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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
BROADCASTING LEGISLATION AMENDMENT
(DIGITAL TELEVISION) BILL 2006
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Sheet Numbers QS385 and PZ244)
(Circulated by authority of Senator the Hon. Helen Coonan,
Minister for Communications, Information Technology and the Arts)
GOVERNMENT AMENDMENTS TO THE
BROADCASTING SERVICES AMENDMENT
(DIGITAL TELEVISION) BILL 2006
OUTLINE
The Broadcasting Legislation Amendment (Digital Television) Bill 2006 (the Bill)
contains provisions which implement the Government's decision to reform several
aspects of the digital television and commercial television broadcasting regime.
The Bill as introduced would amend the Broadcasting Services Act 1992 (BSA) and
the Radiocommunications Act 1992 (RA) to:
· remove the current genre restrictions on multi-channelling by national
broadcasters to permit national broadcasters to provide a broader range of digital
services;
· remove, from 1 January 2007, the requirement that the high definition television
(HDTV) version of the digital television service must be a simulcast of their
standard definition television (SDTV) and/or analogue service (in effect allowing
one HDTV multi-channel);
· allow, from 1 January 2009, commercial free-to-air (FTA) television broadcasters
to provide a single multi-channel in SDTV digital mode in addition to their SDTV
simulcast of the analogue service;
· remove the regulatory restrictions on the number of multi-channels that may be
provided by FTA commercial television broadcasting services at the end of the
simulcast period;
· remove the existing HDTV quota at the end of the simulcast period;
· ensure that events or parts of events on the anti-siphoning list cannot be shown on
a SDTV or HDTV multi-channel without first being shown, or being shown
simultaneously, on the main (or simulcast) service;
· ensure that the acquisition of rights to an event on the anti-siphoning list by a
commercial television service operating outside the broadcasting services bands of
spectrum (BSB) does not satisfy the requirements for a commercial or national
broadcaster acquiring the rights for the purposes of the anti-siphoning scheme;
· provide for a review of the anti-siphoning scheme prior to 31 December 2009;
· provide that the usual viewer protections will apply in relation to the regulation of
content on multichannels, however other content obligations such as Australian
content standards will not apply initially so as to assist with the development of
these channels. There will be a review of the regulation of multichannels before
analogue switchover.
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· modify the power to allocate new commercial television licences in the BSB such
that the ACMA cannot exercise this power unless a decision has been taken by the
Minister for Communications, Information Technology and the Arts (the Minister)
that such a licence should be allocated, with the Minister's decision being
informed by a review;
· provide a power to the Minister to veto an application made to the ACMA for a
new commercial television broadcasting licence outside the BSB (under section
40 of the BSA) on the basis that the allocation of the licence would be likely to be
contrary to the public interest; and
· provide that certain standard licence conditions and program standards for
commercial television broadcasting licences do not apply to commercial television
services operating outside the BSB, and that certain tailored conditions and
standards apply to these licences.
PROPOSED GOVERNMENT AMENDMENTS
The Government proposes a number of amendments to the Bill. The amendments are
in two sheets - QS385 and PZ244.
Amendments on sheet QS385 - New digital services on unallocated broadcasting
spectrum
One component of the Government's reform of the digital television and commercial
television broadcasting regime relates to decisions to allocate spectrum to provide
new digital services. The amendments on sheet QS385 give effect to that component
of the reform.
The amendments on sheet QS385 will amend the Broadcasting Services Act 1992
(BSA) and the Radiocommunications Act 1992 (the Radcomms Act) to:
· Provide for the allocation of two types of datacasting transmitter licences, a
channel A datacasting transmitter licence and a channel B datacasting transmitter
licence.
· In relation to the channel A licences, provide that:
- Licensees may only provide datacasting, narrowcasting and community
broadcasting to domestic digital television receivers;
- Commercial television broadcasting licensees and national broadcasters may
not control the datacasting transmitter licences;
- The price-based allocation system for allocation of channel A licences
designed by the Australian Communications and Media Authority (ACMA)
must include preconditions for participation in the allocation and the Minister
may direct the ACMA in regard to these pre-conditions; and
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- The ACMA may impose licence conditions, including in relation to rollout
obligations on channel A licences, with the Minister to have the power to
direct the ACMA about imposition of such conditions.
· In relation to the channel B licences, provide that:
- Licensees may provide a datacasting services under a BSA datacasting
licence, another licence allocated by ACMA under the BSA authorising
provision of that service, or a service provided in accordance with a class
licence under the BSA. However, licensees cannot provide commercial
broadcasting services, subscription television services to domestic digital
television receivers, services provided by commercial television broadcasting
licenses or national broadcasters to domestic digital television receivers,
retransmission of an existing commercial television broadcasting or national
broadcasting service to domestic digital television receivers;
- Commercial television broadcasting licensees and national broadcasters
cannot control the datacasting transmitter licence if it is used to provide
services to domestic digital television receivers; and
- Licensees must commence services within 18 months or such longer period
allowed by the ACMA.
· Provide that both channel A and channel B datacasting services must operate in
digital mode.
The amendments also:
· Provide the ACMA with the power to determine, through legal instrument,
technical standards relating to the transmission of digital broadcasting services in
the broadcasting services bands of spectrum, datacasting services and receivers
for use in reception of digital TV services;
· Repeal a range of specific standards-making powers; and
· Provide the ACMA with the power to register voluntary industry codes, and
require industry to develop and register with the ACMA codes of practice
dealing with a range of digital television and datacasting issues, with a power to
determine standards where such codes are not developed or not developed to the
satisfaction of the ACMA.
Amendments on sheet PZ244
The amendments on sheet PZ244 deal with various topics.
Anti-siphoning (Amendments (1) and (3))
Amendments (1) and (3) ensure that the multi-channelling restrictions for events on
the anti-siphoning list operate even if the event has been automatically de-listed under
the BSA.
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Simulcast-equivalent period (Amendments (4)-(6), (11), (12), (18), (21)-(25), (27),
(29)-(32), (40)-(59))
Amendments (4) and (18) extend the existing concept of a "simulcast-equivalent
period" in Item 48 of Schedule 2 to the Bill in order to capture non-remote licence
areas and coverage areas (in addition to remote licence areas and coverage areas) that
do not have a simulcast period.
The extension of the concept of a "simulcast-equivalent period" and other relevant
amendments will ensure that the following obligations on commercial television
broadcasting licensees and national broadcasters will apply effectively:
· HDTV quotas (Amendments (21) and (22)); and
· captioning obligations (Amendments (23)-(25), (27)).
Amendments (11) and (12) ensure that the exclusion of commercial television multi-
channels from Australian content and children's programming standards applies
during the simulcast period or simulcast-equivalent period (as the case may be).
Limitations on the broadcast of anti-siphoning events on multi-channels during the
simulcast period will also be extended to the simulcast-equivalent period
(Amendments (5), (6), (29)-(32) and (40)-(59)).
