
AND OTHER MEASURES) BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Broadband, Communications and the Digital Economy,
Senator the Hon. Stephen Conroy)
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BROADCASTING LEGISLATION AMENDMENT (DIGITAL DIVIDEND
AND OTHER MEASURES) BILL 2011
OUTLINE
The Broadcasting Legislation Amendment (Digital Dividend and Other Measures)
Bill 2011 (the Bill) amends the Broadcasting Services Act 1992 (the BSA) and the
Radiocommunications Act 1992 (the Radiocommunications Act) to provide the
Australian Communications and Media Authority (ACMA) with improved planning
and enforcement powers for the implementation of the re-stack of digital television
channels and the realisation of digital dividend spectrum.
On 24 June 2010, the Minister for Broadband, Communications and the Digital
Economy (the Minister) announced that the Australian Government has decided to
release 126 Megahertz of broadcasting spectrum as a digital dividend. The digital
dividend will be released as a contiguous block of spectrum in the upper ultra-high
frequency (UHF) band, comprising the frequency range 694 to 820 MHz inclusive.
This spectrum will become available as a result of the switch to digital-only television
broadcasting, and the return of spectrum capacity currently used for analog television,
which will be completed in Australia by 31 December 2013. UHF spectrum currently
used for broadcasting services is highly valued for delivering wireless
communications services, including super-fast mobile broadband. It is able to carry
signals over long distances, penetrate buildings and carry large amounts of data.
The dividend will maximise the benefit that use of the spectrum will over time bring
to the Australian community and economy, while at the same time ensuring
continuation of the current, high quality, free to air television services.
The government aims to auction the digital dividend spectrum in the second half of
2012, allowing successful bidders ample time to plan and deploy the next generation
networks that are likely to utilise the spectrum.
In order to release this highly valued spectrum, broadcasting services will need to be
relocated out of the digital dividend spectrum and organised more efficiently within
their remaining spectrum allocation. This process is known as `re-stacking'. The
government intends that the digital dividend spectrum be cleared as soon as possible
after the switch-off of analog television services is completed.
The government's intention is to complete the re-stacking of digital dividend
spectrum by 31 December 2014, so this spectrum can be re-allocated to other uses.
On 9 July 2010, the Minister made the Australian Communications and Media
Authority (Realising the Digital Dividend) Direction 2010 (the Direction) under
section 14 of the Australian Communications and Media Authority Act 2005 (the
ACMA Act), subsection 25(3) of the BSA, and clauses 15 and 29 of Schedule 4 to the
BSA.
The Direction is concerned with the ACMA's exercise of its planning powers and
performance of its broadcast planning under the BSA and its spectrum functions
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under the Radiocommunications Act, as needed to facilitate the release of
broadcasting spectrum as a digital dividend in accordance with the government's
policy objectives.
The purpose of the Direction is to give effect to the government's primary policy
objective in realising the digital dividend. To give effect to these objectives, the
Direction requires that the ACMA consider exercising its planning powers under the
BSA to achieve specified Commonwealth policy objectives and to take account of
those objectives when undertaking its spectrum management functions under the
Radiocommunications Act and its planning functions under the BSA.
To enable the ACMA to undertake efficient planning and stacking of the
radiofrequency spectrum used to deliver television services needed to achieve the
digital dividend, a number of amendments to the BSA and the Radiocommunications
Act are required to enhance the ACMA's broadcasting services related spectrum
planning functions and powers. These amendments are set out in Schedule 1 to this
Bill.
The Bill also makes amendments to the BSA, the Radiocommunications Act, the
Copyright Act 1968 (the Copyright Act) and the ACMA Act to improve the operation
of the digital television services provided by the satellite service licensed under
section 38C of the BSA and for other related digital television matters. These
amendments are set out in Schedule 2 to the Bill, and include:
· amending the conditional access scheme provisions in Part 9C of the BSA to:
- create an additional category of reception area for the conditional access
scheme that applies in the Western Australia TV3 licence area that reflects
the special circumstances of television broadcasting there,
- require the ACMA to declare an area to be service-deficient if the ACMA
is satisfied that the number of terrestrial digital commercial television
broadcasting services provided in that area is less than the number of
commercial television broadcasting services required to be provided by a
section 38C licensee,
- ensure continued access to satellite television services provided by a
section 38C licensee for viewers who have not moved location since
initially obtaining access to the services,
- enable industry to formulate a conditional access scheme to replace a
scheme developed by the ACMA;
· fixing an anomaly regarding the start dates for core/primary and
multi-channelled commercial television services, and the local news service,
required to be provided under a section 38C licence;
· enabling commercial and national broadcasters to apply to the Minister for
exemption from obligations to convert particular analog terrestrial television
services to digital at sites serving areas with small populations (fewer than 500
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people) or in under-served areas (where not all licensed commercial services
and national broadcasting services are provided);
· requiring the Minister to have regard to whether there are other means by
which people in a coverage area can view an adequate and comprehensive
range of commercial or national broadcasting services and whether other
commercial and national broadcasters operating in a coverage area have
converted or will convert their terrestrial services to digital when deciding
whether to approve or reject an implementation plan submitted by a national
broadcaster;
· permitting incidental or accidental analog television transmissions in an area
that is a digital-only local market area, and making complementary
modifications to the policy objectives for the digital conversion schemes;
· authorising commercial television broadcasters in remote licence areas to
broadcast only standard definition digital television multi-channelled services
before the end of the simulcast period; and
· making technical amendments regarding the scope of the captioning
requirements applying to commercial television broadcasting licensees and the
effect of a declaration by the ACMA about the primary commercial television
broadcasting service.
Schedule 2 also includes amendments to:
· clarify the application of the statutory copyright licences in Parts VC and VD
of the Copyright Act in relation to programs re-transmitted by a satellite
commercial television broadcasting service; and
· enable the ACMA to delegate the power to issue particular notices to ACMA
officers (by amending the ACMA Act).
Schedule 3 to the Bill contains transitional provisions.
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FINANCIAL IMPACT STATEMENT
The amendments in this Bill will not of themselves result in any direct financial
impact on the government.
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 is a formal provision specifying the short title for the Act. When enacted, the
Act is to be cited as the Broadcasting Legislation Amendment (Digital Dividend and
Other Measures) Act 2011.
Clause 2 - Commencement
2. Clause 2 specifies when the various provisions of the Act commence. The provisions
specified in column 1 of the table will commence, or will be taken to have commenced,
on the day or at the time specified in column 2 of the table.
Clause 3 - Schedule(s)
3. Clause 3 provides that each Act specified in a Schedule to the Bill is amended or
repealed as set out in the Schedule concerned. There are three Schedules to the Bill.
Schedule 1 contains amendments to the Broadcasting Services Act 1992 and the
Radiocommunications Act 1992 relating to the realisation of the digital dividend.
Schedule 2 contains amendments to the Broadcasting Services Act 1992, the
Radiocommunications Act 1992, the Australian Communications and Media Authority
Act 2005 and the Copyright Act 1968 relating to digital television generally. Schedule 3
contains transitional provisions.
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Schedule 1 - Digital Dividend
Broadcasting Services Act 1992
4. Items 1 to 28 inclusive would amend the Broadcasting Services Act 1992 (the BSA).
Item 1 - Subsection 6(1) (definition of broadcasting services bands)
5. This item would repeal and replace the definition of broadcasting services bands (the
BSBs). The restated definition describes what the bands are and how they are determined
(cross-referencing the relevant provisions in section 31 of the Radiocommunications
Act). The revised definition would delete paragraphs (a)(ii) and (b)(ii) (which are about
the Minister referring the designated spectrum to the ACMA for planning), because there
is no need for the defined term to mention the subsequent referral of the designated
bands to the ACMA for planning which occurs in accordance with section 31 of the
Radiocommunications Act.
Item 2 - Subsection 6(1) (definition of designated re-stack day)
6. This item would insert a definition of designated re-stack day. The defined term directs
the reader to the date determined under subsection 26(1K) of the BSA (Item 6 refers).
Item 3 - Subsection 6(1) (definition of licence area plan)
7. This item would insert a new definition of licence area plan. The new defined term
directs the reader to those plans prepared by the ACMA under subsections 26(1) (licence
area plans) or subsection 26(1B) (television licence area plans) of the BSA (Item 6
refers).
Item 4 - Subsection 6(1) (definition of television licence area plan)
8. This item would insert the definition of television licence area plan. The new defined
term directs the reader to a plan prepared under subsection 26(1B) of the BSA (Item 6
refers).
Item 5 - Subsection 26(1A)
9. This item would amend subsection 26(1A) of the BSA to limit the application of the
provision to licence area plans prepared under subsection 26(1) of the BSA (as distinct
from television licence area plans prepared under proposed subsection 26(1B)).
Television licence area plans will not deal with digital radio broadcasting services.
Item 6 - After subsection 26(1A)
10. This item would amend section 26 of the BSA to make provision for the making of the
new television licence area plans (subsections 26(1B)-(1M)). Television licence area
plans are intended to supersede:
· existing licence area plans to the extent that those plans deal with the planning of
television broadcasting services; and
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· digital channel plans made under the commercial television conversion scheme and
the national television conversion scheme (Schedule 4 to the BSA refers). Digital
channel plans allot channels for digital television services during and after the end
of the simulcast period in a licence area or coverage area.
11. The ACMA's powers that relate to the planning of television services in an existing
licence area plan for a particular area will cease when a television licence area plan
comes into force under new subsection 26(1H). Under new subsection 26(1H), when a
television licence area plan for a particular area comes into force, the licence area plan in
force for that area ceases to have effect, to the extent that it relates to television
broadcasting services. The commercial, national and other television broadcasting
services operating in that licence area will be exclusively regulated by the television
licence area plan. However, some licence area plans deal with both radio and television
services provided in a licence area, and in these situations new subsection 26(1H)
provides that the licence area plan would continue to have effect to the extent that it
relates to services other than television broadcasting services.
12. The new provisions for preparing and varying television licence area plans would give
the ACMA greater flexibility to plan and implement the re-stacking of digital television
channels to free up spectrum for the digital dividend.
13. Under new subsection 26(1B), the ACMA would prepare, by legislative instrument, new
licence area plans - to be known as television licence area plans (paragraph 26(1C)
refers) - that would specify the channels available in particular areas of Australia to
provide commercial and national television broadcasting services and other television
services using the BSBs (see paragraph 26(1B)(a)).
14. The television licence area plan would allot, or empower the ACMA to allot, those
channels to particular commercial television broadcasting licensees, national
broadcasters and other providers of television broadcasting services (see
paragraph 26(1B)(b)). The ACMA may also prepare a television licence area plan that
determines the characteristics, including technical specifications, of the transmission of
commercial and national television broadcasting services and other television
broadcasting services using the allotted channels (see paragraph 26(1B)(c)). The
television licence area plan would also determine, or empower the ACMA to determine,
any technical limitations on the use of a particular channel, and whether the use of a
particular channel depends on any event or circumstances (see paragraphs 26(1B)(d) and
(e)).
15. The capacity for the television licence area plan to set out events or circumstances that
determine whether or when a particular frequency channel may be used for transmitting
the service is intended to facilitate changes to the transmission characteristics of a service
by reference to a date or some other condition as may be set out in the plan.
Alternatively, the television licence area plan could empower the ACMA to determine
whether the use of the channel depends on an event or circumstance. The television
licence area plan could set out principles or processes for the ACMA to follow when
making those determinations. In carrying out its planning functions, the ACMA may
need to determine final channel allotments for broadcasters before it is able to develop a
timetable for when those allotments may be used by the broadcaster. The proposed
television licence area plan arrangements are intended to provide this additional
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flexibility to the ACMA by allowing for the plan to empower the ACMA to separately
determine this timetable.
16. Proposed subsection 26(1D) allows a television licence area plan to allot, or empower the
ACMA to allot, different channels for different periods to particular broadcasters. The
intention is to allow for channel allotments to change from time to time within the
licence area. Such a `forward plan' for the allotment of channels could be provided for
directly in the television licence area plan or indirectly through the ACMA being
conferred a power to allot channels in accordance with parameters or specifications set
out in the television licence area plan.
17. Proposed subsection 26(1E) allows a television licence area plan to allot, or empower the
ACMA to allot, two or more channels to particular broadcasters. This would enable the
ACMA to plan and implement temporary digital television simulcasts to address
anticipated technical implementation issues in some metropolitan and more populated
regional licence areas, such as reconfiguring central antenna systems for multi-unit
dwellings.
18. A television licence area plan need not identify a particular television broadcasting
service by name (subsection 26(1G) refers). This means that multi-channelled digital
television services provided by a commercial, national or other broadcasting service are
not required to be dealt with separately in a television licence area plan. Technical
specifications and other matters relating to a particular broadcaster can cover all digital
television services provided by that broadcaster within an allotted frequency channel.
19. Proposed subsection 26(1J) provides that a television licence area plan for a licence area
of a commercial television broadcasting licence:
· must not come into force before the end of the simulcast period or
simulcast-equivalent period for that licence area; and
· must come into force before the designated re-stack day for that licence area.
