Chapter 4
Datacasting
4.1 A number of submissions were concerned about the Bill's provisions
on `datacasting'. The main concerns were from parties who would like to
provide datacasting services through digital terrestrial transmission
and who consider that the Bill gives unfair competitive advantages to
broadcasters who may wish to use spare parts of their free allocation
of spectrum for datacasting.
Definition of Datacasting and Broadcasting
4.2 Many submissions had doubts about what `datacasting' means or should
mean. The Bill for the first time creates a legal activity called `datacasting',
defined thus:
datacasting service means a service (other than a broadcasting
service) that delivers information (whether in the form of data, text,
speech, images or in any other form) to persons having equipment appropriate
for receiving that information, where:
(a) the delivery of the service uses the broadcasting services bands;
and
(b) the service is not of a kind specified in the regulations. [1]
4.3 A `broadcasting service' is:
…a service that delivers television programs or radio programs
to persons having equipment appropriate for receiving that service,
whether the delivery uses the radiofrequency spectrum, cable, optical
fibre, satellite or any other means or a combination of those means,
but does not include:
(a) a service (including a teletext service) that provides no more
than data, or no more than text (with or without associated still
images); or
(b) a service that makes programs available on demand on a point-to-point
basis, including a dial-up service; or
(c) a service, or a class of services, that the Minister determines,
by notice in the Gazette, not to fall within this definition.
[2]
4.4 In short, taking these together, `datacasting' means (with provisos)
using the broadcasting services bands [that part of the spectrum subject
to planning by the ABA] to `deliver information' that is not a
`television program or radio program', where a `program' is:
(a) matter the primary purpose of which is to entertain, to educate
or to inform an audience; or
(b) advertising or sponsorship matter, whether or not of a commercial
kind. [3]
The scope of `program' and `broadcasting service' can be narrowed by
a ministerial determination that a certain service does not fall
within the definition of `broadcasting services' (therefore, if it is
delivered using the broadcasting services bands, it is datacasting).
4.5 For legal purposes, given that broadcasting and datacasting involve
different rights and obligations, the important thing is that the definitions
are mutually exclusive, as was explained by the Australian Broadcasting
Authority:
…There are only the two defined terms—one is a broadcasting
service and the other is the datacasting service. If it is a datacasting
service[,] it is not a broadcasting service. So the two terms together
will cover the field of all services. The minister has the power, within
the definition of a broadcasting service, to declare certain things to
be not broadcasting services, and within the digital conversion bill there
is a power by regulation to declare certain things to be not datacasting
services. [4]
4.6 However, it leaves open the question of which particular services
will or will not be called `datacasting'. On the one hand, this depends
on the legal specification of `matter the primary purpose of which is
to entertain, to educate or to inform an audience' (this matter, in the
absence of a ministerial determination on the definition of `broadcasting
services', is not datacasting, in the explanation given above).
On the other hand, it depends on what is specified in ministerial determinations
and future regulations. These regulations are to be made following a review
of the definition of `datacasting service', which the Bill mandates before
1 January 2001.
4.7 A number of definitions of datacasting were put to the Committee
and concern was expressed that the possibilities of convergence blur previous
distinctions made between broadcasting and other means of disseminating
information. There is nothing new about using wireless transmissions to
provide data services, but what is new is the use of broadcasting spectrum
for transmission of these types of services. [5]
According to the Internet Industry Association:
Datacasting is a process in which data (such as text, pictures, graphics
and video) is transmitted without wires to an analog TV set (with set
top box); an appropriately equipped computer or, in future, a digital
TV set. [6]
4.8 While John Fairfax Holdings Limited agreed with the Committee that
there was a need for a definition of datacasting, they could only offer
a `part of a definition of datacasting' as:
…We would like to think of datacasting as anything we can currently
do on the Internet today, with the ability to grow these services in the
same way that we can grow them on the Internet as the functionality of
the Internet increases. That means interactive services, that means moving
pictures as they relate to our content and any other ancillary services
of the type that we currently provide on the Internet. [7]
4.9 In a supplementary submission to the Committee, John Fairfax Holdings
Limited emphasised the point that `datacasting appears to be generally
thought of as text and data based services like the news wire and online
services. Now datacasting through the internet delivers high quality video
and audio, not just text. Any workable definition of datacasting needs
to encompass all the types of services that are delivered via the internet
today'. [8]
4.10 Evidence before the Committee suggested that:
Datacasting will help people access a range of new interactive services,
view movies from the Web faster than ever before and see Web pages while
they watch TV…It can be thought of as a smarter television or a more
entertaining computer…We anticipate that datacasting will be one
means by which Australian businesses and consumers will participate in
electronic commerce. [9]
4.11 The Committee notes that the Television Broadcasting Services (Digital
Conversion) Bill 1998 contains provision for a review to be conducted,
before 1 January 2001, into the content of regulations that relate
to the scope of the definition of a `datacasting service' (Part 8 of proposed
new Schedule 4 to the BSA). [10]
4.12 The Committee notes that it is likely that these regulations would
identify services that would be excluded from the definition of datacasting
services, and therefore prohibited under the Bills. The Committee would
consider it appropriate for this review to address specifically the issue
of any unfair competitive advantage which datacasters may be provided
with if they are permitted to provide services which approach a movie
on demand service. This issue is discussed further in paragraphs 4.23
to 4.28.
