Minority Report by Labor Senators - A flawed inquiry
The media plays a fundamentally important role in Australian
society. The media is not just a form of entertainment, it is the primary means
by which the major issues of the day are discussed and debated. It is simply
not possible to have a healthy democratic system without a vibrant, diverse and
competitive media sector.
This committee was given the task of examining the most
significant changes to the media landscape in Australia since the introduction of
the cross media ownership laws in 1987.
Unfortunately, despite the significance of the matters
involved, the Government demonstrated from the outset that it wanted little
more than a perfunctory inquiry.
As was evidenced in last years' disgraceful one day Telstra
inquiry, this is a Government that pays mere lip service to notions of Senate
scrutiny and public accountability.
This is not a matter that can seriously be contested. Labor
Senators would like to catalogue the series of abuses associated with this
inquiry:
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In violation of established precedent, the Minister nominated the
reporting date of the inquiry before the committee had even met to consider the
proposed inquiry.
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The Minister dictated that the committee would have just three
weeks to conduct its inquiry.
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Members of the public were given just over a week to make a
submission on the legislation. In contrast, the Government has spent well in
excess of 12 months negotiating its plan with the media moguls.
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In the ultimate display of contempt, the Minister failed to even
table the legislation dealing with one of the key elements of the Government’s
plan, namely the proposals for the establishment of two new digital broadcasting
services, the so-called Channel A and Channel B.
Such was the Minister’s haste to ram these changes through
the Senate committee and the Parliament that the commencement of the inquiry could
not wait until the Government had finished drafting the legislation.
Undeterred, the Minister asked the committee to inquire into
her two page press release which was renamed a “discussion paper” in a vain
attempt to add some credibility to the exercise.
The hearing itself was nothing short of a farce. The
committee was forced to cram more than 30 witnesses into just two days.
Witnesses were asked to limit their opening statements to
just five minutes. In most cases, Labor Senators were given just 10 minutes to
ask questions of each witness.
Several witnesses, who would have liked the opportunity to
give evidence, were unable to do so because of the truncated timetable and the
fact that the Government did not allow the inquiry to travel beyond Canberra.
In a unprecedented move, Government Senators rejected
funding the airfare for one witness from the not-for-profit sector. Government
Senators insisted that the witness should join a phone conference.
The abuse of process also extended to consideration of the
Chair's draft report. Opposition Senators were given just 40 minutes to
consider its contents before being asked to endorse it.
Labor Senators believe that the conduct of this inquiry was
completely unsatisfactory. The constraints imposed by the Government made it
impossible for the committee to subject these significant proposals to the
degree of careful scrutiny that they require and that the people of Australia
are entitled to expect.
Despite the severe shortcomings of the process, the evidence
received by the committee did highlight a number of significant weaknesses with
the Government's proposals. It is to those matters that we now turn.
BROADCASTING SERVICES (MEDIA OWNERSHIP) BILL 2006
The centrepiece of the Government's package is its plan to
relax the media ownership provisions in the Broadcasting Services Act (BSA).
The Media Ownership Bill makes two key changes in
this regard. Firstly, it proposes the repeal of the specific foreign ownership
provisions in the BSA that relate to commercial and subscription television. The
Government will retain the ability to screen foreign investment in the
Australian media under the Foreign Acquisitions and Takeovers Act 1975
to ensure that it is in the national interest.
This proposal attracted widespread support in submissions
and evidence to the committee.
Labor Senators support these provisions of the Bill. There
is already substantial foreign investment in the radio sector, in newspapers
and television. Foreign investment offers the potential to introduce new
players into the market and to increase media diversity.
In contrast, Labor Senators oppose the provisions of the Bill
which weaken the current cross media ownership laws.
The Bill proposes a regime that would permit media mergers
provided that at least five ‘voices’ remained in mainland state capital city
markets and 4 ‘voices’ remained in regional markets. Transactions would also be
subject to the prohibition in the Trade Practices Act 1974 on mergers
and acquisitions that substantially lessen competition.