Licence area plans (Amendments (2), (8) and (37))
Amendments (2), (8) and (37) amend the BSA to provide that for commercial
television broadcasting licences in force before 1 January 2007 and for national
broadcasters, SDTV and HDTV multi-channels do not need to be included in licence
area plans (LAPs) during the simulcast period or simulcast-equivalent period. It is
considered unnecessary to include SDTV and HDTV multi-channels in LAPs because
the radiofrequency spectrum that will be used by incumbent broadcasters to provide
multi-channels has already been allocated and planned by the ACMA.
After the end of the simulcast period or simulcast-equivalent period (as the case may
be), all services would need to be planned, including multi-channels.
For new commercial television broadcasting licences allocated after 1 January 2007,
the services would need to be planned, including multi-channels.
Multi-channelling in under-served markets (Amendments (9), (13)-(17), (19), (20),
(33), (34), (38), (39), (60), (61))
The amendments in relation to licences issued under sections 38A and 38B will
ensure that commercial television broadcasting licences in under-served markets are
permitted to provide unlimited multi-channelling from the end of the simulcast
period. It is intended that each licence (the parent licence(s) and the additional
licence) would be able to be used to provide multi-channelling.
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Similarly, it is proposed that commercial television broadcasting licences in under-
served markets would be permitted to provide an additional SDTV multi-channel
from 1 January 2009.
Where a section 38A or 38B licensee does not have sufficient spectrum capacity to
provide the multi-channels the licensee is authorised to provide under the licence, the
licensee will be permitted to apply to the ACMA for an additional transmitter licence
to provide additional spectrum capacity for multi-channelling (Amendments (60) and
(61)). The intention is that section 38A and 38B licensees will be treated, as far as
possible, in a manner consistent with other commercial television broadcasting
licensees, and that audiences in under-served markets should be able to receive a
comparable range of services to those available in other regional and metropolitan
licence areas.
Section 38A and 38B licensees will also be able to revoke an election to multi-
channel the additional service with the parent service, with the effect that the licensee
will be obligated to comply with the HDTV quota obligations (Amendments (19),
(20), (33) and (34)).
Captioning (Amendments (26) and (28))
Amendments (26) and (28) clarify that broadcasters must caption a program on a
multi-channel if that program has previously been broadcast on the main channel with
captions. Broadcasters are not otherwise required by the Bill to caption multi-channel
programming.
Commercial television broadcasting licences under section 40 (Amendment (10))
A commercial television broadcasting licence issued under section 40 of the BSA
authorises the licensee to provide a single service using spectrum outside the
broadcasting services bands (BSBs). Amendment (10) provides that a section 40 TV
licence will authorise the provision of a digital service only. This measure is
consistent with the Government's policy of facilitating the switchover of commercial
broadcasters from analogue television signals to digital mode.
Duration of transmitter licences (Amendment (35) and (61))
Amendment (35) clarifies the duration of transmitter licences issued under sections
102 and 102A of the RA. Essentially, the transmitter licence remains in force while
the related licence under the BSA is in force.
Amendment (61) makes similar provision for the duration of transmitter licences
issued to licensees in under-served markets to facilitate multi-channelling.
Variation of instruments (Amendments (7) and (36))
As a result of the changes to be made to the BSA by the measures in the Bill (as
amended), the ACMA will need to amend certain legislative instruments to reflect the
changes to the regulatory regime.
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Amendments (7) and (36) provide that where the ACMA varies the national television
conversion scheme, the commercial television conversion scheme or program
standards within 30 days of the commencement of the relevant provisions of the Bill,
the ACMA will not need to consult widely before making the variation.
FINANCIAL IMPACT
The amendments are expected to have no significant impact on Commonwealth
expenditure. The allocation of datacasting transmitter licences is likely to result in
receipt of revenue from price-based allocation of these licences. However, at this
stage it is not possible to predict with any accuracy the quantum of revenue likely to
be received.
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NOTES ON AMENDMENTS ON SHEET QS385
The amendments on sheet QS385 amend Schedule 2 to the Bill and insert new
Schedule 2A into the Bill.
Amendment (1)
Amendment (1) provides that new Schedule 2A (inserted into the Bill by Amendment
(9)) will commence by proclamation within the period of six months from the day on
which the Act receives Royal Assent, or on the first day after the end of the six month
period.
Schedule 2A relates to technical standards for transmission of broadcasting services,
datacasting services and receivers for use in reception of digital television services,
and industry codes and standards for digital television and reception equipment.
Commencement by proclamation is necessary to allow time for the ACMA to make
standards about matters that are currently the subject of regulations made under
provisions to be repealed by Amendment (9).
Amendments to Schedule 2 to the Bill
Amendments (2) and (3)
Amendments (2) and (3) insert definitions into section 6 of the BSA which are used in
Amendment (4).
Amendment (4)
Amendment (4) inserts new section 51A into the BSA. This new section excludes
channel B datacasting transmitter licences from the operation of the provisions in Part
5 of the BSA (which deals with control of commercial broadcasting licences and
datacasting transmitter licences), except in cases where the transmitter is used to
deliver a service to domestic digital television receivers.
The Government intention is that channel B datacasting transmitter licences that are
used to deliver services other than services capable of being received by domestic
digital television receivers will be excluded from the operation of Part 5 of the BSA.
The Government considers that where the new services to be provided on channel B
transmitter licences are not delivered to normal domestic digital television receivers,
it is not necessary to exclude existing free to air television broadcasters from
controlling the supply of such services.
The existing legislated prohibition in the BSA on commercial television broadcasters
controlling a datacasting transmitter licence will continue to apply in respect of
channel A datacasting transmitter licences, because services provided using a channel
A datacasting transmitter licence are intended to be provided to the widest possible
digital television audience and must be provided to domestic digital reception
equipment.
Amendment (5)
Amendment (5) inserts new subsections 212(2B) and 212(2C) into the BSA.
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New subsection 212(2B) allows an action, suit or proceeding to be taken against a
person in relation to a breach of any of the conditions in the Radcomms Act relating
to the transmission by a datacasting transmitter licensee of a BSA exempt re-
transmission service. This amendment is necessary to enable the enforcement of the
provisions in the Radcomms Act relating to retransmission using datacasting
transmitter licences.
New subsection 212(2C) provides the Minister with a power to direct the ACMA in
relation to the exercise of the power conferred on the ACMA by section 212(1)(b)(ii)
of the BSA. This amendment enables the Minister to direct ACMA in relation to
permitting out-of-area retransmission.
These provisions might be used, for example to permit out-of-area retransmission of
services where the datacasting transmitter licensee had limited technical options other
than to transmit by a single frequency network which encompassed areas outside the
licence area in question.
Amendment (6)
Amendment (6) inserts new subclause 41(3) into Part 6 of Schedule 6 of the BSA.
New subclause 41(3) excludes a channel B datacasting transmitter licence from the
control provisions in subclauses 41(1) and (2) of Part 6, Schedule 6 of the BSA,
unless the relevant transmitter is operated for transmitting a datacasting service that is
capable of being received by a domestic digital television receiver.
