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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING LEGISLATION AMENDMENT (DIGITAL TELEVISION) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Broadband, Communications and the Digital Economy,
Senator the Hon. Stephen Conroy)
BROADCASTING LEGISLATION AMENDMENT (DIGITAL TELEVISION) BILL 2010
OUTLINE
The Broadcasting Legislation Amendment (Digital Television) Bill 2010 (the
Bill) amends the Broadcasting Services Act 1992 (the BSA) and the Copyright
Act 1968 to enable provision of a satellite solution to areas of
terrestrial digital television signal deficiency (black spots) and to
address a range of related matters.
Licensing arrangements for the new satellite digital television
broadcasting service
The primary purpose of the Bill is to amend various provisions of the BSA
and the Copyright Act 1968 to facilitate the delivery of digital television
services by satellite to viewers who cannot receive an adequate terrestrial
signal for the digital television services licensed for the area in which
they live.
Commercial television channels provided through the new satellite digital
television service would be delivered in three satellite licence areas
which are:
. South Eastern Australia TV3 (comprising New South Wales, Victoria,
Tasmania, South Australia and the Australian Capital Territory and the
Jervis Bay Territory);
. Northern Australia TV3 (comprising Queensland and the Northern
Territory); and
. Western Australia TV3.
The Australian Communications and Media Authority (the ACMA) will declare
the commencement date for the South Eastern Australia TV3 licence area no
later than 90 days after the allocation of a satellite service licence. The
ACMA will declare the date of commencement of the satellite service in the
Northern Australia TV3 and Western Australia TV3 licence areas to be no
later than 90 days before the earliest applicable terrestrial digital
television switch-over date for the satellite licence area. The separate
commencement arrangement for the South Eastern Australia TV3 licence area
addresses the immediacy of switch-over in the Mildura/Sunraysia, Riverland,
Mt Gambier/South East, Spencer Gulf and Broken Hill licence areas.
In the first instance, all remote area commercial broadcasting licensees
would be considered eligible to form a joint venture company or a special
purpose company for the purposes of applying for a satellite service
licence, under the proposed section 38C of the BSA, in one of the three
satellite licence areas.
In the South Eastern Australia TV3 licence area and Northern Australia TV3
licence area, the eligible joint venturers would be those remote area
commercial broadcasters licensed for the following terrestrial licence
areas:
. Remote Central and Eastern Australia TV1;
. Remote Central and Eastern Australia TV2; and
. Mt Isa TV1.
In Western Australia TV3 licence area, the eligible joint venturers would
be the following remote area commercial broadcasters licensed for the
following terrestrial licence areas:
. Remote and Regional WA TV1;
. Western Zone TV1;
. Kalgoorlie TV1;
. Geraldton TV1; and
. South West and Great Southern TV1.
National digital television services provided by satellite
The Bill puts in place a licensing arrangement for the provision of
commercial broadcasting channels.
The main standard definition services offered by the national broadcasters,
the Australian Broadcasting Corporation (ABC) and the Special Broadcasting
Service (SBS), ABC1 and SBS ONE, would be delivered by satellite by the
national broadcasters on an individual state and territory basis (with the
exception of the Australian Capital Territory which is served by the New
South Wales services). The five secondary multi-channels offered by the
national broadcasters, ABC2, ABC3, ABCHD, SBS TWO, SBSHD, would be
delivered by satellite to five areas on a time-zoned basis as follows:
. South Eastern Australia (comprising New South Wales, Victoria,
Tasmania, and the ACT);
. South Australia;
. Queensland;
. the Northern Territory; and
. Western Australia.
No legislative amendments are required to achieve these national
broadcaster satellite arrangements.
The digital television services of the national broadcasters will be
delivered by satellite using the same satellite platform as that used to
deliver the commercial digital television services provided by satellite
broadcasting service licensees. The national satellite digital television
services will be accessible using the same reception equipment as that used
to access the commercial digital television services provided by satellite
broadcasting service licensees.
Allocation of a satellite broadcasting service licence to a joint venture
company
Two or more eligible joint venturers may provide the ACMA with a joint
written notice stating that the joint venture company intends to apply for
a satellite service licence in a particular satellite licence area and that
it is registered as a company under Part 2A.2 the Corporations Act 2001.
For the South Eastern Australia TV3 licence area, eligible joint venture
companies must give notice within 28 days after the Act commences. For the
Northern Australia TV3 licence area and the Western Australia TV3 licence
area, eligible joint venture companies must give notice no later than 180
days before the end of the earliest applicable terrestrial digital
television switch-over date for the licence area.
For the Northern Australia TV3 and the Western Australia TV3 licence areas,
an applicable terrestrial digital television switch-over date is calculated
as follows:
. If a terrestrial licence area, which is included in those satellite
licence areas, has a simulcast period but does not contain a local
market area - the last day of the simulcast period for the relevant
terrestrial licence area.
. If a terrestrial licence area, which is included in these satellite
licence areas, has a simulcast period and contains a local market area
- the day on which the local market area becomes a digital-only local
market area.
Within 28 days of providing the joint written notice to the ACMA, the joint
venture company would apply in writing to the ACMA for a satellite service
licence under the proposed section 38C in the satellite licence area
stipulated in the notice. The ACMA would then allocate a satellite
broadcasting service licence to the joint venture company for the specified
satellite licence area within 28 days after receipt of the application.
Allocation of a satellite broadcasting service licence to a special purpose
company
If eligible joint venturers do not provide a written notice to the ACMA of
their intention to form a joint venture company during the initial 28 day
period after the Act commences, then an eligible joint venturer may
establish a special purpose company for the purpose of applying for a
satellite broadcasting service licence under the proposed section 38C in a
particular satellite licence area.
Should an eligible joint venturer choose to do this, then the eligible
joint venturer may, within 28 days after the end of the initial period,
provide the ACMA with a written notice. This must state that the special
purpose company intends to apply for a satellite broadcasting service
licence in a satellite licence area, that the special purpose company is a
wholly-owned subsidiary (as defined in the Corporations Act 2001) of the
eligible joint venturer and is registered under Part 2A.2 of the
Corporations Act 2001 and has a share of capital.
If an eligible joint venturer provides the ACMA with a notice of its
intention to apply for a satellite broadcasting service licence as a
special purpose company, then the special purpose company must apply to the
ACMA for a satellite broadcasting service licence within 28 days.
If only one special purpose company applies for a satellite broadcasting
service licence in a particular licence area, the ACMA would allocate the
satellite broadcasting service licence to the special purpose company
within 28 days of receiving the application. Where two or more special
purpose companies apply for a satellite broadcasting service licence in a
satellite licence area, then the ACMA would allocate a satellite
broadcasting service licence to one of the applicants in accordance with a
price-based system.
The ACMA would determine the price-based system by written instrument,
(which is not a legislative instrument). The Minister may, by legislative
instrument, provide specific directions to the ACMA in relation to their
powers in determining the price-based system, including specified reserve
prices for licences which may be different in different satellite licence
areas.
If the price-based allocation system was not a public process then, at the
outcome of the price-based allocation process, the ACMA would be required
to publish in the Gazette the name of the successful applicant and the
amount the applicant agreed to pay the Commonwealth for the allocation of
the licence.
Should an eligible joint venturer or special purpose company(ies) not give
the ACMA notice of its intention to apply for a satellite broadcasting
service licence, or the joint venture company or special purpose
company(ies) not apply for a satellite broadcasting service licence, then
the ACMA would be required to advertise for applications for a satellite
broadcasting service licence in the same manner as if a satellite
broadcasting service licence had been cancelled.
Satellite broadcasting service licences will be allocated for a period of
ten years from the date of the initial licence allocation. Satellite
broadcasting service licensees will be restricted from transferring the
satellite broadcasting service licence to another person during the first
two years after the allocation of the licence.
Commencement of a satellite broadcasting service licence
The ACMA may declare a date by which satellite digital television services
are to commence in a particular licence area.
Separate arrangements apply to the declaration of a start date by the ACMA
for the South Eastern Australia TV3 licence area given the proximity of
switch-over to digital television of the Mildura/Sunraysia, Riverland, Mt
Gambier/South East, Spencer Gulf and Broken Hill licence areas. The ACMA
must declare a start date no later than 90 days after the first or only
allocation of a satellite broadcasting service licence.
For the Northern Australia TV3 and Western Australia TV3, the start dates
must not be later than 90 days before the end of the earliest terrestrial
digital television switch-over date for a region which is served by the
satellite licence area.
Cancellation of a satellite broadcasting service licence
If a satellite broadcasting service licensee fails to provide any of the
core/primary or non core/primary commercial broadcasting services required
under the satellite broadcasting service licence conditions after the start
date for the licence area, and the ACMA is satisfied that the failure to
provide these services is not due to technical or unforeseen circumstances
beyond the licensee's control or circumstances specified in regulations,
the ACMA must provide the satellite broadcasting service licensee with a
written warning that, should the service failure continue for 30 days, the
satellite broadcasting service licence may be cancelled.
Should the contravention of these licence conditions continue beyond the 30
day warning period, the ACMA must cancel the satellite broadcasting service
licence, effective either when the cancellation notice is given to the
satellite broadcasting service licensee or at a later time as specified in
the written notice.
To minimise additional service disruption for satellite viewers, the ACMA
would be able to determine a satellite broadcasting service licence
cancellation date which would coincide with a start date for a re-allocated
satellite broadcasting service licence in the satellite licence area. The
satellite broadcasting service licensee may make an application to the
Administrative Appeals Tribunal for the cancellation of a licence.
There may be instances where the transmission of a digital television
service, including a standard or high definition multi-channel, is delayed
on the satellite broadcasting service. Such a delay may occur for technical
reasons or from delays associated with program supply due to the
negotiation of appropriate affiliation agreements. Where such a delay
impacts on the satellite broadcasting service licensee's ability to provide
the digital television service on the satellite broadcasting service, the
ACMA would disregard the delay so long as the delay is as short as
practicable.
Re-allocation of satellite broadcasting service licences after cancellation
If the ACMA notifies the satellite broadcasting service licensee of the
cancellation of the satellite broadcasting service licence, then within 45
days of the notice being given, the ACMA would be required to advertise for
applications for a satellite broadcasting service licence.
Prior to advertising, the ACMA would be required to determine eligibility
requirements that must be met by applicants, including that the applicant
has the capacity to provide the satellite services as required under the
conditions of the satellite broadcasting service licence. The Minister may,
by legislative instrument, direct the ACMA in relation to its powers to
determine eligibility requirements.
The ACMA would be required to include in the advertisement the following
details:
. a description of the contravention or the reason why the satellite
service licence is being cancelled;
. the date on or before which applications must be received by the ACMA;
and
. a statement specifying how details of the licence area, the eligibility
requirements and conditions applying to the licence may be obtained.
The ACMA would be required to set the application closing date as the 90th
day after the day the first advertisement is published.
If the ACMA is satisfied that one or more of the applicants meet the
eligibility requirements, then the ACMA would be required to allocate a
satellite broadcasting service licence to one of the applicants within 90
days after the application closing date. Should the ACMA refuse to allocate
a satellite broadcasting service licence, the applicant would have right of
appeal to the Administrative Appeals Tribunal.
Commercial digital television programming on the satellite broadcasting
service
Services authorised on the satellite broadcasting service
The intent of the Bill is to enable the new commercial satellite services
to provide viewers in signal deficient areas with access to an equivalent
range of digital television services to those received by metropolitan
viewers.
The measures in this Bill do not require the satellite broadcasting service
licensees to provide digital television services that are identical to the
digital television services provided to metropolitan markets. Instead, the
licensees of the satellite service would be authorised to transmit the
network-affiliated multi-channelled services provided by remote area
commercial broadcasters in the related terrestrial licence area (the
related terrestrial licensee), or, in cases where remote commercial
services are not available, a replacement multi-channelled service provided
by a commercial broadcaster in a metropolitan licence area.
Satellite broadcasting service licensees would be authorised to provide the
following services in its satellite licence area:
. a core/primary standard definition service with the same, or
substantially the same, program content as the core/primary standard
definition commercial television service provided by the related
terrestrial licensee or provided by a commercial licensee for a
metropolitan licence area;
. a standard definition multi-channelled commercial television service
which is not a core/primary standard definition service with the same,
or substantially the same, program content as the standard definition
multi-channelled commercial television service which is not the
core/primary standard definition service provided by the related
terrestrial licensee or provided by a commercial licensee for a
metropolitan licence area;
. a high definition multi-channelled commercial television service with
the same, or substantially the same, program content as the high
definition multi-channelled commercial television service provided by
the related terrestrial licensee or provided by a commercial licensee
for a metropolitan licence area; and
. one or more standard definition multi-channels the program content of
which is wholly or mostly of local news and information programs,
provided by all regional commercial broadcasting licensees as required
in the relevant condition to their terrestrial regional licence.
Related terrestrial licensees for the South Eastern Australia TV3 and
Northern Australia TV3 licence areas are the broadcasters licensed for the
Mt Isa TV1 and Remote Central and Eastern Australia TV1 and TV2 licence
areas. Related terrestrial licensees for the Western Australia TV3 licence
area are those broadcasters licensed for Remote and Regional WA TV1,
Western Zone TV1, Kalgoorlie TV1, Geraldton TV1 and South West and Great
Southern TV1.
A metropolitan licence area would be a licence area in which is situated
the General Post Office of the capital city of New South Wales, Victoria,
Queensland, Western Australia or South Australia.
For the purpose of determining whether a particular satellite service is
the same, or substantially the same, as the terrestrial commercial
television service in a related terrestrial licence area or a metropolitan
licence area, particular program content will be disregarded. This content
includes advertising and promotional content, weather bulletins, news
programs, sports programs that relate to events on the anti-siphoning list
(subject to them being replaced with a similar event on the anti-siphoning
list), programs whose broadcast would be illegal outside the place of
origin (for example, due to court suppression orders) and programs as
prescribed in regulations.
Commercial services that must be provided on the satellite broadcasting
service at commencement
From the commencement of the new satellite broadcasting service, the
satellite broadcasting service licensees in each of the satellite licence
areas must provide digital television services equivalent in range to
commercial digital terrestrial television services in metropolitan licence
areas.
The satellite broadcasting service licensee must transmit three
core/primary digital television services of the remote commercial
broadcasters broadcast in the related terrestrial licence areas relevant to
the satellite broadcasting service licence area. The satellite broadcasting
service licensee must also transmit all standard definition and high
definition multi-channel services provided by the remote commercial
broadcasters licensed in the related terrestrial licence areas relevant to
the satellite licence area. Core/primary services and multi-channel
services provided on the satellite must not be the same as another
core/primary or multi-channel service provided on the satellite.
Where fewer than three core/primary digital television services or fewer
multi-channelled services are provided by related terrestrial licensees
than in the relevant metropolitan licence areas, the satellite broadcasting
service licensee would be required to replace the 'missing' core/primary or
multi-channel service with a core/primary or multi-channel service from a
metropolitan licensee. If a missing digital television service is
subsequently provided by a related terrestrial licensee, then the satellite
broadcasting service licensee would be required to replace the metropolitan
service with the service of the related terrestrial licensee.
Satellite broadcasting service licensees would not be required to
simultaneously retransmit the programming provided by the relevant
metropolitan broadcasters. The scheduling of program content provided by
the metropolitan broadcasters would be a matter for the satellite
broadcasting service licensees. These measures would provide the licensees
of the satellite service with the flexibility to tailor and localise the
digital television services they provide in their satellite licence area to
the needs of their audience while still providing substantially the same
programming available in metropolitan areas.
Temporary exemption from services provided on the satellite service after
commencement of the satellite service
It is possible that, after the satellite service has already commenced, a
remote commercial broadcasting licensee may cease to provide its network-
affiliated core/primary service or multi-channelled services in the remote
licence areas. In such a case, the satellite broadcasting service licensee
would continue to be authorised to provide replacement metropolitan network
services for the core/primary service and multi-channel network services
affiliated with the insolvent licensee but would not be required to do so.
The satellite broadcasting service licensee would be temporarily exempted
from the requirement to provide all 'Freeview' services on the satellite
service until such time as a new remote broadcasting licensee commences in
the relevant related terrestrial licence area.
Should a satellite broadcasting service licensee choose to replace the
services formerly provided by a remote commercial licensee with services
provided by a commercial broadcaster in a metropolitan licence area, then
when the core/primary service or multi-channelled services commence to be
provided by a new remote broadcasting licensee in the related terrestrial
licence area, the satellite broadcasting service licensee must then
transmit the services provided by the new remote licensee.
Exemption from providing certain multi-channel services with the same
content on the satellite service
There may also be circumstances where two or more multi-channelled services
are providing the same program content but not in the same format. For
example, it could be possible to provide a digital multi-channel in both
high definition and standard definition formats, but the content would be
the same.
In these cases, the Minister would have the power to exempt a satellite
broadcasting service licensee from providing a particular service where the
Minister is satisfied, after consultation with the ACMA and the satellite
broadcasting service licensee, that the multi-channel service provides the
same program content as another multi-channel on the satellite service.
Such an exemption would remain in force for no longer than two years,
subject to a discretionary extension, until the Minister is satisfied that
the multi-channel service no longer provides the same content as another
multi-channel service on the satellite service.
Exemption from providing certain multi-channel services on the satellite
which are not technically feasible
A condition of a satellite broadcasting service licence is that new
commercial multi-channel services which commence after the start of the
satellite service will be provided on the satellite unless the ACMA
determines it is not technically feasible. Where additional satellite
capacity would be required, the ACMA may consider that it is not
technically feasible for the satellite broadcasting service licensee to
provide a multi-channel service.
When this is the case, the ACMA may determine, by legislative instrument,
that the satellite broadcasting service licensee is not required to provide
the new multi-channel commercial service.
New or multiple multi-channelled digital television services after the end
of the simulcast period
After the switch-over to digital television has been completed in a
terrestrial licence area, the restrictions on the number of multi-
channelled services end as do any applicable high definition quota
obligations. This will mean that commercial broadcasters will be able to
provide additional multi-channelled digital services as allowed in their
spectrum allocation in their terrestrial licence areas after the end of the
simulcast period. For example, a commercial broadcaster may chose not to
provide a high definition multi-channel after the end of the simulcast
period in order to provide one or more standard definition multi-channels
subject to the space available within their spectrum allocation.
The provision of new multi-channelled services on the satellite services
may be limited by satellite capacity. New multi-channelled services could
also have financial implications for the Government, which is funding the
satellite delivery for the current number of digital multi-channels.
For these reasons, satellite broadcasting service licensees would not be
required to provide new multi-channel services which commence following the
conclusion of a simulcast period in the relevant metropolitan licence
areas. Rather, satellite broadcasting service licensees would be authorised
to provide the new multi-channel service, should they choose to do so.
Conditions on the satellite broadcasting service licence
The statutory licence conditions set out in the proposed Bill provide that
each satellite broadcasting service licensee would be required to do the
following:
. broadcast at least three core/primary services with program content
which is the same, or substantially the same, as programs provided by
the remote commercial broadcasters in the related terrestrial licence
area. These must be distinct from each other to avoid the prospect of
duplicate services;
. broadcast the program content of the Nine Network, Network Seven and
Network Ten affiliated standard definition and high definition multi-
channels provided by remote commercial broadcasters in the related
terrestrial licence area (a total of nine commercial multi-channels,
including core/primary services). These must be distinct from each
other to avoid the prospect of duplicate services;
. at commencement of the satellite broadcasting service, should remote
commercial broadcasters in the related terrestrial licence area be
unable to provide their core/primary or digital standard definition
and high definition multi-channels to the satellite licensee, the
satellite broadcasting service licensee must replace the missing
digital service/s with the core/primary and/or standard definition and
high definition multi-channel service/s provided by a commercial
broadcaster in a metropolitan licence area;
. broadcast any local news program which is supplied by regional
commercial broadcasters in accordance with licence conditions that
apply to regional commercial broadcasters as soon as practicable after
the regional commercial broadcaster begins to broadcast the local news
program or material in its terrestrial licence area;
. comply with any conditional access scheme registered by the ACMA under
Part 9C of the draft provisions;
. comply with technical standards as may be determined by the ACMA for
digital transmission and for domestic digital reception equipment
using a satellite.
Like other commercial television broadcasters, satellite broadcasting
service licensees would also be subject to the standard licence conditions
set out in Schedule 2 to the BSA. The exceptions are that they would not be
expected to comply with conditions that are specific to commercial digital
television broadcasting in terrestrial licence areas and the media control
rules (from which the satellite broadcasters would be exempt).
Technical standards for digital transmission and domestic reception of
satellite services
The ACMA would be responsible for determining technical standards for the
transmission of free-to-air digital television services on the satellite
broadcasting service. Commercial satellite broadcasting service licensees
and national television broadcasters providing their services by satellite
would be required to comply with the technical standards as determined by
the ACMA.
The ACMA would also be responsible for determining the technical standards
for domestic reception equipment which is capable of receiving the
commercial services provided by commercial satellite licensees on the
satellite service and/or national digital television services provided by
satellite. There would be corresponding provision for penalties for the
supply of domestic reception equipment which does not comply with the ACMA
technical standard. The ACMA would provide exemptions for specified
domestic reception from the penalty provisions.
