Appendix 5
STATUTORY REVIEWS AND CONSULTATION PROCESSES
Television Broadcasting Services (Digital Conversion) Bill 1998 and
Datacasting Charge (Imposition) Bill 1998
1. Reviews before 1 January 2001
Scope of Statutory Reviews
Clause 59 of proposed Schedule 4 to the Broadcasting Services Act
1992 (BSA) requires the Minister, before 1 January 2001, to “cause
to be conducted” reviews into the following matters:
a) The content of regulations made for the purposes of:
(i) the provisions dealing with programming during the simulcast period;
- proposed amendments to subclause 7(1) of Schedule 2 to the BSA and
clause 35 of proposed Schedule 4 of the BSA restrict broadcasters
to simulcasting in digital mode programs that are being transmitted
in analog mode, unless a program is prescribed in regulations as being
incidental and directly linked to a program which at that time is
being transmitted in analog mode.
- - The “incidental and directly linked” review will
determine whether particular kinds of enhanced programming should
be authorised by regulations. An example of programming which
could be prescribed in regulations is different visual representations
of the same event, filmed within the confines of the event, such
as the ability to view the event from different camera angles.
The review will consider whether particular kinds of program enhancements
fall within the legal scope of the regulation making power and
whether such regulations should be made, having regard to the
Government's policy that digital television channels should not
be able to be used to provide multi-channel services.
- - The review will also consider whether regulations should exempt
specified kinds of programs from the operation of clause 35 of
Schedule 4 (which prohibits the national broadcasters from providing
multi-channel programming). In particular, the review will consider
whether particular kinds of multichannel programming should be
permitted if they are consistent with the Charter obligations
of the national broadcasters and will not unfairly compete with
services provided by the pay TV sector.
(ii) The content of regulations specifying particular kinds of services
that are to be excluded from the definition of a `datacasting service':
- The term `datacasting service' is defined in clause 2 of proposed
Schedule 4 of the BSA to mean 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 the delivery of the service uses
the broadcasting services bands, and the service is not of a kind
specified in the regulations.
- - This review will therefore consider whether particular kinds
of non-broadcasting services, which do not involve the transmission
of television programs to the public, should be excluded from
the definition of a “datacasting service”.
- - In considering whether particular kinds of services should
be excluded from the datacasting definition, the Government will
have particular regard to the policy that digital channels should
not be used to provide defacto subscription or multi-channel television
broadcasting services.
b)Whether any amendments of Commonwealth laws should be made:
(i) to deal with convergence between broadcasting services and other
services;
This review will consider the existing regulatory distinctions between
broadcasting and non-broadcasting services and whether further legislative
amendments, particularly in the area of content regulation, should
be made which reflect the growing convergence between these services.
(ii) to deal with the re-transmission, on subscription television broadcasting
systems, of commercial television broadcasting services transmitted
in digital mode;
The Government announced on 10 March 1998 that the BSA would be amended
to require pay TV operators to seek permission of free to air broadcasters
before transmitting free to air television broadcasting services on
their cable systems. The above review will consider whether further
legislative amendments are required to deal with the re-transmission
on pay TV systems of digital television broadcasting services.
(iii) to ensure that underserved regional licence areas are provided
with the same number of commercial television broadcasting services
as are provided in metropolitan licence areas (underserved areas are
defined in subclause 59(5) to mean those with fewer than three commercial
television broadcasting services).
Commercial broadcasters in underserved regional areas have argued
that they should be able to transmit multi-channel services from their
digital transmitters in order to provide additional services to their
viewers. This would require amendments of the provisions in the Digital
Conversion Bill which prohibit multi-channelling and require that
broadcasters meet goals and targets in relation to the digital transmission
of television programs in accordance with one or more HDTV format
standards.
c) The regulatory arrangements that should apply to:
(i) the allocation of spectrum in the broadcasting services bands for
the provision of datacasting services;
- A review into this matter is to be conducted on the basis that free
to air television broadcasters should not be eligible for the allocation
of spectrum.
- The Government has announced that a Working Group, comprising the
ACA (Chair) and the ABA will report to the Minister on the structure
and conditions of the allocation under the Radiocommunications
Act 1992 (Radcom Act) of spectrum not required for digital conversion
of free to air television broadcasters.
- The Datacasting Charge (Imposition) Bill 1988 empowers the ACA to
determine a charge which will apply to free to air broadcasters who
use residual capacity in digital television channels to provide datacasting
services. The ACA will be required to provide a report to the Minister
on the extent to which the charge meets competitive neutrality principles
(taking into account the fee paid by datacasters for spectrum which
is allocated under the Radcom Act).