This provision is intended to give effect to the Government policy that the prohibition
on national broadcasters controlling datacasting transmitter licences in relation to
channel B licences be removed, in cases where the service is not capable of being
received by a domestic digital television receiver, for example, where the service can
be received only by certain mobile television services. The Government considers
that where the new services to be provided on channel B licences are not delivered to
normal domestic digital television receivers, it is not necessary or desirable to exclude
existing free to air broadcasters from controlling the supply of such services.
The existing legislated prohibition in the BSA on national broadcasters controlling a
datacasting transmitter licence will continue to apply in respect of channel A licences,
because services provided using a channel A datacasting transmitter licence must be
provided to domestic digital reception equipment.
Amendment (7)
Amendment (7) inserts a series of definitions into section 5 of the Radcomms Act
which are used in Amendment (8).
These include a definition of `domestic digital television receiver'. This definition is
intended to include television receivers such as integrated digital television sets and
set top boxes that are normally located in the home or fixed premises, rather than
mobile service reception equipment. In this definition, the reference to a `hand-held
device' is intended to mean a device that is primarily designed to be hand-held during
use.
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Amendment (7) also inserts new sections 98A and 98B into the Radcomms Act.
Section 98 of the Radcomms Act enables the ACMA to determine the types of
transmitter licences that can be allocated. The new provisions enable the ACMA to
declare that certain datacaster transmitter are channel A datacasting transmitter
licences and certain other datacasting transmitter licences are channel B datacasting
transmitter licences.
These new provisions are necessary to enable particular requirements to be attached to
channel A datacasting transmitter licences and other requirements to be attached to
channel B datacasting transmitter licences.
Amendment (8)
Amendment (8) inserts new subsections 106(5A) and 106(9A) into the Radcomms
Act and makes consequential amendments to subsections 106(7), 106(10), 106(11).
New subsection 106(5A) requires the ACMA to include specified requirements in a
determination regarding a price based allocation system for channel A datacasting
transmitter licences. New subsection (9A) provides the Minister with a power to
direct the ACMA in relation to the exercise of the power conferred by paragraph
subsection 106(5A).
These provisions are necessary to give effect to the Government policy that the price-
based allocation process for channel A datacasting transmitter licences be subject to
the pre-conditions, such as the applicant needing to demonstrate the financial capacity
and willingness to roll-out and maintain new digital services on a nation-wide basis.
Amendment (8) also amends paragraph 109A(1)(g) of the Radcomms Act and inserts
new paragraph 109A(1)(ga) into the Radcomms Act. The amendment to paragraph
109A(1)(g) excludes channel A and channel B datacasting transmitter licences from
the commencement conditions imposed on other datacasting transmitter licences.
The former paragraph 109A(1)(ga) imposed requirement relating to continuation of
service before 2007.
New paragraph 109A(1)(ga) imposes on channel B datacasting transmitter licences a
condition that services delivered using such licences must commence within 18
months after the allocation of the licence or as notified in writing by the ACMA.
The Government's intention is that commencement and roll-out conditions for
channel A datacasting transmitter licences could be imposed by the ACMA by licence
condition pursuant to paragraph 109A(1)(k) of the Radcomms Act. New subsection
109A(6) provides the Minister with a power to direct the ACMA in relation to the
exercise of the power conferred by paragraph 109A(1)(k), to specify conditions in a
channel A datacasting transmitter licence.
Amendment (8) repeals paragraph 109A(1)(h) of the BSA which provided that, prior
to 1 January 2007, the services provided using datacasting transmitter licences were
restricted to datacasting services provided under a datacasting content licence under
Schedule 6 to the BSA.
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The provisions relating to the range of services which can be provided on datacasting
transmitter licences from 1 January 2007 is retained in paragraph 109A(1)(i). New
provisions are added to this provision and amendments made to paragraph 109A(1) to
specify the types of services that can be provided using datacasting licences on or
after 1 January 2007 in relation to channel A and channel B datacasting transmitter
licences. These requirements are imposed as licence conditions.
For example, new paragraph 109A(1)(i)(iii) provides that a datacasting transmitter
licence can be used to deliver a BSA exempt re-transmission service. This means that
datacasting transmitter licences in general can be used to re-transmit services which
under section 212 of the BSA are exempt from the regulatory regime under the BSA.
This provision makes it clear that datacasting transmitter licences can retransmit
certain free to air services in prescribed circumstances.
New paragraph 109A(1)(ia) specifies the types of services that can be provided on
channel A datacasting transmitter licences and new subparagraphs 109A(1)(i)(ib)-(ie)
specify the types of services that can be provided on channel B datacasting transmitter
licences.
New paragraphs 109A(1)(ib)-(ie) give effect to the Government's intention that
channel B datacasting transmitter licences be used to provide a wider variety of
services, including both free-to-air and subscription mobile services, but that:
· commercial and national television broadcasters should not exercise a controlling
influence in the provision of in-home services using channel B datacasting
transmitter licences; and
· channel B datacasting transmitter licenses cannot be used for commercial free to
air broadcasting to in-home receivers.
New paragraph 109A(1)(ia) provides that it is a condition of a channel A datacasting
transmitter licensee that such a transmitter can only be used to transmit a datacasting
service that is capable of being received by a domestic digital television receiver,
where that datacasting service is provided under, and in accordance with the
conditions of a BSA datacasting licence, is an open narrowcasting television service
or is a community television broadcasting service. This gives effect to the
Government's intention that channel A datacasting transmitter licences be used to
provide only certain free-to-air services to domestic digital television receivers.
Channel A datacasting transmitter licences cannot be used to deliver new commercial
television or radio broadcasting services, subscription television or radio broadcasting
services, or retransmitted commercial or national television or radio broadcasting
services.
New paragraph 109A(1)(ib) provides that it is a condition of a channel B datacasting
transmitter licence that such a transmitter cannot be used to transmit a commercial
broadcasting service or a subscription television broadcasting service that is capable
of being received by a domestic television receiver.
New paragraph 109A(1)(ic) provides that a channel B datacasting transmitter licence
cannot be used to provide a datacasting service capable of being received by a
domestic digital television receiver if the licensee is a commercial television
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broadcasting licensee, a person who controls such a licensee, a company who is
controlled by the controller of such a licensee, a national broadcaster or a company
controlled by a national broadcaster.
New paragraph 109A(1)(id) provides that a channel B datacasting transmitter licence
cannot be used to provide a datacasting service provided under a BSA datacasting
licence capable of being received by a domestic digital television receiver if the
holder of the BSA datacasting licence is a commercial television broadcasting
licensee, a person who controls such a licensee, a company who is controlled by the
controller of such a licensee, a national broadcaster or a company controlled by a
national broadcaster.
New paragraph 109A(1)(ie) provides that a channel B datacasting transmitter licence
must not be used to transmit a datacasting service capable of being received by a
domestic digital television receiver if the service is a BSA exempt re-transmission
service. A BSA exempt re transmission service is a service that does no more than re-
transmit programs that are transmitted by a national broadcasting service, commercial
broadcasting licensee or a community broadcasting licensee within the licence area of
that licence or outside the licence area of that licence with permission from the
ACMA.