Content obligations on commercial television broadcasting licensees
Local news and information on the satellite service
As a condition of the satellite broadcasting service licence, a satellite
broadcasting service licensee would be required to provide local news and
information on the satellite which is broadcast by regional broadcasting
licensees to viewers in each of the terrestrial licence areas corresponding
with the relevant satellite licence area.
Satellite broadcasting service licensees will not be required to provide
local news and information programming which is wholly a repeat of a
program previously shown by a regional commercial broadcasting licensee.
However, local news and information programs which are not repeats of
programs previously shown by a regional commercial broadcasting licensee
will be provided on the satellite service as soon as practicable after they
begin to be broadcast by the regional commercial broadcasting licensee.
These programs will then be repeated as part of a cycle on the new
satellite service's channel.
The relevant satellite broadcasting service licensee would be responsible
for the aggregation of this local news and information provided by regional
broadcasters for transmission by satellite. This responsibility would
include the determination of arrangements for content acquisition,
negotiation of appropriate transmission rights from the relevant
terrestrial regional broadcaster where necessary, and collation and
distribution of local news and information from regional broadcasting
licensees.
Viewers may access the local news and information which is relevant to
their terrestrial regional licence area on an additional satellite service
channel reserved for the purpose. However, it is likely that the satellite
broadcasting service licensees for the Western Australia TV3 licence area
will provide local news and information on their core/primary channels.
To ensure the supply of local news and information to satellite viewers,
regional broadcasting licensees would be required to provide unique local
news and information which they deliver terrestrially to viewers in each of
their licence areas either simultaneously or as soon as practicable to the
relevant satellite licensees for transmission by satellite in the relevant
satellite licence area.
A separate condition on remote area broadcasting licensees is not required
since remote area broadcasters would already provide local news and
information relevant to remote area viewers through the core/primary and
multi-channelled services they are required to provide to satellite
broadcasting service licensees for delivery in the relevant satellite
licence area.
There are two categories of local news and information which regional
broadcasters would be required to supply to the relevant satellite
broadcasting service licensee for transmission to satellite viewers. The
first category would be the local news and information that some
terrestrial regional broadcasters are required to provide as a condition of
their licence. The second category would be the local news and information
that is provided voluntarily by regional broadcasters as part of their
terrestrial service.
In relation to the first category, section 43A of the BSA requires that the
ACMA impose additional licence conditions on particular commercial
television broadcasting licensees in aggregated television markets. The
additional licence condition requires these broadcasters to broadcast a
minimum level of material of local significance in defined local areas
within the aggregated licence area. Regional broadcasting licensees
operating in non-aggregated regional licence areas have no specific local
area content requirements.
As part of the additional licence condition imposed by the ACMA in relation
to material of local significance, section 43A of the BSA would include a
requirement that a commercial television broadcasting licensee subject to
the licence condition imposed under section 43A must provide material of
local significance broadcast in their terrestrial licence area to the
relevant satellite broadcasting service licensee for delivery to the
relevant satellite licence area.
In relation to the second category, regional broadcasting licensees would
provide local news, local weather, community service announcements and
other local information which they broadcast as relevant to all or part of
the terrestrial licence area to the satellite licensee. The ACMA would
impose an additional statutory licence condition which would require
regional broadcasting licensees (whether or not they are also subject to
the condition in section 43A of the BSA) to provide this local news and
information to the satellite licensee. If the broadcaster concerned is
already subject to section 43A, then that broadcaster would be required
under the additional statutory licence condition to provide local news and
information that is over and above material of local significance to the
satellite licensee.
For the purpose of identifying 'local news and information' for the second
category, the ACMA would be given the authority to make legislative
instruments that define 'local news program' and 'local news and
information'.
Penalties would apply to regional broadcasting licensees for non-compliance
with the additional licence conditions. A breach of the new licence
condition would be subject to the same penalties and enforcement processes
that apply to section 43A of the BSA.
Requirement to provide program content to a satellite broadcasting service
licensee
It is crucial that the satellite broadcasting service licensees are able to
obtain the programs that they are required to provide by their licence
conditions. Accordingly, existing remote area commercial broadcasting
licensees which are licensed for terrestrial licence areas related to a
particular satellite licence area would be required to provide their
network-affiliated core/primary and standard definition and high definition
multi-channelled services to the relevant satellite broadcasting service
licensee for transmission on the relevant satellite service.
Relevant remote commercial broadcasting licensees would be required to
provide their program content to the satellite broadcasting service
licensee either simultaneously with the broadcast of the program on the
remote area terrestrial service or as soon as practicable after the
broadcast of the program on the remote area terrestrial service. As
outlined above, additional licence conditions would also be imposed on all
regional commercial terrestrial television broadcasters which would require
them to provide to the satellite broadcasting service licensee serving
their terrestrial licence area the local news programs and other local
information programs that they broadcast in their terrestrial licence
areas.
A corresponding licence condition would be placed on commercial
broadcasting licensees in metropolitan licence areas to ensure that they
comply with a satellite broadcasting service licensee's request for
particular standard definition and high definition programs which would
then be broadcast on the satellite broadcasting service. The metropolitan
broadcaster would be required to provide the program requested by the
satellite broadcasting service licensee either simultaneously, or as soon
as practicable, after the program is broadcast on the metropolitan service.
Copyright and acquisition of property
To support the requirement on regional and metropolitan broadcasters to
supply their content to satellite broadcasting service licensees for
broadcast in the relevant satellite licence area, a satellite broadcasting
service licensee would be expected to reach a commercial agreement with
metropolitan and regional broadcasters for the provision of programming and
content, including local news and information, for broadcast on the
satellite service.
Where such an agreement cannot be reached, a statutory licensing scheme
would be established in order to provide equitable remuneration to
copyright holders. Such a scheme would also account for the copyright
embedded in the broadcast (that is, the copyright in works, cinematograph
films and sound recordings transmitted by the satellite licensees).
The Copyright Act 1968 would be amended to establish such a statutory
licensing scheme to determine equitable remuneration where commercial
negotiations fail. The scheme would provide that the copying, broadcasting
and re-broadcasting by a satellite broadcasting service licensee of a
particular broadcast by a metropolitan or regional broadcaster does not
infringe the copyright in the broadcast, or in any work, sound recording or
cinematographic film included in the broadcast, if a remuneration notice
given to the relevant collecting society is in force.
The proposed statutory licence would be limited to copying, broadcasting or
re-broadcasting the following program material by the satellite service
provider:
. program content that a remote or metropolitan commercial television
broadcasting licensee is required to supply to a satellite
broadcasting service licensee for broadcast in a satellite licence
area; or
. local news and information that regional commercial television
broadcasting licensees are required to supply to a relevant satellite
broadcasting service licensee for the applicable satellite licence
area;
where that copying, broadcasting or re-broadcasting is necessary for the
satellite provider to comply with licence conditions for the new satellite
service.
Constitutional safety net clause
To ensure the constitutional validity of the measures in this bill, the
Australian Government Solicitor (AGS) has recommended the inclusion of a
constitutional 'safety net' to safeguard against rulings that the
legislation is invalid on constitutional grounds.
Under this clause the satellite broadcasting service licensee would be
liable to pay a reasonable amount of compensation if such an acquisition is
deemed to be on other than 'just terms'.
Regulation of content broadcast on the satellite services
Regulation under the BSA of the televising of sporting events on the anti-
siphoning list, captioning requirements and program standards for
Australian content and children's programs on the satellite broadcasting
service should be consistent with regulation on remote, regional and
metropolitan broadcasters' terrestrial digital television services. This
means that a satellite broadcasting service licensee's non-core/primary
multi-channelled standard definition and high definition services would be
exempt from program standards and captioning requirements until the end of
the simulcast period in the last applicable terrestrial digital television
switch-over date in that satellite licence area. This is consistent with
the exemption provided to commercial television broadcasters' non-
core/primary standard definition and high definition multi-channels in
terrestrial licence areas.
Maintaining consistency in the regulations across the satellite and
terrestrial transmission platforms would avoid a situation in which
programming provided for transmission on the satellite service by regional,
remote and metropolitan broadcasters as part of their licence conditions
would be required to meet separate regulatory requirements. Such a
situation would impose an increased regulatory burden on terrestrial
broadcasters which is not the intention of the new satellite broadcasting
service.
Primary multi-channelled commercial and national television services
delivered on the satellite
Primary services would be distinguished from other standard definition and
high definition multi-channel services provided by commercial satellite
broadcasting service licensees in order to enable the regulation of the new
satellite services to be consistent with terrestrial services in relation
to the televising of sporting events on the anti-siphoning list, captioning
requirements and standards governing Australian content and children's
programs.
The ACMA would be given the authority to identify up to three standard
definition multi-channels as primary commercial services provided by the
satellite broadcasting service licensee in the satellite licence area. It
is not the intention that satellite broadcasting service licensees would
broadcast two identical channels. Rather, the ACMA must identify one
primary service that corresponds with each of the major terrestrial
commercial networks, the Nine Network, Network Ten, and Network Seven, for
broadcast by satellite in each satellite licence area. These could either
be a service that is the same as the core/primary service provided by the
remote area broadcasters under their terrestrial broadcasting licence, or
the same, or substantially the same, as the core/primary services broadcast
by commercial broadcasters in metropolitan licence areas.
Similarly, each national broadcaster would nominate to the Minister a
specified standard definition service in a specific satellite delivery area
as the primary satellite national television broadcasting service. The
digital television services of the national broadcasters would be provided
for satellite delivery in standard definition and, where currently offered
in that format, high definition for delivery by satellite.
The nomination of a primary satellite national television broadcasting
service would allow captioning requirements on the satellite broadcasting
service to be regulated in the same way as on the national broadcasters'
terrestrial services. The national broadcasters' primary services on the
satellite broadcasting service would be distinguished from the other
standard definition and high definition multi-channels provided by the
national broadcasters on the satellite broadcasting service.
Anti-siphoning restrictions on commercial satellite broadcasting service
licensees and on national broadcasters' satellite services
The digital television services provided by the satellite broadcasting
service would also be subject to restrictions on television anti-siphoning
events.
The restrictions would apply to the satellite broadcasting service
licensee's primary standard definition commercial television broadcasting
service identified by the ACMA, and to the national broadcasters' standard
definition primary satellite national television broadcasting service,
nominated to the Minister, as well as any other secondary standard
definition multi-channelled services provided by the satellite broadcasting
service licensee and national broadcasters for satellite delivery.
Similar restrictions on anti-siphoning events would also apply to high
definition multi-channelled services provided by a satellite broadcasting
service licensee or national broadcaster in a satellite licence area or
satellite delivery area. The satellite broadcasting service licensee and
the national broadcaster would not be allowed to televise the whole or part
of an anti-siphoning event on its high definition multi-channel unless it
met the above criteria.
The secondary standard definition or high definition multi-channel services
would not broadcast the whole or a part of an event on the anti-siphoning
list in the satellite licence area or, for the national broadcasters, the
satellite delivery area unless:
. it was previously televised on the primary commercial television
broadcasting service or the primary satellite national service;
. it will be televised simultaneously on both the primary and secondary
services; or,
. in the case of a part of an anti-siphoning event, if the part of the
event is televised in a news or current affairs program on the
secondary service.
Content classification across time zones for commercial services on the
satellite service
The BSA requires that the Commercial Television Broadcasting Code of
Practice ensures that there are specific times during which different
classifications of content can be shown, including children's content. For
example, programs rated MA15+ cannot be broadcast before 9.30pm. Similarly,
the Children's Television Standards include requirements about the times of
day during which C and P programs are to be shown (including school holiday
periods).
Two of the satellite service licence areas are not State or Territory
specific. This means that programming would be transmitted across multiple
time zones within a satellite licence area. The South Eastern Australia TV3
licence area would serve New South Wales, Victoria, South Australia,
Tasmania, the Australian Capital Territory and the Jervis Bay Territory.
The Northern Australia TV3 licence area would serve Queensland and the
Northern Territory. The Western Australia TV3 licence area is the only area
that is state specific and hence involves a single time zone.
For this reason, it is likely that satellite broadcasting service licensees
for the South Eastern Australia TV3 licence area and the Northern Australia
TV3 licence area would unintentionally contravene classification
requirements as set out in the Children's Television Standards or the
Commercial Television Broadcasting Code of Practice. A single programming
stream delivered to either of these licence areas would comply in one area
and not in another area due to the difference in time zones.
Mandating that the satellite broadcasting service licensees must broadcast
at the correct time zone would have significant financial implications for
the satellite broadcasting service licensee and the Government which is
funding the new service over the first ten years. To address this, the
satellite broadcasting service licensee in each of those satellite licence
areas would nominate to the ACMA a time (or time zone) in a particular
place that would be the basis for determining a satellite broadcasting
service licensee's compliance with classification standards and codes of
practice to the extent that the time of day is relevant.
For standard definition services provided by licensees in the South Eastern
Australia TV3 and the Northern Australia TV3 licence areas, broadcasters
would nominate a specified place in each of the licence areas. For high
definition services provided by licensees in the South Eastern Australia
TV3 licence area and Northern Australia TV3 licence area, broadcasters
would nominate a specified place in either the South Eastern Australia TV3
or Northern Australia TV3 licence areas.
Programming broadcast by the satellite broadcasting service licensee would
then be subject to the classification standards and codes of practice as
they pertain to the time (or time zone) in the nominated place. Under this
arrangement, the satellite broadcasting service licensee would be exempt
from meeting classification standards and codes of practice on the
satellite services provided in time zones other than the one in the place
nominated.
Satellite broadcasting service licensees in the South Eastern Australia TV3
licence area and the Northern Australia TV3 licence area may withdraw a
nomination of a place for the purpose of content classification and make a
fresh nomination to the ACMA.
Emergency information
Satellite services, like all other commercial television broadcasting
services, will be subject to the Commercial Television Industry Code of
Practice, which includes provision for the broadcast of emergency
information related to the satellite licence area.
Conditional access arrangements for satellite services
It is intended that viewers who are unable to adequately receive one or
more of the terrestrial digital television commercial broadcasting services
available in their terrestrial licence area will be able to access the
relevant satellite digital television services. In this regard, the
inability to receive one or more of the standard definition or high
definition multi-channels that form part of the terrestrial digital
television commercial broadcasting service is an inability to receive the
entire service.
To preserve the integrity of the new commercial satellite licence areas and
existing commercial regional and metropolitan television licence areas,
access to the satellite service would be subject to conditional access
arrangements. Commercial broadcasters have agreed to establish a body or
association (the association) which will include a scheme administrator to
administer the conditional access arrangements (the scheme administrator).
While the satellite services provided by the national broadcasters will not
be subject to the conditional access system developed by the scheme
administrator or the ACMA in lieu of the association, viewers of these
services will receive those applicable to the State or Territory in which
they reside.
Conditional access schemes
Conditional access would be based on the following principles:
. viewers residing in remote licence areas or in metropolitan and
regional areas currently authorised to receive satellite-delivered
remote area commercial television services (RABS) because they reside
in areas of signal deficiency (Category A reception areas) would
receive automatic access to the commercial satellite digital
television service in the relevant satellite licence area on
commencement of the satellite service in the relevant satellite
licence area; and
. viewers residing in regional licence or metropolitan areas in known
areas of signal deficiency (Category B reception areas), would receive
access to the commercial satellite digital television service in the
relevant satellite licence area as soon as they are eligible to do so;
. viewers who do not reside in Category A or Category B areas but who
are unable to receive the commercial terrestrial digital television
signals licensed for their area (Category C reception areas) would
apply on a case by case basis for access to the relevant satellite
broadcasting service and would need to demonstrate their inability to
access adequate commercial terrestrial digital television signals.
The process for applying for, and approving access to, the satellite
service would be managed by a body or association representing commercial
television broadcasting licensees (the association). The ACMA would be
responsible for determining any technical standards for assessing adequate
reception of terrestrial services.
Viewers residing in Category A reception areas will be able to access the
relevant satellite service from the date the service commences in the
relevant satellite licence area. Viewers residing in Category B and
Category C reception areas cannot be granted access to the relevant
satellite service more than six months before the digital switch-over date
in their licence area.
To be registered by the ACMA, any conditional access scheme would also be
required to achieve the following objectives:
. identify a scheme administrator for the conditional access scheme who
is authorised to issue a reception certificate to access the relevant
satellite broadcasting service to a person in a Category C reception
area;
. enable a person who resides in a Category C reception area and holds a
reception certificate to receive the relevant satellite broadcasting
service;
. provide that an application for a reception certificate must be
accepted and dealt with by the scheme administrator within 14 days of
receiving the application and without requiring a fee by the applicant
or incurring any other expenses;
. authorise the scheme administrator to revoke a reception certificate
if a person ceases to be eligible to access the satellite broadcasting
services;
. ensure that viewers in a local market area and not in a Category A
reception area cannot be authorised to receive the satellite service
earlier than six months before the date that the local market area
becomes a digital-only market area; and
. ensure that viewers who are in a simulcast area but are not in a local
market area and not in a Category A reception area cannot be
authorised to receive the satellite service earlier than six months
before the end of the simulcast period in the simulcast area.
Registration of a conditional access scheme
Within 45 days after the allocation of a satellite broadcasting service
licence, the association would provide the ACMA with a conditional access
scheme. If the ACMA is satisfied that the conditional access scheme
provided by the association is consistent with the principles that a person
in a licence area should have adequate reception of either the terrestrial
commercial digital services licensed for that area or the relevant
satellite service, then the ACMA must register the conditional access
scheme within 28 days of receiving a copy of the scheme.
If, after 90 days, the association has been unable to provide the ACMA with
a suitable conditional access scheme, then the ACMA would formulate and
register a conditional access scheme consistent with the principle that a
person in a licence area should have adequate reception of either the
terrestrial commercial digital services licensed for that area or the
relevant satellite broadcasting service. Before registering the ACMA
formulated conditional access scheme, the ACMA must publish a draft of the
scheme on its website and invite submissions from interested persons to
make written submissions within a 14 day period.
The ACMA would maintain an electronic register of conditional access
schemes which would be publicly available on the ACMA website. If changes
are made to a conditional access scheme, the altered conditional access
scheme would be subject to the same registration process. If a conditional
access scheme is altered, the conditional access scheme would be replaced
on the Register, rather than the registered scheme being varied. Satellite
broadcasting service licensees would be required to comply with any
conditional access scheme registered by the ACMA.
The ACMA would also have an oversight role, including investigating
complaints of decisions taken by the association's scheme administrator
with an appropriate power to require that access to the satellite
broadcasting service be provided and to direct the scheme administrator to
issue a reception certificate as needed. Further, if the scheme
administrator did not act on a correctly completed application within 14
days after receipt of the application, then the ACMA can also investigate
the complaint. The ACMA would not need to investigate any complaints that
are frivolous, vexatious or not made in good faith.
If the ACMA investigates the complaint and finds that the person does not
have adequate terrestrial reception of digital television services, then
the ACMA may, by written notice, direct the scheme administrator to issue a
reception certificate to the person within a period which is not longer
than 28 days. Prior to issuing such a direction, the ACMA would be required
to invite the scheme administrator to make a submission in relation to the
complaint within a specified time period which is not longer than 28 days.
If the scheme administrator does not comply with a direction issued by the
ACMA, then the ACMA may determine that the conditional access scheme and
the BSA have the same effect as if the scheme administrator had issued a
reception certificate to the applicant.
A reception certificate may be revoked by the scheme administrator in
certain circumstances where the viewer is no longer eligible. This
includes, for example, if a terrestrial transmission facility has been
established which would now serve the viewer.
An applicant or the holder of a reception certificate would be able to make
an application to the Administrative Appeals Tribunal for a review of a
decision to refuse to issue a reception certificate or to revoke a
reception certificate under any conditional access scheme formulated by the
ACMA.
Improving viewer access: terrestrially-delivered commercial digital
television services
The new satellite broadcasting service will be provided to viewers who are
unable to receive the terrestrially-delivered commercial digital television
services provided by commercial broadcasters licensed for their area. To
provide increased diversity in the free-to-air commercial television
services available in terrestrial licence areas, provision would be made to
increase the number of commercial services available in smaller licence
areas.
Equivalency of terrestrial commercial services
Commercial broadcasters in several regional terrestrial licence areas are
currently only licensed to provide two commercial services. This enables
them to deliver one core standard definition service, one standard
definition multi-channel, and one high definition multi-channel for each
service. This limits their ability to provide all of the commercial
'Freeview' digital television services to their terrestrial viewers.
Viewers in the Griffith and MIA, Broken Hill, Spencer Gulf, Mount
Gambier/South East and Riverland terrestrial licence areas receive only two
commercial services and commercial digital multi-channels are currently
unavailable. All of the licensees in these licence areas hold a licence
under section 38A of the BSA.
The establishment of a satellite broadcasting service to address black
spots would create an anomalous situation in which viewers who live in a
digital television black spot in those terrestrial licence areas would
receive 'Freeview' services on the satellite while terrestrial viewers with
adequate terrestrial digital television reception in the same licence area
would not.