4.13 The Bill also provides for a review into the regulatory arrangements
that should apply to the allocation of spectrum in the broadcasting services
bands for use in the provision of datacasting services, prior to 1 January
2001.
4.14 The Committee concluded that the reviews to be conducted in order
to determine regulations in regard to the definition of datacasting services
and to the allocation of spectrum for datacasting services should address
some of the concerns raised in this area. In light of the uncertainty
surrounding definitions in this area, the Committee can only reiterate
that it considers that this review must be conducted as soon as possible.
(Refer Recommendation 5 above).
Access to Spectrum for Datacasting
4.15 The government has agreed that, with the commencement of their digital
broadcasting service, the existing free-to-air broadcasters will be able
to offer free-to-air or subscription datacasting services to utilise `unused'
transmission capacity. [11]
4.16 Once the spectrum requirements for the free-to-air broadcasters
are known, additional channels in the broadcasting services bands, that
are not needed for these broadcasters' digital transmissions will be made
available for datacasting purposes, with allocation using a price based
mechanism, on a competitive basis. FTA broadcasters will not be allowed
to bid for this spectrum. [12] The datacasting
charge to be imposed on FTA broadcasters, to ensure competitive neutrality,
is the subject of the Datacasting Charge (Imposition) Bill 1998.
Claims of Unfair Access to Spectrum by Broadcasters Compared to Datacasters
4.17 The issue of inequitable treatment in accessing the available spectrum
was raised by the internet industry and other datacasters against the
free-to-air broadcasters.
4.18 The Committee was aware of concerns from the Internet Industry Association
that they have `hundreds of millions of dollars invested in digital technologies'
but have `limited or no broadcast capacity'. [13]
The Australian Information Industry Association was of the opinion that
`the communications industry will be at a distinct disadvantage to the
commercial broadcasters who now stand to be allocated spectrum free of
charge'. [14] The Committee has already stressed
in paragraph 2.22 (Chapter 2) that all datacasters, whether free-to-air
broadcasters or other organisations will pay for the use of the spectrum
for datacasting.
Education Services
4.19 The Committee received a submission from the University of Southern
Queensland supporting the use of digital terrestrial television (DTTV):
…for the expansion of educational and other services and not limit
DTTV, so far as education and related services are concerned, to the existing
Free-to Air television stations. [15]
4.20 In the Committee's view, the intent of the legislation is not to
give the free-to-airs unfair advantages in the area of datacasting. The
Committee is supportive of giving access to the spectrum to potential
datacasters for educational and other services. As Recommendation 5 of
this report indicates, the Committee believes issues of how access will
be granted and at what cost must be resolved as soon as possible.
4.21 A submission from an organisation called nervous_objects,
(a collective of artists with a variety of skill bases who have been described
as taking on `a greater interrogation of the online environment and engaging
with it as a medium critically') stated their concerns as follows:
…there is a need for direct artist access to broadcast bandwidth
within the 7MHz frequency range, as part of the spectrum reallocation
outlined within the Bills. [16]
4.22 John Fairfax Holdings Limited were concerned that if the definition
of `broadcasting' were too wide (refer above), the conventional TV broadcasters
would have an incentive to use spectrum for services other than HDTV without
paying datacasting charges. [17]
Claims of Unfair Access to Spectrum by Datacasters Compared to Broadcasters
4.23 By contrast, some witnesses raised concerns in regard to the extent
to which datacasters may be able to provide services using broadcasting
spectrum that could be considered as broadcasting services and that this
would provide datacasters with an unfair competitive advantage in relation
to broadcasters, in particular pay TV operators.
4.24 There were a variety of views in regard to the services that could
be provided by datacasters under the definitions above, and particular
concern was expressed about whether movies on demand would be a recognised
datacasting service.