Amendment (8) also inserts new paragraph 109A(1)(if) which gives effect to the
Government policy that channel A and channel B datacasting transmitter licences
should be used to transmit services in digital mode consistent with the Government's
policy that terrestrial television services be converted to digital mode and that the
channels be used to provide new digital services.
Amendment (8) also makes consequential amendments to subparagraphs 109A(1A)
and 109A(4).
Amendment (8) replaces subsection 109A(1B) which is no longer needed with the
repeal of paragraph 109A(1)(g). New subsection 109A(1B) provides that for the
purposes of the services that cannot be provided under a channel B datacasting
transmitter licence, it is immaterial whether a domestic digital television receiver is
capable of receiving subscription television broadcasting services when used in
isolation or in conjunction with any other equipment. This new subsection makes it
clear that in relation to a subscription television service, a service is taken to be
capable of being received by a normal domestic digital television receiver even if
additional equipment, such as a conditional access system or subscription television
set top box, is needed to receive that service. This is intended to ensure that in-home
subscription television services cannot be provided on channel A or channel B
datacasting transmitter licences.
Amendment (8) also inserts new subsection 109A(1C) to provide that a condition
specified in a licence under paragraph 109A(1)(k) may deal with the commencement
or continuity of transmission of datacasting services. This amendment is to make it
clear that the ACMA may impose commencement or rollout conditions under
paragraph 109A(1)(k).
New subsection 109A(1D) provides that subsection (1C) does not limit paragraph
109(1)(k). New subsection 109A(1E) provides that paragraphs 109A(1)(g) and (ga)
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do not limit subsection 109A(1C). Paragraphs 109A(1)(g) and 109A(1)(ga) impose
licence conditions relating to commencement of operation.
Amendment (8) also inserts new subsection 109A(5) to provide that subsection
109A(2) and 109A(3), which relate to the constitutions of companies and are relevant
to the control provisions in Part 5 of the BSA, do not apply to channel B licensees
unless they are transmitting services capable of being received by a domestic digital
television receiver.
Amendment (8) also inserts new subsection 109A(6) which empowers the Minister to
give a direction to the ACMA about the imposition of licence conditions under
paragraph 109A(1)(k) in relation to channel A datacasting transmitter licences. This
provision would, for example, enable the Minister to give a direction to ACMA about
the nature of a rollout condition which might be imposed under paragraph
109A(1)(k).
New Schedule 2A to the Bill
Amendment (9)
There is a range of legislative provisions which currently regulate aspects of technical
standards and codes of practice. However, these provisions are not all-encompassing
and do not readily allow the ACMA to address emerging issues where technical
developments or deployments of new technologies may have adverse impacts on
consumers or competition. The amendment repeals a range of specific standards-
making powers and provides more general powers for the ACMA to determine
standards.
Amendment (9) repeals the existing provisions in the BSA relating to technical
standards for transmission of broadcasting services, datacasting services and receivers
for use in reception of digital television services, including Division 1 of Part 4 of
Schedule 4 to the BSA (Digital Television Format Standards), Division 4 of Part 4 of
Schedule 4 to the BSA (Technical Standards), Part 3A of Schedule 4 of the BSA
(Accessibility of Domestic Reception Equipment) and Part 10 of Schedule 6 of the
BSA (Datacasting technical standards) .
Division 1 of Part 4 of Schedule 4 to the BSA provided for regulations to determine
digital television format standards, and Division 4 of Part 4 of Schedule 4 to the BSA
provided for regulations to determine technical standards related to the transmission
of commercial and national broadcasting services in digital mode, which were to be
followed by the ACMA in formulating or varying the commercial television
conversion scheme or the national television conversion scheme. Part 10 of Schedule
6 to the BSA provides for regulations to determine technical standards in relation to
datacasting services to be observed by datacasting content licensees and datacasting
transmitter licensees.
Amendment (9) also repeals clause 35A of Schedule 4 to the BSA and Division 1A of
Part 3 of Schedule 6 to the BSA (the provision relating to electronic program guides).
New Parts 9A and 9B of the BSA
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The repealed provisions are replaced by new Parts 9A and 9B of the BSA which
provide the ACMA with more general standards making powers under which the
ACMA will be able to address emerging technical issues.
New Part 9A adds new sections 130A and 130B into the BSA. New section 130A
gives effect to the Government's intention that that ACMA be provided with the
power to determine, by legislative instrument, technical standards relating to the
transmission of digital television broadcasting services in the broadcasting services
bands of spectrum (BSB) and datacasting services. New section 130B gives effect to
the Government's intention that that ACMA be provided with the power to determine,
by legislative instrument, technical standards for receivers for use in reception of
digital television services using the BSB and in reception of datacasting services.
In relation to compliance by broadcasters and datacasters, the new section 130A
powers are to be reinforced by licence conditions provided for under existing
provisions as amended by Amendment (9) (see new paragraph 7(1)(oa) of Schedule 2
of the BSA for commercial broadcasters, new paragraph 9(1)(ca) of Schedule 2 of the
BSA for community broadcasters, new paragraph 10(1)(ba) of Schedule 2 of the BSA
for subscription broadcasters, new paragraph 11(1)(ba) of Schedule 2 of the BSA for
services provided under a class licence, new paragraph 24(1)(ca) of Schedule 6 of the
BSA for datacasting licences, and new paragraph 109A(1)(gb) of the Radcomms Act
for datacasting transmitter licences).
In relation to equipment suppliers, in the absence of licence condition provisions and
consistent with other standards compliance provisions, compliance with s 130B will
be enforced through offence and civil penalty provisions (see new subsections
130B(2) and 130B(3)).
New Part 9B inserts new sections 130C-130ZA into the BSA. These new provisions
give effect to the Government's intentions that the ACMA be provided with the
power to register industry codes, to require industry groups to develop and register
with ACMA codes of practice which could deal with such matters as Electronic
Program Guides (EPGs), channel numbering and other relevant matters determined by
ACMA, together with a power to determine standards where such codes are not
developed or not developed to the satisfaction of ACMA.
The inclusion of importers, manufacturers and suppliers of television receivers in the
industry groups covered by the provisions relating to codes and standards (see new
paragraph 130F(g) of the BSA) will enable codes to be developed if codes (or
resultant industry standards) are needed in relation to equipment as well as
transmission to achieve the desired result for consumers, in relation to such matters as
EPGs and channel numbering.
Compliance with industry standards will be enforceable under new section 130V
which makes non-compliance with industry standards an offence and subject to a civil
penalty. Section 130V applies to a person who is a participant in the particular
section of the industry to which the relevant industry standard applies (see new
sections 130V and 130G).
In relation to compliance by broadcasters and datacasters, the new section 130V
provision will be enforced as a licence condition (see new paragraph 7(1)(ba) of
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Schedule 2 of the BSA for commercial broadcasters, new paragraph 9(1)(cb) of
Schedule 2 of the BSA for community broadcasters, new paragraph 10(1)(bb) of
Schedule 2 of the BSA for subscription broadcasters, new paragraph 11(1)(bb) of
Schedule 2 of the BSA for services provided under a class licence, new paragraph
24(1)(g) of Schedule 6 of the BSA for datacasting licences, and new paragraph
109A(1)(gc) of the Radcomms Act for datacasting transmitter licences).