20. The intention is for digital channel plans and extant licence area plans to continue to
operate (and for the ACMA to continue to allot channels under those plans) until the
television licence area plan for a particular area comes into force. The commencement of
a television licence plan may coincide with the end of simulcasting in a licence area;
however it is more likely that a television licence area plan will not come into force until
after the end of the simulcast period or simulcast-equivalent period. In any case, the
television licence area plan must come into force before the designated re-stack day for
the licence area concerned.
21. Proposed subsection 26(1K) provides that the designated re-stack day for a licence area
is 31 December 2014, or a later date specified by the Minister (paragraph 26(1K)(b)).
The Minister's power under paragraph 26(1K)(b) is not enlivened unless he is satisfied
about the likely result of a failure to specify a later designated re-stack day in a licence
area - that is, one or more broadcasters would likely encounter significant difficulties of
a technical or engineering nature (subsection 26(1L)). While subsection 26(1L) would
limit the circumstances in which the Minister may extend time, it is important to note
that the Minister is not legally obliged to specify a later designated re-stack day even if
he is satisfied that the failure to do so will likely cause significant difficulties of the
specified kind. The Minister's power is a discretionary one. The Minister would closely
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consider the likely extent and gravity of the difficulties and other relevant facts and
considerations when deciding whether or not to defer the designated re-stack day for any
length of time in a licence area.
22. Proposed subsection 26(12) (Item 7 below refers) confirms that the Minister's instrument
specifying a later date for the designated re-stack day is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003. This provision
is merely declaratory and is included for the avoidance of doubt. It is not an exemption
from the Legislative Instruments Act 2003.
23. Proposed subsection 26(1M) provides that sections 23 and 27 of the BSA apply to the
ACMA's performance of a function or exercise of a power conferred on it by the
television licence area plan. Section 23 of the BSA specifies key planning criteria that
are to apply to the ACMA's performance of its planning functions under Part 3 of the
BSA. In order to facilitate the realisation of the digital dividend, the key planning criteria
will be modified for a limited time (see proposed subsection 26(7); Item 7 below
refers).Section 27 of the BSA provides that the ACMA must undertake wide public
consultation when performing its planning functions under sections 24-26 of the BSA. In
order to facilitate the realisation of the digital dividend, these consultation requirements
will be modified for a limited time (see proposed subsections 27(1A)-(1B); Item 13
below refers). Accordingly, proposed subsection 26(1M) provides for the resumption of
normal planning activities (including wide public consultation) after the designated re-
stack day for the licence area concerned.
24. When the ACMA exercises powers or performs functions that are conferred on it by a
television licence area plan, subsection 26(1M) provides that the ACMA will be taken to
be performing a function under section 26 of the BSA. This in turn has implications for
the application of sections 23 and 27 of the BSA, both before and after the designated re-
stack day for the licence areas, as these sections apply to the performance of functions
under section 26. For example, if the television licence area plan empowers the ACMA to
allot channels to particular broadcasters, the allotment of those channels will be taken to
be the performance of a function under section 26, and therefore within the scope of the
application of sections 23 and 27 in accordance with this subsection.
25. As an aid to readers, the note under proposed subsection 26(1M) provides for the
insertion of a sub-heading (Variation) before subsection 26(2) of the BSA.
Item 7 - At the end of section 26
26. This item would amend section 26 of the BSA to add new subsections 26(7) to 26(13).
27. Proposed subsection 26(7) provides that the statutory planning criteria in
paragraphs 23(a) and (b) of the BSA would not apply to the ACMA's preparation or
variation of a television licence area plan or the performance of a function, or the
exercise of a power, by the ACMA under a television licence area plan, before the
designated re-stack day for the relevant licence area. Normally the ACMA must have
regard to all of the statutory planning criteria listed in section 23 of the BSA when
performing broadcasting planning functions under Part 3 of the BSA. Paragraphs 23(a)
and (b) require the ACMA to have regard to demographics, and to the social and
economic characteristics within a licence area, neighbouring licence areas and within
10
Australia generally. These particular criteria will not be relevant for the purposes of
planning and reorganising the spectrum to be used for digital television services. This is
because re-stack is primarily a technical and engineering exercise concerning the
technical specifications for existing television broadcasting services. As a result, the
ACMA is not required to have regard to these criteria before the designated re-stack day.
28. Proposed subsections 26(8) and (9) empower the Minister to issue a written direction to
the ACMA about the exercise of its powers to make or vary a television licence area
plan, and impose an obligation on the ACMA to comply with such a direction. The
Ministerial direction may be of a general or specific nature.
29. Subsection 26(8) declares this Ministerial direction to be a legislative instrument for the
purposes of the Legislative Instruments Act 2003. This provision has substantive
operation because not all Ministerial directions are ordinarily characterised as legislative.
In this instance, it is anticipated that Ministerial directions made under this section would
tend towards the legislative, by setting out binding parameters for the ACMA's
television licence area planning activities. Making this Ministerial direction a legislative
instrument ensures transparency because any such direction will need to be lodged on the
Federal Register of Legislative Instruments and tabled in Parliament. However, the
Legislative Instruments Act 2003 provides that a Ministerial direction made under this
section will not be disallowable (see section 44 of that Act, item 41 of the table).
30. Proposed subsection 26(10) provides that the Minister's power to issue a direction, and
the ACMA's obligation to comply with it, will sunset on the designated re-stack day for
the relevant licence area. The intention is that the Minister's power to issue such
directions be limited to the timeframe in which the ACMA will be undertaking planning
activities relating to the freeing up of the broadcasting services bands spectrum for the
purposes of realising the digital dividend. The usual licence area planning framework
would resume in a licence area after the designated re-stack day. These planning
activities are largely free from Ministerial intervention, although a direction of a general
nature could still be made under section 14 of the Australian Communications and Media
Authority Act 2005 with respect to the ACMA's exercise of its licence area planning
powers).
31. For the avoidance of doubt, subsection 26(11) provides that a determination in writing
made by the ACMA when exercising a power conferred by a television licence area plan
(see paragraph 26(1B), described at Item 6 above) is not a legislative instrument within
the meaning of section 5 of the Legislative Instruments Act 2003. This provision is
declaratory of the law and does not amount to an exemption from the Legislative
Instruments Act 2003. It is also important to note that if the ACMA were empowered by
a television licence area plan to make an instrument in writing that allots one or more
channels to a particular broadcaster (which is contemplated by paragraphs 26(1D)
and 26(1E), described at Item 6 above) such an instrument would also not be a legislative
instrument.
32. Proposed subsection 26(12) confirms that the Minister's written instrument setting a later
designated re-stack day (described at Item 6 above) is not a legislative instrument within
the meaning of section 5 of the Legislative Instruments Act 2003. This provision is
declaratory of the law and does not amount to an exemption from the Legislative
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Instruments Act 2003. The Minister's instrument does no more than apply the law to the
particular facts.
33. Where the television licence area plan empowers the ACMA to make decisions of an
administrative character, such decisions will not be subject to merits review by the
Administrative Appeals Tribunal (AAT). This is consistent with the general approach to
spectrum planning and spectrum management - the ACMA's exercise of its planning
powers under the BSA and its spectrum planning functions under the
Radiocommunications Act are generally not subject to merits review by the AAT (other
than decisions by the ACMA which would affect a person's interests, such as decisions
to vary or cancel a licence or a decision to refuse to allocate a licence under the BSA or
Radiocommunications Act).
Item 8 - Subsection 26A(2)
Item 9 - Subsection 26A(3)
Item 11 - Subsection 26B(2)
Item 12 - Subsection 26B(3)
34. These items would amend sections 26A and 26B of the BSA, so that a licence area plan
made by the ACMA under subsection 26(1) would not be required to deal with SDTV or
HDTV multi-channelled national or commercial television broadcasting services after
the end of the simulcast period or simulcast-equivalent period. Multi-channelled national
and commercial television broadcasting services will be dealt with (albeit not separately)
in the television licence area plans made by the ACMA under new subsection 26(1B)
(Item 6 above refers).
Item 10 - After section 26A
35. This item would insert a new section 26AA into the BSA. This section would create a
compliance obligation for commercial television broadcasting licensees, national
broadcasters, and other television service providers designed to ensure that broadcasters
comply with digital channel allotments and associated technical specifications contained
in a television licence area plan. (The Bill also proposes that injunctive remedies be
available for contravention of this obligation - Items 15 and 16 refer).
Item 13 - After subsection 27(1)
36. Section 27 of the BSA normally requires the ACMA to undertake wide public
consultation when performing its licence area planning functions under Part 3 of the
BSA.
37. This item would insert new subsections 27(1A) and 27(1B) to modify the consultation
requirements relating to the preparation or variation of television licence area plans or to
the performance of a function, or the exercise of a power, by the ACMA under a
television licence area plan, and to particular variations to frequency allotment plans,
until the designated re-stack day for the relevant licence area.
38. Proposed subsection 27(1B) sets out the modified consultation requirements for the
preparation or variation of television licence area plans or to the performance of a
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function, or the exercise of a power, by the ACMA under a television licence area plan,
until the designated re-stack day.
39. The modified consultation requirements set out in proposed subsection 27(1B) will also
apply until the designated re-stack day for variations to a frequency allotment plan to the
extent that the variation relates to the determination of the number of channels that are to
be available in a particular area to provide television broadcasting services and is made
in connection with the preparation or variation of a television licence area plan for the
area. Instead of undertaking wide public consultation the ACMA must consult with those
commercial, national, or community broadcasters who are likely to be affected by the
proposed television licence area plan (including its variations). The ACMA may also
consult other persons as it considers appropriate. Other people whom the ACMA might
consult include other television services providers who may operate in the licence area
concerned, and operators of transmission towers and associated facilities in the licence
area concerned.
40. It is anticipated that the preparation or variation of a television licence area plan, the
variation of a frequency allotment plan (as described in paragraphs 27(1A)(d)
and 27(1B)(d)), and the performance of functions or the exercise of powers by the
ACMA under a television licence area plan for the purposes of planning and re-
organising the BSB spectrum used to deliver television services will largely be a
technical and engineering exercise concerning the transmission specifications of existing
broadcasting services. Accordingly wide public consultation is not considered necessary.
41. Proposed subsections 27(1A) and 27(1B) do not affect the ACMA's obligations to
consult widely when exercising its planning powers in relation to radio broadcasting
services.
Item 14 - Subsection 29(1)
42. This item would amend section 29 of the BSA so that the ACMA is able to designate an
area that is covered by an applicable licence area plan as the licence area of the licence
before allocating a new commercial television, commercial radio or community
broadcasting licence (other than a temporary community broadcasting licence).
43. Transitional provisions related to this item are in item 1 of Schedule 3 to this Bill.
Item 15 - Section 205PA
Item 16 - Section 205Q
44. These items would amend Part 14C of the BSA to include contravention of section 26AA
(Item 10 above refers) as a matter that may be subject to injunctive relief ordered by the
Federal Court, on the application of the ACMA. Item 15 amends the simplified outline in
section 205PA, while Item 16 amends section 205Q to add a reference to section 26AA.
45. When granting injunctive relief (including interim injunctive relief) under Part 14C of
the BSA, the Federal Court may issue orders to restrain a person from engaging in the
contravening conduct, or require the person to do something so as to avoid engaging in
contravening conduct.
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Item 17 - At the end of subclause 7(1) of Schedule 2
Item 18 - At the end of subclause 9(1) of Schedule 2
46. These items complement the new compliance rules and remedies provided by Items 10,
15, and 16. Items 17 and 18 would insert new statutory licence conditions into Parts 3
and 5 respectively of Schedule 2 to the BSA. These new licence conditions apply to
commercial television broadcasting licensees and community television broadcasting
licensees where a television licence area plan is in force in the licence area. The licence
condition requires each commercial television licensee to comply with new
subsection 26AA(1) of the BSA and each community television licensee to comply with
new subsection 26AA(3) of the BSA.
47. If a licensee breaches the new licence condition, civil or criminal penalties may apply
(Division 3 of Part 10 of the BSA refers).
Item 19 - Paragraph 6(3)(ha) of Schedule 4
Item 21 - At the end of subclause 6(5B) of Schedule 4
48. Item 19 would repeal paragraph 6(3)(ha) of Schedule 4 to the BSA and insert new
paragraphs (ha), (hb), and (hc) to modify the policy objectives for the commercial
television conversion scheme relating to the allotment of channels to commercial
television broadcasters after the end of the simulcast period. Under the existing objective
in paragraph 6(3)(ha), a commercial television broadcaster would transmit its service in
digital mode using a channel allotted in the relevant digital channel plan in force.
49. Under new paragraphs 6(3)(ha), (hb), and (hc) if a television licence area plan comes into
force immediately after the end of the simulcast period, a commercial television
broadcaster would transmit its services in digital mode using the channel allotted by the
television licence area plan. If a television licence area plan is not in force by the end of
the simulcast period, the commercial broadcaster would transmit its services using a
channel allotted by the relevant digital channel plan until such time as a television
licence area plan comes into force - when the television licence area plan comes into
force the commercial television broadcaster will transmit its services using a channel
allotted by the television licence area plan.