4.25 The Internet Industry Association (IIA) submitted that they would
expect datacasting services to include, in part, being able to `view movies
and video clips via a form of video-on-demand'. [18]
When questioned by the Committee in regard to the provision of pay-per-view
movies via a datacasting service, the IIA stated that:
…if on the Village Roadshow site, which we currently house and which
is one of the most popular entertainment sites in Australia, they made
provision for you to download a number of the titles they currently have
available which would normally be available in video stores, for example,
or sound clips, music clips or whatever, and you could actually subscribe
to those and download those to your hard disk for a one-off play. And
that subscription would be a one-off payment for that download and that
use. [19]
On being questioned by the Committee on the IIA's views, John Fairfax
Holdings stated that:
The area we are most interested in is the area of datacasting that involves
utilising our existing content…for example, news services, classified
advertising services, archived information and local city guides. That
at some level does blur into the area of some kind of moving pictures.
For example, if you looked at a range of classified advertising and chose
a particular model of car you wanted to look at, you would click on the
particular ad for the right car when it came to you; it then would turn
into a car that moved across the screen so you could see what the car
looked like. That is the sort of moving picture I am talking about—certainly
not feature length movies. [20]
4.26 Australian Subscription Television and Radio Association expressed
the view that:
Point to point video services (whether subscription based or not) and
other “quasi broadcasting” services could come within the definition
for datacasting service as currently drafted. [21]
4.27 In evidence to the Committee, the Department of Communications and
the Arts sought to clarify the situation:
The objective of having the classification of datacasters and the reason
for having the review process and the consultation with the industry is
to ensure that datacasting, particularly that entered into by the free
to air broadcasters, does not provide an unfair environment in which they
could compete with existing suppliers such as the pay TV industry. Without
wishing to prejudge the outcome of the review process, I would imagine
that the definitions or the regulations that would apply to datacasting
would preclude them from offering a movie on demand service.
…The definition of datacasting is there to ensure that we have an
arrangement where people who are providing datacast services do not end
up with positions in which they have an unfair competitive advantage over
other players. [22]
4.28 The Committee recognises that datacasting is a new service for consumers
and, at this stage, many of the applications to be provided by datacasters
are not known. The Committee also recognises that, with the rapid development
of technology in this area, it is difficult at this point in time to further
define a legal definition of datacasting.
Conclusion
While the Committee recognises the concerns of the potential datacasters,
and others, in gaining access to the spectrum under consideration, it
considers that the controls in place should not prejudice the ability
of other providers to compete with the free-to-air broadcasters in this
area. As discussed above in para 4.16, spectrum will be available for
allocation to datacasters prior to the commencement of digital transmission
in 2001 and free-to-air broadcasters (including the national broadcasters)
will be required to pay a charge for their datacasting services just like
every other provider of datacasting services.
Footnotes
[1] Television Broadcasting Services (Digital
Conversion) Bill 1998, proposed schedule 4 to Broadcasting Services
Act 1998, clause 2
[2] Broadcasting Services Act 1992, section
6.
[3] Broadcasting Services Act 1992, section
6
[4] Transcript of Evidence, p.23 (Mr Corker)
[5] Submission No. 5 (Department of Communications
and the Arts), 17 pp.
[6] Submission No. 26 (Internet Industry Association),
p. 4.
[7] Transcript of evidence, p. 148 (Mr Dews)
[8] Submission No. 19a (John Fairfax Holdings
Limited), p. 1.
[9] Transcript of evidence, p. 23 (Mr Corker)
[10] Explanatory Memorandum, Television Broadcasting
Services (Digital Conversion) Bill 1998 and Datacasting Charge (Imposition)
Bill 1998. p. 3.
[11] Submission No. 5 (Department of Communications
and the Arts), p. 5.
[12] Submission No. 5 (Department of Communications
and the Arts), p. 5.
[13] Submission No. 26 (Internet Industry Association),
p. 5.
[14] Submission No. 24 (Australian Information
Industry Association Limited), p. 2.
[15] Submission No. 22 (University of Southern
Queensland), p. 2.
[16] Submission No. 27 (nervous_objects), p.
1.
[17] Submission No. 19 (John Fairfax Holdings
Limited), p. 10.
[18] Submission No. 26 (Internet Industry Association),
p. 4.
[19] Transcript of evidence, p. 95 (Mr Ward)
[20] Transcript of evidence, p. 147 (Mr Dews)
[21] Submission No 14a (Australian Subscription
Television and Radio Association), p. 5.
[22] Transcript of evidence, p. 190 (Dr Badger)