The Government intention is that new digital services will drive digital take-up, and
that the new Part 9A and Part 9B provisions will ensure that new, domestic services
are available to the widest possible audience. The ability for the ACMA to set
technical standards for digital television broadcasting and datacasting services will
assist in minimising the impact on consumers of the transition to new types of
services and equipment.
Examples of areas where standards-setting powers may assist include in relation to
standards for compression of digital transmissions; and minimum transmissions
standards for in-home digital television services (such as that already regulated for in
relation to the audio component of standard definition). The standards-making
powers will also give the ACMA the ability to address any issues which might arise in
relation to standards being used by new services which can be provided using channel
B datacasting licences, such as mobile television services, if necessary.
The ACMA will be required to maintain a register of industry codes and industry
standards (see new section 130ZA).
New section 130L provides for the resolution of conflicts which might occur if
industry codes and standards overlap.
15
NOTES ON AMENDMENTS ON SHEET PZ244
The Amendments on sheet PZ244 cover various topics, and relate to each of the
Schedules to the Bill.
The Schedules to the Bill have differing commencement dates:
· Schedule 1 commences on the day after the Bill receives the Royal Assent;
· Schedule 2 commences on 1 January 2007; and
· Schedule 3 commences on 1 January 2009.
Amendments to Schedule 1 to the Bill
Amendment (1)
Under subsections 115(1AA) and (1B) of the BSA, events on the anti-siphoning list
are automatically removed from the list:
· 12 weeks prior to the event (unless prior to this the Minister declares, by
Gazette notice, that the event will remain on the list); or
· 7 days after the event (unless prior to this the Minister declares, by Gazette
notice, that the event will remain on the list).
Amendment (1) amends the definition of `anti-siphoning event' (inserted by item 1 of
Schedule 1 to the Bill). Together with Amendment (3), this ensures that automatic
de-listings do not affect the restrictions on showing such events on multi-channels.
Amendment (2)
Amendment (2) adds new section 26B to the Broadcasting Services Act 1992 (BSA).
New section 26B provides that, for the duration of the simulcast period or simulcast-
equivalent period (as the case may be), licence area plans (LAPs) are not required to
deal with SDTV multi-channelled national television broadcasting services. It is
considered unnecessary to include SDTV multi-channels in LAPs because the
radiofrequency spectrum that will be used by the national broadcasters to provide
multi-channels has already been allocated and planned by the Australian
Communications and Media Authority (ACMA).
After the end of the simulcast period or simulcast-equivalent period (as the case may
be), all services provided by the national broadcasters would need to be planned,
including multi-channels.
Amendments (8) and (37) similarly provide that HDTV multi-channels provided by
existing commercial and national broadcasters do not need to be included in LAPs.
Amendment (3)
Amendment (3) operates with Amendment (1), to the effect outlined in the notes on
Amendment (1).
16
Amendment (4)
Amendment (4) inserts new clause 4D of Schedule 4 and makes a consequential
amendment to the definition of "simulcast-equivalent period" in Schedule 4.
New clause 4D will replace the existing concept of a "simulcast-equivalent period" in
relation to the coverage area of national broadcasters (see Item 48 of Schedule 2 to the
Bill). The extended concept of a "simulcast-equivalent period" will capture non-
remote coverage areas, in addition to remote coverage areas, that do not have a
simulcast period.
The extension of the concept of a "simulcast-equivalent period" and other relevant
amendments will ensure that the following obligations on national broadcasters will
apply effectively:
· HDTV quotas (Amendment (21)); and
· captioning obligations (Amendments (23)-(25), (27)).
Limitations on the broadcast of anti-siphoning events on multi-channels during the
simulcast period will also be extended to the simulcast-equivalent period
(Amendments (5), (6), (31), (32) and (54)-(59)).
Amendments (5) and (6)
Amendments (5) and (6) make technical amendments consequential to Amendment
(4).
Amendment (7)
As a result of the changes to be made to the BSA by the measures in the Bill (as
amended), the ACMA will need to amend the national television conversion scheme
to reflect the changes to the regulatory regime.
Amendment (7) inserts a transitional provision into Schedule 1 to the Bill. New Item
28A of Schedule 1 provides that where the ACMA varies the national television
conversion scheme within 30 days of the commencement of Schedule 1 to the Bill (on
the day after Royal Assent), the ACMA will not need to consult widely before making
the variation. Clause 33 of Schedule 4 to the BSA, and section 17 of the Legislative
Instruments Act 2003 (LIA), both of which deal with consultation requirements, will
not apply to a variation in these circumstances.
In such cases, it will be sufficient for the ACMA to make a copy of the proposed
variation publicly available on its website for at least 5 business days. The reason for
limiting the consultation period in relation to the national television conversion
scheme is to ensure that the ACMA can implement the necessary changes as soon as
possible after Royal Assent to the Bill.
Importantly, these truncated consultation requirements will apply only to variations
made by the ACMA which relate to transitional or consequential matters associated
with the Bill. The ACMA will have limited discretion regarding the scope of the
17
variation in these cases, and as such, a lengthy public consultation period is
unnecessary.
Amendments to Schedule 2 to the Bill
Amendment (8)
Amendment (8) inserts new section 26A of the BSA and makes other technical
amendments consequential to this amendment. New section 26A is similar to new
section 26B, which is to be inserted by Amendment (2).
New subsections 26A(1) and (2) of the BSA provide that, for the duration of the
simulcast period or simulcast-equivalent period (as the case may be), LAPs are not
required to deal with HDTV multi-channelled commercial television broadcasting
services where the relevant commercial television broadcasting licence was in force
immediately before 1 January 2007. It is considered unnecessary to include HDTV
multi-channels in LAPs because the radiofrequency spectrum that will be used by the
incumbent commercial broadcasters to provide multi-channels has already been
allocated and planned by the ACMA.
New subsection 26B(1A) similarly provides that LAPs are not required to deal with
HDTV multi-channelled national television broadcasting services during the
simulcast period or simulcast-equivalent period (as the case may be).
LAPs will need to include HDTV multi-channels where a new commercial television
broadcasting licence is issued during the simulcast period or simulcast-equivalent
period. Further, after the end of the simulcast period or simulast-equivalent period (as
the case may be), all services provided by commercial television broadcasters and
national broadcasters will need to be planned, including multi-channels.
Amendment (9)
Amendment (9) makes a technical amendment to subsection 38A(9) of the BSA to
ensure that licensees operating under a commercial television broadcasting licence
allocated under section 38A are subject to a licence condition which requires the
provision of at least one service under each of their licences (ie. both the parent
licence and the additional 38A licence). This licence condition applies under each of
the licences.
Amendment (10)
Amendment (10) provides that where a commercial television broadcasting licence is
allocated under section 40 of the BSA the licence authorises the provision of a digital
service only. Thus, a television service provided under a section 40 licence cannot be
transmitted in analogue mode. This measure is consistent with the Government's
intention of facilitating the switchover of commercial televisionTV broadcasters from
analogue television signals to digital mode.