Labor Senators believe that the Bill would facilitate a
massive concentration in the ownership of the most influential media. As the Explanatory
Memorandum for the Bill states there are currently 12 owners of the major media
in Sydney, there are 11 in Melbourne, 10 in Brisbane, 8 in Perth and 7 in Adelaide.
In regional Australia, in places like Cairns, Newcastle and
Mackay the number of owners could fall from 7 to 4. In a further 15 regional
markets the number of owners could fall from 6 to 4.
The Bill increases the power of some of the most powerful
companies in the country to influence Australia's public and
political agenda. Labor Senators do not believe that this is in the
national interest.
It is important to remember that Australia already has a
media market that is highly concentrated by world standards.
It has long been recognised both in Australia and in other
democracies that the ownership of the media can have a significant impact on
the public debate.
In its review of broadcasting regulation the Productivity
Commission observed:
The likelihood that a proprietor’s business and editorial
interests will influence the content and opinion of their media outlets is of
major significance. The public interest in ensuring diversity of information
and opinion leads to a strong preference for more media proprietors rather than
fewer. This is particularly important given the wide business interests of some
media proprietors.[1]
During the course of the current media law debate, the
Government has failed to advance a convincing justification for why it is
pursuing such an extreme approach.
The Explanatory Memorandum on the Bill concedes that the
benefits of cross media reform are ‘unclear’ but suggests that they are likely
to be obtained from a reduction in expenditure by media companies.[2]
The Minister has repeatedly stated that the Bill is designed
to allow media companies to realise 'economies of scale'. Labor Senators
believe that if cross media mergers are able to proceed media companies will
move to consolidate newsrooms across their organisations.
It is likely that both the number of journalists and the
range of local content will be reduced.
There is no evidence that the reductions in 'expenditure'
flagged by the Explanatory Memorandum to the Bill will be of any benefit to
consumers.
The Department was asked to identify any benefit other than
these “economies of scale” but was unable to do so.
It is important to remember that the media sector in Australia
is highly profitable. There is no suggestion that the sector requires the
ability to enter into cross media mergers to remain viable.
As Mr Beecher told the inquiry:
In the past year, profits in the media industry were higher than
ever before. This is a booming industry. It is an industry that makes profit
margins—that is, the percentage of profits to revenue—that are higher than
almost all other industries in Australia.
The average profit margin of public companies in this country is
around 15 to 17 per cent—that is, $15 to $17 in every $100 of revenue is
profit. The media industry average is 24 per cent.[3]
Contrary to the claims of the Government, there is also no
basis to believe that the cross media laws are in any way inhibiting investment
and innovation in the Australian media. To even a casual observer of the media
landscape, it is apparent that the cross media laws have not prevented
traditional media companies from investing in a range of new media
opportunities, including the Internet, pay TV and mobile phones.
Leading media academic, Mr Jock Given told the committee:
I think the cross-media rules are now driving diversity rather
than constraining it. It is absolutely plain over the last couple of years, as
internet and mobile platforms are allowing people to do more by way of delivery
of audio and video, that there is nothing to stop players who claim to be
restricted to one media by the cross-media rules from getting out and doing new
things ....I think that the cross-media rules are now driving players like
Fairfax, radio stations and others to do more interesting things than they
would do if they were allowed to simply consolidate into a three-media group.[4]
New Media
It has been suggested by the
Minister that the emergence of new media renders the current cross media ownership
restrictions irrelevant. It is true that the emergence of digital technology
has led to a proliferation of platforms. Consumers now have the option of
accessing news on the internet, iPods or 3G phones.
Labor Senators believe however
that diversity of platforms or devices does not equal diversity of content.
As Fairfax told the committee
the mere fact that someone can watch 'Dancing With the Stars'
on a mobile telephone device is not diversity.[5]
The sources of the most
influential content remain the traditional media companies. Indeed, new
platforms have allowed traditional media companies to extend their reach.
While there are thousands of
blogs, their influence is minuscule in comparison to the nightly news bulletins
from the major networks or the daily readership of metropolitan papers.