The inability of licensees to offer all of the commercial 'Freeview'
digital television services in these licence areas would be addressed by
establishing a mechanism under section 38B of the BSA for the provision of
a third terrestrial commercial digital television service in those regional
licence areas currently served by only two commercial services. Making
provision for a third terrestrial commercial digital television service in
these licence areas would remove a barrier to the provision of an
equivalent number of digital commercial television services available
across every terrestrial licence area in Australia.
If the licence for the third digital-only commercial television service is
issued to the incumbent licensee then they would either hold or be in a
position to control three licences within a market.
Should this be the case, the incumbent licensee would be eligible for
exemption from the legislated ownership and control rules through the
existing exemption provisions for small markets which currently apply to
additional licences allocated under section 38A and section 38B, both of
which would apply to the incumbent licensee. No legislative amendment is
required to provide this exemption from the legislated ownership and
control rules.
Further amendments to section 38B of the BSA are also proposed to allow
that, if a joint venture company fails to commence a service under section
38B, the ACMA would have the capacity to re-start the licence allocation
process to a single commercial broadcaster in the licence area.
Multi-channel provisions on regional broadcasters in underserved areas
during the simulcast period
In recognition of the special circumstances of terrestrial broadcasters
operating in these smaller markets, terrestrial commercial broadcasters in
the underserved terrestrial licence areas of Griffith and MIA, Broken Hill,
Spencer Gulf, Mount Gambier/South East and Riverland would be able to
provide all of the commercial 'Freeview' digital television services in
standard definition only.
A commercial broadcaster licensed under sections 38A and 38B of the BSA
could provide a full range of commercial digital television multi-
channelled services either in standard definition format only in, or in a
combination of, standard definition and high definition formats. No high
definition quotas would apply to these services (although they could choose
to provide high definition programming if they chose to do so).
Revocation of multi-channelling elections
A commercial broadcaster with a licence allocated under section 38B of the
BSA may make a multi-channelling election under subclause 6(5A) or 6(5AA)
of Schedule 4. Such an election allows a commercial broadcaster to deliver
digital television services by using a minimum number of transmitters which
provides cost benefits to the broadcaster by minimising transmission costs.
Under a multi-channelling election it would be possible to provide
additional commercial digital multi-channels within the transmission
capacity of two channels of spectrum, as long as the television services
are all broadcast in standard definition.
In addition, if an incumbent licensee applies for a third commercial
television licence under the amended section 38B of the BSA, the allocation
of the third broadcasting licence would be coupled with an entitlement to
an additional transmitter licence authorising the use of an additional 7MHz
channel. This would allow spare transmission capacity under the additional
transmitter licence to be used for the purpose of providing additional
multichannels for one or both of the other commercial television services
that the licensee currently provides.
In relation to existing section 38A and section 38B licences, all multi-
channelling elections will be automatically cancelled at the end of the
simulcast period and no new multi-channelling elections would be permitted.
Consequently, the ACMA would allocate to the licensees in these licence
areas a third transmitter licence. The intention is to equalise spectrum
licences so that a transmitter licence authorises the use of one 7MHz
channel of spectrum for each commercial television broadcasting licence in
every licence area.
This proposed amendment to multi-channelling elections made under section
38B of the BSA, along with the proposed amendments to the allocation of
commercial broadcasting licences under section 38B, would assist in
facilitating commercial broadcasters to provide an equivalent range of
digital television services in underserved areas as are available in
metropolitan licence areas.
Designation of primary commercial television broadcasting services in
terrestrial licence areas
The ACMA must declare, by legislative instrument, a standard definition
multi-channelled commercial television broadcasting service in a
terrestrial licence area to be the primary service and must do so as soon
as practicable after the commencement of the Broadcasting Legislation
Amendment (Digital Television) Act. This declaration must be in force both
during and after the simulcast period.
Satellite services not to be used to meet terrestrial coverage requirement
The Commercial Television Conversion Scheme has, as one of its policy
objectives, the requirement that commercial television broadcasting
licensees in a particular terrestrial licence area should achieve the same
level of coverage and potential reception quality with their standard
definition digital television services, during and after the simulcast
period, as that achieved by their analog terrestrial television services.
It is not the intention that the new satellite broadcasting services would
be used to meet the coverage requirement expressed in the Commercial
Television Conversion Scheme.
In order to avoid any ambiguity, commercial television services provided by
a satellite broadcasting service licensee would be specifically excluded
from the policy objectives dealing with same level of coverage of digital
terrestrial services. Remote area broadcasters, however, may use the
relevant satellite broadcasting service to provide digital program feeds to
their transmitters for terrestrial transmission in their terrestrial
licence areas.
FINANCIAL IMPACT STATEMENT
The Bill creates a framework for a new satellite service to allow the
provision of digital television to all Australians. The amendments in this
Bill will not of themselves result in any direct financial impact on the
Government.
The Government is currently in negotiations with commercial and national
broadcasters to fund this service.
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACMA: Australian Communications and Media Authority
AGS: Australian Government Solicitor
Association: the body or association representing commercial television
broadcasting licensees for the purposes of
conditional access arrangements
Bill: Broadcasting Legislation Amendment (Digital Television) Bill 2010
BSA: Broadcasting Services Act 1992
Copyright Act : Copyright Act 1968
HD: broadcast of a digital television multi-channel in high definition
format
LIA: Legislative Instruments Act 2003
Minister: Minister for Broadband, Communications and the Digital Economy
OBPR: Office of Best Practice Regulation,
Department of Finance and Deregulation
Related terrestrial licensee: remote commercial broadcasting licensees
whose terrestrial licence area is within the
satellite licence area
Scheme administrator: the administrator responsible for issuing reception
certificates for the association representing
commercial television broadcasting licensees for the
purposes of conditional access arrangements
SD: broadcast of a digital television multi-channel in standard
definition format
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the Bill, when enacted, to be cited as the
Broadcasting Legislation Amendment (Digital Television) Act 2010.
Clause 2 - Commencement
Clause 2 provides that each provision of the Bill specified in column 1 of
the table in clause 2 will commence, or will be taken to have commenced, on
the day or at the time specified in column 2 of that table.
Clause 3 - Schedule(s)
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 is one
Schedule to the Bill, which provides for amendments to the Broadcasting
Services Act 1992 and the Copyright Act 1968.
Schedule 1 - Amendments
Item 1 - Subsection 6(1) (before paragraph (a) of the definition of
commercial television broadcasting licence)
This item amends the definition of commercial television broadcasting
licence to include a licence allocated under section 38C for the provision
of commercial television broadcasting services with the use of a satellite.
Item 2 - Subsection 6(1)
This item amends subsection 6(1) to include a definition of a conditional
access scheme as a scheme that complies with new section 130ZB.
Item 3 - Subsection 6(1) (at the end of the definition of core commercial
television broadcasting service)
This item inserts a note after the definition of core commercial television
broadcasting service to explain that there are no "core" services in
relation to licences allocated after 1 January 2009. Core commercial
television broadcasting services are certain services only authorised by
licences that were allocated before 1 January 2009 (as provided for in
sections 41A and 41B of the BSA).
Item 4 - Subsection 6(1)
This item amends subsection 6(1) to include a definition of core/primary
commercial television broadcasting service. This definition treats, as the
same, core commercial television broadcasting services authorised by
licences allocated before 1 January 2009 and primary commercial television
broadcasting services as declared by the ACMA under clause 41G of Schedule
4 to the BSA.
Item 5 - Subsection 6(1) (definition of licence area)
This item amends the definition of licence area in subsection 6(1) to
include an area specified for the purposes of a licence allocated under
section 38C for the provision of commercial television broadcasting
services with the use of a satellite, as specified in column 1 of the table
in subsection 38C(1).
This item also inserts two notes to the definition of licence area:
. a reference to section 4AD, which deals with deemed radio broadcasting
licence areas; and
. a reference to section 8 of the Broadcasting Services (Transitional
Provisions and Consequential Amendments) Act 1992, which deals with
deemed licence areas.
Items 6 & 7 - Subsection 6(1)
These items amend subsection 6(1) to include definitions of reception
certificate and scheme administrator for the purpose of a conditional
access scheme registered under new Part 9C of the BSA (see Item 64).
Items 8 & 9 - Section 14
Under paragraph 14(b) of the BSA, commercial broadcasting services are
categorised as services that provide programs that are able to be received
by commonly available equipment and are made available free to the general
public.
Items 8 and 9 amend the categorisation of commercial broadcasting services
such that for the purposes of the application of Section 14 to a
broadcasting service provided under a licence allocated under section 38C
(commercial television broadcasting services provided with the use of a
satellite), it is assumed that there is no conditional access system that
relates to the broadcasting service.
Note: a commercial television broadcasting service provided under a licence
allocated under section 38C may be subject to a conditional access system
(see items 64 and 72).
Item 10 - At the end of section 29
This item amends section 29 so that this section does not apply to a
licence allocated under section 38C. The licence areas for commercial
television broadcasting licences allocated under section 38C are defined in
subsection 38C(1).
Item 11 - Before section 35A
Items 11, 27, 33 and 42 have the effect of dividing Part 4 of the BSA into
four divisions: "Division 1 - Allocation of licences"; "Division 2 -
Services authorised by licences"; "Division 3 - Licence conditions"; and
"Division 4 - General conditions". The proposed sub-division of Part 4 aids
reader navigation.
This item inserts the heading for Division 1.
Item 12 - Paragraph 37(1)(a)
Section 37 deals with the types of applicants who are able to be allocated
a commercial broadcasting licence. Currently, in order to be allocated a
broadcasting licence the applicant needs to be, among other things, a
company formed in Australia or an external Territory.
This item replaces a reference to a company "formed in Australia or in an
external Territory" with a reference to a company registered under Part
2A.2 of the Corporations Act 2001.
Item 13 - After paragraph 38A(1)(a)
This item inserts new paragraph 38A(1)(aa) to preclude a satellite service
licensee from applying for an additional commercial television broadcasting
licence under section 38A.
Item 14 - Paragraph 38B(1)(b)
This item repeals the prohibition on a licensee allocated a commercial
television broadcasting licence under section 38A from applying for a
commercial television broadcasting licence under section 38B.
Where only one commercial television broadcasting licensee exists in a
licence area, section 38A provides for that licensee to be able to apply
for an additional commercial television broadcasting licence in the same
licence area (an additional commercial television service authorised by a
licence allocated under section 38A is currently provided in each of the
non-aggregated regional licence areas of Riverland and Spencer Gulf in
South Australia, Mt Gambier/South East in South Australia and Victoria, and
Griffith and MIA and Broken Hill in New South Wales). Under section 38B,
where there are two licensees in a licence area, those licensees may apply
(either as a joint venture or individually) for an additional, digital-
only, commercial television broadcasting licence. A licensee who holds a
licence allocated under section 38A currently cannot apply for a licence
under section 38B.
This amendment will enable a broadcaster providing an additional licensed
service under section 38A in those smaller regional markets to apply for an
additional licence to provide a third, digital-only, commercial television
broadcasting service in the same licence area.
Item 15 - At the end of paragraph 38B(1)(c)
Item 16 - After paragraph 38B(1)(c)
Item 17 - Subsection 38B(1)
Item 19 - After subsection 38B(1)
Item 20 - Subsections 38B(2) and (3)
Item 21 - Paragraphs 38B(7)(b) and 8(b)
Item 22 - Paragraphs 38B(18)(b) and (c)
Item 23 - At the end of subsection 38B(19)
Item 24 - After subsection 38B(19)
Item 25 - Subsections 38B(26), (27) and (28)
Section 38B provides for the allocation of an additional, digital-only,
commercial television broadcasting licence in licence areas where there are
only two existing licensees, through the allocation of the additional
licence to a joint-venture company formed by the two existing licensees, or
where one or both of the existing licensees applies separately for the
additional licence.
The amendments made by these items have the overall effect of enabling the
ACMA to initiate a licence allocation process by inviting the parent
licensees to submit within the specified period a notice of intention
(jointly or separately) regarding an application for a section 38B licence.
This will ensure that intentions are notified within a common timeframe and
that licence application(s) may be considered at the same time. A common
deadline is important in the event that multiple applications are submitted
(prompting a price-based allocation process).
Item 17 amends subsection 38B(1) to remove the requirement that the
existing licensees have 90 days from the "designated time" to jointly give
notice that a joint-venture company will apply for the licence, or else for
each licensee to give notice that the licensee will apply separately for
the additional licence.
Item 20 amends subsection 38B(2) to replace the requirement that an
application by the joint-venture company for an additional licence must be
made within 12 months of the "designated time", to be within 12 months from
when notice is given by existing licensees under proposed paragraph
38(1)(d). Item 21 similarly amends subsection 38B(3) to remove the same
requirement in relation to a separate application by an existing licensee,
so that the application must be made within 12 months of notice being given
under paragraph 38(1)(e). Item 25 repeals provisions that define the
"designated time", because the 'designated time' concept is redundant.
Items 15 and 16 amend subsection 38B(1) to enable the ACMA, by notice in
the Gazette, to invite the existing licensees to give the ACMA joint notice
under paragraph 38B(1)(d), or each licensee to give notice separately under
paragraph 38B(1)(e), during a period to be specified by the ACMA. A notice
under new paragraph 38B(1)(ca) is not a legislative instrument (new
subsection 38B(1A) in item 19).
Item 22 amends subsection 38B(18) so that only additional commercial
television licences issued under section 38B before the commencement of new
section 38C are subject to the licence conditions in paragraphs 38B(18)(b)
and 38B(18)(c).
Item 23 amends subsection 38B(19) so that licences allocated under section
38B before the commencement of section 38C are not subject to licence
conditions for commercial television broadcasting services in paragraphs
7(1)(i), 7(1)(l) and 7(1)(m) of Schedule 2 of the BSA. Item 24 inserts new
subsection 38B(19A) which provides that a licence allocated under section
38B after the commencement of section 38C is not subject to licence
conditions in paragraphs 7(1)(l) and 7(1)(m) of Schedule 2 to the BSA.
(Paragraph 7(1)(i) of Schedule 2 provides that a commercial television
broadcasting licensee must commence a service within 12 months of
allocation of a licence or such longer period as notified by the ACMA.
Commencement for section 38B licensees is provided for in subsection
38B(18). Paragraphs 7(1)(l) and 7(1)(m) relate to compliance with an
implementation plan and analog-digital simulcast requirements under the
commercial television conversion scheme, which are not relevant to licences
issued under section 38B).
Item 18 - Subparagraph 38B(1)(d)(iii)
Currently, in order to be allocated a broadcasting licence under section
38B the applicant needs to be, among other things, a company formed in
Australia or an external Territory.
This item replaces a reference to a company "formed in Australia or in an
external Territory" with a reference to a company registered under Part
2A.2 of the Corporations Act 2001.
Item 26 - After section 38B
This item inserts new section 38C, which provides for the allocation
process for commercial television broadcasting services provided with the
use of a satellite. Remote commercial television broadcasting licensees
will have the opportunity to apply for a licence under section 38C, as
either a joint-venture with another remote commercial television
broadcasting licensee, or individually. If no remote commercial television
broadcasting licensee applies, or a licence allocated under section 38C is
subsequently cancelled, the ACMA must commence a reallocation process for
the licence.
Column 1 in the table in subsection 38C(1) lists the three new licence
areas for provision of commercial television broadcasting services by
satellite, with column 2 listing the corresponding areas:
. South Eastern Australia TV3 (the area consisting of New South Wales,
Victoria, South Australia, Tasmania, the Australian Capital Territory
and the Jervis Bay Territory);
. Northern Australia TV3 (the area consisting of Queensland and the
Northern Territory); and
. Western Australia TV3 (the area consisting of Western Australia).
Column 3 in the table in subsection 38C(1) lists the licence areas of the
commercial television broadcasting licensees that are eligible joint
venturers for the purposes of subsection 38C(2):
. for South Eastern Australia TV3 - Remote Central and Eastern Australia
TV1, Remote Central and Eastern Australia TV2, and Mt Isa TV1;
. for Northern Australia TV3 - Remote Central and Eastern Australia TV1,
Remote Central and Eastern Australia TV2, and Mt Isa TV1; and
. for Western Australia TV3 - Remote and Regional WA TV1, Western Zone
TV1, Kalgoorlie TV1, Geraldton TV1, and South West and Great Southern
TV1.
Allocation of a licence to a joint-venture company
Subsection 38C(2) provides that two or more eligible joint venturers may
give the ACMA a joint written notice that a company specified in the notice
will apply under subsection 38C(3) for a commercial television broadcasting
licence for the licence area, and that the joint-venture company is
registered as a company under Part 2A.2 of the Corporations Act 2001 and
has a share capital.
Eligible joint venturers for the South Eastern Australia TV3 licence area
must give notice within 28 days from the commencement of section 38C.
Eligible joint venturers for the Northern Australia TV3 and Western
Australia TV3 licence areas must give notice during the period from the
commencement of section 38C until 6 months before the earliest applicable
terrestrial digital television switch-over date (the earliest date at which
a simulcast period ends in a terrestrial licence area within the satellite
licence area). Applicable terrestrial digital television switch-over date
has the same meaning as clause 7H of Schedule 2 (subsection 38C(26)). (See
notes on item 72 for clause 7H of Schedule 2).
Subsection 38C(3) provides that if a notice is given under subsection
38C(2), the joint-venture company must apply in writing to the ACMA for a
commercial television broadcasting licence for the licence area within 28
days after the notice is given.
Subsection 38C(4) provides that if the ACMA receives an application under
section 38C(3) in relation to a licence area, the ACMA must allocate a
commercial television broadcasting licence to the joint-venture company for
the licence area within 28 days of receiving the application.
Subsection 38C(5) provides that subsection 38C(4) has effect subject to
section 37 of the BSA. Section 37 is a general provision dealing with when
an applicant for commercial broadcasting licence is ineligible to be
allocated such a licence. The ACMA may only allocate a commercial
broadcasting licence if satisfied that the applicant is a particular type
of company, and that the applicant is suitable having regard to section 41
of the BSA.
Allocation of a licence to a special purpose company
Subsection 38C(6) provides that, if no notice is given under subsection
38C(2) in relation to a licence area specified in column 1 of subsection
38C(1), an eligible joint venturer for that licence area may give written
notice to the ACMA stating that the wholly-owned subsidiary company (being
a company registered under Part 2A.2 of the Corporations Act 2001)
specified in the notice (the special purpose company) will apply under
subsection 38C(7) for a commercial television broadcasting licence for the
licence area. Wholly-owned subsidiary has the same meaning as in the
Corporations Act 2001 (subsection 38C(26)).
Subsection 38C(7) provides that if a notice is given under subsection
38C(6), the special purpose company must apply in writing to the ACMA for a
commercial television broadcasting licence for the licence area within 28
days after the notice is given.
Subsection 38C(8) provides that if only one special purpose company makes
an application under subsection 38C(7) in relation to a licence area, the
ACMA must allocate a commercial television broadcasting licence to that
company within 28 days of receiving the application.
Subsection 38C(9) provides that if the ACMA receives applications from 2 or
more special purpose companies under subsection 38C(7) in relation to a
licence area, the ACMA must allocate a commercial television broadcasting
licence to one of those companies in accordance with a price-based system
determined under subsection 38C(11).
Subsection 38C(10) provides that subsections 38C(8) and (9) have effect
subject to section 37 of the BSA. Section 37 is a general provision dealing
with when an applicant for a commercial broadcasting licence is ineligible
to be allocated such a licence. The ACMA may only allocate a commercial
broadcasting licence if satisfied that the applicant is a particular type
of company, and that the applicant is suitable having regard to section 41
of the BSA.
Subsection 38C(13) provides that the Minister may, by legislative
instrument, give specific directions to the ACMA in relation to the ACMA's
exercise of its power to determine a price-based allocation system.
Directions could address matters such as specified reserve prices for
licences, and those reserve prices may be different for licences in
different licence areas.
Subsection 38C(14) provides that if a commercial television broadcasting
licence is allocated under subsection 38C(9) the ACMA must, unless the
price-based allocation process was public, publish in the Gazette the name
of the successful applicant and the amount the applicant agreed to pay to
the Commonwealth for the allocation of the licence. This is consistent with
price-based allocation processes used for other commercial broadcasting
licences (see, for example, section 36 of the BSA).
Cancellation of licence - services not provided
Subsections 38C(15) and 38C(16) provide for the cancellation of a licence
allocated under section 38C where the licensee does not provide the
services required under the licence.
Paragraphs 38C(15)(a), (b) and (c) provide that if a licensee of a licence
allocated under section 38C is contravening a licence condition about the
provision of core/primary commercial television broadcasting services in
clause 7B of Schedule 2, or a licence condition about the provision of non-
core/primary commercial television broadcasting services in clause 7C of
Schedule 2, and the ACMA is satisfied that the contravention is not due to
prescribed circumstances, or technical or unforeseen circumstances beyond
the licensee's control, the ACMA may give a written notice warning the
licensee that if the contravention continues for more than 30 days, the
licence may be cancelled. (See item 72 for notes on clauses 7B and 7C of
Schedule 2).