50. Similar changes are proposed to the statutory policy objectives for the national television
conversion scheme that applies to the Australian Broadcasting Corporation and the
Special Broadcasting Service (Item 25 refers).
51. Item 21 would similarly modify the conversion scheme policy objectives as they apply to
a commercial television broadcaster who holds additional commercial broadcasting
licences under section 38A or 38B and who has made a multi-channel election, using
multi-channelling transmission capacity.
52. Transitional provisions related to these items are in Items 2 and 6 of Schedule 3 to this
Bill.
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Item 20 - Paragraphs 6(5A)(e) and (5AA)(e) of Schedule 4
Item 22 - Subclause 6(5D) of Schedule 4
53. These items make technical amendments consequential to Items 19 and 21.
Item 23 - After clause 7A of Schedule 4
Item 27 - After clause 22A of Schedule 4
54. Item 23 would insert new clause 7AA into Schedule 4 to the BSA to re-state that a
television licence area plan, once in force, determines the allotment of channels for
digital transmission such that a digital channel plan (to the extent to which it relates to a
licence area covered by the television licence area plan) ceases to have effect. The
commercial television conversion scheme (to the extent to which it allots channels for a
particular licence area) ceases to have effect for that licence area as well.
55. Item 27 would make a substantially similar amendment in relation to the national
television conversion scheme.
Item 24 - Subclause 8(4) of Schedule 4
Item 28 - Subclause 23(4) of Schedule 4
56. Item 24 would repeal subclause 8(4) of Schedule 4 to the BSA as a consequence of
amendments to the Radiocommunications Act proposed by Items 42 to 46.
Subclause 8(4) requires the commercial television conversion scheme to provide for the
surrender of transmitter licences held by a commercial television broadcasting licensee at
the end of the simulcast period or simulcast-equivalent period, and to provide for the
ACMA to issue a new transmitter licence authorising transmission in digital mode.
Amendments made by Items 42 to 46 would make the surrender and re-issue of
transmitter licences unnecessary.
57. Item 28 makes substantially similar amendments in relation to the national television
conversion scheme. The repeal is consequential to amendments to the
Radiocommunications Act made by Items 38 to 41.
Item 25 - Paragraph 19(3)(ha) of Schedule 4
Item 26 - Subclause 19(5A) of Schedule 4
58. These items would amend the statutory policy objectives for the national television
conversion scheme in substantially the same way as Items 19-20 would amend the
objectives for the commercial television conversion scheme (noted above).
59. Transitional provisions related to these items are in Items 3 and 7 of Schedule 3 to this
Bill.
Radiocommunications Act 1992
60. Items 29 to 53 would amend the Radiocommunications Act.
15
Item 29 - Section 5 (definition of BSA coverage area)
Item 30 - Section 5 (definition of BSA television licence area plan)
61. These items would insert new defined terms into section 5 of the Radiocommunications
Act. Item 29 inserts a definition of BSA coverage area. A BSA coverage area means a
coverage area within the meaning of Schedule 4 to the BSA. This defined term is used in
the context of amendments proposed by Items 38 and 39 relating to NBS transmitter
licences.
62. Item 30 inserts a new defined term of BSA television licence area plan into section 5 of
the Radiocommunications Act. It has the same meaning as in the BSA.
Item 31 - After subsection 31(1)
Item 32 - After subsection 31(1B)
Item 33 - Subsection 31(7)
Item 34 - Subsection 31(7)
63. Section 31 of the Radiocommunications Act empowers the Minister to designate part of
the radiofrequency spectrum as being primarily for broadcasting services, or designate
part of the radiofrequency spectrum as being partly for restricted datacasting services or
digital radio broadcasting services. These spectrum designations are known as the
broadcasting services bands (BSBs). Designated spectrum is referred to the ACMA for
planning under Part 3 of the BSA.
64. The current Ministerial designation for the BSBs was made in 1992. There is some legal
uncertainty about whether the Minister may vary a BSB designation. Items 31 and 32
would resolve this uncertainty by expressly empowering the Minister to vary the BSB
designation to enlarge or reduce the part of the spectrum covered by the designation. As
a result the Minister can vary each of the BSBs as needed to realise the digital dividend.
65. Items 33 and 34 would amend section 31 of the Radiocommunications Act to provide
that an instrument that varies a BSB designation is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003. This provision is
declaratory of the law and does not amount to an exemption from the Legislative
Instruments Act 2003.
Item 35 - After subsection 32(2)
66. Item 35 would amend section 32 of the Radiocommunications Act to give the ACMA
greater flexibility when planning frequency bands. It does so by allowing a frequency
band plan that relates to spectrum within the BSBs to be inconsistent with a frequency
allotment plan (made specifically for the BSBs under section 25 of the BSA).
Inconsistent planning documents will only be permitted if there is a direction in force
under section 14 of the ACMA Act which requires the ACMA, when performing its
spectrum management functions, to act in accordance with policy objectives that are
expressed to be digital dividend policy objectives, and the ACMA is satisfied that the
inconsistency between the frequency band plan and the frequency allotment plan is likely
to facilitate any or all of the digital dividend policy objectives.
16
67. For example, the ACMA may make a frequency band plan for the digital dividend
spectrum before the Minister excises that spectrum from the BSBs (through making or
varying a BSB designation under section 31 of the Radiocommunications Act). Currently
the Radiocommunications Act requires that if the frequency band plan relates to
spectrum within the broadcasting services bands then it must be consistent with the
frequency allotment plan. A frequency band plan for the 700 MHz band in Australia will
likely reflect use of the band for international mobile telecommunications. Therefore, the
frequency band plan will not be consistent with the current frequency allotment plan for
that part of the 700 MHz band that is within the BSBs as the former will not make
provision for the allotment of channels for broadcasting services or restricted datacasting
services.
68. On 9 July 2010, the Minister made the Australian Communications and Media Authority
(Realising the Digital Dividend) Direction 2010 (the Direction), directing the ACMA in
relation to some of the government's policy objectives for realising the digital dividend.
The Direction included specifying the size and location of the spectrum to be cleared of
broadcasting services and datacasting services. The Direction also specified some
planning parameters for the ACMA to consider when undertaking planning activities
under the BSA.
69. The reference to ministerial directions in the amendments to section 32 of the
Radiocommunications Act is intended to capture the Ministerial direction of 9 July 2010
and any future direction that may be made under section 14 of the ACMA Act that
relates to spectrum planning or broadcasting spectrum planning.
Item 36 - After subsection 100(3A)
70. Subsection 100(2) of the Radiocommunications Act provides that the ACMA must not
issue an apparatus licence authorising the operation of a radiocommunications
transmitter in spectrum that has been designated as BSB spectrum (under
subsection 31(1) of the Radiocommunications Act) unless specified preconditions are
met, including where the issue of the licence is in accordance with a determination made
by the ACMA under subsections 34(1) or 34(3) of the BSA.
71. This means that for the ACMA to issue NBS transmitter licences to a national
broadcaster under section 100 of the Radiocommunications Act, it must first make a
determination under section 34 of the BSA that broadcasting spectrum is available for
allocation (unless the Minister has previous reserved capacity under section 31 of the
BSA: see subsection 100(3) of the Radiocommunications Act). National broadcasting
services are already planned for in licence area plans made under section 26 of the BSA
and so there is no real need for the ACMA to make a further determination about
spectrum availability under section 34 of the BSA before issuing a NBS transmitter
licence.
72. Item 36 would amend section 100 of the Radiocommunications Act so that the ACMA is
authorised to issue NBS transmitter licences in accordance with a licence area plan made
under section 26 of the BSA, without needing to make a determination under section 34.
73. Where apparatus licences are issued for temporary broadcasting or other purposes, where
broadcasting bands spectrum has either not been planned through the licence area
17
planning process or has not been allocated for its planned purpose, the issue of the
licence under section 100 of the Radiocommunications Act will remain subject to a prior
determination being made under section 34 of the BSA.
Item 37 - Subsection 100(5)
74. Subsection 100(5) of the Radiocommunications Act provides that in deciding whether to
issue an apparatus licence, the ACMA may have regard to whether an applicant
previously held an apparatus licence that had been cancelled within the preceding two
years. However apparatus licences cancelled as a result of a spectrum re-allocation
process under Part 3.6 of the Radiocommunications Act - that is, through operation of
law - are disregarded. Such a cancellation is disregarded because it does not go to the
merit of the applicant's application for a licence.
75. Item 37 would amend subsection 100(5) to add other apparatus licence cancellations that
are to be disregarded by the ACMA. The additional cancellations to be disregarded cover
apparatus licences held by commercial television broadcasters and national broadcasters
as required by the respective conversion schemes. These licences will be cancelled by
operation of law at the end of the simulcast period (Items 39 and 42 refer).
Item 38 - After section 100
Item 39 - After subsection 100B(2B)
Item 40 - Subsection 100B(3)
Item 41 - Subsection 100B(3)
Item 42 - At the end of section 102A
Item 43 - Subsection 102AC(1)
Item 44 - Subsection 102AC(2)
Item 45 - Subsection 102AC(2)
Item 46 - After section 102AC
76. Under the Radiocommunications Act, the ACMA must issue a commercial television
broadcasting licensee a transmitter licence in relation to provision of the licensed
broadcasting service (section 102), and issue a commercial television broadcasting
licensee a transmitter licence as required by the commercial television conversion
scheme (section 102A). National broadcasters are issued NBS transmitter licences under
section 100 of the Radiocommunications Act for the transmission of a national
broadcasting service, or issued NBS transmitter licences under section 100B of the
Radiocommunications Act where such licences are required by the national television
conversion scheme.
77. Items 38 to 46 would amend the transmission authorisations for certain transmitter
licenses held by national broadcasting services (issued under section 100), and
commercial television broadcasting service licensees (issued under section 102). The
revised authorisations will authorise the transmission of national or commercial services
(as the case may be) in digital mode after the end of the simulcast period.
78. Item 38 inserts a new section 100AA into the Radiocommunications Act. The new
section amends the transmission authorisation of an NBS transmitter licence that was
issued before the end of the simulcast period in relation to a particular coverage area, so
that the NBS transmitter licence authorises digital transmission after the end of the
18
simulcast period in that coverage area using channels allotted to the national broadcaster
concerned under whichever of the television licence area plan, or national television
conversion scheme (including digital channel plan) is in force. Where an NBS
transmitter licence is issued after a television licence area plan comes into force in
relation to the particular coverage area, new subsection 100AA(2) provides that the NBS
transmitter licence authorises the operation of the transmitter in digital mode using
channels allotted to the national broadcaster concerned under the television licence area
plan.
79. New subsection 100AA(3) deals with NBS transmitter licences that may be issued during
the interim period between the end of the simulcast period (or simulcast-equivalent
period) and the commencement of a television licence area plan. Subsection 100AA(3)
provides that the NBS transmitter licence authorises digital transmission during that
period using the channels allocated to the national broadcaster concerned under the
national television conversion scheme or digital channel plan.
80. Item 39 inserts a new subsection 100B(2C) into the Radiocommunications Act. This
subsection would operate to cancel those NBS transmitter licences that were required to
be issued under the national television conversion scheme for digital transmission at the
end of the simulcast period or the simulcast-equivalent period for a BSA coverage area.
81. Items 40 and 41 insert defined terms for simulcast period and simulcast-equivalent
period into section 100B. Each term has the same meaning as the corresponding defined
terms in Schedule 4 to the BSA.
82. Item 42 amends section 102A in a similar fashion to the amendment made to
section 100B by Item 39. Transmitter licences required to be issued to commercial
television broadcasters under the commercial television conversion scheme would be
cancelled at the end of the simulcast period or the simulcast-equivalent period for the
relevant BSA licence area.
83. Item 43 repeals and replaces subsection 102AC(1) of the Radiocommunications Act. The
new subsection would amend the transmission authorisation of a transmitter licence
issued under section 102 to a commercial television broadcasting licensee before the end
of the simulcast period or simulcast-equivalent period for a licence area. The new
transmitter authorisation would provide that transmitter licences issued under section 102
continue to authorise transmissions - but only in digital mode - after the end of the
simulcast period or simulcast-equivalent period. The revised transmission authorisation
would permit a commercial television broadcaster to transmit one or more HDTV multi-
channelled commercial television broadcasting services, and one or more SDTV multi-
channelled commercial television broadcasting services using the channel(s) allotted to
the broadcaster under whichever of the television licence area plan or the commercial
television conversion scheme (which includes the digital channel plan) is in force from
time to time.
84. Items 44 and 45 insert defined terms for commercial television conversion scheme and
digital channel plan into section 102AC. The terms have the same meaning as used in
Schedule 4 to the BSA (see clauses 6 and 7A of that Schedule).