- It is expected that, through the above Working Group, the ACA and
ABA will consult on the fee to be paid by free to air broadcasters
for residual datacasting.
(ii) the digital transmission of a community television service, free
of charge, using spectrum in the broadcasting services bands allocated
for use for the provision of datacasting services.
- The Government has announced that community television groups will
be given free access to a digital channel to provide a community television
service in Standard Definition (SDTV) format. The review will examine
regulatory changes needed to implement this objective.
Conduct of Statutory Reviews
The Minister will be required to cause the reviews to be conducted and
to arrange for a report of each review to be prepared (subclause 59(3))
and laid before each House of the Commonwealth Parliament within 15 sitting
days of that House after the completion of the report (subclause 59(4)).
It will be a matter for the Minister to determine how the reviews should
be conducted—for example, whether they should be conducted by the
Department of Communications and the Arts, or by regulatory agencies (the
ABA or the ACA), or by an Expert Panel with industry representatives.
Each statutory review may be conducted in a different way. The Minister
may also use different bodies to provide inputs to different parts of
each review.
While the conduct of the reviews is a matter for the Minister to determine,
the Government has undertaken to consult widely with industry during the
implementation of the digital conversion policy framework.
The statutory reviews into `incidental and directly linked' programming,
excluded `datacasting services', possible ABC and SBS multi-channel exemptions
and underserved areas will be completed as soon as possible, to enable
the broadcasters to make longer term investment decisions before the introduction
of digital television.
The statutory review into the regulatory arrangements to apply to the
allocation of datacasting spectrum will also need to be completed in sufficient
time to allow any necessary legislative amendments to be made before datacasting
spectrum is allocated. Decisions on the allocation of datacasting spectrum
will need to be made after the ABA has identified additional spectrum,
not required for digital conversion, which should be made available for
the purpose of datacasting.
Similarly, the statutory review into regulatory arrangements to apply
to the re-transmission of digital television services on subscription
television systems will need to be completed in time to allow any legislative
amendments to be passed before the commencement of digital television
in 2001.
The convergence review will need to be conducted in parallel with the
above reviews. Again, if any further legislative amendments are required,
they would need to be in place before 2001.
Formal action on the reviews is expected to commence immediately after
the Bill is passed in Parliament.
2. Reviews before 31 December 2005
Clause 60 of proposed Schedule 4 to the BSA provides that before 31 December
2005 the Minister will be required to arrange for a review to be conducted
of the following matters:
(a) Whether section 28 of the BSA should be amended to allow new commercial
television entrants;
(b) Whether the simulcast requirements introduced by the Bill should
be amended or repealed;
(c) Whether the prohibitions on digital transmitters being used to
provide subscription television broadcasting services, radio, or narrowcasting
services should be amended or repealed;
(d) The content of any regulations made in connection with the duration
of the simulcast period;
(e) Whether all parts of the broadcasting services bands that are available
for allocation for broadcasting services or datacasting services have
been so identified;
(f) Whether the parts of the broadcasting services bands that have
been allocated for use for broadcasting services or datacasting services
have been efficiently structured.
3. Other Formal Consultative Processes
Two formal consultative forums will be put in place: a high level Consultative
Group, and a Technical Planning Committee. (These consultative forums
are not are not required to be established by any clauses in the Bill.)
Consultative Group
The high level Consultative Group will provide a process for obtaining
broad advice on the overall transition to digital services. It will provide
broad input and advice on a range of policy, technical and other issues—including
the statutory reviews outlined above, the technical transmission standard
(ie US vs European), the HDTV format standard and closed captioning standards.
In particular the Consultative Group will provide a consultative forum
to discuss the relative timing, interaction and appropriator mechanisms
for conducting the statutory reviews. It will also consider reviews as
they are progressed and may also have a role in the conduct of particular
reviews.
The Consultative Group is chaired by Neville Stevens, Secretary of the
Department of Communications and the Arts and is comprised of senior representatives
from peak bodies representing the broadcasting, media, online services,
and electronics industries.
Technical Planning Committee
The Technical Planning Committee will focus more specifically on technical
transmission standards, spectrum planning and compatibility (including
conditional access) issues. It has been formed in recognition of the range
of specific technical issues which will need to be addressed in the implementation
of digital broadcasting. It will provide a forum for ensuring that a range
of industry views are canvassed on detailed technical issues and the allocation
of channels for digital television and datacasting. Although not formally
linked to the Consultative Group, the Committee will provide advice to
that Group as needed.
Membership of the Committee has yet to be determined in detail, but will
comprise the Department, the ABA, ACA and industry, probably at a more
functional level than the high level Consultative Group.
Source: Department of Communications and the Arts
16 June 1998