Paragraph 38C(15)(d) provides that if 30 days pass after the notice is
given, and the contravention continues, the ACMA must cancel the licence by
written notice to the licensee. Subsection 38C(16) provides that the
cancellation takes effect when the notice of cancellation is given to the
licensee, or at a later time if one is specified in the notice. The
capacity to specify a later time is intended to give the ACMA discretion to
coordinate (if appropriate) the cancellation of a licensed service with the
commencement of a new licensed service after a licence allocation process.
This flexibility will help provide some continuity of service.
Allocation of licence after cancellation, or where no licence is allocated
for a licence area under subsections 38C(4), 38C(8) or 38C(9)
Subsection 38C(17) provides that if:
. the ACMA has given notice under subsection 38C(15) to a licensee
cancelling the licence; or
. no notice is given by a joint-venture company under subsection 38C(2)
or a special purpose company under subsection 38C(6) to apply for a
licence in a licence area; or
. notice is given by a joint-venture company or a special purpose
company but no application is made for a licence,
the ACMA must advertise for applications for a licence to be allocated for
the licence area. The manner of advertising is to be determined by the
ACMA. Subsection 38C(21) provides for the matters that the ACMA must
include in an advertisement for a licence.
If the ACMA has given notice cancelling the licence, the ACMA must
advertise within 45 days of the giving of the notice. If no notice is given
by a joint-venture company or a special purpose company to apply for a
licence, the ACMA must advertise within 45 days after the last day on which
a notice could have been given by a special purpose company. If notice is
given but no application for a licence is made by a joint-venture company
or a special purpose company within 28 days, the ACMA must advertise within
45 days of the failure to apply.
Subsection 38C(18) provides that, before the ACMA commences to advertise
the licence under subsection 38C(17), it must determine, by legislative
instrument, the eligibility requirements that must be met by applicants
responding to the advertisement. Subsection 38C(19) provides that the
eligibility requirements must include that the applicant has the capacity
to provide the services the licensee will be required to provide under
clauses 7B, 7C and 7D of Schedule 2. This does not limit other eligibility
requirements that may be determined by the ACMA.
Subsection 38C(20) provides that the Minister may, by legislative
instrument, direct the ACMA about the exercise of its powers under
subsection 38C(18).
Subsection 38C(22) provides that the applications closing date must be the
90th day after the day of publication of the first advertisement under
subsection 38C(17).
Subsection 38C(23) provides that if, in response to an advertisement under
subsection 38C(17), the ACMA receives one or more applications for a
licence on or before the closing date, and the ACMA is satisfied that one
or more of the applicants meets the eligibility requirements, the ACMA must
allocate the licence to one of the applicants within 90 days after the
application's closing date.
Subsection 38C(24) provides that subsection 38C(23) has effect subject to
section 37 of the BSA. Section 37 is a general provision dealing with when
an applicant for a commercial broadcasting licence is ineligible to be
allocated such a licence. The ACMA may only allocate a commercial
broadcasting licence if satisfied that the applicant is a particular type
of company, and that the applicant is suitable having regard to section 41
of the BSA.
Restrictions on transfer of licences
Subsection 38C(25) provides that a licence allocated under section 38C
cannot be transferred during the period of 2 years after the date of the
allocation of the licence.
Item 27 - After section 41
This item inserts a heading for Division 2 of Part 4 of the BSA (see notes
for item 11 on division headings for Part 4 of the BSA).
Item 28 - After subsection 41B(1)
Item 29 - Section 41B
Subsection 41B(1) currently provides that commercial television
broadcasting licences in force immediately before 1 January 2009 are
authorised during the simulcast 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.
Subsection 41B(2) currently provides that licences allocated on or after
1 January 2009 are authorised to provide a HDTV multi-channelled commercial
television broadcasting service and 2 SDTV multi-channelled commercial
television broadcasting services.
Items 28 and 29 amend section 41B to enable broadcasters with:
. an additional licence allocated under section 38A, and
. another licence allocated (after the commencement of section 38C)
under section 38B (as amended by item 14 of this Bill) in the same
licence area
to provide the same number of digital commercial television services in
these underserved markets as may be available in metropolitan licence
areas, but allows these services to all be provided in SD mode only. The
amendments authorise each licensee to provide up to three SDTV digital
television services during the simulcast period. These licensees will also
be authorised to provide a HDTV service instead of a SDTV service.
(These provisions operate in conjunction with amendments in items 88-96 to
the multi-channelling election provisions in clause 6 of Schedule 4 to the
BSA to permit broadcasters in these licence areas to use two 7MHz channels
of spectrum to transmit all digital services in SDTV digital mode.)
Subsection 41B(2E) identifies the three relevant licences to which these
amended authorisations will apply. An eligible parent licence is the
licence for a commercial television broadcasting service allocated under
section 38A if, after the commencement of section 38C, the original
licensee is allocated an additional commercial television broadcasting
licence under section 38B, and where the licences allocated under sections
38A and 38B are held by the same person. An eligible section 38B licence is
the section 38B licence held in these circumstances.
Subsection 41B(1A) provides that subsection 41B(1) does not apply, after
the commencement of section 38C, to an eligible parent licence. New
subsection 41B(2A) provides that subsection 41B(2) does not apply, after
the commencement of section 38C, to an eligible parent licence or an
eligible section 38B licence.
Subsection 41B(2B) provides that an eligible parent licence that was:
. in force immediately before 1 January 2009 and
. authorised the provision of a core commercial television broadcasting
service, a HDTV multi-channelled commercial television broadcasting
service and a SDTV multi-channelled commercial television broadcasting
service,
is taken to authorise the licensee to provide the core service and either:
. a HDTV multi-channelled commercial television broadcasting service and
a SDTV multi-channelled commercial television broadcasting service, or
. 2 SDTV multi-channelled commercial television broadcasting services
during the simulcast period or the simulcast-equivalent period.
Subsection 41B(2C) provides that an eligible parent licence that is
allocated on or after 1 January 2009, but before the applicable simulcast
period or simulcast-equivalent period for the licence area, is taken to
authorise the licensee to provide:
. a HDTV multi-channelled commercial television broadcasting service and
2 SDTV multi-channelled commercial television broadcasting services,
or
. 3 SDTV multi-channelled commercial television broadcasting services
during the simulcast period or the simulcast-equivalent period.
Subsection 41B(2D) provides that an eligible section 38B licence that is
allocated before the end of the applicable simulcast period or simulcast-
equivalent period for the licence area, is taken to authorise the licensee
to provide:
. a HDTV multi-channelled commercial television broadcasting service and
2 SDTV multi-channelled commercial television broadcasting services,
or
. 3 SDTV multi-channelled commercial television broadcasting services
during the simulcast period or the simulcast-equivalent period.
Note: if the original licensee has made a multi-channel election under
subclause 6(5A) or subclause 6(5AA) of Schedule 4 to the BSA, the licensee
is authorised to provide one or more SDTV multi-channel commercial
television broadcasting services.
Item 30 - Subsection 41B(3)
Item 31 - Subsection 41C(3)
These items amend subsections 41B(3) and subsection 41C(3) so that neither
section 41B nor section 41C apply to a licence allocated under section 38C.
Instead the service authorisation for the licence allocated under section
38C is contained in new section 41CA (see Item 32 below).
Item 32 - After section 41C
This item inserts new section 41CA to provide for services authorised by
commercial television broadcasting licences allocated under new section
38C. The licence conditions in new clauses 7B-7G of Schedule 2 to the BSA
inserted by item 72 provide for the circumstances under which a service
authorised by new section 41CA must be provided under a licence allocated
under new section 38C.
A licence allocated under section 38C is authorised to provide commercial
television broadcasting services that broadly correspond to services
provided by a commercial television broadcasting licensee in a related
terrestrial licence area, or in a metropolitan licence area.
Definitions - new subsection 41CA(6)
For the purposes of new section 41CA, a related terrestrial licence area is
a remote licence area listed in column 3 of the table in new subsection
38C(1) to be a licence area for an eligible joint venturer for a licence to
be allocated under section 38C.
A metropolitan licence area means a terrestrial licence area in which is
situated the General Post Office of the capital city of New South Wales,
Victoria, Queensland, South Australia or Western Australia. (For the
purposes of this section, a metropolitan licence area does not include the
licence area of a commercial television broadcasting licence allocated
under section 38C.)
HDTV multi-channelled commercial television broadcasting service and SDTV
multi-channelled commercial television broadcasting service to have the
same meanings as in Schedule 4 to the BSA.
Service authorisations
Subsection 41CA(1) provides that a licence allocated under section 38C is
authorised to provide:
. a HDTV multi-channelled commercial television service where the program
content is the same or substantially the same as a HDTV multi-channelled
commercial television service provided by a commercial television
broadcasting licensee in a related terrestrial licence area;
. a SDTV multi-channelled commercial television service, that is not a
core/primary commercial television broadcasting service, where the
program content is the same or substantially the same as a SDTV multi-
channelled commercial television service provided by a commercial
television broadcasting licensee in a related terrestrial licence area;
. a SDTV multi-channelled commercial television service where the program
content is the same or substantially the same as a core/primary SDTV
multi-channelled commercial television service provided by a commercial
television broadcasting licensee in a related terrestrial licence area;
. a HDTV multi-channelled commercial television service where the program
content is the same or substantially the same as a HDTV multi-channelled
commercial television service provided by a commercial television
broadcasting licensee in a metropolitan licence area;
. a SDTV multi-channelled commercial television service, that is not a
core/primary commercial television broadcasting service, where the
program content is the same or substantially the same as a SDTV multi-
channelled commercial television service provided by a commercial
television broadcasting licensee in a metropolitan licence area;
. a SDTV multi-channelled commercial television service where the program
content is the same or substantially the same as a core/primary SDTV
multi-channelled commercial television service provided by a commercial
television broadcasting licensee in a metropolitan licence area;
. one or more SDTV multi-channelled commercial television broadcasting
services the program content of which consists wholly or primarily of
programs provided, or required to be provided, to a section 38C licensee
under subsection 43A(3A) or 43AA(1).
Note: new subsections 43A(3A) and 43AA(1) relate to local news and
information programs required to be provided to a section 38C licensee by
regional or remote commercial television broadcasting licensees (see items
38-41).
The purpose of new subsection 41CA(2) is to allow programming variations
for particular regional circumstances. The programming provided by the
section 38C licensee does not need to be identical to the programming
provided by a terrestrial remote licensee or a metropolitan licensee. In
determining for the purposes of subsection 41CA(1) whether program content
provided by a section 38C licensee is "the same or substantially the same"
as the program content of another commercial television broadcasting
service, the following will be ignored:
. advertising or sponsorship material, a promotion for a television program
or television broadcasting service, community information material or
community promotional material, a weather bulletin, and any other similar
material;
. a news program;
. any program the broadcasting of which in any jurisdiction in the licence
area could result in the licensee committing an offence, becoming liable
to a civil penalty; breaching a court order or direction from a court; or
being in contempt of court.
The regulations may also specify circumstances in which the broadcast of a
program can be ignored for purposes of subsection 41CA(2).
New subsection 41CA(3) provides that, for determining whether program
content is "the same or substantially the same", coverage of an anti-
siphoning event on a related service can be replaced by the section 38C
licensee by coverage of another anti-siphoning event. For example, a
program broadcasting an NRL premiership match could be substituted for a
program broadcasting an AFL premiership match.
New subsection 41CA(5) modifies the application of the defined term SDTV
multi-channelled commercial television broadcasting service for the purpose
of this section.
Item 33 - After section 41D
This item inserts a division heading for Division 3 of Part 4 of the BSA
(see item 11).
Item 34 - Paragraph 42(1)(a)
This item makes a technical amendment to paragraph 42(1)(a) consequential
to the proposed sub-division of Part 3 of Schedule 2 to the BSA.
Item 35 - After subsection 42(1)
This item inserts new subsection 42(1A) to provide that each commercial
television licence allocated under section 38C is also subject to the
conditions set out in Division 2 of Part 3 of Schedule 2.
Item 36 - Subsection 43A(2)
Item 37 - Subsection 43A(3)
Items 36 and 37 make technical amendments to section 43A consequential to
item 38.
Item 38 - After subsection 43A(3)
This item inserts a new subsection 43A(3A) to impose an additional licence
condition on commercial television broadcasting licensees in an aggregated
regional television licence area that is wholly or partly included in the
licence area of a licence allocated under section 38C. These regional
licensees must provide to the section 38C licensee any material of local
significance broadcast by the regional aggregated commercial television
broadcasting licensee in a local area in compliance with the licence
condition that the ACMA imposed pursuant to section 43A of the BSA.
In order to comply with the proposed licence condition the regional
commercial television broadcasting licensee must:
. provide the required material simultaneously with, or as soon as
practicable after, they broadcast the material in their aggregated
licence area; and provide the material by transmitting it in digital
mode (within the meaning of Schedule 4).
New subsection 43A(3C) provides that local area and material of local
significance have the same meaning as in the condition mentioned in
subsection 43A(1).
This licence condition assists the section 38C licensee to deliver its
service in accordance with its licence conditions, by guaranteeing the
supply of particular news programs. In turn, a regional broadcaster who
complies with the licence condition proposed by this section to equitable
remuneration courtesy of the proposed copyright licensing arrangements
(Item 141, and related items, refers).
Item 39 - Paragraphs 43A(4)(a), (b) and (c)
Item 40 - At the end of subsection 43A(5)
Items 39 and 40 make technical amendments to section 43A consequential to
item 38.
Item 41 - After section 43A
This item inserts new sections that place licence conditions on remote,
regional and metropolitan commercial television broadcasting licensees in
relation to the provision of particular program content for a broadcasting
service licensed under section 38C. These new licence conditions assists
the section 38C licensee to deliver its service in accordance with its
licence conditions, by guaranteeing the supply of particular programs. In
turn, a remote, regional, or metropolitan broadcaster who complies with the
licence conditions proposed by this item is entitled to equitable
remuneration courtesy of the proposed copyright licensing arrangements
(Item 141, and related items, refers).
Conditions on regional commercial television broadcasting licensees
New section 43AA requires a regional commercial television broadcasting
licensee, whose licence area is wholly or partly included in the licence
area of a section 38C licensee, to provide local news and information to
that section 38C licensee for broadcast on the relevant satellite service.
This requirement is separate from the requirement under section 43A as
amended (explained in item 38 above). Section 43AA is intended to cover
local news and local information that is provided voluntarily by a regional
television broadcaster (regardless of whether the licence area is
aggregated) as part of their broadcasting service.
In order to comply with the proposed licence condition the regional
commercial television broadcasting licensee must:
. provide the required material simultaneously with, or as soon as
practicable after, they broadcast the material in their aggregated
licence area; and
. provide the material by transmitting it in digital mode (within the
meaning of Schedule 4).
New subsections 43AA(3) and (4) provide that the ACMA may determine the
meaning of local news program and local information program in legislative
instruments.
For the purposes of new section 43AA, regional licence area is any licence
area that is not a metropolitan licence area, excluding the licence area of
a section 38C licensee, or the licence area of a remote commercial
television broadcasting licensee.
Conditions on metropolitan commercial television broadcasting licensees
New section 43AB requires metropolitan commercial television broadcasting
licensees to provide programs from its digital television broadcasting
services to a section 38C licensee, if requested to do so by the section
38C licensee. Programs must be provided simultaneously, or as soon as
practicable, with the broadcast of that program on the metropolitan
service.
Conditions on remote terrestrial licensees
New section 43AC applies to remote commercial television broadcasting
licensees in a related terrestrial licence area of a licence allocated
under section 38C.
For the purposes of new section 43AC, new subsection 43AC(5) provides that
a related terrestrial licence area is defined with reference to a remote
licence area listed in column 3 of the table in new subsection 38C(1). A
section 38C licensee means the licensee of a commercial television
broadcasting licence allocated under section 38C.
New subsection 43AC(2) provides that if a remote terrestrial licensee
broadcasts a program in the related terrestrial licence area on either a
HDTV multi-channelled commercial television broadcasting service or a SDTV
multi-channelled commercial television broadcasting service, the licensee
of the remote terrestrial licence must provide the program to the section
38C licensee for broadcast by the section 38C licensee. Programs must be
provided simultaneously, or as soon as practicable, with the broadcast of
that program on the remote terrestrial service.
Compensation for acquisition of property
New section 43AD provides a constitutional safety net to guarantee that if
the operation of new subsection 43A(3A) or new sections 43AA, 43AB or
result in an acquisition of property from a person otherwise than on just
terms, that acquisition of property meets constitutional compensation
requirements. The proposed safety net is that the section 38C licensee is
liable to pay a reasonable amount of compensation to the person whose
property is acquired. If necessary, a court of competent jurisdiction may
determine the amount of reasonable compensation to be paid by the licensee.
Item 42 - After section 44
This item inserts a heading for Division 4 of Part 4 of the BSA (see notes
for item 11 on division headings for Part 4 of the BSA).
Item 43 - Section 45
Item 44 - Section 45
Item 45 - At the end of section 45
These items amend section 45 of the BSA (which provides for the duration of
commercial broadcasting licences) such a licence allocated under section
38C remains in force for 10 years, subject to cancellation provisions in
new subsection 38C(15) and general licence cancellation provisions in Part
10 of the BSA.
Item 46 - Section 50A
This item amends section 50A of the BSA so that a commercial television
broadcasting licence allocated under section 38C is not subject to the
control provisions in Part 5 of the BSA.
Item 47 - Section 61AA
Item 48 - Section 61AA
These items are consequential to item 4.
Item 49 - Paragraph 95(1)(a)
Item 51 - Paragraphs 121FB(1)(a) and (2)(a)
Item 52 - Paragraph 121FLC(1)(c)
Item 53 - Paragraph 121FLG(1)(c)
Item 54 - Subparagraph 121FLH(1)(c)(i)
Item 55 - Subparagraph 121FLH(1)(c)(ii)
Item 56 - Paragraph 121FLH(2)(c)
Currently, in order to be allocated a subscription television broadcasting
licence or an international broadcasting licence the applicant needs to be,
among other things, a company formed in Australia or an external Territory.
These items replace a reference to a company "formed in Australia or in an
external Territory" with a reference to a company registered under Part
2A.2 of the Corporations Act 2001.
Item 50 - Subsection 98D(2)
This item is consequential to new section 43AD in item 41. It excludes new
subsection 43A(3A) and sections 43AA, 43AB and 43AC from the general
compensation for acquisition of property provision in section 98D. As a
result, the Commonwealth would not be liable if those sections operate in a
way that causes an acquisition of property on other than just terms.
Item 57 - After paragraph 122(7)(a)
Item 58 - After paragraph 122(8)(a)
Item 59 - After subsection 122(7)
Item 60 - Subsection 122(10)
Item 61 - Subsection 122(10)
These items have the effect that program standards made by the ACMA under
section 122 of the BSA about children's television and Australian content
apply only to primary commercial television broadcasting services provided
by a section 38C licensee. (The ACMA must declare such primary services -
see item 125).
Items 57 and 58 make technical amendments related to Item 59, and Items 30-
32 - in short, a section 38C service has no 'core' service.
Item 59 inserts new subsections 122(8A) and 122(8B) which provide that, for
services provided under a commercial television broadcasting licence
allocated under section 38C, program standards apply only to a primary
commercial television broadcasting service, until the end of the last
applicable terrestrial digital television switch-over date (defined in
proposed clause 7H of Schedule 4 to the BSA).
Items 60 and 61 insert defined terms relevant to the service licensed under
section 38C. (See items 72 [proposed clause 7H] and 125 for the
definitions).
Item 62 - After section 130AB
This item inserts new section 130AC, which provides the ACMA with the power
to determine technical standards relating to the satellite transmission in
digital mode of national broadcasting television services or commercial
television broadcasting services licensed under section 38C. The ACMA would
make such a determination by legislative instrument.
A commercial television service licensed under section 38C would be
required to comply with a standard determined under this section (see item
72, proposed clause 7A). A national television broadcaster would also be
required to comply with a standard determined under this section (see
subsection 130AC(3)).
Section 589 of the Telecommunications Act 1997 would apply to standards
determined under this new section. Section 589 of the Telecommunications
Act permits instruments made under that Act to adopt, apply or incorporate
provisions of any Act, instrument or writing in force from time to time
(such as legislative instruments and other official or non-official
documents). Subsection 130AC(2) permits the ACMA to incorporate etc other
documents when making an instrument that determines technical standards.
In this new section:
. 'in digital mode' has the same meaning as in Schedule 4 of the BSA, that
is that the program or service is broadcast or transmitted using a
digital modulation technique;
. 'national television broadcasting service' has the same meaning as in
Schedule 4 of the BSA, that is a national broadcasting service that
provides television programs.
Item 63 - At the end of Part 9A
This item inserts new section 130BB, which provides the ACMA with the power
to determine technical standards that relate to domestic reception
equipment capable of receiving the digital commercial television
broadcasting services by satellite. The ACMA would make such a
determination by legislative instrument. The ACMA may also, by legislative
instrument, exempt specified domestic reception equipment from the
application of the criminal offence and civil penalty provisions.
For the purposes of this new section, it is immaterial if the domestic
reception equipment is used in isolation or in combination with any other
equipment.