18
Amendments (11) and (12)
Amendments (11) and (12) make consequential amendments related to Amendment
(18).
Amendments (11) and (12) ensure that the exclusion of commercial television multi-
channels from Australian content and children's programming standards applies
during the simulcast period or simulcast-equivalent period (as the case may be).
Amendment (13)
Amendment (13) inserts new paragraph 7(1)(mc) of Schedule 2 to the BSA.
Item 29 of Schedule 2 to the Bill inserts new paragraphs 7(1)(ma) and (mb) of the
BSA. New paragraph 7(1)(ma) requires commercial television broadcasting licensees
to provide a HDTV multi-channel during the simulcast period for the licence area in
which they operate.
New paragraph 7(1)(mb) requires commercial television broadcasting licensees in a
licence area to provide a HDTV multi-channel during the `simulcast-equivalent
period' if:
· no simulcast period applies in relation to the licence area (eg. in remote areas
where the digital conversion scheme has not provided for a simulcast period); and
· there are regulations in place imposing HDTV requirements.
New paragraph 7(1)(mc) provides that if a commercial television broadcasting licence
was allocated under section 38A or 38B, and there is a simulcast-equivalent period for
the licence, the licensee is required to provide an HDTV multi-channelled commercial
television broadcasting period during the simulcast-equivalent period. This
Amendment is related to Amendment (18), which extends the concept of the
simulcast-equivalent period to non-remote areas.
These new paragraphs are subject to the qualifications in subclauses 7(5), (6) and (7)
of Schedule 2 (to be inserted by Item 40 of Schedule 2 to the Bill). Importantly, if
there is a multi-channelling election in force, the licensee is not required to provide an
HDTV service. If the licensee revoked the election and the ACMA approved the
revocation under new clause 7B (see Amendment (20)), the licensee would be subject
to HDTV quota requirements from the time the revocation takes effect.
Amendments (14)-(17)
Amendments (14)-(17) make technical amendments consequential to Amendment
(13).
Amendment (18)
Amendment (18) repeals the definition of "simulcast-equivalent period" in Schedule 4
to the BSA and inserts a new definition. The new definition cross-refers to new
clause 4C of Schedule 4 to the BSA, which is inserted by this Amendment, and new
clause 4D of Schedule 4, which is inserted by Amendment (4).
19
New clause 4C of Schedule 4 to the BSA extends the concept of a "simulcast-
equivalent period" to capture non-remote licence areas, in addition to remote licence
areas, that do not have a simulcast period. For example, in relation to under-served
markets, some licensees operating under commercial television broadcasting licences
allocated under section 38B of the BSA will have a simulcast period or simulcast-
equivalent period, due to their operation in an existing licence area. However, where
the ACMA has amalgamated two licence areas under subsection 38B(14), it is not
clear that the section 38B licence area has a simulcast period. By extending the
concept of "simulcast-equivalent period" to both non-remote and remote licence
areas, the ACMA will be able to determine a simulcast-equivalent period in each case
where there is no simulcast period.
The extension of the concept of a "simulcast-equivalent period" and other relevant
amendments will ensure that the following obligations on commercial television
broadcasters will apply effectively:
· HDTV quotas (Amendment (22)); and
· captioning obligations (Amendments (23)-(25), (27).
Limitations on the broadcast of anti-siphoning events on multi-channels during the
simulcast period will also be extended to the simulcast-equivalent period
(Amendments (29), (30) and (40)-(53)).
Amendment (19)
Amendment (19) inserts new subclause 6(5BA) of Schedule 4 to the BSA and makes
other technical amendments consequential to this amendment.
New subclause 6(5BA) provides that an election to multi-channel the services
provided under the parent licence and the additional licence allocated under section
38A or 38B (as relevantly applies) may be revoked by the licensee by notice in
writing. For the revocation to have effect, the ACMA must approve the revocation.
It is intended that, where a broadcaster makes a multi-channelling election, the
broadcaster should be able to decide later to withdraw that election if sufficient
radiofrequency spectrum is available. However, in such a case the broadcaster would
be required to comply with the HDTV quotas applicable during the simulcast period
or simulcast-equivalent period in that licence area under clause 37E of Schedule 4 to
the BSA.
A revocation under subclause 6(5BA) must generally be made by the holder of the
licence allocated under section 38A or 38B. However, if the parent licence has been
transferred, the revocation must be made by the new licensee for the parent licence. If
the section 38A or 38B licence has been transferred, the revocation must be made by
the holder of that licence.
Amendment (20)
Amendment (20) inserts new clause 7B of Schedule 4, which provides for the
revocation of multi-channelling elections. If a licensee gives the ACMA a notice of
20
revocation under new subclause 6(5BA) (see Amendment (19)) or existing subclause
6(7C), and the ACMA is satisfied that there is sufficient radiofrequency spectrum
available, the ACMA must approve the revocation (new subclauses 7B(1) and (2)).
The ACMA is also required to vary the relevant digital channel plan under the
commercial television conversion scheme to allot a channel to the licensee.
This provision ensures that a multi-channelling election can only be revoked if there
is sufficient radiofrequency spectrum available for a television channel in the relevant
area. If there is spectrum available the ACMA must reserve that spectrum for the
broadcaster under the relevant digital channel plan for that licence area. In
determining whether there is sufficient spectrum available, any spectrum covered by a
determination under subsection 34(3) of the BSA is taken to be unavailable because
that spectrum is reserved (e.g. for datacasting services) (new subclause 7B(3)).
The ACMA must determine the day on which the revocation takes effect. It is likely
that there will be some delay between the issuing of notice to the ACMA of a
broadcaster's intention to revoke a multi-channelling election and the commencement
of independent transmissions by the broadcaster. After the broadcaster gives notice to
the ACMA that they wish to revoke the multi-channelling election, the broadcaster
will need to prepare to transmit their services independently, which may involve the
purchase and installation of equipment.
To ensure that there is no disruption to digital services, where the ACMA approves
the revocation it must specify that the multi-channelling election ceases to have effect
on a particular day. The specified day will generally be the day on which the
broadcaster is expected to commence independent transmission. Until that time, the
broadcasting service provided by that licensee would continue to be transmitted on
the multi-channel.
New subclause 7B(4) provides that the ACMA may vary the day on which the
revocation takes effect. If the broadcaster is not ready to commence transmission on
the specified date, or is ready early, the ACMA may vary the specification to reflect
the date on which transmissions are to commence. In particular, the ACMA may
make such a variation at the request of the broadcaster concerned. If the ACMA
refuses to approve the revocation, the ACMA must give the licensee notice in writing
of the refusal (new subclause 7B(5)).
Amendments (21) and (22)
Amendments (21) and (22) make technical amendments consequential to
Amendments (4) and (18).