19
85. Item 46 inserts a new section 102AD into the Radiocommunications Act which provides
that a transmitter licence issued under section 102 after the end of the simulcast period or
simulcast-equivalent period for a licence area authorises the operation of a transmitter in
digital mode only using the channels allotted under whichever of the television licence
area plan or the commercial television conversion scheme (which includes the digital
channel plan) is in force from time to time.
Item 47 - Paragraph 109(1)(d)
Item 48 - Paragraph 109(1)(d)
Item 49 - After paragraph 109(1)(d)
Item 50 - At the end of section 109
86. Section 109 of the Radiocommunications Act sets out the conditions for transmitter
licences issued to commercial television broadcasting services under sections 101B,
101C, 102 or 102A.
87. Item 49 would insert a new transmitter licence condition into section 109 of the
Radiocommunications Act that requires the transmission of any television broadcasting
service to comply with any applicable technical specifications specified in a BSA
television licence area plan (a term defined in section 5 of the Radiocommunications
Act: refer Item 30 above).
88. Items 47, 48, and 50 would make amendments consequential to Item 49.
Item 51 - At the end of subsection 153H(1)
89. Part 3.6 of the Radiocommunications Act sets out the rules that apply when encumbered
spectrum is to be re-allocated. The Minister identifies the spectrum to be re-allocated by
making a spectrum re-allocation declaration under section 153B of the
Radiocommunications Act. At the end of the re-allocation period specified in the
Minister's declaration, apparatus licences that are operating in declared spectrum are
generally cancelled by operation of law (section 153H of the Radiocommunications Act
refers).
90. Broadcasting transmitter licences are a category of apparatus licence. Part 3.2 of the
Radiocommunications Act imposes several duties on the ACMA to ensure that particular
broadcasters are issued apparatus licences for so long as the related broadcasting licence
(under the BSA) is in force. This duty appears to conflict with section 153H of the
Radiocommunications Act, because the spectrum re-allocation process in Part 3.6 of the
Radiocommunications Act does not affect the operation of the related broadcasting
licence. Accordingly the ACMA remains duty bound to keep in force an apparatus
licence authorising the transmission of these broadcasting services.
91. Item 51 would codify the position of broadcasting apparatus licences that are affected by
a spectrum re-allocation process. The amendment to section 153H of the
Radiocommunications Act makes clear that NBS transmitter licences, commercial
broadcasting transmitter licences issued under sections 101B, 101C or 102 of the
Radiocommunications Act, and community broadcasting transmitter licences issued
under section 102 of the Radiocommunications Act are not cancelled at the end of the
spectrum re-allocation period.
20
Item 52 - After paragraph 153P(2)(da)
Item 53 - At the end of section 153P
92. Where the Minister has specified a spectrum re-allocation in a spectrum re-allocation
declaration made under section 153B of the Radiocommunications Act,
subsection 153P(2) of that Act generally prohibits the ACMA from issuing new
apparatus licences in spectrum covered by the Minister's declaration (declared spectrum)
during the re-allocation period. This general prohibition is subject to specific exceptions
(paragraphs 153P(2)(c)-(e) refer).
93. While the BSBs are being reorganised during the re-allocation period, there may be a
need for some existing broadcasting services to be temporarily issued additional
apparatus licences that authorise the transmission of the service using declared spectrum.
94. Item 52 would amend subsection 153P(2) to add an exception to the general prohibition.
New paragraph 153P(2)(db) would allow the ACMA to issue an apparatus licence during
the interim period if that licence authorises the operation of a transmitter in declared
spectrum for the purpose of transmitting one or more broadcasting services in digital
mode in a BSA licence area.
95. This exception covers the transmission in digital mode of any broadcasting service that
uses declared spectrum, including a re-transmission service within the meaning of
section 212 of the BSA. A re-transmission service is a broadcasting service within the
meaning of section 6 the BSA, although re-transmission services are not otherwise
regulated by the BSA (that is, no broadcasting licence is required).
96. Item 53 would insert a new subsection 153P(4) to define the interim period as starting
from the commencement of this subsection and ending on the designated re-stack day for
the BSA licence area (Item 6 above provides for the designated re-stack day).
97. All BSA licence areas have the same designated re-stack day of 31 December 2014
(proposed paragraph 26(1K)(a) in Item 6 refers). Thus there will be a common interim
period for the purposes of new subsection 153P(4). However, the Minister is empowered
to set a later designated re-stack day for a particular BSA licence area in limited
circumstances (proposed paragraph 26(1K)(b) in Item 6 refers). If the Minister changes
the designated re-stack day the interim period would be similarly adjusted.
21
Schedule 2 - Other amendments
Australian Communications and Media Authority Act 2005
Item 1 - Paragraph 53(2)(k)
98. Section 53 of the ACMA Act imposes limits on the ability of (a) the ACMA to delegate
certain powers, and (b) a Division established by the ACMA to sub-delegate certain
powers delegated to it by the ACMA under section 50 of the ACMA Act. The delegation
limits relate to the ACMA's powers to make, vary or revoke legislative instruments
(subsection 53(1) of the ACMA Act refers), and numerous powers conferred by the BSA
(subsection 53(2) of the ACMA Act refers).
99. Item 1 would amend the delegation limit that relates to the power to issue particular
notices under the BSA (paragraph 53(2)(k) of the ACMA Act refers). The amendment
would allow the ACMA to delegate its power to issue notices under Part 9C of the BSA.
The requirements imposed on the ACMA to issue various notices under Part 9C are in
respect of administrative or routine matters relating to the operation of a conditional
access scheme for satellite services provided under a licence allocated under section 38C
of the BSA. There may be numerous notices issued where the ACMA directs a scheme
administrator to issue a reception certificate pursuant to a complaint regarding an
application under a conditional access scheme (see section 130ZF of the BSA) or where
the ACMA performs the function of scheme administrator (see section 130ZCA of the
BSA). It is unnecessary for these notices to be issued by the Authority itself instead of a
delegate or sub-delegate and, given the potentially large number of notices that may be
processed by the ACMA, the process would be more effectively and efficiently dealt
with if delegated.
Broadcasting Services Act 1992
100. Items 2 to 52 inclusive would amend the BSA.
Item 2 - Subsection 6(1) (definition of scheme administrator)
101. This item is related to amendments made by Item 22 below. This item would repeal and
replace the definition of scheme administrator. The revised definition directs the reader
to subsection 130ZB(8) in relation to a conditional access scheme for the South Eastern
Australia TV3 licence area or the Northern Australia TV3 licence area, and to
subsection 130ZBB(9) in relation to a conditional access scheme for the Western
Australia TV3 licence area.
Item 3 - After subsection 41B(1A)
Item 4 - After subsection 41B(2A)
Item 5 - After subsection 41B(2D)
Item 6 - Subsection 41B(4)
102. Subsection 41B(1) of the BSA currently provides that commercial television
broadcasting licences in force immediately before 1 January 2009 (other than, after the
commencement of section 38C, eligible parent licences or eligible section 38A licences
22
- as defined in section 41B(2E)) are authorised during the simulcast period or
simulcast-equivalent period to provide a core commercial television broadcasting
service, a HDTV multi-channelled commercial television broadcasting service, and a
SDTV multi-channelled commercial television broadcasting service.
103. Subsection 41B(2) of the BSA currently provides that commercial television
broadcasting licences allocated on or after 1 January 2009 (other than particular eligible
parent licences, eligible section 38A licences, or eligible 38B licences defined in
section 41B(2E)) are authorised during the simulcast period or simulcast-equivalent
period to provide one HDTV multi-channelled commercial television broadcasting
service and two SDTV multi-channelled commercial television broadcasting services.
104. Items 3 to 6 would amend the service authorisations set out in section 41B of the BSA
to provide modified service authorisations for remote area licences. A definition of
remote area licence is proposed by Item 6 - a remote area licence is a commercial
television broadcasting licence for a remote licence area (within the meaning of
Schedule 4 to the BSA).
105. The Broadcasting Legislation Amendment (Digital Television) Act 2010 amended the
BSA to authorise commercial television broadcasters in the smaller, `underserved'
regional licence areas such as regional South Australia, Griffith and Broken Hill to
elect to provide all digital multi-channelled television broadcasting services in standard
definition only on two channels of spectrum until the end of the simulcast period. The
amendments proposed in Items 3 to 6 will also authorise (but not require) commercial
television broadcasters in remote licence areas to elect to provide all digital multi-
channelled television broadcasting services in standard definition only on two channels
of spectrum until the end of the simulcast period if they choose to do so. This may
assist in achieving equalisation in the number of multi-channelled digital television
services provided by commercial broadcasters in Australia.
106. Items 3 and 4 insert new subsections 41B(1B) and 41B(2AA) to the BSA. Proposed
subsection 41B(1B) provides that the service authorisation set out in subsection 41B(1)
does not apply to remote area licences. Proposed subsection 41B(2AA) provides that
the service authorisation set out in subsection 41B(2) does not apply to remote area
licences.
107. Item 5 inserts new subsections 41B(2DA) and (2DB) to the BSA.
108. Proposed subsection 41B(2DA) provides that remote area licences that were in force
immediately before 1 January 2009 are authorised to provide during the remainder of
the simulcast period or the simulcast-equivalent period the core commercial television
broadcasting service, and either:
· one HDTV multi-channelled commercial television broadcasting service and
one SDTV multi-channelled commercial television broadcasting service; or
· two SDTV multi-channelled commercial television broadcasting services.
109. Proposed subsection 41B(2DB) provides that remote licences allocated on or after
1 January 2009 but before the end of the simulcast period or simulcast-equivalent
period for the licence area, are authorised to provide during the remainder of that
period:
23
· one HDTV multi-channelled commercial television broadcasting service and
two SDTV multi-channelled commercial television broadcasting services; or
· three SDTV multi-channelled commercial television broadcasting services.
110. One of the SDTV multi-channelled commercial television broadcasting services
referred to in the above paragraph will be the primary commercial television
broadcasting service (see Item 60 below).
111. These provisions will operate in conjunction with other amendments in this Schedule to
the multi-channelling election provisions in clause 6 of Schedule 4 to the BSA (see
Item 45 below).
Item 7 - After subsection 43AA(3A)
Item 8 - Subsection 43AA(7)
Item 9 - After subsection 43AC(3)
Item 10 - Subsection 43AC(5)
112. Sections 43AA and 43AC of the BSA require regional and remote commercial
television broadcasting licensees to provide their local news programs to the relevant
section 38C licensee (for the purposes of the 38C licensee providing a local news
service as required under clause 7D of Schedule 2 to the BSA) from the date the
section 38C licence is allocated.
113. Item 7 would amend subsection 43AA to include a new subsection 43AA(3AA) to
provide that a regional commercial television broadcasting licensee is not required to
provide its local news programs to the relevant section 38C licensee until the start date
for the licence area of the section 38C licence. The start date for services required to be
provided in a licence area under a section 38C licence is determined by the ACMA
under clause 7H of Part 3 of Schedule 2 to the BSA.
114. Item 9 would amend section 43AC to include a new subsection 43AC(3A) to provide
that if a remote commercial television broadcasting licensee is required to provide its
local news programs to the relevant section 38C licensee under subsection 43AC(2), the
remote licensee is not required to do so until the start date for the licence area of the
section 38C licence.
115. Items 8 and 10 respectively would amend subsections 43AA(7) and 43AC(5) to insert a
definition of the start date in relation to the licence area of a section 38C licence. The
definition directs the reader to Division 2 of Part 3 of Schedule 2 to the BSA.
116. No amendment is necessary in relation to the metropolitan licensee's obligation to
supply local news programming to a section 38C licensee as this obligation is triggered
by the section 38C licensee requesting such programming (section 43AB refers).
117. Related amendments to the licence conditions that apply to the holder of a licence
issued under section 38C of the BSA are proposed by Item 43, noted below.
118. Transitional provisions related to these items are in Item 8 of Schedule 3 to this Bill.
24
Item 11 - At the end of subsection 130ZB(1)
119. Item 11 would amend subsection 130ZB(1) as a consequence of amendments made by
Item 22, so that the subsection applies only to conditional access schemes for the South
Eastern Australia TV3 licence area and the Northern Australia TV3 licence area.
Item 12 - At the end of paragraph 130ZB(5)(b)
Item 13 - After paragraph 130ZB(5)(b)
120. Section 130ZB of the BSA currently sets out the statutory policy objectives that a
conditional access scheme must be directed towards achieving in order to be registered
by the ACMA under Part 9C of the BSA. A conditional access scheme sets out the rules
relating to access to services provided under a commercial television broadcasting
licence allocated under section 38C of the BSA.
121. One of the statutory policy objectives in section 130ZB is that a conditional access
system must enable persons in Category A or Category B reception areas to receive the
commercial television broadcasting services provided under the section 38C licence
(see subsection 130ZB(5)(a) and (b)). Items 12 and 13 would amend section 130ZB(5)
so that the conditional access system must also enable persons in a declared service-
deficient area (Item 37 refers) to receive those commercial television broadcasting
services.