It will be unlawful for a person to supply of domestic reception equipment
which is capable of receiving by satellite the digital television services
provided by the ABC, SBS, or commercial television broadcasters licensed
under section 38C but which does not comply with the technical standard
determined by the ACMA. A person who contravenes this law commits an
offence and infringes a civil penalty provision.
Section 589 of the Telecommunications Act 1997 would apply to standards
determined under this new section. Section 589 of the Telecommunications
Act permits instruments made under that Act to adopt, apply or incorporate
provisions of any Act, instrument or writing in force from time to time
(such as legislative instruments and other official or non-official
documents). Subsection 130AC(2) permits the ACMA to incorporate etc other
documents when making an instrument that determines technical standards.
In this new section:
. 'in digital mode' has the same meaning as in Schedule 4 of the BSA, that
is that the program or service is broadcast or transmitted using a
digital modulation technique;
. 'national television broadcasting service' has the same meaning as in
Schedule 4 of the BSA, that is a national broadcasting service that
provides television programs;
. 'supply' has the same meaning as in the Trade Practices Act 1974.
Item 64 - After Part 9B
This item introduces new Part 9C of the BSA, which provides for the
development, registration and administration of a conditional access scheme
relating to access to commercial television services delivered via
satellite under section 38C. A scheme registered under Part 9C must be
consistent with the principle that a person in a licence area must have
adequate reception of all of the applicable terrestrial digital commercial
television broadcasting services.
"Adequate reception"
For the purposes of new Part 9C, new section 130ZFA provides that the ACMA
may, by legislative instrument, determine what "adequate reception" means
for the purpose of the conditional access scheme.
"Applicable terrestrial digital commercial television broadcasting service"
For the purposes of new Part 9C, new section 130ZG provides that a service
is an "applicable terrestrial digital commercial television broadcasting
service" if it is a commercial television broadcasting service that is
provided by a commercial television broadcasting licensee in the licence
area and is transmitted in digital mode, but does not include a commercial
television broadcasting service provided under a licence allocated under
section 38C or section 40. This definition is pivotal to providing
conditional access since a person will only be able to access the satellite
commercial television service licensed under section 38C if they are unable
to adequately receive the commercial television services in their licence
area that are delivered using terrestrial transmission towers.
Objectives of a conditional access scheme
New section 130ZB provides the scope and objectives of a conditional access
scheme. The scheme sets outs rules about access to services licensed under
proposed section 38C of the BSA.
In the first instance the commercial television broadcasting industry will
be given the opportunity to develop and seek registration of a conditional
access scheme that is directed towards the policy objectives set out in the
BSA. If they do not develop and have registered a conditional access scheme
within the timeframes set down in proposed Part 9C, then the ACMA is
required to develop and register a conditional access scheme instead.
The conditional access scheme has 11 policy objectives
The first objective is to specify the category A reception areas. These are
remote terrestrial licence areas in which people are unable to receive
adequate reception of terrestrial digital television services.
A category A reception area also includes people who access a commercial
television service licensed for a remote licence area because they are
entitled to the benefit of an 'out of area' permit held by the remote
terrestrial broadcaster. The latter subcategory is intended to include
people, located in regional or metropolitan terrestrial licence areas, who
currently receive remote area broadcasting services through direct to home
satellite services because they are unable to receive their licence area
services terrestrially.
In accordance with the tenth policy objective, viewers located in Category
A reception areas would have an automatic entitlement to access satellite
television from the start dates for the new satellite services.
The second policy objective of the scheme is to specify the Category B
reception area. This area is intended to cater for known signal deficient
reception areas (as determined by the scheme). Subject to the ACMA making a
determination about 'adequate reception' known signal deficient reception
areas are intended to be areas where adequate reception of one or more
services is intermittent. It is also expected that this category would
include those areas where viewers rely on self-help re-transmission
facilities - since in these facilities presently transmit analog television
and viewers may not be able to receive terrestrial commercial television
services.
The third policy objective for the scheme is to ensure that persons in a
category A or category B reception area to receive section 38C commercial
television broadcasting services if they are unable to adequately receive
terrestrial signals in their area (new subsection 130ZB(5)). This objective
is subject to the tenth and eleventh objectives in subsections 130ZB(14)
and 130ZB(15) regarding when a person is able to access the satellite
service (new subsection 130ZB(6)).
The fourth policy objective is to specify the category C reception area.
This category would enable viewers not located in category A or B areas to
seek access to the satellite broadcasting service on a case by case basis.
The eligibility criteria would be set out in the scheme. These access
seekers would need to apply for a reception certificate, issued by the
scheme administrator, to obtain access to the section 38C service.
The fifth, sixth, seventh, eighth and ninth policy objectives are about the
administration of access to services within a category C reception area,
principally the role of the scheme administrator. The scheme must nominate
a company to discharge the function of the scheme administrator. The scheme
must authorise the administrator to deal with applications made in
accordance with the scheme. The scheme must require the scheme
administrator to make a decision on (formally compliant) applications
received within 14 days. The scheme administrator must also deal with the
application without requiring the applicant to pay a fee or incur expenses.
The scheme must authorise the scheme administrator to issue a reception
certificate to a person in a category C reception area stating that the
person is unable to receive adequate reception of all of the applicable
terrestrial commercial television broadcasting services The scheme must
enable a person who is in a category C reception area, and holds a
reception certificate, to receive the commercial television broadcasting
services provided by the section 38C licensee for that reception area. This
objective is subject to the tenth and eleventh objectives in subsections
130ZB(14) and 130ZB(15) regarding when a person in a category C reception
area is able to access the satellite delivered commercial television
broadcasting services (new subsection 130ZB(11)). The scheme must authorise
the scheme administrator to revoke a reception certificate issued to a
person if the person is no longer eligible for the reception certificate
(new subsection 130ZB(13)). (Note that the scheme administrator's decision
is able to be reviewed by the ACMA)
The conditional access scheme must not enable persons in a category C
reception area to receive services provided by the relevant section 38C
licensee earlier than 6 months before the earliest switchover day in a
related terrestrial licence area (new subsections 130ZB(14) and 130ZB(15)).
For the purposes of section 130ZB, subsection 130ZB(13) provides that
. "related terrestrial licence area" means a remote licence area listed in
column 3 of the table in new subsection 38C(1) to be a licence area for
an eligible joint venturer for a licence to be allocated under section
38C;
. "terrestrial licence" means a commercial television broadcasting licence
other than a licence allocated under section 38C or subsection 40(1);
. "terrestrial licence area" means the licence area of a terrestrial
licence.
Registration of a conditional access scheme developed by a representative
body or association
New section 130ZC provides for the registration by the ACMA of a
conditional access scheme developed by a body or association that
represents commercial television broadcasting licensees (the industry).
As noted previously, the industry will have the first opportunity to
develop and have registered a conditional access scheme for a particular
licence area for a section 38C service. This first opportunity is time
limited, In order to be eligible for registration, a conditional access
scheme developed by the industry needs to be submitted to the ACMA for
registration within 45 days after the first (or only) occasion on which a
section 38C licence is allocated for that licence area.
If the ACMA is satisfied that the draft scheme:
. has been developed by an appropriate industry body,
. has been submitted in accordance with the statutory time frame (and
attaches to the appropriate section 38C licensed service), and
. is consistent with the principle that a person in the licence area
should have adequate reception of all the applicable terrestrial
digital commercial television services, or all the services the
section 38C licensee is required to provide,
then the ACMA must register the scheme within 28 days of receiving the
draft scheme from the industry.
The requirement for the ACMA to be satisfied about the scheme's consistency
with the stated principle is intended to turn the ACMA's mind towards the
overarching principle that a person has adequate reception of free-to-air
digital television that is available in their particular location. This
principle is collectively what the statutory policy objectives for the
conditional access scheme are geared towards. If a person cannot adequately
receive all the applicable terrestrial digital commercial television
services, then he or she should instead be able to access the services the
section 38C licensee is required to provide via satellite, in a manner
consistent with the scheme's stated policy objectives.
Regardless of whether the industry is able to get a scheme registered at
the first opportunity, paragraph 130ZC(d)(ii) confirms that the industry
may develop and seek registration for a replacement scheme at any time (see
also proposed section 130ZD, discussed below).
Registration of a conditional access scheme formulated by the ACMA
New section 130ZCA provides for the registration of a conditional access
scheme formulated by the ACMA. The ACMA may formulate a scheme in a
legislative instrument if the industry has not registered a scheme at the
first opportunity under section 130ZC. The industry will have missed the
first opportunity if no industry scheme is registered before the expiry of
90 days after the allocation of the first section 38C licence for a
particular area.
When formulating a scheme, the ACMA is subject to similar policy objectives
as an industry developed conditional access scheme. Some of the policy
objectives are modified however. For example, when formulating a scheme,
the ACMA must nominate itself to be the scheme administrator (the fifth
policy objective refers: see paragraph 130ZB(8)(b)).
Similarly the ACMA must not register a scheme it has developed unless it is
satisfied that the scheme is consistent with the principle that a person in
the licence area should have adequate reception of all of the applicable
terrestrial digital commercial television broadcasting services, or all of
the commercial television services that the section 38C licensee is
required to provide (new subsection 130ZCA(3)).
If the ACMA develops a conditional access scheme that it is satisfied meets
the statutory requirements, the ACMA must register a scheme it formulates
under subsection 130ZCA(2) by including it in the register under section
130ZE (new subsection 130ZCA(4)).
Subsections 130ZCA(5) and 130ZCA(6) set out the consultation the ACMA must
undertake before registering a scheme. The ACMA must expose a draft
conditional access scheme and invite written submissions. The public
consultation period must not be less than 14 days. The ACMA must have due
regard to submissions received during the consultation period.
Subsection 130ZCA(7) provides that section 130ZC (which relates to
registration of a conditional access scheme formulated by an industry body
or association) ceases to apply to the licence area if section 130ZCA
applies.
Replacement of a conditional access scheme
New section 130ZD provides that changes to a conditional access scheme may
be made by replacing the scheme instead of varying the scheme.
If a replacement scheme is formulated by the ACMA, and the replacement
scheme differs in only minor respects from the original scheme, then the
ACMA may register the scheme under section 130ZCA without the need to
undertake consultation (subsection 130ZD(3)).
Subsection 130ZD(3) provides that wWhen a conditional access scheme is
registered and is expressed to replace another conditional access scheme,
the other scheme ceases to be registered.
Subsection 130ZD(4) provides that the replacement of a conditional access
scheme does not affect the continuity of a reception certificate issued in
the scheme that has been replaced.
Register of conditional access schemes
Section 130ZE provides that the ACMA is to maintain a Register of
conditional access schemes required to be registered under section 130ZC or
130ZCA. The Register is to be maintained by electronic means and is to be
made available for inspection on the ACMA's website.
Complaints and directions in relation to a conditional access scheme
Section 130ZF establishes a complaints process for a person in a category C
reception area who has been refused a reception certificate by a scheme
administrator, where that person considers that he or she does not have
adequate reception of all of the applicable terrestrial commercial
television broadcasting services.
Subsection 130ZF(2) provides that a person may make a complaint to the ACMA
where:
. an application was made in accordance with the scheme's requirements
and the scheme administrator refused to issue the reception
certificate; or
. a person has previously held a reception certificate under the scheme
and the scheme administrator revoked the certificate; or
. an application was made in accordance with the scheme's requirements
and the scheme administrator did not deal with the application within
14 days after receiving the application.
The ACMA must investigate the complaint in a manner determined by the ACMA,
however the ACMA need not investigate a complaint if it is satisfied that
the complaint is frivolous or vexatious, or was not made in good faith
(subsections 130ZF(3) and 130ZF(4)).
If, after investigating a complaint, the ACMA is satisfied that the
complainant does not not have adequate digital terrestrial television
reception and the scheme administrator either wrongly refused to issue a
reception certificate or wrongly revoked such a certificate the ACMA may,
by written notice to the scheme administrator, direct the scheme
administrator to issue a reception certificate to the person within a
specified period (subsection 130ZF(5)). The specified period must not be
longer than 28 days (subsection 130ZF(6)).
In deciding whether to give a direction under subsection 130ZF(5), it is to
be presumed that the person does not have adequate reception of all of the
applicable terrestrial digital commercial television broadcasting services,
unless the scheme administrator satisfies the ACMA that the person has
adequate reception of all of those services (subsection 130ZF(7)). This is
consistent with the policy objective of the conditional access scheme that
the person seeking access is not to be put to any expense, and that the
burden of proving adequate digital terrestrial television reception lies
with the scheme administrator (see paragraph 130ZB(12)(b)).
However, before giving a direction the ACMA must consult the scheme
administrator in writing about whether the complainant has adequate
reception. The ACMA must have regard to any submission received within the
time limit specified by the ACMA when initiating written consultation
(subsection 130ZF(8)). The time limit must be no longer than 28 days
(subsection 130ZF(9)). This consultation process helps to ensure that any
direction subsequently issued by the ACMA is in appropriate terms
The scheme administrator must comply with a direction by the ACMA to issue
a reception certificate (subsection 130ZF(10)). If the scheme administrator
does not comply, then the BSA and the conditional access scheme is taken to
have effect as if, on the last day for compliance, the scheme administrator
had issued a reception certificate (subsection 130ZF(11)).
Where the complaint relates to the situation where a person applied to the
scheme administrator for a reception certificate, but the scheme
administrator did not make a decision within 14 days after receiving the
application, the ACMA may determine that the BSA and the conditional access
scheme is taken to have effect as if the scheme administrator had issued a
reception certificate (subsection 130ZF(12).
Subsection 130ZF(13) provides that the BSA does not prevent the subsequent
revocation of a reception certificate that is taken to have been issued
under subsection 130ZF(11) or subsection 130ZF(12).
Where the ACMA investigates a complaint, the ACMA must notify the
complainant of the results of the investigation (subsection 130ZF(13)).
Note: a commercial television broadcasting licensee allocated a licence
under section 38C must comply with a conditional access scheme registered
under Part 9C (see 37B).
Item 65 - Section 204
This item is consequential to item 67.
Item 66 - Section 204
This item adds to two decisions that may be subject to an application to
the Administrative Appeals Tribunal (AAT). This item adds a decision by the
ACMA to refuse to allocate a licence under section 38C, and a decision by
the ACMA to cancel a licence under section 38C. The unsuccessful licence
applicant has standing to seek AAT review for the first decision while the
affected licensee has standing to seek AAT review for the second decision.
Item 67 - At the end of section 204
This item inserts a new subsection 204(2) to provide that certain decisions
under a conditional access scheme formulated by the ACMA, and registered
under new section 130ZCA, may be subject to an application to the AAT.
Provision is made for AAT review because the ACMA makes decisions at first
instance under such a scheme, because the ACMA is the scheme administrator
(the scheme administrator (see paragraph 130ZB(8)(b)). The two decisions by
the ACMA (as administrator of the conditional access scheme) that are to be
subject to review are
. refusing to issue a reception certificate, or
. revoking a reception certificate with respect to a category C
reception area.
The applicant for a reception certificate has standing to seek AAT review
for the first decision, while the holder of the reception certificate has
standing to seek AAT review of the second decision.
Item 68 - After section 211
This item inserts new section 211A to address regulatory compliance issues
faced by section 38C licensees that are licensed to provide services in
licence areas that cover more than one time zone. This affects all proposed
satellite licence areas except Western Australia TV3.
Subsection 211A(1) provides that a licensee for a commercial television
broadcasting licence allocated under section 38C for the South Eastern
Australia TV3 licence area may, by written notice to the ACMA, nominate a
specified place in either the South Eastern Australia TV3 licence area or
the Northern Australia TV3 licence area, for the purposes of the HDTV multi-
channelled services provided under the licence. The licensee may nominate a
place in the South Eastern Australia TV3 licence area for the purposes of
SDTV multi-channelled commercial television broadcasting services provided
under the licence.
Subsection 211A(3) provides that a licensee for a commercial television
broadcasting licence allocated under section 38C for the Northern Australia
TV3 licence area may, by written notice to the ACMA, nominate a specified
place in either the South Eastern Australia TV3 licence area or the
Northern Australia TV3 licence area, for the purposes of the HDTV multi-
channelled services provided under the licence. The licensee may nominate a
place in the Northern Australia TV3 licence area for the purposes of SDTV
multi-channelled commercial television broadcasting services provided under
the licence.
The distinction between HDTV and SDTV services for the South Eastern
Australia TV3 and Northern Australia TV3 licence areas recognises that a
single HDTV stream may be provided across both licence areas. Where there
is a single HDTV stream is provided to these licence areas, the intention
is to regulate these services in relation to the legal time at one place.
Subsection 211A(7) provides that if a nomination is in force in the South
Eastern Australia TV3 licence area or the Northern Australia TV3 licence
area for the purposes of the HDTV multi-channelled television broadcasting
services provided under the applicable section 38C licence, then the BSA
and any program standards, other legislative instruments and any codes of
practice registered under section 123, have effect in relation to any
programs broadcast by the licensee as if these programs had been broadcast
in all parts of the licence area at the time that is legal time in the
nominated place.
Subsection 211A(8) provides that a nomination in force in the South Eastern
Australia TV3 licence area or the Northern Australia TV3 licence area for
the purposes of the SDTV multi-channelled television broadcasting services
provided under the licence, operates in a corresponding fashion to
subsection 211A(7) described above.
A licensee may, by written notice to the ACMA, withdraw a nomination. The
withdrawal of a nomination does not prevent the licensee from making a
fresh nomination.
Item 69 - Before clause 7 of Schedule 2
Since there are extensive licence conditions for the broadcasting licence
to be allocated under proposed section 38C, to aid the reader's navigation
item 69 proposes to sub-divide Part 3 of Schedule 2 to the BSA. Item 69
inserts a new heading "Division 1 - General" before the commencement of
clause 7 of Schedule 2. The standard licence conditions set out in proposed
Division 1 would apply to all commercial television broadcasting licensee
unless expressed otherwise. Meanwhile, the licence conditions proposed for
Division 2 would apply exclusively to the commercial television licences
allocated under proposed section 38C (see Item 72 below).
Item 70 - Paragraph 7(1)(c) of Schedule 2
This item excludes a licence allocated under section 38C from the
application of the licence condition set out in paragraph 7(1)(c) of
Schedule 2 to the BSA. This standard licence condition requires a licensee
company's articles of association to deal with particular matters; these
matters are conducive to assessing the application of the BSA control rules
in Part 5 of the BSA (in conjunction with Schedule 1 to the BSA).
Since the licensee under section 38C is proposed to be exempt from the
control rules (see Item 46 above), there is no need for the licensee
company to have these particular articles of association.
Item 71 - Paragraphs 7(2)(a) and (c) of Schedule 2
This item excludes a licensee for a licence allocated under section 38C
from the licence condition in paragraph 7(2)(a) of Schedule 2, which
requires a commercial television broadcasting licensee to provide a service
or services that, when considered with other broadcasting services
available in the licence area, contributes to the provision of an adequate
and comprehensive range of broadcasting services in that licence area. Item
71 also excludes a section 38C licensee from the licence condition in
paragraph 7(2)(c) of Schedule 2, which requires that a licensee will
broadcast matter of a religious nature during such periods as the ACMA
determines.
Item 72 - At the end of Part 3 of Schedule 2
This item inserts a new Division 2 to Schedule 2 of the BSA, to provide
licence conditions for commercial television broadcasting licences
allocated under section 38C.
Clause 7A - Common conditions
New subclause 7A(1) provides for common conditions pertaining to all
licences allocated under section 38C:
. a section 38C licensee must only provide commercial television
broadcasting services in digital mode (within the meaning of Schedule
4);
. a section 38C licensee may only provide commercial television
broadcasting services with the use of a satellite;
. if a conditional access scheme is registered under Part 9C, a section
38C licensee will ensure that any conditional access system that
relates to any of the services provided under the licence complies
with the scheme;
. a section 38C licensee will comply with any technical standards
determined by the ACMA under section 130AC for digital transmission by
satellite.
New subclause 7A(2) provides that paragraphs 7(1)(i) and (oa) of Schedule 2
do not apply to a licence allocated under section 38C. Paragraph 7(1)(i)
requires a commercial television broadcasting licensee to provide at least
one broadcasting service within one year of being allocated the licence.
Start dates for a licence allocated under section 38C are provided in new
clause 7H (see below). Paragraph 7(1)(oa) refers to technical standards for
terrestrial digital television transmission in section 130A. Technical
standards for digital television transmitted by satellite are provided for
in new section 130AC (see item 62).
Clause 7B - Conditions about the provision of core/primary commercial
television broadcasting services
The effect of new clause 7B is that, at commencement of the service, a
commercial television broadcasting service provided under a licence
allocated under section 38C must provide at least 3 core/primary commercial
television broadcasting services:
. If there are three distinct core/primary television services provided
by remote commercial television broadcasting services in remote
licence areas related to the section 38C licence area (the related
terrestrial core/primary service), the section 38C licensee must
provide a corresponding service that has program content that is the
same, or substantially the same, as each of those related terrestrial
services.