Amendments (21) and (22) will ensure that the obligations on commercial television
broadcasting licensees and national broadcasters to comply with HDTV quotas under
clauses 37E and 37F of Schedule 4 to the BSA will apply effectively during the
simulcast period, or simulcast-equivalent period, as the case may be.
Amendments (23)-(25)
Amendments (23)-(25), together with Amendment (27), make technical amendments
consequential to Amendments (4) and (18).
21
These Amendments will ensure that the obligations on commercial television
broadcasting licensees and national broadcasters to comply with captioning
requirements under clause 38 of Schedule 4 will apply effectively during the
simulcast period, or simulcast-equivalent period, as the case may be.
Amendment (26)
Amendment (26) amends the new captioning provisions in Item 85 of Schedule 2 to
the Bill to clarify that if a commercial broadcaster provided a captioning service for a
program when it was previously transmitted on its main service, then that program
must be captioned if rebroadcast on a multi-channel.
Amendment (27)
The effect of Amendment (27) is described in the notes on Amendments (23)-(25)
above.
Amendment (28)
Amendment (26) amends the new captioning provisions in Item 85 of Schedule 2 to
the Bill to clarify that if a national broadcaster provided a captioning service for a
program when it was previously transmitted on its main service, then that program
must be captioned if rebroadcast on a multi-channel.
Amendments (29) and (30)
Amendments (29) and (30) make technical amendments consequential to Amendment
(18).
Amendments (29) and (30) will ensure that the limitations on the broadcast of anti-
siphoning events on HDTV multi-channelled commercial television services during
the simulcast period apply where there is a a simulcast-equivalent period.
Amendments (31) and (32)
Amendments (31) and (32) make technical amendments consequential to Amendment
(4).
Amendments (31) and (32) will ensure that the limitations on the broadcast of anti-
siphoning events on HDTV multi-channelled national television services during the
simulcast period will also apply where there is a a simulcast-equivalent period.
Amendment (33)
Amendment (33) inserts new subsections 102(2EA), (2G), (2H) and (2J) of the
Radiocommunications Act 1992 (RA) and makes other technical amendments
consequential to this amendment.
Where a multi-channelling election is made by a licensee, the licensee will not be
issued a transmitter licence for both the digital version of the analogue parent service
and the digital additional service under section 38A or 38B (see subsections 102(2A)
and 102A(2A) of the RA). As a result, if the multi-channelling election is revoked,
22
the licensee will need an additional transmitter licence which permits the use of an
additional 7MHz of spectrum so that the licensee will be able to comply with the
HDTV quota requirements and the licensee will be able to provide a single SDTV
multi-channel after 1 January 2009. New subsection 102(2G) provides that if a
licensee gives the ACMA a notice of revocation of a multi-channelling election under
subclause 6(5BA), and the ACMA approves the revocation under clause 7B, the
ACMA must issue an additional transmitter licence to the licensee.
New subsection 102(2H) of the RA provides that the new transmitter licence issued
under new subsection 102(2G) comes into effect on the day on which the revocation
takes effect.
New subsections 102(2EA) and (2J) of the RA provide that if a related broadcasting
licence is transferred, the new transmitter licence is taken to be issued to the person to
whom the related licence is transferred. This ensures that where a broadcasting
licence under the BSA is transferred, the new licensee will be authorised to transmit
the broadcasting service or services concerned under the licence.
Amendment (34)
Amendment (34) makes technical amendments consequential to Amendment (33).
Amendment (35)
Amendment (35) inserts new subsections 103(4C), (4D), (4E) and (4F) of the RA and
makes other technical amendments consequential to this amendment.
The effect of these amendments is that a transmitter licence issued under subsection
102(1), 102(2D), 102(2G), 102A(1) or 102A(2D) continues in force while the related
broadcasting licence under the BSA remains in force. However, the transmitter
licence does not have effect if the related licence is suspended under section 143 of
the BSA.
Amendment (36)
Amendment (36) inserts new Items 93A, 93B, 93C, 93D and 93E of Schedule 2 to the
Bill. These new Items deal with transitional arrangements.
New Items 93A and 93B of Schedule 2 to the Bill are required as a consequence of
Amendments (19) and (20). By inserting new subclause 7B of Schedule 4 to the
BSA, which provides for the revocation of a multi-channelling election where a notice
is given by the licensee under subclause 6(5BA) or 6(7C) of Schedule 4, it was
necessary to repeal subclauses 6(7D) and (7E), which dealt with revocations in
relation to notices given by licensees under subclause 6(7C).
New Item 93A provides that a notice given by ACMA under subclause 6(7D) of
Schedule 4 to the BSA continues to have effect, notwithstanding the repeal of that
subclause. Such a notice has effect as if it had been given under subclause 7B(2) of
Schedule 4.
23
New Item 93B makes similar provision for the continuing effect of a notice given by
ACMA under subclause 6(7E).
As a result of the changes to be made to the BSA by the measures in the Bill (as
amended), the ACMA will need to amend:
· program standards (notably the standards in relation to Australian content and
children's programming);
· the commercial television conversion scheme; and
· the national television conversion scheme;
to reflect the changes to the regulatory regime.
New Items 93C, 93D and 93E of Schedule 2 to the Bill provide that where the ACMA
varies program standards, the commercial television conversion scheme or the
national television conversion scheme within 30 days of the commencement of
Schedule 2 to the Bill (on 1 January 2007), the ACMA will not need to consult widely
before making the variation. Section 126 of the BSA (in relation to program
standards), clause 18 of Schedule 4 to the BSA (in relation to the commercial
television conversion scheme), clause 33 of Schedule 4 of the BSA (in relation to the
national television conversion scheme), and section 17 of the Legislative Instruments
Act 2003 (LIA), all of which deal with consultation requirements, will not apply to a
variation in these circumstances.
In such cases, it will be sufficient for the ACMA to make a copy of the proposed
variation publicly available on its website for at least 5 business days. The reason for
limiting the consultation period in relation to these instruments is to ensure that the
ACMA can implement the necessary changes as soon as possible after the
commencement of Schedule 2 to the Bill.
Importantly, these truncated consultation requirements will apply only to variations
made by the ACMA which relate to transitional or consequential matters associated
with the Bill. The ACMA will have limited discretion regarding the scope of the
variation in these cases, and as such, a lengthy public consultation period is
unnecessary.
Amendments to Schedule 3 to the Bill
Amendment (37)
Amendment (37) inserts new subsection 26A(1A) of the BSA and makes other
technical amendments consequential to this amendment.
New subsections 26A(1) and (2) of the BSA (inserted by Amendment (8)) provide
that, for the duration of the simulcast period or simulcast-equivalent period (as the
case may be), LAPs are not required to deal with HDTV multi-channelled commercial
television broadcasting services where the relevant commercial television
broadcasting licence was in force immediately before 1 January 2007. New
subsection 26A(1A) similarly provides that, for the duration of the simulcast period or
24
simulcast-equivalent period (as the case may be), LAPs are not required to deal with
SDTV multi-channelled commercial television broadcasting services where the
relevant commercial television broadcasting licence was in force immediately before
1 January 2007.
It is considered unnecessary to include SDTV or HDTV multi-channels in LAPs
because the radiofrequency spectrum that will be used by the incumbent commercial
broadcasters to provide multi-channels has already been allocated and planned by the
ACMA.