Item 14 - Subsection 130ZB(9)
Item 15 - After paragraph 130ZB(10)(a)
122. These items make amendments consequential to Item 37. These amendments exclude
declared service-deficient areas from the application of subsections 130ZB(9) and (10),
so that a declared service-deficient area is outside the scope of a Category C reception
area.
Item 16 - After subsection 130ZB(13)
123. One of the statutory policy objectives listed in section 130ZB is that the conditional
access scheme must authorise the scheme administrator to revoke a reception certificate
that has been issued to a person in a Category C reception area if the person is no
longer eligible for a reception certificate (see subsection 130ZB(13)). A person in a
Category C reception area may apply for, and must be issued with, a reception
certificate if that person does not have adequate reception of all of the applicable
terrestrial digital commercial television broadcasting services.
124. This item would amend section 130ZB to insert a new subclause 130ZB(13A) to
specify that once a person in a Category C reception area has been issued a reception
certificate, after that time they will be taken to remain eligible for that certificate (and
not have it revoked), provided they do not subsequently move to another premises. If a
person moves premises the intention is that that person's access to satellite services
would be determined from their new location in accordance with the registered
conditional access scheme that applies at that time. If the person was to move to a
location that is neither a Category A reception area, a Category B reception area, nor a
declared service-deficient area, but still has inadequate reception of the applicable
25
terrestrial digital commercial television services, the person could again apply for a
reception certificate to access the services (as a Category C reception area).
125. The qualification to the statutory policy objective about the revocation of reception
certificates in Category C reception areas would ensure that once a person has been
issued a reception certificate, and incurred the expense of buying and installing satellite
reception equipment to access the satellite commercial television broadcasting services,
that person should not have their certificate revoked because adequate terrestrial digital
television reception is later provided in the Category C reception area.
126. Transitional provisions related to this item are in Item 9 of Schedule 3 to this Bill.
Item 17 - After subsection 130ZB(15)
127. One of the statutory policy objectives for a conditional access scheme is that a
conditional access system that relates to the delivery of broadcasting services licensed
under section 38C of the BSA must enable persons in Category A reception areas and
Category B reception areas (as defined in subsections 130ZB(3) and (4) respectively) to
receive the satellite services.
128. In relation to Category B reception areas, the BSA does not prescribe particular areas as
Category B reception areas, or a method for determining those areas; this is a matter to
be addressed in the conditional access scheme itself (subsection 130ZB(4) refers). The
conditional access scheme may either specify one or more particular areas to be
Category B reception areas, or specify a methodology for identifying Category B
reception areas.
129. It is possible that a current Category B reception area could cease to be a Category B
reception area at a later date. Such a scenario could arise either because the
specification of Category B reception areas change when a replacement conditional
access scheme is registered (compared to the previously registered scheme), or because
a particular conditional access scheme sets out a method for identifying Category B
reception areas and that method includes a variable in it that may change the boundaries
of the area(s) over time. This could result in a Category B reception area changing even
though the viewer has not moved.
130. For example, this could occur where the signal strength of a digital television service
has been increased at a local terrestrial transmission site, or, where a new terrestrial
digital television transmission facility is established in an area thereby providing that
area with adequate terrestrial digital reception.
131. This item would insert new subsections 130ZB(15A) and (15B) which contain
additional objectives for the conditional access scheme for Category B reception areas
and declared service-deficient areas.
132. The new objectives in subsections 130ZB(15A) and (15B) for the conditional access
scheme is to ensure that the broadcaster's conditional access system enables the
ongoing reception of the licensed services by a person who was located in a Category B
reception area or a declared service-deficient area at the time access was enabled, and
who remains in the same premises. If a person moves premises the intention is that that
26
person's access to satellite services would be determined from their new location in
accordance with the registered conditional access scheme that applies at that time. If the
person was to move to a location that is not a Category A reception area or a
Category B reception area, or a declared service-deficient area, but still has inadequate
terrestrial digital television reception, the person could apply for a reception certificate
to access the services (as a Category C reception area).
133. Transitional provisions related to this item are in Item 9 of Schedule 3 to this Bill.
Item 18 - Subsection 130ZB(16) (paragraph (b) of the definition of related terrestrial
licence area)
Item 19 - Subsection 130ZB(16) (paragraph (c) of the definition of related terrestrial
licence area)
Item 20 - Subsection 130ZB(16) (notes 1 and 2 after the definition of simulcast period)
Item 21 - Subsection 130ZB(16) (after the definition of terrestrial licence area)
134. Items 18, 19, 20 and 21 make technical amendment to subsection 130ZB(16)
consequential to the amendments made by Item 22, to reflect that section 130ZB only
applies to the South Eastern Australian TV3 and Northern Australia TV3 licence areas.
Item 22 - After section 130ZB
135. This item would provide modified statutory policy objectives for a conditional access
scheme relating to commercial television services delivered by satellite under a licence
issued under section 38C of the BSA for the Western Australia TV3 licence area.
136. The modified statutory policy objectives reflect, in part, the special circumstances in
Western Australia where a number of parts of the remote licence area have similar
characteristics of a regional licence area.
137. Currently section 130ZB(2) of the BSA provides that Category A reception areas for
the South Eastern Australian TV3, Northern Australia TV3, and Western Australia TV3
licence areas are related terrestrial licence areas (that is, remote terrestrial licence areas)
in the satellite licence area, and that persons in Category A reception areas also includes
those people who access a commercial television service because they are entitled to
the benefit of an `out of area' permit held by the remote terrestrial broadcaster.
138. Proposed subsection 130ZBB(3) would provide that, for the Western Australia TV3
licence area, the first objective for the conditional access scheme is that Category A
reception areas be:
a. the related terrestrial licence areas (column 3 of item 3 of the table in
subsection 38C(1) of the BSA refers), and
b. areas outside the related terrestrial licence area where the licensee for a related
terrestrial licence area is authorised by the ACMA to provide their service to
one or more people (`out of area' permits granted under paragraph 7(2A)(d) of
Schedule 2 to the BSA).
but excluding from Category A reception areas, areas that are Category D reception
areas under the scheme (described below).
27
139. This means that a viewer located in a related terrestrial licence area that will not receive
terrestrial digital television services from a transmission site converted under the
commercial television conversion scheme would remain in a Category A reception
area. These viewers would be deemed to be unable to receive adequate reception of all
of the applicable terrestrial digital commercial television services, and in accordance
with the third objective (see proposed subsection 130ZB(5)) would be able to access the
section 38C satellite service from its commencement.
140. The second objective for the conditional access scheme for the Western Australia TV3
licence area (proposed subsection 130ZBB(4)) is to specify those areas that are to be
Category B reception areas. Category B reception areas for the Western Australia TV3
licence area will be conceptually similar to Category B reception areas used in the other
satellite television licence areas, but will be limited to reception areas within the
Perth TV1 terrestrial licence area (which is not a related terrestrial licence area). The
conditional access scheme may either specify one or more particular areas included in
the Perth TV1 licence area to be Category B reception areas, or specify a methodology
for identifying areas within the Perth TV1 licence area as Category B reception areas.
Viewers in Category B reception areas are deemed to be unable to receive adequate
terrestrial television services.
141. The conditional access system must not enable persons in a Category B reception area
to receive services provided by the relevant section 38C licensee earlier than 6 months
before the switch-over date in their related terrestrial licence area (as set out in
proposed subsections 130ZBB(18) and (19)).
142. Once access is facilitated to a person in a Category B reception area, in accordance with
the fifteenth policy objective the broadcaster's conditional access system would be
required to enable the ongoing reception of the licensed services by that person
provided they remain located at the same premises. If a person moves to another
premise, the intention is that the person's access to satellite services would be
determined in their new location.
143. The fourth policy objective of the scheme for Western Australia is that Category C
reception areas are areas other than Category A, B or D reception areas. Viewers in
Category C reception areas need to apply for a reception certificate before being able to
access to satellite commercial television services. The scheme administrator will grant a
reception certificate to a viewer who is in a Category C reception area (but not in a
declared service-deficient area) if satisfied that the applicant is unable to adequately
receive all of the applicable terrestrial commercial digital television services (proposed
subsection 130ZBB(10) refers). For example, a viewer located within the Perth TV1
licence area (in an area that is not a Category B reception area) may not receive
adequate reception of all available terrestrial commercial digital television services. In
this situation, as the viewer is in a Category C reception area (as the area is not a
Category A, B or D reception area) the viewer may apply to the scheme administrator
to receive a reception certificate to access the relevant satellite commercial television
service.
144. The conditional access system must not enable persons in a Category C reception area
to receive services provided by the relevant section 38C licensee earlier than 6 months
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before the switch-over date in their related terrestrial licence area (as set out in
proposed subsections 130ZBB(18) and (19)).
145. The scheme administrator will revoke a reception certificate issued to a person in a
Category C reception area if the viewer is no longer eligible for the certificate
(proposed subsection 130ZBB(16) refers). However, a person in a Category C reception
area who is issued a reception certificate will be entitled under proposed
subsection 130ZBB(17) to retain the certificate, provided that person has not moved to
another premises. Subsequent improvements to terrestrial digital television transmission
will not provide a valid ground for the CAS administrator revoking the certificate.
146. Proposed subsection 130ZBB(8) specifies that the fifth objective of the scheme would
be to specify areas that would be Category D reception areas, or specify a methodology
for identifying those areas. Category D reception areas would be those areas within the
related terrestrial licence areas that receive, or are expected to receive, adequate
reception of terrestrial digital television services provided by the relevant commercial
television broadcasting licensees as a result of the roll-out of digital television services
under the commercial television conversion scheme.
147. In accordance with the tenth and eleventh objectives of the scheme (see proposed
subsections 130ZBB(14) and (15)), viewers in Category D reception areas would be
excluded from applying to access the section 38C satellite services in Western Australia
until the earlier of whenever all of the commercial television broadcasting licensees in
the Category D reception area have commenced providing core/primary digital
terrestrial services in the area (as required under the commercial television conversion
scheme), or the end of the simulcast period for that licence area. The date on which all
of the core/primary digital terrestrial services commence in a Category D reception area
would be the designated digital service day for the particular Category D reception
area. The scheme must provide for the scheme administrator to notify the ACMA as
soon as practicable of the occurrence of each designated digital service day. This is
because the ACMA must maintain a register of designated digital service days (see
Item 34 below).
148. After the designated digital service day, viewers in a Category D reception area would
be able to apply to the scheme administrator to obtain a reception certificate to access
the satellite commercial television services. The scheme administrator must grant a
reception certificate to a viewer in a Category D reception area if satisfied that the
applicant is unable to adequately receive terrestrial digital television services. The
scheme administrator must revoke a reception certificate if a viewer is no longer
eligible for the certificate.
149. Proposed subsection 130ZBB(17) provides that a person in a Category D reception area
who is issued a reception certificate is entitled to retain the certificate provided that
person has not moved to another premises. Subsequent improvements to terrestrial
digital television transmission after the designated digital service day would not provide
a valid ground for the scheme administrator revoking the certificate.
150. The sixth, seventh, eighth, ninth and twelfth policy objectives are about the
administration of access to satellite commercial television services within a Category C
or Category D reception area, principally the role of the scheme administrator. The
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conditional access scheme must nominate a company to discharge the function of the
scheme administrator (or if the scheme is formulated by the ACMA, identify the
ACMA as the scheme administrator). The scheme must authorise the administrator to
deal with applications for reception certificates that are made in accordance with the
scheme. The scheme must require the scheme administrator to make a decision on
(formally compliant) applications received within 15 business days. The scheme
administrator must also deal with the application without requiring the applicant to pay
a fee or incur an expense.
151. Proposed subsection 130ZBB(21) is intended to ensure that viewers who are in areas
that are declared by the ACMA to be service-deficient areas (as described in Item 37
below) are able to access the section 38C satellite services licensed for their area as
soon as that area is so declared. Once access for a person in a service-deficient area is
facilitated, the conditional access system must enable the ongoing reception of the
licensed services for so long as the person remains in the same premises as at the time
access was initially enabled. If the person moves, the intention is that the person's
access to satellite services would be determined afresh in their new location.
Item 23- Subparagraph 130ZC(1)(d)(iii)
Item 24- Subsection 130ZC(1) (note)
Item 25 - Subsection 130ZC(1)(da)
Item 26 - Paragraph 130ZCAA(1)(e)
Item 27- Paragraph 130ZCAB(1)(a)
Item 28- Paragraph 130ZCAB(1)(b)
Item 29- Subsection 130ZCAB(2)
Item 30- Subparagraph 130ZCAB(2)(a)(i)
Item 31- After subsection 130ZCAB(2)
Item 33- Subsection 130ZCA(7)
152. These items would amend sections 130ZC, 130ZCAB and 130ZCA to provide for a
body or association representing commercial broadcasting licensees (`industry') to
develop a conditional access scheme to replace a registered conditional access scheme
that has been developed by the ACMA.