. If there are less than three distinct core/primary television services
provided by commercial television licensees in the related terrestrial
licence areas, the section 38C licensee must provide one or more
services that are the same or substantially the same as a core/primary
service available in a metropolitan licence area to ensure a total of
at least three core/primary services.
The intention is to give priority to the remote broadcasters in the
corresponding terrestrial licence area who are intended to be stakeholders
in the satellite television service that delivers services to audiences in
remote areas and areas that rely solely on direct-to-home satellite
reception. It will also be beneficial to remote broadcasters because the
licence condition will encourage the making of affiliation or program
supply agreements between the satellite broadcaster and the remote
terrestrial broadcaster.
If, after the commencement of the satellite service, the section 38C
licensee is providing a core/primary service that is the same or
substantially the same a core/primary service provided by a related
terrestrial licensee, and the related terrestrial licensee ceases to
provide the service, the section 38C licensee is authorised, but not
required, to substitute that service with a service that provides program
content that is the same, or substantially the same, as a core/primary
service provided by a metropolitan television licensee. If the related
terrestrial licensee commences a core/primary service at a later date, the
section 38C licensee must provide program content that is the same, or
substantially the same, as that related terrestrial service.
For the purpose of assessing whether program content is the same, or
substantially the same, particular program content will be disregarded (see
clause 7J below).
Provision of core/primary services
New subclause 7B(1) provides that a licence allocated under section 38C is
subject to the condition that, if there are at least 3 commercial
television broadcasting services, where each service is:
. provided by a terrestrial licensee in a related terrestrial licence
area;
. is a core/primary commercial television broadcasting service; and
. is distinct from each of the other services;
the section 38C licensee will provide at least 3 commercial television
broadcasting services where:
. the program content of each of the services provided is the same or
substantially the same as the program content of a related
terrestrial core/primary service; and
. each of the services is distinct from each of the other services.
New subclause 7B(2) provides that, if there are only 2 commercial
television broadcasting services, where each service is:
. provided by a terrestrial licensee in a related terrestrial licence
area;
. is a core/primary commercial television broadcasting service; and
. is distinct from each of the other services;
the section 38C licensee will provide:
. 2 commercial television broadcasting services where the program
content of each of the services provided is the same or substantially
the same as the program content of a related terrestrial core/primary
service, and each of the services is distinct from each of the other
services; and
. one commercial television broadcasting service where the program
content is the same or substantially the same as the program content
of a core/primary commercial television broadcasting service provided
by a terrestrial licensee in a metropolitan licence area, and the
service is distinct from each of the 2 services that are services
provided by a related terrestrial licensee.
New subclause 7B(3) provides that, where neither subclauses 7A(1) and 7A(2)
apply, and there is one core/primary commercial television service in a
related terrestrial licence area, the section 38C licensee must provide:
. one commercial television broadcasting service where the program
content is the same or substantially the same as the program content
of the related core/primary commercial television service; and
. 2 commercial television broadcasting services where for each service
the program content is the same or substantially the same as the
program content of a core/primary commercial television broadcasting
service provided by a terrestrial licensee in a metropolitan licence
area, and the 2 services are distinct from each other and from the
service provided by the related terrestrial licensee.
Subclauses 7B(2) and (3) are intended to ensure that television viewers in
a satellite licence area are able to access no fewer than three
core/primary commercial broadcasting services which, if not sourced from
the remote licensees, are sourced from metropolitan licensees. If the
number of extant remote terrestrial core/primary services is fewer than
three when the satellite service commences, the satellite broadcaster must
make up the difference by providing a core/primary service that is distinct
from the other core services, but which provided the same or substantially
the same program content as a core/primary service provided by a
metropolitan commercial broadcasting licensee.
Subsection 7B(4) provides that subsections 7A(1), (2) and (3) do not
require a section 38C licensee to provide a service before the start date
for the licence area (see new clause 7H below for provisions relating to
the start date).
Exemption - cessation of related terrestrial core/primary services
New subclause 7B(5) provides that if:
. a section 38C licensee is providing a commercial television
broadcasting service whose program content is the same or
substantially the same as a core/primary service provided by a related
terrestrial licensee, and
. the related terrestrial broadcasting licensee ceases to provide the
service,
the section 38C licensee is not required to provide a commercial television
broadcasting service that is the same or substantially the same as a
core/primary service provided in a metropolitan licence area.
The effect of subclause 7A(5) is that where a remote broadcasting licensee
ceases to provide a core/primary commercial television broadcasting service
in a related licence area the section 38C licensee is not required to
substitute that service with a core/primary service that has program
content that is the same or substantially the same as a core/primary
service provided by a metropolitan television licensee.
New subclause 7B(6) provides that if a section 38C licensee, in compliance
with subclause 7B(2), is:
. providing a commercial television broadcasting service whose program
content is the same or substantially the same as a core/primary
service provided by a related terrestrial licensee, and
. the core/primary service ceases to be provided by the related
terrestrial licensee;
the section 38C licensee is required to provide:
. one service that is the same or substantially the same as a
core/primary service provided by a related terrestrial licensee, and
. one service that is the same or substantially the same as a
core/primary service of a metropolitan licensee.
Subclause 7B(6) has the effect that, where:
. a section 38C licensee is providing two services that are the same or
substantially the same as two distinct core/primary services provided
by a related terrestrial licensee, and
. one service that is the same or substantially the same as a
core/primary service provided by a metropolitan licensee, and
. one of the related terrestrial licensees ceases to provide the
core/primary service,
the section 38C licensee is not required to provide the service that is the
same or substantially the same as the service that has ceased.
For the purposes of clause 7B, a commercial television broadcasting service
is "distinct" from another commercial television broadcasting service if
the program content of the services is the same or substantially the same.
Clause 7C - Conditions about the provision of non-core/primary commercial
television broadcasting services
HDTV multi-channelled commercial television broadcasting services
In relation to HDTV multi-channelled commercial television broadcasting
services, the effect of clause 7C is that at the commencement of a service
provided under a licence allocated under section 38C, the licensee is
required to provide:
. HDTV services that are the same or substantially the same as all
HDTV services provided by the related terrestrial licensees, and
. where there are HDTV services provided by a metropolitan licensee
that are distinct from the HDTV service provided by the related
terrestrial licensee, those services.
If, after the commencement of the service, a related terrestrial licensee
ceases to provide a HDTV service, the section 38C licensee is not required
to provide a service that is the same or substantially the same as the HDTV
service. If the related terrestrial licensee recommences the HDTV service,
the section 38C licensee must provide a HDTV service that is the same or
substantially the same as that service.
Subclause 7C(1) provides that, if there is a HDTV multi-channelled
commercial television broadcasting service provided by a related
terrestrial licensee that has the same, or substantially the same, program
content as a HDTV multi-channelled commercial television broadcasting
service provided by a metropolitan licensee, the section 38C licensee will
provide a HDTV multi-channelled commercial television broadcasting service
that is the same or substantially the same as the HDTV service provided by
related terrestrial licensee.
Subclause 7C(2) provides that, if there is a HDTV multi-channelled
commercial television broadcasting service provided by a metropolitan
licensee, and there is no HDTV multi-channelled commercial television
broadcasting service provided by a related terrestrial licensee that is the
same, or substantially the same as the service provided by the metropolitan
licensee, the section 38C licensee will provide a HDTV multi-channelled
commercial television broadcasting service that is the same, or
substantially the same, as the service provided by the metropolitan
licensee.
Subclause 7C(4) provides that section 38C licensee is not required to
provide a HDTV multi-channelled commercial television broadcasting service
from a metropolitan licensee under subclause 7C(2) if the metropolitan
licensee commences to provide the service after the end of the simulcast
period for the metropolitan licence area.
After the end of the simulcast period for a terrestrial licence area, the
BSA's restrictions on the number of multi-channelled services provided by
terrestrial commercial television broadcasting licensees in their
terrestrial licence areas will end (see section 41C of the BSA).
Broadcasters will be able to provide additional multi-channelled digital
television services in their terrestrial licence areas subject to the
limits of their radiofrequency spectrum allocation.
If a terrestrial metropolitan broadcaster launches additional HD digital
multi-channels in metropolitan licence areas after the end of the simulcast
period, subclause 7C(4) would not require the section 38C licensee, as a
condition of their licence, to launch additional HD multi-channels that
provide program content that is the same or substantially the same as the
program content on the corresponding metropolitan service. This exemption
recognises that the ability of the 38C licensee to deliver future
additional digital multi-channels may be constrained by the capacity of
transponder space available on the satellite platform. However, this
exemption would not prevent those additional multichannels being provided
via satellite if the section 38C licensee has the capacity to do so, and
chooses to do so.
Subclause 7C(5) provides that if:
. a section 38C licensee provides a HDTV multi-channelled commercial
television broadcasting service that is the same, or substantially the
same, as a HDTV multi-channelled commercial television broadcasting
service provided by a related terrestrial licensee, and
. the related terrestrial licensee ceases to provide the service,
the section 38C licensee does not, while the cessation continues, have to
provide a HDTV multi-channelled commercial television broadcasting service
that is the same, or substantially the same, as a service provided by a
metropolitan licensee.
This exemption would be lifted once a terrestrial remote licensee resumes
providing the core/primary service and/or multi-channelled service (as the
circumstances determine). The exemption caters for a situation where a
terrestrial remote broadcaster either:
. surrenders their licence or has their licence cancelled by the
ACMA; or
. for financial or other reasons, decides to reduce the services they
offer within their remote licence area (e.g. they stop providing
one or more non-core or secondary multichannel service(s)).
SDTV multi-channelled commercial television broadcasting services
In relation to SDTV multi-channelled commercial television broadcasting
services, the effect of clause 7C is that at the commencement of a service
provided under a licence allocated under section 38C, the licensee is
required to provide:
. SDTV services that are the same or substantially the same as all
SDTV services provided by the related terrestrial licensees, and
. where there are SDTV services provided by a metropolitan licensee
that are distinct from the SDTV service provided by the related
terrestrial licensee, those services.
If, after the commencement of the service, a related terrestrial licensee
ceases to provide a SDTV service, the section 38C licensee is not required
to provide a service that is the same or substantially the same as the SDTV
service. If the related terrestrial licensee recommences the SDTV service,
the section 38C licensee must provide a SDTV service that is the same or
substantially the same as that service.
This exemption would be lifted once a terrestrial remote licensee resumes
providing the core/primary service and/or multi-channelled service (as the
circumstances determine). The exemption caters for a situation where a
terrestrial remote broadcaster either:
. surrenders their licence or has their licence cancelled by the ACMA;
or
. for financial or other reasons, decides to reduce the services they
offer within their remote licence area (e.g. they stop providing one
or more non-core or secondary multichannel service(s)).
Subclause 7C(6) provides that, if there is a SDTV multi-channelled
commercial television broadcasting service provided by a related
terrestrial licensee that has the same, or substantially the same, program
content as a SDTV multi-channelled commercial television broadcasting
service provided by a metropolitan licensee, and the section 38C licensee
will provide a SDTV multi-channelled commercial television broadcasting
service that is the same or substantially the same as the SDTV service
provided by related terrestrial licensee.
Subclause 7C(7) provides that, if there is a SDTV multi-channelled
commercial television broadcasting service provided by a metropolitan
licensee, and there is no SDTV multi-channelled commercial television
broadcasting service provided by a related terrestrial licensee that is the
same, or substantially the same as the service provided by the metropolitan
licensee, the section 38C licensee will provide a SDTV multi-channelled
commercial television broadcasting service that is the same, or
substantially the same, as the service provided by the metropolitan
licensee.
Subclause 7C(9) provides that section 38C licensee is not required to
provide a SDTV multi-channelled commercial television broadcasting service
from a metropolitan licensee under subclause 7C(7) if the metropolitan
licensee commences to provide the service after the end of the simulcast
period for the metropolitan licence area.
Subclause 7C(9) complements subclause 7C(4). This exemption in relation to
additional SDTV multichannel services provided under the section 38C
licence has the same policy rationale as described for subclause 7C(4)
above.
Subclause 7C(10) provides an exemption that is similar to the exemption
contained in subclause 7C(5) (the latter subclause is about the cessation
of related terrestrial HDTV multichannels). The exemption in subclause
7C(10) relates to the cessation of a SDTV multi-channelled service provided
by a related terrestrial licensee. While the cessation continues, the
section 38C licensee does not have to provide a SDTV multi-channelled
commercial television broadcasting service that provides program content
that is the same, or substantially the same, as a service provided by a
metropolitan licensee.
Clause 7D - Condition about the provision of local news services
New clause 7D provides that a section 38C licensee is required to broadcast
local news and information programs or material as supplied by regional
commercial television broadcasting licensees as soon as practicable after
that program or material begins to be broadcast in the related terrestrial
licence area.
Regional broadcasters are required to supply local news and information
program or material under new subsections 43A(3A) or 43AA(1) (see items 38
and 41).
The section 38C licensee must broadcast the local news program or material
on either:
. a SDTV multi-channel that is dedicated to providing local news and
local information programming (see paragraph 41CA(1)(g), explained in
Item 32 above, regarding the authorised services); or
. a SDTV multi-channel that is a core/primary service (within the
meaning of paragraphs 41CA(1)(c) and (f), explained in Item 32 above).
Clause 7E - Exemption - provision of new commercial television broadcasting
services not technically feasible)
New Clause 7E provides the ACMA with the power to determine that a
particular section 38C licensee is not required to provide a new commercial
television multichannel after the start date if the provision of that
service is not considered by the ACMA to be technically feasible. The
determination would be a legislative instrument.
Although the section 38C licensees are authorised to provide the full suite
of commercial multi-channels that correspond to those available in a
terrestrial licence area (which presently totals 3 core services and 6
multi-channels), the provision of additional multi-channels after the start
date (defined in clause 7H below) as a result of new multichannels being
launched terrestrially may not be immediately possible for technical
reasons (such as satellite transponder capacity constraints or other
technical issues relating to the satellite service's distribution).
For this reason, this clause enables the ACMA to grant exemptions to the
licence condition set out in clause 7C that requires the provision of
additional multi-channel services which commence after the start date for
the satellite service.
Clause 7F - Exemption - commercial television broadcasting services with
the same program content
New Clause 7F provides that the Minister may determine that a particular
section 38C licensee is not obliged, for a specified period, to provide a
commercial television broadcasting service which has the same program
content as another service already provided by the section 38C licensee.
The Minister's determination would be a legislative instrument.
Ordinarily, under clause 7C, a section 38C licensee would be required to
provide:
. a HDTV multi-channel commercial television broadcasting service or
. a SDTV multi-channel commercial television broadcasting service that
is not the core/primary commercial television broadcasting service
that provides program content that is the same or substantially the same as
the program content of a commercial television broadcasting service
provided by a terrestrial licensee.
The proposed exemption power in this clause 7E would enable the Minister to
temporarily exempt a section 38C licensee from providing a particular multi-
channel that is materially identical to another service that the licensee
is already required to provide. This avoids unnecessary duplication on the
satellite service.
For example, currently the digital service known as ONE HD is currently
being simulcast in SD mode in metropolitan areas. The content of ONE HD and
ONE SD in a particular metropolitan licence area is identical. The Minister
may, after consultation with the ACMA, decide to exempt the section 38C
licensee from having to provide a SDTV multi-channel that corresponds with
ONE SD, because the same program content is already being provided via
satellite through a HDTV multichannel.
An exemption may be granted for a period of no longer than two years,
although the exemption may be extended by the Minister.
Clause 7G - Delay in commencement of new commercial television broadcasting
services
Clause 7G provides that if, after the start date for a section 38C service:
. a terrestrial licensee commences a HDTV multi-channelled commercial
television broadcasting service or a SDTV multi-channel commercial
television broadcasting service that is not a core/primary service,
and
. the section 38C licensee is required, under clause 7C, to provide a
service that is the same or substantially the same as that service,
. and there is a delay in the provision of the required service,
the delay is to be disregarded so long as the delay is as short as is
practicable.
Clause 7G recognises that there may be instances where the commencement of
satellite transmissions of a multi-channel service is delayed for reasons
outside the section 38C licensee's control. In such circumstances the ACMA
may disregard the delay so long as the delay is as short as practicable.
(This exemption complements the narrower technical feasibility exemption in
clause 7E, described above).
Clause 7H - Start dates for licence areas
New clause 7H provides that the ACMA may, by legislative instrument,
declare a specified date is the start date for a service provided under a
licence allocated under section 38C.
The start date for the South Eastern Australia TV3 licence area must not be
later than 90 days after the first or only occasion on which a licence for
the licence area is allocated under section 38C.
The start date for the Northern Australia TV3 licence area or the Western
Australia TV3 licence area must not be later than 3 months before the end
of the earliest applicable terrestrial digital television switch-over date
for the licence area.
For the Northern Australia TV3 and Western Australia TV3 licence areas:
. if a terrestrial licence is included in the licence area, and
. there is a simulcast period for the terrestrial licence area, and
. there is no local market area included in the terrestrial licence
area,
the last day of the simulcast period for the terrestrial licence area is an
"applicable terrestrial digital television switch-over date".
If the Minister makes a digital-only local market area determination under
clause 5F of Schedule 4 to the BSA in relation to a terrestrial licence
area, then the day on which the local market area becomes a digital-only
local market area is an "applicable terrestrial digital television switch-
over date". The latter mentioned day will be before the end of the
simulcast period for the terrestrial licence area concerned.
Clause 7J - Program content
Clause 7J provides a section 38C licensee with some scheduling flexibility
in that there may be more regionally appropriate programming for a
particular satellite licence area at a particular time.
Subclause 7J(1) provides that, in determining the whether the program
content of a commercial television broadcasting service provided by a
licensee in a licence area is the same, or substantially the same, as the
program content of another commercial television broadcasting service, the
following content will be ignored:
. advertising or sponsorship material (whether or not of a commercial
kind);
. a promotion for a television program or a television broadcasting
service;
. community information material or community promotional material;
. a weather bulletin;
. any other similar material, and
. a news program, and
. any program that the broadcasting of which in any jurisdiction in the
licence area could result in the licensee:
o committing an offence; or
o becoming liable to a civil penalty; or
o breaching an order or direction of a court; or
o being in contempt of court; and
. a program broadcast in circumstances specified under regulations.
Subclause 7J(2) provides that, in relation to the program content of the
core/primary services provided by the section 38C licensee (clause 7B
refers) the content of a program that provides coverage of one event listed
on the anti-siphoning list is assumed to be the same as the content of a
program that provides coverage of another event listed on the anti-
siphoning list.
Clause 7K - SDTV multi-channelled commercial television broadcasting
service
For the purpose of Division 2 - licences allocated under section 38C,
paragraph 5A(1)(d) of Schedule 4 is assumed not to have been enacted.
Clause 7L - Definitions
Clause 7L provides definitions for the purpose of Division 2 of Schedule 2.
. digital-only local market area has the same meaning as in Schedule 4.
. HDTV multi-channelled commercial television broadcasting service has
the same meaning as in Schedule 4.
. local market area has the same meaning as in Schedule 4.
. metropolitan licence area means a licence area in which is situated
the General Post Office of the capital city of New South Wales,
Victoria, Queensland, Western Australia or South Australia, but does
not include the licence area of a commercial television broadcasting
licence allocated under section 38C.
. related terrestrial licence area
o in relation to a section 38C licence allocated for the South
Eastern Australia TV3 licence area, means a terrestrial licence
area mentioned in column 3 of item 1 of the table in subsection
38C(1), or
o in relation to a section 38C licence allocated for the Northern
Australia TV3 licence area, means a terrestrial licence area
mentioned in column 3 of item 2 of the table in subsection
38C(1), or
o in relation to a section 38C licence allocated for the Western
Australia TV3 licence area, means a terrestrial licence area
mentioned in column 3 of item 3 of the table in subsection
38C(1).
. SDTV multi-channelled commercial television broadcasting service has
the same meaning as in Schedule 4.
. simulcast period has the same meaning as in Schedule 4.
. terrestrial licence means a commercial television broadcasting licence
other than a commercial television broadcasting licence allocated
under section 38C or section 40(1).
. terrestrial licence area means the licence area of a terrestrial
licence.
Item 73 - Subparagraph 10(1)(e)(ii) of Schedule 2
Item 74 - Subclauses 10(1A) and (1B) of Schedule 2
These items make technical amendments to the statutory licence condition
about anti-siphoning that applies to subscription television broadcasting
licensees. Subscription television broadcasters cannot acquire the right to
broadcast events on the anti-siphoning list unless either a national
broadcaster, or commercial television broadcasters with a combined audience
reach of 50% of the Australian population have acquired the right to
broadcast the event.
The amendments would exclude the satellite commercial broadcasting licences
issued under proposed section 38C of the BSA from the ambit of the audience
reach test that applies to commercial television broadcasters. Section 38C
licences will be treated the same way as section 40 television licences,
because these are comparatively 'niche' commercial broadcasting services -
section 38C services are considered 'niche' because a conditional access
scheme applies to the reception of such services.