LAPs will need to include SDTV and HDTV multi-channels where a new commercial
television broadcasting licence is issued during the simulcast period or simulcast-
equivalent period. Further, after the end of the simulcast period or simulast-
equivalent period (as the case may be), all services provided by commercial television
broadcasters and national broadcasters will need to be planned, including multi-
channels.
Amendment (38)
Amendment (38) makes technical amendments to paragraph 38B(21A)(c) and
subsection 38B(21B) of the BSA to ensure that licensees operating under commercial
television broadcasting licences allocated under section 38B are subject to a licence
condition which requires the provision of at least one service under each of the
licences (ie. both the parent licence and the additional 38B licence). This licence
condition applies under each of the licences.
Amendment (39)
Amendment (39) makes a technical amendment consequential to Amendment (60).
Amendments (40)-(53)
Amendments (40)-(53) make technical amendments consequential to Amendment
(16).
Amendments (40)-(53) will ensure that the limitations on the broadcast of anti-
siphoning events on SDTV and HDTV multi-channelled commercial television
services during the simulcast period will also apply where there is a simulcast-
equivalent period. The rules that apply to the broadcast of anti-siphoning events on
multi-channels after the end of the simulcast period are also to apply after the end of a
simulcast-equivalent period.
Amendments (54)-(59)
Amendments (54)-(59) make technical amendments consequential to Amendment (4).
Amendments (54)-(59) will ensure that the limitations on the broadcast of anti-
siphoning events on SDTV multi-channelled national television services during the
simulcast period will also apply where there is a simulcast-equivalent period. The
rules that apply to the broadcast of anti-siphoning events on multi-channels after the
25
end of the simulcast period are also to apply after the end of a simulcast-equivalent
period.
Amendment (60)
Amendment (60) inserts new sections 101B and 101C of the RA and makes other
technical amendments consequential to this amendment.
New section 101B of the RA applies only in relation to remote licence areas in which
an additional commercial television broadcasting licence has been issued by the
ACMA under section 38B of the BSA.
New subsection 101B(1) of the RA provides that if a commercial television
broadcasting licence allocated under section 38B of the BSA (the related licence) is in
force on or after 1 January 2009, and there is an multi-channelling election in force
under subclause 6(7B), the licensee may apply to ACMA for an additional transmitter
licence.
Where multiple licensed services in digital mode are provided for under one
transmitter licence and on one 7MHz channel in accordance with a multi-channelling
election, the licensee may not have sufficient spectrum capacity to be able to provide
multi-channelling. Making allowance for such a licensee to apply for an additional
transmitter licence is designed to ensure that section 38B licensees are treated, as far
as possible, in a manner consistent with other commercial television broadcasting
licensees and therefore are able to provide audiences in under-served markets with
additional services.
New subsection 101B(2) of the RA provides that an application for an additional
transmitter licence must be made in the form approved by the ACMA.
New subsection 101B(3) provides that if a licensee applies for an additional
transmitter licence, and the ACMA is satisfied that there is sufficient radiofrequency
spectrum available, the ACMA must issue an additional transmitter licence to the
licensee. The ACMA is also required to vary the relevant digital channel plan under
the commercial television conversion scheme to allot a channel to the licensee. In
determining whether there is sufficient spectrum available, any spectrum covered by a
determination under subsection 34(3) of the BSA is taken to be unavailable because
that spectrum is reserved (e.g. for datacasting services) (new subsection 101B(4)).
New subsection 101B(5) of the RA provides that if the related broadcasting licence is
transferred, the new transmitter licence is taken to be issued to the person to whom
the related licence is transferred. This ensures that where the additional broadcasting
licence issued under section 38B of the BSA is transferred, the new licensee will be
authorised to transmit the broadcasting service or services concerned under the related
licence.
New section 101C of the RA applies in relation to licence areas, both remote and non-
remote, in which an additional commercial television broadcasting licence has been
issued by the ACMA under section 38A or 38B of the BSA.
26
New subsection 101C(1) provides that if a commercial television broadcasting licence
allocated under section 38A or 38B of the BSA (the related licence) is in force on or
after 1 January 2009, and there is an multi-channelling election in force under
subclause 6(5A), (5AA) or (7B), the licensee may apply to ACMA for an additional
transmitter licence. However, if the licensee has already obtained an additional
transmitter licence under new section 101B, the licensee cannot obtain a further
licence under section 101C.
As with new section 101B, the intention behind new section 101C is that section 38A
and 38B licensees are to be treated, as far as possible, in a manner consistent with
other commercial television broadcasting licensees and therefore are able to provide
audiences in under-served markets with additional services.
New subsection 101C(2) provides that an application for an additional transmitter
licence must be made in the form approved by the ACMA.
New subsection 101C(3) provides that if a licensee applies for an additional
transmitter licence, and the ACMA is satisfied that there is sufficient radiofrequency
spectrum available, the ACMA must issue an additional transmitter licence to the
licensee.
This provision ensures that a broadcaster can only obtain an additional transmitter
licence if there is sufficient radiofrequency spectrum available for a television channel
in the relevant licence area. In determining whether there is sufficient spectrum
available, any spectrum covered by a determination under subsection 34(3) of the
BSA is taken to be unavailable because that spectrum is reserved (e.g. for datacasting
services) (new subsection 101C(4)).
An additional transmitter licence issued under new section 101C will only come into
force at the end of the simulcast period, or the simulcast-equivalent period, as
relevantly applies to the licence area (new subsection 101C(5)). As a consequence, it
is necessary to provide specific rules for revocations of the multi-channelling election
that is a precondition for the licence:
· if the multi-channelling election is revoked after the application is made but
before ACMA makes a decision, the application is taken to never have been
made (new subsection 101C(7)); and
· if the multi-channelling election is revoked after the transmitter licence has
been issued, the licence is cancelled (new subsection 101C(8)).
New subsection 101C(6) of the RA provides that if the related broadcasting licence is
transferred, the new transmitter licence is taken to be issued to the person to whom
the related licence is transferred. This ensures that where the additional broadcasting
licence issued under section 38A or 38B of the BSA is transferred, the new licensee
will be authorised to transmit the broadcasting service or services concerned under the
related licence.
27
Amendment (61)
Amendment (61) inserts new subsections 103(4AA) and (4AB) and 109(1A) and (1B)
of the RA and makes other technical amendments consequential to these amendments.
The effect of new subsections 103(4AA) and (4AB) is that a transmitter licence issued
under section 101B or 101C continues in force while the related commercial
television broadcasting licence under the BSA remains in force. However, the
transmitter licence does not have effect if the related licence is suspended under
section 143 of the BSA.
New subsection 109(1A) clarifies that the licence conditions applicable to an
additional transmitter licence issued under section 101B cannot be inconsistent with
the related commercial television broadcasting licence under the BSA. New
subsection 109(1B) makes similar provision in relation to transmitter licences issued
under section 101C of the RA.
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