Australian Democrats Report on the
Broadcasting Service Amendment Bill (1998)
Outline
The purpose of this Bill is to amend the Broadcasting Services Act to
provide
- an anti hoarding regime to the free-to-air broadcasters
- regional area programming restrictions on payTV operators
- a new retransmission regime for payTV operators
The Democrats are keen to ensure that consumers are protected in any
changes to the Broadcasting Services Act, and are able to continue to
receive free-to-air television programs. The Democrats believe that consumer
interests should be the primary focus of the Government's concern in relation
to broadcasting. We also note the decision of the Full Federal Court in
1996 which held that simultaneous and unaltered cable retransmissions
of free-to-air television services is allowed within licence or coverage
areas without restriction under the current provisions of the Broadcasting
Services Act and the Copyright Act 1968 [1].
The Democrats agree with the Committee's assessment that there are mutual
benefits to both the free-to-air and payTV sectors in retransmission.
The availability of free-to-air programs on payTV adds to its attractiveness.
From the free-to-air point of view, they gain access to a market share
of audience they would otherwise not have access to.
In relation to the anti-hoarding provisions of this legislation, we note
the Broadcasting Services Act contains provisions that are intended to
ensure that significant sporting events continue to be broadcast on free-to-air
television in order that the majority of Australians continue to have
access to these events free of charge. We would not support any move to
weaken the current provisions and would like to see non-sporting events
included in the anti-hoarding list.
Anti-hoarding and the “must offer” regime
The Democrats broadly support this scheme. We acknowledge that there
is no direct public benefit flowing from the commercial advantage the
free-to-air broadcasters have from their ability to obtain the rights
on the events in the anti-hoarding list. This amendment therefore obliges
the free-to-air broadcasters to broadcast these events. In the event that
the commercial broadcasters do not want to broadcast the event, the rights
must be offered to the national broadcasters.
Equally, and rightly, the national broadcasters are not obliged to broadcast
these events if they do not believe it to be in their best interests,
just as the commercial broadcasters make commercial decisions about their
own broadcasting policy. Under these circumstances, the events should
then be offered to payTV broadcasters.
We also believe the national broadcasters should be offered the program
rights with sufficient lead-time to determine their own broadcasting schedules.
No less than seven days (168 hours) should be the minimum lead-time. This
will allow the national broadcasters sufficient time to consider their
programming priorities, and simultaneously ensure the currency of the
programs available to payTV operators.
Recommendation: that commercial free-to-air broadcasters provide
at least 7 days lead-time to the national broadcasters of their intention
to offer programs on the anti-hoarding list.
We appreciate the concerns on the payTV sector that the national broadcasters
will not be obliged to broadcast the events. This process should restrict
the potential to `hoard' the programs.
Recommendation: The Australian Broadcasting Authority should undertake
to monitor the impact of these new provisions on the free-to-air and payTV
sectors, providing a report to the Minister for tabling in Parliament
on an annual basis.
Subscription television programming in regional areas.
Television consumers in rural and regional areas are already at a disadvantage
from their metropolitan counterparts, because of the lack of diversity
of content (lack of local programs) and a diminution in choice (particularly
in markets of less than the five free-to-air operators).
The Government's proposed amendments require the payTV operator to receive
written permission from the ABA to broadcast in a regional area if their
programming schedule of substantially the same as those offered by the
metropolitan broadcaster.
In areas where there is an overlap of regional and metropolitan signals,
the payTV operator should be required to substitute the regional service,
rather than be discluded from broadcasting in that region altogether as
appears to be the practical effect of the Government's proposed amendments.
The viability of the regional licensee must not be compromised, and consumers
should have access to a free-to-air service.
The Democrats acknowledge that the payTV industry has added a significant
degree of viewer choice in some regional areas, and the legislative regime
needs to take this into consideration. The ABA should maintain an overriding
concern with the degree of viewer choice and regulation of overlap areas.
Recommendation: All local free-to-air signals should be carried
without modification or discrimination.
Retransmission
The Full Federal Court found in 1996 that the simultaneous and unaltered
cable retransmission of free-to-air television services is allowed within
licences/coverage areas without restriction under the current provision
of the Broadcasting Services Act and the Copyright Act.
The BSA already contains a process for retransmission. Its purpose is
to enable community, or `self help' groups to retransmit free-to-air broadcasts
in remote areas and areas of poor reception. PayTV licensees began to
use these provisions when they commenced operation in 1995, and are able
to offer their subscribers both free-to-air and subscription programming.
PayTV operators continue to retransmit free-to-air program without compensating
the copyright owners.
Permission to retransmit
The Democrats do not believe the payTV operators should be required to
seek the permission of the free-to-air operators to retransmit their programs.
Such a legislative inclusion could lead to instances where free-to-air
broadcaster/s deny payTV operator/s the right to retransmit their programs.
This would deny the large number of subscribers who do choose to pay for
their television services, because of poor reception and other technical
problems, access to these services.
Recommendation: that the payTV operators not be required to seek
the permission of free-to-air broadcasters to retransmit their programs.
However, we believe that the current channel numbers should apply to
the retransmission of free-to-air channels, and that they should be in
sequence.
Recommendation: that current channel numbers be allocated to the
retransmission of free-to-air channels
Dispute mechanism built into the legislation
In instances where the allocation of the same channel numbers cannot
be guaranteed by the payTV operator, and a dispute between the payTV operator
and the free-to-air broadcaster/s arises, the ABA should arbitrate. This
mechanism should be built into the legislation.
Recommendation: that a dispute mechanism be built into the legislation
Closed Captioning
There is no question that teletext and closed-captioning services should
be retransmitted by the payTV operators. We note ASTRA's proactive role
in working with the Australian Captioning Centre and the National Working
Party on Captioning to alleviate any problems and to progress issues about
captioning on subscription television services.
Recommendation: Closed captioning should be retransmitted
Copyright for Rights Holders
The Democrats support the legislative amendment which requires payTV
licences to pay compensation to underlying copyright holders for the use
of their intellectual property.
The schedule of charges should not be arbitrary, but should be drawn
up and agreed to by the free-to-air and payTV operators. Arbitration should
be the preserve of the Copyright Tribunal who as an independent arbitrator,
can examine and determine the legitimacy of the range of matters other
than remuneration which may arise in the context of compensation. The
schedule of charges should be a disallowable instrument.
Recommendation: that payTV operators pay copyright to copyright
holders, the amount to de determined by the industry negotiating in good
faith, arbitrated by the ABA. The schedule should be a disallowable instrument.
Conclusion
The payTV industry is a legitimate television industry in Australia.
The Democrats' prime broadcasting policy focus is ensuring the delivery
of free-to-air television services – commercial, national and community.
However, free-to-air broadcasters cannot guarantee the quality of the
reception of their broadcasts, for a number of reasons. PayTV operators,
on the other hand, are able to offer such a guarantee. This has meant
consumers have been provided with greater choice of broadcasting delivery,
even though they may have to pay for the service. Consumers should be
allowed to choose from the advantages of alternative means of technological
delivery.
Any legislative regime should maximise consumer access, ensure the continued
viability of the free-to-air broadcasters, and recognise the commercial
interests of the payTV sector. Ultimately, the “must carry”
regime should take into account the interests and needs of viewers in
order they receive broadcasts conveniently and at no or minimal cost.
Footnotes
[1] Bills Digest No 6, 2 July 1998.
Top
|