Item 75 - Clause 2 of Schedule 4 (definition of metropolitan licence area)
Item 77 - Clause 2 of Schedule 4 (definition of regional licence area)
Item 79 - Clause 2 of Schedule 4 (paragraph (a) of the definition of
simulcast period)
Items 75 and 77 insert into Schedule 4 to the BSA new defined terms for
metropolitan licence area and regional licence area. The key change is to
exclude the satellite licence areas for the section 38C licence from the
defined term. This is because the new satellite commercial broadcasting
services are to be disregarded for the purposes of the conversion scheme
for terrestrial television transmitters from analog to digital.
Item 79 consequentially amends the definition of simulcast period by
reference to the new definitions of metropolitan licence area and regional
licence area. These types of commercial television licence areas are
distinguished from a remote licence area.
Item 76 - Clause 2 of Schedule 4
Item 78 - Clause 2 of Schedule 4
These items insert into Schedule 4 to the BSA new defined terms that relate
to national broadcasting services delivered by satellite.
Item 76 should be read in conjunction with item 120 (which gives meaning to
the defined term inserted by item 76).
Item 78 should be read in conjunction with item 119. The satellite delivery
area is a similar concept to a national broadcasting coverage area (within
the meaning of Schedule 4 to the BSA), except that the satellite delivery
area for a national broadcasting service corresponds with a satellite
licence area for a commercial television broadcasting service licensed
under section 38C of the BSA.
Item 80 - Clause 4C of Schedule 4
Item 81 - At the end of clause 4C of Schedule 4
These items amend clause 4C of Schedule 4 to the BSA. Clause 4C provides
for the determination of a simulcast-equivalent period for a licence area.
Item 81 provides that such a determination (if made by the ACMA) does not
apply to a commercial television broadcasting licence allocated under
section 38C. This is because there is no simulcasting of the service
licensed under section 38C - it is a digital-only television service.
Item 82 - After subclause 5(1) of Schedule 4
This item amends clause 5 of Schedule 4 to the BSA. Clause 5 empowers the
ACMA to make a remote licence area determination. Item 82 provides that
such a determination such a determination does not apply to a commercial
television broadcasting licence allocated under section 38C.
Item 83 - Paragraph 5A(1)(b) of Schedule 4
Item 84 - Paragraph 5B(b) of Schedule 4
Item 85 - Paragraph 5C(1)(b) of Schedule 4
Item 87 - Paragraph 5D(b) of Schedule 4
These items amend the definitions of:
. SDTV multi-channelled commercial television broadcasting service;
. HDTV multi-channelled commercial television broadcasting service;
. SDTV multi-channelled national television broadcasting service;
. HDTV multi-channelled national television broadcasting service.
These terms are used extensively throughout the BSA in relation to digital
television. The amendments concern the mode of transmission for the
respective digital multichannel services. The amendments enlarge the scope
of such multi-channel services by recognising that they may be transmitted
in digital mode (whether SD or HD) with the use of a satellite, in addition
to terrestrial transmission towers.
Item 86 - At the end of clause 5C of Schedule 4
This item amends clause 5C of Schedule 4 so that the requirement that a
national broadcaster give the Minister written notice nominating a
particular service transmitted by as a SDTV multi-channelled national
television broadcasting service does not apply to a national broadcasting
service that is provided via satellite. This means that the definition is
modified to the extent that Schedule 4 to the BSA relates to a SDTV multi-
channelled national television broadcasting service provided with the use
of a satellite.
Item 88 - Paragraph 6(3)(c) of Schedule 4
Consequential to items 75 and 77 (see above), this item amends the policy
objective for the commercial television conversion scheme that relates to
the duration of the simulcast period.
Item 89- Paragraph 6(5A)(d) of Schedule 4
Item 90 - Paragraph 6(5A)(e) of Schedule 4
Item 91 - Paragraph 6(5AA)(e) of Schedule 4
Item 92 - Paragraph 6(5B)(a) and (c) of Schedule 4
Item 93 - Paragraph 6(5B)(c) of Schedule 4
Item 94 - After subclause 6(5BA) of Schedule 4
Item 95 - After subclause 6(5C) of Schedule 4
Item 96 - After subclause 6(7C) of Schedule 4
These items amend the multi-channelling election provisions that apply in
former solus or two-station markets for which there are commercial
television broadcasting licences allocated under section 38A or section 38B
of the BSA.
In some regional licence areas the establishment of the new satellite
broadcasting service will mean that there will be a more attractive suite
of digital television services available by satellite than terrestrially.
This will particularly affect the broadcasters in the licence areas where a
second commercial licence has been allocated under section 38A, and where
the licensee has elected under subclause 6(5A) or 6(5AA) of Schedule 4 to
the BSA to deliver digital services using one 7 MHz channel of spectrum.
This generally limits digital services in these licence areas to standard
definition multi-channelling (the election exempts the licensee from the HD
quotas that apply to other broadcasters during the simulcast period).
Item 14 (above) proposes to amend section 38B of the BSA to enable the
holder of a section 38A licence to apply for a third commercial television
licence. The allocation of the 38B licence will be coupled with an
entitlement to an additional transmitter licence authorising the use of an
additional 7 MHz channel for the provision of the digital-only additional
service (see subsection 102(1) of the Radiocommunications Act). Thus, the
licensee will have 14 MHz of spectrum to use for the delivery of three
digital commercial television broadcasting services (each comprising the
core/primary channel and up to two multi-channels for the remainder of the
simulcast period).
During the remainder of the simulcast period, the third commercial service
licensed under the amended section 38B will not be subject to any HD quota
obligations provided the licensee under amended section 38B makes an
(additional) election to multichannel under subclause 6(5A) of Schedule 4
to the BSA. Item 88 provides the making of an additional multi-channelling
election at around the same time the section 38B licence is allocated to
the holder of the section 38A licence.
The effect of the election is to permit the broadcaster to use their
existing transmission capacity to provide all three commercial broadcasting
services - therefore spare transmission capacity under the additional
transmitter licence for the 38B service (see subsection 102(1) of the
Radiocommunications Act) may be used for the purpose of providing
additional multi-channels for one or both of the other commercial
television services that the licensee provides in that licence area.
Items 90, 91, 92 make technical amendments to subclauses 6(5A), 6(5AA), and
6(5B) of Schedule 4 so that the modified policy objectives of the
commercial television conversion scheme apply to any of the commercial
television broadcasting services covered by an election made by the
licensee.
During the remainder of the simulcast period for the relevant licence area,
the holder of the 38A and 38B licences will be entitled to the benefit of
any multi-channelling elections they have made. If the licensee chooses to
revoke any election before the end of the simulcast period, the licensee
will be granted additional BSB transmission capacity but in return for
meeting HD service obligations. The ACMA's approval of the revocation of
one election is taken to revoke all of the licensee's elections made under
subclauses 6(5A) or 6(5AA) of Schedule 4.
Items 93 and 94 would amend the multi-channelling transmission capacity
arrangements for the holder of 38A and/or 38B licences.
Item 93 repeals paragraph 6(5B)(c) of Schedule 4 to the BSA. (Item 97 makes
a consequential amendment).
Paragraph 6(5B)(c) provides for the continuation of the multi-channelling
election after the end of the simulcast period and (in conjunction with
clause 7B of Schedule 4 to the BSA) makes the future transmission
arrangements for a licensee who has made an election contingent on the
availability of spectrum. If the election is revoked there is no guarantee
that the licensee will get additional transmission capacity (an extra 7 MHz
spectrum channel).
Items 94 and 96 provide that a multi-channelling election is automatically
revoked when the simulcast period ends for the relevant licence area.
Consequentially, the ACMA must grant the licensee additional transmission
capacity (through an additional transmitter licence) to the holders of the
parent, 38A or 38B licences that were subject to a multi-channelling
election in force when the simulcast period ends, a third transmitter
licence under section 102 of the Radiocommunications Act. The intention is
to equalise licensee spectrum holdings in licence areas (including remote
licence areas) that have three commercial television broadcasting licences
so that the transmitter licence authorises the use of one 7 MHz channel of
spectrum per commercial television broadcasting licence.
Item 95 add a new subclause 6(5CA) to Schedule 4 to the BSA. The amendment
provides that a satellite commercial broadcasting service licensed under
section 38C is to be disregarded when assessing whether the policy
objectives about digital television achieving the same level of coverage
and reception quality as analog television. This ensures that the focus of
the commercial television conversion scheme is on the equivalence of
digital terrestrial television and analog television.
Item 98 - After subclause 6(7K) of Schedule 4
This item provides that clause 6 of Schedule 4 does not apply to a
satellite commercial broadcasting licence allocated under section 38C of
the BSA. This is because a section 38C service is a digital-only service,
for which no conversion scheme is required.
Item 99 - At the end of clause 7A of Schedule 4
Item 100 - After subclause 9(1B) of Schedule 4
Item 101 - After subclause 19(7C) of Schedule 4
These items amend the particular clauses of Schedule 4 so that satellite-
delivered commercial television broadcasting services (licensed under
section 38C of the BSA) or satellite-delivered national broadcasting
services are disregarded for the purposes of the digital channel planning
and implementation planning aspects of the commercial television conversion
scheme and national television conversion scheme respectively.
Item 102 - Before clause 37DA of Schedule 4
This item provides that satellite commercial television broadcasting
services licensed under section 38C of the BSA are not subject to HDTV
quota obligations during the remainder of the simulcast period.
Item 103 - After paragraph 38(4)(a) of Schedule 4
Item 104 - After paragraph 38(4A)(a)
Item 105 - After paragraph 38(4A) of Schedule 4
Item 106 - After paragraph 38(5)(a) of Schedule 4
Item 107 - After paragraph 38(5)(c) of Schedule 4
Item 108 - After paragraph 38(5)(d) of Schedule 4
Item 109 - After subclause 38(5)of Schedule 4
Item 110 - After paragraph 38(9)(a) of Schedule 4
Item 111 - After subclause 38(9) of Schedule 4
Item 112 - After subclause 38(10) of Schedule 4
Item 113 - Subclause 38(12) of Schedule 4
These items amend the captioning rules in Division 3 of Schedule 4 to the
BSA. The basic rule is that a commercial television broadcaster and a
national television broadcaster must provide a captioning service for any
news or current affairs program, and television programs broadcast during
prime time viewing hours (6pm-10.30pm). When clause 38 of Schedule 4 to the
BSA applies, it is a condition of a commercial television broadcasting
licence to comply with this requirement (subclause 7(1)(o) of Schedule 2 to
the BSA).
This basic captioning rule is subject to a number of exceptions. A
captioning service is not required in relation to:
. a television program that is not in English or mainly not in English;
. non-vocal music-only programs;
. incidental or background music;
. live sport coverage with unscheduled extended coverage that displaces
a news program;
. programs broadcast outside the broadcasting services bands under a
television broadcasting licence allocated under subsection 40(1) of
the BSA (for the first 12 months of service); and
. programs broadcast on a standard definition television (SDTV) or high
definition television (HDTV) multi-channel during the simulcast period
(unless previously broadcast with captions on the broadcaster's
core/simulcast channel).
These items would amend the exceptions to the basic captioning rule to add
services licensed under section 38C that are not primary satellite
commercial broadcasting services, and national broadcasting television
services that are not nominated as primary satellite broadcasting services.
The exemptions for non-primary SDTV and HDTV commercial multi-channelled
broadcasting services would continue until the end of the last applicable
terrestrial digital television switch-over date for the licence area. For
national broadcasters, the exemption would continue until the last
applicable terrestrial digital television switchover date in a licence area
that is a related coverage area.
(See item 72 for new clause 7H in Schedule 2 for the meaning of applicable
terrestrial digital television switch-over day).
Item 114 - At the end of clause 41A of Schedule 4
Item 115 - Paragraph 41B(1)(a) of Schedule 4
Item 116 - At the end of clause 41B of Schedule 4
Item 117 - At the end of clause 41C of Schedule 4
Item 118 - Paragraph 41D(1)(a) of Schedule 4
Item 119 - At the end of clause 41D of Schedule 4
Item 120 - At the end of clause 41E of Schedule 4
Item 121 - At the end of clause 41F of Schedule 4
These items amend the particular clauses of Schedule 4 so that satellite
commercial television broadcasting services licensed under section 38C of
the BSA are not covered by the same restrictions that apply to commercial
broadcasters licensed under section 36, section 38A or section 38B in
relation to the use of SD or HD digital multi-channels - during or after
the simulcast period - to premiere all or part of an event that is included
on the anti-siphoning list.
The exclusion from these clauses is needed because there is no simulcast
period applicable to satellite commercial broadcasting services licensed
under section 38C of the BSA. Note, however, that satellite commercial
broadcasting services licensed under section 38C will be regulated in
relation to the broadcast of events included on the anti-siphoning list
through the amendments contained in Item 122 below.
Item 122 - After clause 41F of Schedule 4
This item inserts new clauses into Schedule 4 to the BSA that regulate the
way a satellite commercial broadcasting service licensed under section 38C
broadcasts events that are included on the anti-siphoning list. The new
clauses contain restrictions that are substantially similar to the current
restrictions that apply to commercial television broadcasters licensed
under other sections of the BSA.
New clause 41FA regulates the SDTV multi-channels provided by a section 38C
licensee. The 38C licensee must not televise a part of an anti-siphoning
event on a SDTV multi-channel unless:
. the licensee has previously televised that part of the anti-siphoning
event on one of the licensee's primary services; or
. the licensee televises that part of the anti-siphoning event
simultaneously on both a primary service and a SDTV multi-channel; or
. the licensee televises that part of the anti-siphoning event as part
of a news or current affairs program broadcast on a SDTV multi-
channel.
The exception in relation to televising parts of anti-siphoning events in
news or current affairs programs will permit the 38C licensee to transmit a
news and current affairs program with a sports segment on one of their SDTV
multi-channels (for example, the dedicated satellite SDTV news service),
and that the sports segment may include televised excerpts from anti-
siphoning events.
New clause 41FB regulates the HDTV multi-channels provided by a section 38C
licensee. The 38C licensee must not televise the whole of an anti-siphoning
event on a HDTV multi-channel unless:
. the licensee has previously televised the whole anti-siphoning event
on one of the licensee's primary services (in relation to primary
services, see Item 123 below); or
. the licensee televises the whole anti-siphoning event simultaneously
on both a primary service and the HDTV multi-channel.
Item 123 - Subclause 41G(1) of Schedule 4
Item 124 - After subclause 41G(1) of Schedule 4
Item 125 - At the end of clause 41G of Schedule 4
This item inserts additional subclauses to clause 41G of Schedule 4 to the
BSA, which deals the ACMA's powers to declare primary commercial television
broadcasting services. Currently, the ACMA has discretion to make such a
declaration. The additional amendments will require the ACMA to make
declarations for both terrestrial and satellite commercial television
broadcasting services.
New subclause 41G(1A) requires to declare under subclause 41G(1), as soon
as practicable after the commencement of the subclause, a SDTV commercial
multi-channelled service to be a primary commercial television broadcasting
service, and must ensure that a declaration remains in force until the end
of the simulcast period or simulcast-equivalent period (noting that the
declaration may be varied).
New subclause 41G(3) requires a declaration of a primary commercial
television broadcasting service to be in force at all times after the
simulcast period or simulcast-equivalent period.
New subclause 41G(4) empowers the ACMA to make a legislative instrument
declaring at least one, but no more than three, specified SDTV
multichannels provided on a satellite television broadcasting service
(licensed under section 38C) to be the licensee's primary commercial
television broadcasting service(s).
This item also amends clause 41G generally so as to ensure that such a
declaration instrument is in force at all times, and will need to be made
by the ACMA as soon as practicable after the earlier of the commencement of
this item or the date a particular commercial television broadcasting
licence is allocated.
Item 126- At the end of clause 41H of Schedule 4
Item 127 - At the end of clause 41J of Schedule 4
Item 128 - At the end of clause 41K of Schedule 4
Item 129 - At the end of clause 41L of Schedule 4
These items are similar in substance to Items 114-121 above. The only
material difference is that these items are about national television
broadcasting services instead of commercial television broadcasting
services. The reason for these amendments is the same as for Items 114-121.
Item 130 - After clause 41L of Schedule 4
This item would insert new clauses into Schedule 4 to the BSA that regulate
the way a national television broadcasting service delivered by use of a
satellite broadcasts events that are included on the anti-siphoning list.
New clause 41LA regulates the SDTV multi-channels delivered by a national
broadcaster by use of a satellite. The national broadcaster must not
televise via satellite a part of an anti-siphoning event on a SDTV multi-
channel unless:
. the broadcaster has previously televised that part of the anti-
siphoning event on the broadcaster's primary satellite television
broadcasting service (see Item 131 below) in a satellite delivery area
(a defined term inserted by Item 78 above); or
. the broadcaster televises that part of the anti-siphoning event
simultaneously on both it's primary satellite television broadcasting
service and a SDTV multi-channel in a satellite delivery area; or
. the broadcaster televises that part of the anti-siphoning event as
part of a news or current affairs program broadcast on a SDTV multi-
channel.
The exception in relation to televising parts of anti-siphoning events in
news or current affairs programs will permit the ABC or the SBS to transmit
via satellite on one of their SDTV multi-channels a news and current
affairs program with a sports segment, and that the sports segment may
include televised excerpts from anti-siphoning events.
New clause 41LB regulates the HDTV multi-channels delivered by a national
broadcasting service by use of a satellite. The national broadcaster must
not televise the whole of an anti-siphoning event on a HDTV multi-channel
unless:
. the broadcaster has previously televised the whole anti-siphoning
event on one of the licensee's primary services (in relation to
primary services, see Item 123); or
. the licensee televises the whole anti-siphoning event simultaneously
on both a primary service and the HDTV multi-channel.
Item 131 - At the end of Part 4A of Schedule 4
This item inserts a new clause which deals with primary satellite national
television broadcasting services.
The new clause requires a national broadcaster to nominate to the Minister
a specified SDTV multi-channel provided by the national broadcaster, with
the use of a satellite, to be the broadcaster's primary satellite national
television broadcasting service in a specified satellite delivery area. As
noted above, the satellite delivery area corresponds to the satellite
licence area of a commercial broadcasting service licensed under section
38C of the BSA.
Item 132 - Clause 43 of Schedule 4
This item inserts a defined term for commercial television broadcasting
licence into Part 4A of Schedule 4 to the BSA. This Part sets up a
transmitter access regime for terrestrial television transmission towers.
The new defined term excludes a licence allocated under section 38C of the
BSA, because such a licensee does not use terrestrial transmitters to
deliver their service. Accordingly the transmitter access regime does not
need to apply to services licensed under section 38C of the BSA.
Item 133 - Subclause 2(1) of Schedule 6
This item makes minor amendments to the provisions in the BSA that describe
the companies that are eligible to apply for datacasting licences.
Currently the BSA requires a licensee company for datacasting services to
be formed in Australia or an external Territory. The amendment would
require a licensee company to be registered under Part 2A.2 of the
Corporations Act 2001.
Item 134 - Transitional - licences allocated under section 38B of the BSA
This item is a transitional provision that preserves the continuity of a
licence previously allocated under 38B of the BSA notwithstanding the
amendments made to section 38B by items 14-25 of Schedule 1 to this bill.
Copyright Act 1968
Item 135 - Subsection 10(1) (definition of broadcast)
Item 136 - Subsection 10(1) (definition of satellite BSA licence)
Item 137 - Subsection 10(1) (definition of satellite BSA licensee)
These items amend or insert new definitions in section 10 of the Copyright
Act 1968 (the Copyright Act). These items are consequential to item 141,
which provides for a new type of statutory licence relating to the re-
broadcast of copyright material by the satellite BSA licensee. A satellite
BSA licence and the licensee of such a licence is defined by reference to a
licence allocated under section 38C of the Broadcasting Services Act 1992
(the BSA).
For the purposes of the Copyright Act, the fact that a broadcast by a
satellite BSA licensee is subject to a conditional access system is
disregarded.
Item 138 - Section 100AH (note)
This item amends the note under section 100AH of the Copyright Act to
insert a new cross-reference. This item is consequential to the amendments
proposed by item 141.
Item 139 - Section 135ZZJA
Item 140 - At the end of section 135ZZJA
These items amend section 135ZZJA of the Copyright Act. Section 135ZZJA is
the application provision for Part VC of the Copyright Act (Retransmission
of Free-to-Air Broadcasts). The amendments add a new subsection 135ZZJA(2)
which provides that Part VC does not apply to retransmissions by a
satellite BSA licensee. This is because such broadcasts are to be regulated
instead by proposed Part VD of the Copyright Act (the legislative note
under subsection 135ZZJA(2) refers). The scope of proposed Part VD is
broader than Part VC in that the former sets up a statutory licence
regarding the particular use of copyright in a broadcast (that is,
broadcast signal copyright), whereas Part VC only confers a statutory
licence regarding the use of copyright in the underlying program material.
Item 141 - After Part VC
Item 141 inserts a new part after Part VC of the Copyright Act. Proposed
Part VD (Re-broadcasts by satellite BSA licensees) would deal with the
copyright aspects of the new licence conditions to be imposed on commercial
television broadcasters by items 41 and 72 of Schedule 1 to this bill.
These new licence conditions require particular metropolitan, regional and
remote commercial television broadcasters to supply particular television
programs to particular satellite BSA licensees in particular circumstances.