153. Item 23 amends subparagraph 130ZC(1)(d)(iii) to broaden the scope of section 130ZC
so that industry may submit to the ACMA for registration a new scheme that is
intended to replace a registered conditional access scheme that was formulated and
registered by the ACMA under section 130ZCA of the BSA.
154. Items 24 and 33 make amendments that are consequential to those made by Item 23.
Item 33 repeals subsection 130ZCA(7), which currently provides that where the ACMA
develops and registers a conditional access scheme for a licence area, section 130ZC
would cease to apply to that licence area (meaning that industry could no longer
develop a replacement scheme). Item 24 would repeal the note beneath
subsection 130ZC(1) which cross-references subsection 130ZCA(7).
155. Items 25 and 26 would make amendments consequential to Item 22. Item 25 amends
paragraph 130ZC(1)(da) by specifying that before registering a conditional access
scheme developed by industry, the ACMA must be satisfied that the scheme complies
with section 130ZB where the scheme is for the South Eastern Australia TV3 licence
30
area or the Northern Australia TV3 licence area, or that the scheme complies with
section 130ZBB where the scheme is for the Western Australia TV3 licence area.
156. Item 27 amends paragraph 130ZCAB(1)(a) to broaden the circumstances in which the
ACMA may request that industry develop a replacement conditional access scheme.
The proposed amendment would allow the ACMA to request that industry develop a
conditional access scheme to replace a registered conditional access scheme that has
been formulated and registered by the ACMA.
157. Item 28 amends paragraph 130ZCAB(1)(b) to clarify that the ACMA does not need to
be satisfied that a conditional access scheme is not meeting one or more of the statutory
policy objectives that applies to the particular scheme before requesting industry to
formulate a conditional access scheme to replace a conditional access scheme that has
been formulated by the ACMA. The intention is for the ACMA to have a broad
discretionary power to request that industry develop a conditional access scheme to
replace a registered conditional access scheme that has been developed by the ACMA.
158. Items 29 and 30 make technical amendments to subsection 130ZCAB(2) that are
consequential to the amendment made by Item 27.
159. Item 31 defines the term appropriate body or association for the purpose of the
amendment proposed by Item 29. Where the ACMA requests industry to formulate a
conditional access scheme to replace a registered scheme that was formulated by
industry, the appropriate body or association to which the ACMA makes the request
will be the body or association that formulated the first scheme. Where the ACMA's
request is for the industry to formulate a scheme to replace a registered conditional
access scheme that was formulated by the ACMA, the appropriate body or association
will be one that the ACMA is satisfied represents commercial television broadcasting
licensees.
Item 32 - Paragraph 130ZCA(3)(a)
160. This item would make amendments consequential to Item 22 by specifying that the
ACMA must not formulate a conditional access scheme unless it is satisfied that the
scheme complies with section 130ZB where the scheme is for the South Eastern
Australia TV3 licence area or the Northern Australia TV3 licence area, or it is satisfied
that the scheme complies with section 130ZBB if the scheme is for the Western
Australia TV3 licence area.
Item 34 - After section 130ZE
161. This item is consequential to Item 22 and would insert a new section 130ZEA in the
BSA. This section would confer a new function on the ACMA to maintain a Register of
designated digital service days. The Register is an administrative instrument, and must
be made available for public inspection on the ACMA's website.
Item 35 - Paragraph 130ZF(1)(b)
162. This item would replace paragraph 130ZF(1)(b) to accommodate the making of
service-deficient area declarations (Item 37 below refers) and the creation of an
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additional category D reception area in relation to the conditional access scheme for the
Western Australia TV3 licence area (Item 22 refers).
163. Subsection 130ZF(1) of the BSA sets out the circumstances in which the ACMA may
direct the scheme administrator for a registered conditional access scheme to issue a
reception certificate.
164. The amendments made by this item confer on the ACMA a power to issue a direction
to the scheme administrator in relation to the administrator's decision to not issue a
reception certificate in relation to a category D reception area in the Western
Australia TV3 licence area. As noted for Item 22 above, the scheme administrator
cannot issue a reception certificate to an applicant in a category D reception area until
the earlier of the designated digital service day, or the end of the simulcast period.
165. In addition, the amendments made by this item provide that the ACMA cannot issue a
direction to the scheme administrator in relation to a declared service-deficient area.
Accordingly, such declared areas are excluded from the scope of:
a. a category C reception area for the purpose of a conditional access scheme that
regulates access to services licensed under section 38C of the BSA in the
Northern Australia TV3, South Eastern Australia TV3, or Western Australia
TV3 licence areas; and
b. a category D reception area for the purpose of the conditional access scheme
that regulates access to services licensed under section 38C in the Western
Australia TV3 licence area.
Item 36 - At the end of subsection 130ZF(13)
166. Subsection 130ZF(13) provides that where persons are taken to have received reception
certificates under subsection 130ZF(11) or (12), those reception certificates are able to
be revoked in the same way as any other reception certificate that has been issued under
a conditional access scheme. Item 36 would amend subsection 130ZF(13) to make clear
that, as for any other reception certificate, the scheme administrator would only be
authorised to revoke a certificate taken to be issued under subsection 130ZF(11) or (12)
where a person is no longer eligible for the certificate (see Items 16 and 22 regarding
revocation of a reception certificate).
Item 37 - At the end of Part 9C
167. This item would insert new section 130ZH in the BSA. Proposed section 130ZH
requires the ACMA to declare, by legislative instrument, a particular area within a
licence area to be a declared service-deficient area. The ACMA must make a
declaration if satisfied that the number of applicable terrestrial digital commercial
television broadcasting services provided in an area is less than the number of
commercial television broadcasting services required to be provided by a section 38C
licensee under the licence conditions set out in Schedule 2 of the BSA.
168. Proposed subsection 130ZH(5) clarifies that for the purposes of determining whether
the number of services provided in the area is less than the number of services provided
under a commercial television licence allocated under section 38C, the local news
service provided by the 38C licensee is to be disregarded.
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169. Proposed subsection 130ZH(2) clarifies that the particular area must be wholly inside
or outside a local market area, which is necessary for the application of the timeframes
in subsection 130ZH(3) which govern when the ACMA makes a service-deficient area
declaration.
170. If the simulcast period for a television licence area has ended before these amendments
commence, the ACMA must not declare the area to be a service-deficient area earlier
than nine months after the day the simulcast period ended. If the simulcast period for a
television licence area is in force at the time these amendments commence, the ACMA
must not declare the area to be a service-deficient area earlier than three months after
the end of the simulcast period.
171. If the service-deficient area is within a digital-only local market area, the ACMA must
not declare the area to be service-deficient earlier than nine months after the local
market area becomes a digital-only local market area. If the proposed service deficient
area is within a local market area that has not yet become a digital-only local market
area when these amendments commence, the ACMA must not declare the area to be
service-deficient earlier than three months after the local market area becomes a
digital-only local market area.
172. Proposed subsection 130ZH(4) requires the ACMA to revoke the declaration of a
service-deficient area if the ACMA is not satisfied that the number of applicable
terrestrial digital commercial television broadcasting services provided in that area is
less than the number of commercial television broadcasting services provided under the
section 38C licence.
173. For example, if the ACMA makes a service-deficient area declaration, and the relevant
terrestrial commercial television broadcasting licensees subsequently roll out additional
digital services so that the number of services provided terrestrially are the same as
those required to be provided by the satellite service, the ACMA would then be
required to revoke the declaration of a service-deficient area.
174. Subsection 130ZB(15B) (Item 17 refers) will ensure that the revocation of a service-
deficient declaration will not affect the ability of a viewer who has accessed the satellite
service licensed under section 38C as a result of being in an area previously declared to
be service-deficient to continue to receive the service.
Item 38 - Paragraph 7(1)(ma) of Schedule 2
Item 39 - Paragraph 7(1)(mb) and (mc) of Schedule 2
Item 41 - Subclause 7(7) of Schedule 2
Item 45 - Subclause 6(7B) of Schedule 4
175. Presently, remote broadcasting licensees who are individually, or through a joint
venture company, jointly allocated an additional commercial television broadcasting
licence under section 38B of the BSA may give notice to the ACMA under
subclause 6(7B) of Schedule 4 to the BSA of their intention to use multi-channelling
transmission capacity. If made, a multi-channelling election allows the remote
broadcasters concerned to rationalise the amount of transmission capacity needed to
provide both the commercial television broadcasting service licensed under section 38B
33
and the licensee's related service(s) operating in that remote licence area. (The defined
terms of exempt licence, parent licence and exempt remote area service refer).
176. The notice of intention made under subclause 6(7B) of Schedule 4 to the BSA is known
as a multi-channelling election. Currently subclause 6(7B) requires a broadcaster to
make an election `at or about the time' the licence is allocated under section 38B.
177. In order to ensure all remote area broadcasters are able to use multi-channelling
transmission capacity, and thereby transmit three digital services using only two 7 MHz
channels of spectrum, Item 45 would amend subclause 6(7B) of Schedule 4 so that a
multi-channelling election may be made within 12 months of the later of the date a
section 38B licence is allocated or the commencement of this amendment.
178. Together with the amendments proposed in Items 3 to 6 of this Schedule, the
amendments proposed by Item 45 would assist in achieving equalisation in the number
of multi-channelled digital television services provided by broadcasters in Australia by
allowing broadcasters in remote licence areas to provide their digital television services
in standard definition only on two channels of spectrum. Those remote broadcasters
who did not make a multi-channelling election at or about the time a section 38B
licence was allocated may still be able to make an election as a result of the
amendments made by Item 45.
179. Items 38 and 41 would amend the licence conditions applying to remote area
broadcasters who make a multi-channelling election. Items 38 and 41 amend
subparagraph 7(1)(ma) and subclause 7(7) of Schedule 2 to the BSA respectively so
that where a multi-channelling election is made under subclause 6(7B) of Schedule 4 to
the BSA, the remote area broadcaster will be exempt from the licence condition in
paragraph 7(1)(ma) of Schedule 2 that requires the provision of a HDTV
multi-channelled commercial television broadcasting service during the simulcast
period.
180. As a result remote area broadcasters who make a multi-channelling election where
there is a simulcast period in force are in the same position as those broadcasters who
make a multi-channelling election in a non-remote licence area where there is a
simulcast period in force. The latter broadcasters are already exempt from the
requirement under the licence condition in paragraph 7(1)(ma).
181. Item 39 makes technical amendments to the licence conditions set out in
paragraphs7(1)(mb) and (mc) of Schedule 2 that are consequential to the insertion of
new subclause 7(4C) in Schedule 2 (Item 40 below refers), so that the obligation to
provide a HDTV multi-channelled commercial television broadcasting service is
subject to the new subclause 7(4C).
Item 40 - After subclause 7(4A) of Schedule 2
Item 42 - Paragraph 7(8)(a) of Schedule 2
182. Items 40 makes amendments to the licence conditions applying to commercial
television broadcasting licensees in respect of simulcasting obligations and the
obligation to provide a HDTV multi-channelled service during the simulcast period or
simulcast-equivalent period.
34
183. As the digital switchover program progresses there may be circumstances where
particular analog transmitters need to stop transmitting before the end of the simulcast
period in a licence area (eg, for technical or interference management reasons).
184. Currently clause 5F of Schedule 4 to the BSA permits analog transmissions in
particular areas (local market areas) to stop before the end of the simulcast period. If
the Minister specifies a local market area, analog transmissions will stop in that area on
the date specified by the Minister as the date that area is to become a digital-only local
market area. Any part of a licence area that is not determined to be a local market will
switch to digital-only transmission at the end of the simulcast period in accordance with
clause 6A of Schedule 4 to the BSA.
185. In the absence of the Minister making a digital-only local market area determination, a
commercial television broadcasting licensee would technically be in breach of its
licence condition in paragraph 7(1)(m) of Schedule 2 to the BSA if, before the end of
the simulcast period, the licensee ceased analog transmissions to a particular part of a
licence area while continuing to transmit their service in digital mode in the same part
of the licence area. A national broadcaster would similarly be in breach of its simulcast
obligations in relation to its coverage areas under clause 35 of Schedule 4 to the BSA.
186. When multiple analog transmitters coincidentally cover the same geographic area it can
be difficult to accurately specify a local market area for a digital-only local market area
determination in such a way as to facilitate the cessation of analog transmission from
one transmitter but not another.
187. Item 40 (together with related amendments to Item 44 and 49 below) would in part
amend the effect of a digital-only local market area determination to minimise the risk
of a disproportionate number of analog transmitters ceasing to operate in compliance
with the digital-only local market area determination.
188. Item 40 inserts a new subclause 7(4B) in Schedule 2 to the BSA. The new subclause
would excuse, for the purposes of determining compliance with the statutory licence
conditions in paragraphs 7(1)(k) and (m), analog transmissions in a digital-only local
market area if it occurs accidentally or as a necessary result of providing commercial
television broadcasting services outside the digital only local market area. (Item 42
makes a technical amendment to clause 7 of Schedule 2 to the BSA).