Correspondingly, the satellite BSA licensees will be made subject to
licence conditions regarding the broadcast of television programming
supplied by the previously mentioned commercial television broadcasters.
Proposed Part VD of the Copyright Act would set up a statutory licence
scheme regulating two distinct copyright issues that arise in the context
of television broadcasts:
. the use of broadcast signal copyright (that is, copyright in a
broadcast); and
. the use of underlying copyright in the television program
material (such copyrights include the script writing, music and
other recorded sounds, artworks and cinematographic films that
together make up a television program).
Division 1 - Preliminary
Division 1 of Part VD sets out the defined terms used throughout the Part
(section 135ZZZF).
Section 135ZZZG deals with the key concepts of an eligible program and an
original broadcaster. In short, television program material will be an
eligible program under Part VD of the Copyright Act if that material is
supplied by a commercial television broadcaster to a satellite BSA licensee
pursuant to a broadcasting licence condition imposed under:
. subsection 43A(3) of the BSA;
. section 43AA of the BSA;
. section 43AB of the BSA; or
. section 43AC of the BSA.
In turn, the commercial television broadcaster who is subject to the
previously mentioned BSA licence conditions will be an original broadcaster
under Part VD of the Copyright Act. The identification of both the eligible
program and the original broadcaster is pivotal to the operation of the
remainder of Part VD of the Copyright Act.
Section 135ZZZH provides for the concurrent operation of collecting society
rules except for any rule that is inconsistent with the application of Part
VD to that collecting society.
Division 2 - Re-broadcasts by satellite BSA licensees
Division 2 of Part VD sets out the statutory licence for a satellite BSA
licensee.
Subsection 135ZZZI(1) sets out the preconditions for the statutory
copyright licence authorising the use of the underlying copyright in the
program material.
A satellite BSA licensee will not infringe the underlying copyright in a
television program if the re-broadcast of the eligible program is
authorised by the satellite BSA licensee's broadcasting licence (see
section 38C of the BSA) and otherwise complies with the broadcasting
licence condition set out in clause 7A of Schedule 2 to the BSA (except for
compliance with the conditional access scheme - see item 124 above and the
definition of broadcast used in the Copyright Act).
In addition, a satellite BSA licensee will not infringe the underlying
copyright if the licensee complies with the requirements of the statutory
licensing scheme set out in Part VD of the Copyright Act:
. the satellite BSA licensee must provide a remuneration notice
(particulars are set out in section 135ZZZJ below) to the relevant
collecting society (see Divisions 3 and 4 below), and that notice must
be in force at the time of re-broadcasting;
. the remuneration notice must specify the original broadcaster of the
program that the satellite BSA licensee has (or will) re-broadcast;
and
. the satellite BSA licensee must keep appropriate records of the
program material they have (or will) re-broadcast (see section 135ZZZL
below).
Subsection 135ZZZI(2) sets out the preconditions for the statutory
copyright licence authorising the use of the copyright in the broadcast
signal (broadcast signal copyright).
There will be no infringement of the broadcast signal copyright (for the re-
broadcast of an eligible program) provided the re-broadcast is made by a
satellite BSA licensee (paragraph-135ZZZI(2)(a)).
In addition, paragraphs 135ZZZI(2)(b)-(c) provide that the satellite BSA
licensee's re-broadcast of the eligible program must be authorised by the
satellite BSA licensee's broadcasting licence (see section 38C of the BSA),
and otherwise comply with the broadcasting licence condition set out in
clause 7A of Schedule 2 to the BSA (except for compliance with the
conditional access scheme - see item 135 above and the definition of
broadcast used in the Copyright Act).
The final precondition for the statutory licence is that the satellite BSA
licensee must be bound by either:
. an agreement with the original broadcaster that sets out the amount to
be paid by the satellite BSA licensee to the original broadcaster for
the re-broadcast of the eligible program during a particular period;
or
. absent an agreement, a Copyright Tribunal determination that sets out
the amount to be paid by the satellite BSA licensee to the original
broadcaster for the re-broadcast of the eligible program during a
particular period (see section 153RA of the Copyright Act); or
. if there is no agreement or Copyright Tribunal determination, a
written undertaking made by the satellite BSA licensee in the original
broadcaster's favour that commits the satellite BSA licensee to pay an
amount as determined by the Copyright Tribunal for the re-broadcast of
the eligible program during a particular period (see section 153RA of
the Copyright Act).
Subsections 135ZZZI(3) and (4) deal respectively with temporary copying of
underlying program material and broadcast signal copyright to enable re-
broadcasting by the satellite BSA licensee. Temporary copying will not
infringe any copyright provided the copy is destroyed within 7 days of
being made. If the copy is not destroyed on time, subsection 135ZZZI(3) or
(4) is taken never to have applied to the making of the copy (subsection
135ZZZI(5) refers) - this means that such copying is potentially a
copyright infringement unless some other copyright licence covers such
copying.
Section 135ZZZJ deals with remuneration notices. A satellite BSA licensee
may through written notice to a collecting society undertake to pay
equitable remuneration to the society for the re-broadcasts made by the
satellite BSA licensee. The notice must state that the amount of equitable
remuneration is to be assessed on the basis of records kept by the
satellite BSA licensee under new section 135ZZZL. (The record system - as
agreed between satellite BSA licensee and the relevant collecting society
or as determined by the Copyright Tribunal - must provide for the keeping
of records identifying each program broadcast by the original broadcaster
and re-broadcast by the satellite BSA licensee).
Section 135ZZZK deals with the amount of equitable remuneration payable by
the satellite BSA licensee. The remuneration amount is to be determined by
agreement between the collecting society and the satellite BSA licensee. If
the parties are unable to reach agreement, the Copyright Tribunal will
determine the amount of equitable remuneration on the application of either
the satellite BSA licensee or the collecting society. Different
remuneration amounts may be determined in relation to the different types
of copyright - works, sound recordings and film recordings - included in re-
broadcasts.
Section 135ZZZL establishes the requirements for a records system to be
established and maintained by the satellite BSA licensee for the purpose of
re-broadcasting eligible programs.
Subsection 135ZZZL(2) provides that the record system must provide for a
record to be kept of the title of each eligible program broadcast by each
broadcaster specified in the remuneration notice (that is, the original
broadcaster and the satellite BSA licensee). The collecting society is
entitled to access such records.
Subsection 135ZZZL(3) provides that the record system must be agreed
between the satellite BSA licensee and the collecting society. Absent an
agreement either of them can apply to the Copyright Tribunal and the
Tribunal may determine the records system.
Section 135ZZZM provides that a remuneration notice may be revoked at any
time by the relevant satellite BSA licensee providing written notice to the
relevant collecting society. The revocation takes effect 3 months after the
date of the notice or on a later specified day.
Section 135ZZZN provides that a collecting society may request a satellite
BSA licensee to pay equitable remuneration (payable under new section
135ZZZK) as specified in the collecting society's notice, and within a
reasonable time after the date of that notice. Subsection 135ZZZN(2)
provides that the collecting society may initiate debt recovery actions
regarding the amount specified in the collecting society's notice under
this section if the amount is not paid by the satellite BSA licensee as
requested. Action to recover the debt may be brought in the Federal Court
of Australia or any other court of competent jurisdiction.
Division 3 - Collecting Societies
Division 3 sets out the arrangements for the establishment of collecting
societies for Part VD purposes. A collecting society collects and
distributes the fees that attach to the statutory licence to the copyright
owners that the society works for.
Section 135ZZZO provides for the identification of one or more collecting
societies for the purpose of administering the statutory licence created by
Part VD of the Copyright Act.
Subsection 135ZZZO(1) provides that a body may apply to the Attorney-
General seeking a declaration that that body is a collecting society for
Part VD purposes for all relevant copyright owners (as defined in section
135ZZZF above) or one or more specified classes of relevant copyright
owners.
Subsection 135ZZZO(2) provides that the Attorney-General may by a notice in
the gazette declare the applicant body to a collecting society, refuse to
declare the applicant body to be a collecting society, or refer the
application for the Copyright Tribunal instead.
Subsections 135ZZZO(3)-(4) are machinery provisions.
Subsection 135ZZZO(5) provides that a collecting society declaration must
specify whether the collecting society collects to all or specified classes
of relevant copyright owners. This is necessary because a collecting
society will generally occupy a monopoly position for the purpose of
administering for its members the statutory licence set up by Part VD of
the Copyright Act. (See also the notes below on subsections 135ZZZO(6) and
(8).)
Subsection 135ZZZO(7) sets out eligibility requirements that a body must
meet before it can be declared a collecting society. These include that:
. it be registered as a company limited by guarantee under Part 2A.2 of
the Corporations Act 2001;
. the relevant copyright owners (or their agents) who the society would
collect for are entitled to be members of the society;
. its rules prohibit payment of dividends to members; and
. its rules contain other prescribed provisions protecting the interests
of members about: the collection of equitable remuneration, the
funding of the society's administrative overheads, the distribution of
the collected amounts, the establishment of trust accounts for
relevant copyright owners who are not society members, and members'
access to society records.
Subsection 135ZZZO(6) deals with the circumstance where the Attorney-
General or the Copyright Tribunal makes declarations that result in
multiple collecting societies for the purpose of Part VD of the Copyright
Act. Normally, a collecting society will exclusively collect for the class
of copyright owners specified in the collecting society's declaration.
However, subsection 135ZZZO(8) provides that the Attorney-General or the
Copyright Tribunal may subsequently declare another collecting society for
that class of copyright owners, because to do so is in the interests of
those copyright owners. Where a subsequent declaration is made recognising
another collecting society, the scope of the first collecting society's
declaration is modified accordingly and remuneration notices given to the
first collecting society cease to be in force to the extent that those
notices now fall within the ambit of the second collecting society (see
subsection 135ZZZO(6)). New remuneration notices will need to be given to
the successor collecting society.
Section 135ZZZP provides for the revocation of collecting society
declarations. The Attorney-General may, by notice in the gazette, revoke a
collecting society declaration. To do so, the Attorney-General must be
satisfied that the collecting society: is not functioning adequately; is
not acting in accordance with its rules or in the best interests of its
copyright owner members; has altered its rules so that they no longer
comply with the requirements in paragraphs 135ZZZO(3)(c) or (d); or has
refused or failed, without reasonable excuse, to comply with its annual
reporting and accounting requirements (see section 135ZZZQ below) or its
duty to provide the Attorney-General with an updated copy of the society's
rules, and an explanatory statement, whenever the society's rules have been
amended (see section 135ZZZQ below).
Section 135ZZZQ provides a number of rules in relation to collecting
societies' annual reports and accounts. Subsections 135ZZZQ(1)-(2) provide
that after the end of each financial year, each collecting society must
prepare a report of its operations (an annual report) and send a copy of
that report to the Attorney-General. Within 15 sitting days of receiving
the report, the Attorney-General must table a copy of the annual report in
the House of Representatives and the Senate.
Subsections 135ZZZQ(3)-(5) deal with the collecting society's book-keeping.
A collecting society must keep accounting records that correctly record and
explain the society's transactions and financial position. This extends to
records of transactions where the society is a trustee. The records must be
kept in a manner that will enable true and fair accounts to be prepared
that can be conveniently and properly audited. At the end of each financial
year, a collecting society must have its accounts independently audited and
send a copy of the audited accounts to the Attorney-General.
Subsection 135ZZZQ(6) requires a collecting society to give its members
reasonable access to copies of all reports and audited accounts prepared
under this section.
Subsection 135ZZZQ(7) makes clear that this section does not affect any
obligations a collecting society has relating to the preparation and
lodging of annual returns or accounts under the Corporations Act.
Section 135ZZZR provides that if a collecting society alters its rules, it
must send a copy of the altered rules to the Attorney-General within 21
days. The altered rules must be accompanied by a statement that sets out
the effect of the alteration and the reasons why it was made.
Section 135ZZZS provides that a collecting society (or a society member)
may apply to the Copyright Tribunal for review of the collecting society's
adopted or proposed distribution arrangement (the society's rules must
include distribution arrangements that adequately protect the members'
interests: see subparagraph 135ZZZO(7)(d)(iii) noted above).
Subsection 135ZZZS(2) provides that an order made by the Copyright Tribunal
varying or replacing the collecting society's distribution arrangement
cannot affect a distribution begun before the Tribunal's order is made.
This ensures that, where the society's distribution arrangement applies to
successive annual distributions, any variation or replacement ordered by
the Tribunal cannot oblige the society to redistribute moneys already paid
or committed under an annual distribution that has been completed or begun
before the order was made.
Division 4 - Interim re-broadcasts
Division 4 contains interim arrangements for the administration of the
statutory licence before the first declaration of a collecting society
under Part VD of the Copyright Act. This Division enables interim
remuneration notices to be collected by an interim collector (the notice
holder).
Section 135ZZZT provides that the Attorney-General may appoint a person to
be the notice holder for the purposes of the interim arrangements. This
appointment is to be made by notice in the gazette.
Section 135ZZZU provides that the copyright in a work, sound recording or
film included in a re-broadcast by a satellite BSA licensee is not
infringed before the declaration of a collecting society, provided the re-
broadcast satisfies six conditions.
The first three conditions are the same that apply when a collecting
society exists. That is, the eligible program must be re-broadcast:
. by a satellite BSA licensee;
. on a service that is authorised by the satellite BSA licensee's
broadcasting licence (see section 38C of the BSA); and
. otherwise in compliance with the broadcasting licence condition set
out in clause 7A of Schedule 2 to the BSA (except for compliance with
the conditional access scheme - see item 58AAA above and the
definition of broadcast used in the Copyright Act).
The three additional conditions that apply to re-broadcasts made during the
interim period are that:
. at the time of the re-broadcast, there must be no declared collecting
society;
. the satellite BSA licensee must have given notice to the notice holder
in accordance with the new section 135ZZZV; and
. the satellite BSA licensee must comply with the record keeping
requirements (see section 135ZZZL above).
Section 135ZZZV sets out the requirements for giving notices during the
interim period. The required notice is basically an interim remuneration
notice. The notice is the satellite BSA licensee's binding undertaking to
pay equitable remuneration to a collecting society once it is declared. The
undertaking to make payment applies to any eligible program re-broadcast by
the satellite BSA licensee for the duration of the notice.
The satellite BSA licensee may give written notice to the notice holder at
any time before the declaration of the first collecting society. Subsection
135ZZZV(2) provides that such a notice must specify that the amount of
equitable remuneration is to be assessed on the basis of the records kept
by the BSA satellite licensee in accordance with their record keeping
obligations in section 135ZZZL.
The satellite BSA licensee's interim notice comes into force on the day it
is given to the notice holder, or on a later day as specified in the
notice. The notice remains in force until it is revoked - a notice may be
revoked at any time through the satellite BSA licensee giving written
notice to the notice holder. The revocation date is the date of the
revocation notice or a later date as specified in that notice (see
subsections 135ZZZV(3)-(5)).
Section 135ZZZW provides that the requirements in new section 135ZZZK
(amount of equitable remuneration) and 135ZZZL (record system) apply in
this Division, such that references to a 'collecting society' are
references to the 'notice holder', and references to a 'remuneration
notice' are references to a notice made under section 135ZZZV (that is, the
interim remuneration notice).
Section 135ZZZX provides for the transition from the interim collection
scheme to the scheme administered by the collecting society after the
making of a collecting society declaration. Subsection 135ZZZX(1) deals
with the situation where one or more collecting societies are declared, and
as a result there is a collecting society for all relevant copyright
owners. In this situation, a notice given by a satellite BSA licensee to
the notice holder under section 135ZZZV ceases to have effect as an interim
notice, but is instead taken to be a remuneration notice given to the
relevant collecting society or societies. The remuneration notice is taken
to have come into force on the same day as the interim notice came into
force.
Subsection 135ZZZX(2) deals with the situation where one or more collecting
societies are declared for one or more, but not all, classes of relevant
copyright owners. In this situation, a notice given by a satellite BSA
licensee to the notice holder ceases to have effect as an interim notice in
relation to the classes of copyright owners whose interests are now
represented by the declared collecting societies. The interim notice is
instead taken to be a remuneration notice given to the relevant collecting
society or societies, and the remuneration notice is taken to have come
into force on the same day as the interim notice came into force. However
paragraph 135ZZZX(2)(d) provides that the notice given to the notice holder
continues to remain in force for those copyright owners whose interests are
not being represented by the declared collecting society or societies.
Subsection 135ZZZX(3) provides that once an interim notice is taken to be a
remuneration notice given to a collecting society, the satellite BSA
licensee must send copies of all records made under section 135ZZZL to the
relevant collecting society (this is consistent with the undertaking
contained in the interim notice: see subsection 135ZZZV(2)). The delivery
of the records regarding the interim re-broadcasts must occur within 21
days after the declaration of the collecting society.
Division 5 - Miscellaneous
Division 5 contains miscellaneous provisions confirming that the relevant
copyright owners may licence re-broadcasts by the satellite BSA licensee
outside the statutory licensing scheme contained in Part VD of the
Copyright Act.
Section 135ZZZY makes clear that nothing under this new Part affects a
copyright owner's right to grant a licence authorising a re-broadcast of
the eligible program without infringing copyright.
Section 135ZZZZ makes clear that a re-broadcast of an eligible program in
accordance with the statutory licence in Part VD of the Copyright Act does
not vest copyright in any work or other subject-matter in any person.
Section 135ZZZZA clarifies that where a copyright owner (such as the
original broadcaster) licences the re-broadcast of an eligible program, the
owner is not taken to have authorised any copyright infringement in
underlying copyright material included in the broadcast.
Item 142 - After Subdivision G of Division 3 of Part VI
This item confers a new jurisdiction on the Copyright Tribunal. These
amendments are a consequence of the creation of the new statutory licence
scheme for the re-broadcast via satellite of particular television programs
(see new Part VD of the Copyright Act).
New section 153RA enables applications to be made to the Copyright Tribunal
seeking orders determining the amount of equitable remuneration payable by
the satellite BSA licensee to the copyright owner in relation to the re-
broadcast of eligible programs.
Subsection 153RA(1) provides that parties to an application to the Tribunal
are the copyright owner and the satellite BSA licensee. Subsections
153RA(2)-(3) deal with the Copyright's Tribunal's decision making process
for such an application.
Section 153S deals with Copyright Tribunal proceedings arising from an
application made under proposed section 135ZZZK (for a determination of the
amount of remuneration payable by a satellite BSA licensee to a collecting
society for the re-broadcast of eligible programs). Subsection 153S(2)
provides that the parties to the proceeding are the collecting society and
the satellite BSA licensee. Subsections 153S(2)-(4) deal with the Copyright
Tribunal's decision making process for such an application.
Section 153T deals with Copyright Tribunal proceedings arising from an
application made under proposed section 135ZZZL (for a determination about
the satellite BSA licensee's record system, when one is unable to be agreed
between the licensee and the collecting society). Subsection 153T(2)
provides that the parties to the proceeding are the collecting society and
the satellite BSA licensee. Subsections 153T(2) deals with the Copyright
Tribunal's decision making process for such an application.
Section 153U deals with the Copyright Tribunal's handling of a referral
from the Attorney-General regarding the declaration of a collecting society
(see proposed section 135ZZZO, noted above). The parties to the reference
are the applicant body (who wants to be a collecting society), and any
other person the Tribunal decides to make a party to the application under
subsection 153U(3) - the Tribunal may add a party to the reference on
application, provided the Tribunal is satisfied that the person has a
sufficient interest in the matter. For example, another collecting society
may request to be heard on the application. Subsections 153U(4)-(5) deal
with the Copyright Tribunal's decision making process for such a reference.
Notices of a declaration made by the Tribunal are to be published in the
gazette (subsection 153U(5)).
Section 153V deals with the Copyright Tribunal's handling of a referral
from the Attorney-General regarding the proposed revocation of a collecting
society declaration. The Attorney-General and the collecting society are to
be parties to the reference, along with any other person that the Tribunal
makes a party to the reference. The decision making procedures are similar
to that described in relation to section 153U above.
Section 153W sets out the Copyright Tribunal's procedure for hearing an
application under new section 135ZZZO (review of collecting society
distribution arrangement).
Subsection 153W(2) provides that the parties to the application are the
society, the member who made the application (if it was not made by the
society) and any (other) member or an organisation representing members, if
made a party by the Tribunal.
Subsection 153W(3) allows the Tribunal to make, upon application, one or
more collecting society members (or an organisation representing such
members), a party to the application provided the Tribunal is satisfied
that the applicant member or organisation has a substantial interest in the
distribution arrangement that is under review.
Subsection 153W(4) requires the Tribunal to make an order either confirming
or varying the distribution arrangement, or substituting another
arrangement.
Item 143 - Paragraph 195B(1)(e)
Item 144 - Paragraph 195B(1)(f)
Section 195B of the Copyright Act confers merits review functions on the
Administrative Appeals Tribunal (the AAT).
These items add new merits review functions on the AAT as a consequence of
the amendments that would insert new sections 135ZZZO and 135ZZZP into the
Copyright Act. As a result of these respective items, the AAT may review
the Attorney-General's decision to:
. refuse to declare a particular body to be a collecting society, or
. revoke a collecting society declaration for a particular body.
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