189. Item 40 also inserts a new subclause 7(4C) in Schedule 2 to the BSA. The new
subclause would provide that paragraphs 7(1)(ma), (mb) and (mc) of Schedule 2 (which
require that a commercial television broadcasting licensee provide a HDTV
multi-channelled commercial television broadcasting service) do not apply to a
commercial television broadcasting service provided by a licensee to the extent to
which the service provided in that area, has been declared to be an exempt digital
transmission area in relation to that licence under proposed clause 9A of Schedule 4 to
the BSA (Item 47 below refers).
35
Item 44 - Paragraph 6(3)(ga) of Schedule 4
Item 49 - Paragraph 19(3)(ga) of Schedule 4
Item 53 - Clause 35A of Schedule 4
Item 54 - At the end of clause 35A of Schedule 4
190. Item 44 makes amendments to the commercial television conversion scheme policy
objectives in paragraph 6(3)(ga) of Schedule 4 to the BSA. Currently
paragraph 6(3)(ga) sets an objective for the conversion scheme that no analog
transmissions of commercial television broadcasting services are to be made in an area
that is a digital-only local market area. The amended objective of the conversion
scheme is that no commercial television broadcasting services are to be transmitted in
analog mode using transmitters that are located in an area that is a digital-only local
market area. In other words, transmitters operating from a site in that part of the licence
area still subject to a simulcast period would not be required to cease analog
transmissions. The general intention is to confine the effect of a digital only local
market area determination to those transmissions that originate from a local market
area.
191. Items 49, 53 and 54 make corresponding amendments in relation to transmissions made
by the national television broadcasting services in a coverage area that is subject to the
Minister's digital-only local market area determination.
Item 43 - At the end of clause 7D of Schedule 2
192. This item would amend the licence condition that applies to the broadcast of local news
programs on satellite commercial television broadcasting services licensed under
section 38C of the BSA.
193. Clauses 7B and 7C of Schedule 2 to the BSA set out licence conditions that apply to the
holder of a licence issued under section 38C of the BSA. Clause 7B imposes a
condition requiring the licensee to broadcast a core/primary service, while clause 7C
imposes a condition requiring the licensee to broadcast particular HDTV and SDTV
multi-channelled services. Each of these licence conditions operate subject to the
declaration of a start date for the service, declared by the ACMA under clause 7H of
Schedule 2 to the BSA.
194. However, the licence condition requiring the broadcast of local news programs
(clause 7D of Schedule 2 to the BSA refers) is not subject to the declaration of the start
date. This, in effect, means that the licensee must provide local news programs from the
date the section 38C licence is allocated, instead of the declared start date for the
licence area. This effect is unintended.
195. Item 43 would amend the licence condition in clause 7D of Schedule 2 to the BSA so
that the local news programs are not required to be broadcast by a section 38C licensee
until the start date is declared by the ACMA under clause 7H (new subclause 7D(4)
refers).
196. This item is complemented by Items 7, 8, 9 and 10, which amend the licence conditions
for regional and remote commercial television broadcasting licensees in a similar way.
36
197. Transitional provisions related to this item are in Item 8 of Schedule 3 to this Bill.
Item 46 - Clause 6C of Schedule 4
198. This item would repeal clause 6C of Schedule 4 to the BSA.
199. Clause 6C sets out a policy objective for Part A of the commercial television
conversion scheme (which applies to non-remote licence areas) that is directed towards
the digital conversion of particular analog self-help retransmission sites by commercial
television broadcasting licensees.
200. When clause 6C was enacted in 2010, it was anticipated that commercial television
broadcasters would convert a number of existing analog self-help transmission sites to
digital, and that the commercial television broadcasters would be individually licensed
to transmit their commercial television broadcasting services in digital mode from the
converted sites.
201. Since clause 6C was enacted an alternative approach has been adopted by the
commercial television broadcasting industry whereby the commercial broadcasting
licensees are not proposing to individually hold the transmitter licences needed to
deliver digital television at those analog self-help sites that are to be converted. Instead,
the conversion process for particular analog self-help transmission sites is expected to
see the analog self-help re-transmission service being replaced by a digital re-
transmission service. A third party will then apply for a transmitter licence under
section 100 of the Radiocommunications Act to provide an unaltered re-transmission in
digital mode of programs provided by one or more of the commercial television
broadcasting services in that area.
202. In this context, the policy objective set out in clause 6C of Schedule 4 to the BSA, and
any amendments that would be made to the conversion scheme to achieve that policy
objective, are unlikely to be used in the way originally intended. The existing
provisions of the BSA and the Radiocommunications Act are sufficient to support the
alternative approach to converting some analog self-help re-transmission sites to digital.
203. Transitional provisions related to this item are in Items 2 and 6 of Schedule 3 to this
Bill.
Item 47- After clause 9 of Schedule 4
Item 52 - After clause 21 of Schedule 4
204. These items would insert respectively new clauses 9A and 21A into Schedule 4 to the
BSA. Clause 9A would allow a commercial television broadcasting licensee to apply to
the Minister to be exempt from requirements to comply with the commercial television
conversion scheme or an implementation plan to transmit in digital mode in a specified
area within a licence area. Clause 21A similarly would allow a national broadcaster to
apply to the Minister to exempt a specified area within a coverage area from the
requirement to transmit in digital mode under the national television conversion scheme
or an implementation plan, or the requirement to submit an implementation plan under
clause 20 of Schedule 4 to the BSA that relates to the specified area.
37
205. There are a number of transmitters licensed to national broadcasters and commercial
broadcasters that provide analog television services to populations of 500 people or
less. There are also a number of analog national broadcasting and commercial
broadcasting transmission facilities in locations where less than all national and
commercial television broadcasting services generally available in the licence area are
transmitted at that location.
206. The introduction of new free to air satellite national and commercial digital television
services (including commercial television broadcasting licences allocated under
section 38C of the BSA) may mean that digital conversion of these more marginal
broadcasting transmitters is no longer practical.
207. Proposed subclauses 9A(1) and 21A(1) provide that commercial television licensees
and national broadcasters are to be exempt in particular areas (to be known as the
`exempt digital transmission area') from requirements imposed by the applicable digital
conversion scheme or an implementation plan to start digital transmissions in that area.
208. Proposed subclauses 9A(2) and 21A(2) provide that the Minister may, on application
by the commercial television licensee or national broadcaster, make a determination to
exempt a specified area within a licence area or coverage area from the digital
conversion requirements.
209. Applications by the commercial television licensee or national broadcaster would be
dealt with on a case-by-case basis and, provided the criteria outlined below is met, it is
the Minister's discretion as to whether or not to grant a commercial or national
broadcaster an exemption from their digital conversion requirements.
210. Proposed subclauses 9A(3) and 21A(3) provide that before making a determination the
Minister must be satisfied that the applicant does not provide their television services in
digital mode in the proposed exempt digital transmission area, and that:
· fewer than 500 people reside in the specified area (paragraphs 9A(3)(b)(i) and
21A(3)(b)(i)); or
· the area is an underserviced area (paragraphs 9A(3)(b)(ii) and 21A(3)(b)(ii)) - an
underserviced area is defined in subclauses 9A(5)-(9) and 21A(5)-(9), noted
below.
211. In addition proposed paragraphs 9A(3)(c) and 21A(3)(c) require the Minister to be
satisfied that viewers in the proposed exempt digital transmission area have another
way through which they can, or will be able to, access digital television, such as access
in that area to national and commercial television services delivered by satellite.
212. In considering whether there are fewer than 500 people residing in a specified area,
proposed subsections 9A(4) and 21A(4) require that the Minister have regard to the
latest resident population statistics published by the Australian Statistician.
213. An area will be an underserviced area if the specified area does not have coverage of
one or more of the commercial television or national television services that are
generally provided in the licence area (or corresponding ABC or SBS coverage area) in
analog mode or digital mode.
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214. The concept of an analog underserviced area is intended to cater for the situation where
the applicant seeking the exemption is either the only broadcaster or one of a few
commercial and/or national television broadcasters operating in the area on their own
account (with the rest made up of analog re-transmission services, if at all).
215. For example, in some remote and regional transmission sites, the ABC is the only
free-to-air television service that is provided terrestrially to viewers in the local area.
Even if the ABC converted its service at these sites to digital, there would still be a
`deficit' of terrestrial digital television services available in the local area and viewers
would need to access the satellite services provided by a section 38C licensee in order
to access the digital television services of all national and commercial broadcasters. In
such a circumstance, the ABC may apply to the Minister for an exemption from its
obligation to convert its analog service to digital. The Minister may consider granting
an exemption if satisfied that viewers in the area concerned can, or will be able to,
access all commercial and national television services in another way (such as by
satellite).
216. The concept of a digital underserviced area allows the Minister to take account of
previous Ministerial grant(s) of digital transmission area exemption(s) to someone other
than the applicant broadcaster (that is, one of the other commercial or national
broadcasters operating in the area), or where the Minister refuses to approve a national
broadcaster implementation plan that covers all or part of the same area (clause 20 of
Schedule 4 to the BSA refers). Subject to the special rules that apply to digital
re-transmission services (noted below), if the Minister has made decisions that do not
require digital conversion, then this may result in a future `deficit' of terrestrial digital
television services.
217. For example, an area may not be provided with all terrestrial digital services where one
broadcaster has been previously granted an exemption by the Minister or where one of
the terrestrial television services was provided in analog by a re-transmission facility
which is not being converted to digital. In these situations, the Minister may consider
exempting a particular broadcaster from their conversion obligations so as to avoid
viewers in the area being required to purchase both terrestrial and satellite digital
reception equipment.
218. Special rules apply to the treatment of re-transmission services depending on whether
analog or digital television service coverage is being assessed. A re-transmission
service refers to a service that does no more than re-transmit the programs that are
either transmitted by a commercial television broadcasting service or transmitted by the
ABC or the SBS.
219. For assessing coverage of analog television services in an area, the presence of analog
re-transmission services will be disregarded (subclauses 9A(6) and 21A(6) refer).
220. Analog self-help re-transmission sites are not subject to the conversion schemes made
by the ACMA under Schedule 4 to the BSA. Therefore, there is no obligation to
upgrade these facilities to digital. If the Minister was to consider terrestrial television
services provided by an analog self-help re-transmission site and does not grant an
exemption to a broadcaster on this basis, then there is a risk that the analog self-help
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re-transmission site will not convert to digital, such that viewers may need to purchase
both terrestrial and satellite reception equipment to access all commercial and national
television broadcasting services in that area.
221. For assessing whether a specified area has `coverage' of digital television services,
digital re-transmission services will be counted (subclauses-9A(7)-(9) and 21A(7)-(9)
refer)).
222. The inclusion of digital re-transmission services in the coverage assessment is
consistent with the government's policy of recognising that, in some areas, existing
analog re-transmission services will be converted to digital.
223. An area that has digital re-transmission service providers is not underserviced due to
the mere presence of digital re-transmission services, unless the area otherwise has a
digital `deficit' of the commercial and national broadcasting television services. For
example, an area where there are no SBS television programs provided in digital mode
at all would be underserviced, but an area that has, or would have, all commercial or
national broadcasting services available in digital mode through a combination of
broadcaster delivered services and re-transmission services is not underserviced.
224. The intention in relation to the treatment of digital mode services is to enable the
Minister to take account of those re-transmission services that are converted to digital
on a voluntary basis by broadcasters, or by a person representing the broadcasters.
Where such digital conversions of re-transmission services occurs (in relation to one or
more commercial or national television services other than the applicant's service), the
Minister would consider the general state of play for digital television in an area, before
deciding whether to exempt a particular broadcaster from their outstanding digital
conversion obligation. If other services in the area have converted or are converting
their terrestrial transmitters to digital, the Minister may be disinclined to exempt a
particular broadcaster from their conversion obligations so as to avoid viewers in the
area being required to purchase both terrestrial and satellite digital reception equipment.
Item 50 - Subclause 19(7CA) of Schedule 4
225. This item would repeal subclause 19(7CA) of Schedule 4 to the BSA. The inclusion of
subclause 19(7CA) is considered unnecessary because national television broadcasting
services are being delivered by satellite currently, in both analog and digital modes.
Item 51 - After paragraph 20(4)(c) of Schedule 4
226. Under clause 20 of Schedule 4 to the BSA, the Minister has the power to approve or
refuse to approve an implementation plan submitted by a national broadcaster for the
digital conversion of a particular area or areas, having regard to certain matters that are
specified in sub-clause 20(4) and any such other matters as the Minister considers
relevant.
227. This item would insert additional specific criteria to which the Minister must have
regard to when considering whether to approve an implementation plan. The Minister
will be required to have regard to whether there are other means by which people in the
coverage area to which the implementation plan relates can view an adequate and
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comprehensive range of commercial television broadcasting services in digital mode
and national television broadcasting services in digital mode, which could include by
means of a satellite. The Minister will also be required to have regard to the extent to
which commercial television broadcasting services and national television broadcasting
services are being, or will be, transmitted in digital mode in the coverage area to which
the implementation plan relates.
Item 48- After paragraph 8(10)(a) of Schedule 4
228. Subclause 8(10) of Schedule 4 to the BSA provides that Part B of the commercial
television scheme (which applies to remote licence areas) may require the holder of a
commercial television broadcasting licence to surrender one or more transmitter
licences authorising analog transmission or authorising digital transmission if the
holder does not comply with various requirements under the scheme or the BSA that
apply to licensees in remote licence areas.
229. Item 48 proposes an amendment to subclause 8(10) to include a reference to
paragraph 7(1)(ma) of Schedule 2, so that the commercial television conversion scheme
may make provision for a licensee in a remote licence area to surrender a transmitter
licence if the holder does not comply with the requirement to provide a HDTV
multi-channelled service during the simulcast period for the licence area.
Item 55 - Paragraph 38(4)(c) of Schedule 4
Item 56 - Paragraph 38(4)(c) of Schedule 4
Item 57 - Paragraph 38(4)(d) of Schedule 4
Item 58 - Paragraph 38(4)(e) of Schedule 4
Item 59 - Subclause 38(4A) of Schedule 4
230. Clause 38 of Schedule 4 to the BSA sets out the captioning requirements that apply to
commercial television broadcasting licensees and national broadcasters.
231. Items 55 to 58 would make minor amendments to paragraphs 38(4)(c), (d) and (e) to
clarify that the references to SDTV multi-channelled commercial television
broadcasting services or HDTV multi-channelled commercial television broadcasting
services are to services other than the core/primary commercial television broadcasting
service. This means that before the final digital television switch-over day the
captioning requirements apply to the SDTV service that is the licensee's core/primary
commercial television service. The clarification is needed because most broadcasters
currently broadcast multiple television services in standard definition digital mode, only
one of which is the core/primary service. Subclause 38(4)(c) would apply to all
additional SDTV and HDTV services other than the core/primary service.
232. Item 59 repeals clause 38(4A) of Schedule 4 because it is superfluous in the wake of
amendments enacted by the Broadcasting Legislation Amendment (Digital Television)
Act 2010 that substituted references to the core commercial television broadcasting
service with references to the core/primary commercial television broadcasting service.
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Item 60 - Subclause 41G(1) of Schedule 4
233. This item would amend clause 41G of Schedule 4 to the BSA, which deals with the
ACMA's powers to declare primary commercial television broadcasting services.
234. Clause 41G requires the ACMA to declare a particular SDTV multi-channelled
commercial television broadcasting service to be the licensee's primary commercial
television broadcasting service. Subclause 41G(1) requires the ACMA to make a
declaration that applies during the remainder of the simulcast period for each
commercial television broadcasting licence that is allocated on or after 1 January 2009.
235. This item makes a technical amendment to subclause 41G(1) of Schedule 4 to the BSA
to broaden its application. As currently drafted, subclause 41G(1) unintentionally omits
licences to which subsection 41B(2D) of the BSA applies (eligible section 38B
licences). Item 60 rectifies this omission.
236. In addition this item amends subclause 41G(1) to include a reference to the new
subsection 41B(2DB) consequential to the amendment proposed by Item 5 (noted
above). By adding such a reference, the ACMA would be required to declare a primary
commercial television broadcasting service for remote area licences that are allocated
on or after 1 January 2009.
237. Transitional provisions related to this item are in Item 10 of Schedule 3 to this Bill.
Copyright Act 1968
238. Item 61 would amend the Copyright Act.
Item 61 - Subsection 135ZZJA(2)
239. Part VD of the Copyright Act establishes a statutory licensing regime for copyright that
is used by a section 38C licensee when delivering the licensed television broadcasting
service.
240. Part VD was intended to establish a copyright licensing scheme purely for those
services required to be provided by a section 38C licensee under its broadcasting
licence.
241. If, besides those licensed services, the holder of the 38C licence were to re-transmit
programs provided by another broadcasting service (within the meaning of section 212
of the BSA), the intention is for Part VC of the Copyright Act to apply to such re-
transmission. For example, it is possible that 38C licensees will in future re-transmit an
open narrowcasting service that delivers programs supplied by National Indigenous
Television (NITV) (which is covered by paragraph 212(1)(c) of the BSA), or some
other broadcasting service. It is intended that the re-transmission of NITV services in
these circumstances will be covered by Part VC of the Copyright Act.
242. However, subsection 135ZZJA(2) in its original form may have the unintended effect
of excluding any programs included in a service that may be re-transmitted by a
section 38C licensee from the statutory copyright licensing scheme contained in
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Part VC of the Copyright Act. Part VD of the Copyright Act, in turn, would not appear
to apply to such re-transmissions of television programs because they are not required
to be provided by a section 38C licensee (a satellite BSA licensee within the meaning of
the Copyright Act).
243. This item amends subsection 135ZZJA(2) to clarify that Part VC of the Copyright Act
applies to all re-transmissions of television programs by a section 38C licensee, but not
to re-broadcasts that a satellite BSA licensee is required to make in accordance with its
broadcasting licence conditions (for which Part VD would apply).
Radiocommunications Act 1992
244. Items 62 and 63 would amend the Radiocommunications Act.
Item 62 - Subsection 100(5)
Item 63 - Sections 102AE and 102AF
245. Item 63 would repeal sections 102AE and 102AF of the Radiocommunications Act
consequential to the amendment proposed by Item 46.
246. Sections 102AE and 102AF currently require the ACMA to vary transmitter licences
held respectively by commercial television broadcasters and self-help providers where
a commercial television broadcaster had notified the ACMA of its intention to convert
particular analog self-help transmission facilities to digital (consistent with the policy
objective set out in clause 6C of Schedule 4 to the BSA). Under section 102AE the
transmitter licence held by a commercial television broadcaster would be varied to
authorise the operation of additional transmitters at or near the former analog self-help
transmission sites. Under section 102AF, transmitter licences held by the self-help
provider would be varied or cancelled (as applicable) to remove the authorisation to
operate an analog transmitter where a commercial television broadcaster has agreed to
convert to digital.
247. Item 62 makes a technical amendment to subsection 100(5) of the
Radiocommunications Act consequential to the repeal of section 102AF by Item 63.
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Schedule 3 - Transitional provisions
248. This Schedule contains transitional provisions.
249. Part 1 of the Schedule contains transitional provisions for the designation of licence
areas. Part 2 of the Schedule contains transitional provisions for the commercial
television and national television conversion schemes, and digital channel plans made
under those schemes, which were in force before the commencement of the
amendments contained in Schedule 1 to this Bill. Part 3 of this Schedule deals with
other transitional matters.
Item 1 - Designation of licence areas
250. This item preserves the continuity of licence area designations made by the ACMA
under section 29 of the BSA. Such designations identify the licence area (being
specified in a licence area plan) to be served by particular commercial broadcasting
licensees and community broadcasting licensees. By virtue of this item, extant
designations made under section 29 of the BSA in relation to a commercial television
broadcasting licence or a community television broadcasting licence will continue to
apply by reference to a television licence area plan, to be made by the ACMA under
new subsection 26(1B).
251. For the avoidance of doubt, sub-item 1(2) provides that the preservation of the licence
area designation does not limit the ACMA's power under subsection 29(2) of the BSA
to vary the designation in conjunction with a variation to the licence area plan (defined
to include both the licence area plan made under subsection 26(1) of the BSA, and the
television licence area plan made under new subsection 26(1B) of the BSA).
Item 2 - Commercial television conversion scheme
Item 3 - National television conversion scheme
252. These items provide that amendments made by this Act to the policy objectives for
each conversion scheme in Schedule 4 to the BSA regarding:
· the transition to television licence area plans (see Items 19, 21, 25 and 26 of
Schedule 1 to this Bill); and
· digital conversion of particular analog self-help retransmission sites (see
Item 46 of Schedule 2 to this Bill),
do not affect the continuity of the commercial television conversion scheme and
national television conversion scheme in force immediately before the commencement
of the amended laws. This continuity of the conversion schemes is subject to one
exception, as set out in sub-items 2(4) and 3(4).
253. Sub-items 2(4) and 3(4) provide that the rules preserving the continuity of the
conversion schemes do not apply with respect to subclauses 7AA(2) and 22AA(2) of
Schedule 4 to the BSA (these new subclauses would be inserted by Items 23 and 27 in
Schedule 1 to this Bill). Those new subclauses provide that, to the extent that the
conversion schemes make channel allotments for a particular licence area, the
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conversion schemes cease to have effect when the television licence area plan comes
into force. The continuity of the conversion scheme is not maintained in that respect.
254. These items also provide that the Parliament intends the ACMA to take action within
90 days after the commencement of this Schedule to ensure that the conversion
schemes comply with Schedule 4 to the BSA as amended by Schedules 1 and 2 to this
Bill.
Item 4 - Digital channel plan made under the commercial television conversion scheme
Item 5 - Digital channel plan made under the national television conversion scheme
255. These items provide that amendments made by this Act to Schedule 4 to the BSA do
not affect the continuity of the digital channel plans made under the commercial
television conversion scheme and the national television conversion scheme.
256. Sub-items 4(3) and 5(3) provide that the rules preserving the continuity of the digital
channel plans do not apply with respect to subclauses 7AA(1) and 22AA(1) of
Schedule 4 to the BSA (see Items 23 and 27 in Schedule 1 to this Bill). These new
subclauses provide that channel allotments made by the digital channel plans cease to
have effect when the television licence area plan comes into force (to the extent to
which it relates to a licence area covered by a television licence area plan). The
continuity of the digital channel plan is not maintained in that respect.
Item 6 - Variation of commercial television conversion scheme
Item 7 - Variation of national television conversion scheme
257. These items excuse the ACMA from undertaking consultation in accordance with the
commercial television conversion scheme and the national television conversion
scheme in relation to variations to a conversion scheme that deal with transitional or
consequential matters connected to the amendments made by this Act. Such variations
to the conversion scheme must be made within 90 days after the commencement of this
Schedule.
258. The ACMA must not make a variation to the commercial or national television
conversion schemes unless a copy of the proposed variation is available on the ACMA
website for at least 10 business days.
259. In the case of the national television conversion scheme, Item 7 also provides that a
variation to the conversion scheme that deals with transitional or consequential matters
connected to the amendments made by this Schedule does not require the approval of
the Minister under clause 32 of Schedule 4 to the BSA.
Item 8 - Transitional - pre-commencement contraventions of licence conditions
260. This item relates to Items 7, 8, 9, 10 and 43 in Schedule 2 to this Bill.
261. Subject to one exception, this item will ensure a broadcaster who contravened a
particular licence condition (specified in sub-item 8(1)) between 30 June 2010 and the
commencement date for this item will be deemed not to have breached the condition.
The exception is that the broadcaster's conduct between 30 June 2010 and the
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commencement date for this item must not have contravened the licence condition as
amended by Items 7, 8, 9, 10 and 43 in Schedule 2 to this Bill. (This item will
commence the day after the Act receives the Royal Assent).
Item 9 - Transitional - conditional access schemes
262. This item relates to Items 16 and 17 in Schedule 2 to this Bill.
263. Sub-item 9(2) would preserve the continuity of a conditional access scheme that was
registered before the commencement of this item notwithstanding the amendments
made to section 130ZB of the BSA by Items 16 and 17 in Schedule 2 to this Bill. (Items
16 and 17 would amend the statutory policy objectives for a conditional access scheme.
Consequentially a registered conditional access scheme will no longer meet the
statutory policy objectives.)
264. Sub-item 9(3) requires the ACMA to, within 30 days after the commencement of this
item, request industry to develop a replacement conditional access scheme that
complies with the amended policy objectives. Sub-item 9(4) deems the ACMA to be
satisfied that the conditional access scheme (where one is registered before the
commencement of this item) is not meeting one or more of the objectives in
section 130ZB of the BSA (that is, the policy objectives modified by amendments
contained in Schedule 2 to this Bill).
Item 10 - Transitional - declarations about primary commercial television broadcasting
services
265. Item 10 relates to Item 60 in Schedule 2 to this Bill.
266. This item will modify the application of paragraph 41G(1A)(a) of Schedule 4 to the
BSA to a declaration that is within the scope of sub-item 10(1).
267. Paragraph 41G(1A)(a) of Schedule 4 to the BSA requires the ACMA to ensure that a
declaration about the primary commercial television broadcasting service comes into
force as soon as practicable after the later of two dates (being the time the licensee
starts to provide a SDTV multi-channelled service, or 30 June 2010).
268. Since the amendments proposed by Item 60 of Schedule 2 to this Bill would create two
additional situations (relating to eligible section 38B licences and remote area licences)
in which the ACMA must make a declaration about primary commercial television
broadcasting services, sub-item 10(2) will require the ACMA to ensure that such a
declaration comes into force as soon as practicable after the latter of two dates:
· the date the licensee starts to provide a SDTV multi-channelled service; or
· the commencement date for this item (the day after the Act receives the Royal
Assent).
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