In evidence to the committee,
the ACCC poured cold water on suggestions that the rise of the Internet negated
concerns about media diversity.
ACCC Chairman, Mr Samuel stated
in evidence that:
We think the internet is simply a distribution
channel. It has not shown any significant signs at this point in time of
providing a greater diversity of credible information and news and commentary.[6]
Relaxing the media ownership
laws in the way proposed by the Bill will not only have the effect of
increasing concentration of ownership in the traditional media, it will also
lead to a sharp concentration in the ownership of the most influential news and
opinion content accessed by Australians on new media platforms.
The 5/4 test
While the Government pays lip service to the importance of
protecting diversity, it has proposed a regime that is designed to facilitate
increased concentration.
The Bill replaces the current cross media rules with
provisions permitting media mergers under the BSA so as five ‘voices’ remain in
metropolitan areas and 4 in regional Australia.
The Government has provided no explanation why it believes
that 5 commercial media groups in major cities and four groups in the regional Australia
represents an acceptable level of diversity.
It is important to remember that the so-called diversity
test gives no weighting to the relative influence of various media players.
As the Seven network observed in its submission:
The proposed “voices” test is not an adequate protection for
diversity in the media sector. This test would equate an operator the size of
PBL with an outlet such as 2KY.[7]
Labor Senators believe that the 5/4 test manifestly fails to
guarantee that there will be a sufficient number of independently owned sources
of journalism.
Notwithstanding our opposition to replacement of the cross
media rules, Labor Senators believe that if the 5/4 test is to be introduced,
it needs to be effectively enforced.
Consequently, Labor Senators support the majority report's
proposal that ACMA should be given an injunctive power to stop transactions
that would breach the 5/4 rule.
Labor Senators are perplexed however by the commentary at
paragraph 2.74 of the Chair's report which suggests the criteria according to
which "alleged breaches of the new diversity provisions are to be
assessed" may need to be specified. The Bill is quite clear that the ACMA
is not required to undertake any qualitative assessment of whether there is
sufficient media diversity.
At paragraph 2.101 the majority report states that 'the role
of ACMA is to assess diversity'. ACMA has no such role under the Bill. Its task
is to ensure that a merger does not result in less than 5 voices in
metropolitan markets and 4 voices in regional Australia.
If Government Senators do not support such a limited role
for ACMA then they should not be supporting the Bill.
The ACCC
The Government has also asserted that the ACCC's administration
of the Trade Practices Act (TPA) will be an effective
safeguard against excessive concentration in media markets.
Labor Senators do not accept that the merger provision in
section 50 of the Trade Practices Act can be relied on as a
substitute for the current cross media laws.
Under the TPA, the ACCC is tasked with protecting
competition. As the Commission itself has conceded, it has no responsibility
for protecting diversity in media markets. It is not able to take ‘public
interest’ considerations into account in assessing mergers under section 50.
Historically, the ACCC has taken the view that newspapers,
radio and television operate in separate markets. Consequently, a merger
between any of these businesses would not give rise to competition concerns. In
recently released guidelines however, the ACCC has suggested that these
traditional boundaries may have blurred. The ACCC Chairman, Mr Samuel told the
committee that the Commission is focusing on the content that is distributed to
consumers rather than the distribution channels.[8]
The ACCC's evidence to the committee made clear that in
order to find that a merger of newspaper, radio or television assets lessened
competition in a market for news or opinion, it would be necessary for the
Commission to demonstrate that news products produced by different media types
were substitutes for each other.
The common way of testing whether products are substitutes,
and therefore whether they are in the same market, is to examine whether
consumers will switch to alternative product B if there is an increase in the
price of product A.
The ACCC has noted that there ar e difficulties in applying
this sort of analysis to news markets. In November 2005 the Chairman of the
ACCC, Mr Samuel, told the Senate Estimates Committee that "News and
current affairs is not priced. It is not a market that you can
economically test according to price."[9] The ACCC told the committee that in order
to determine whether, for example, radio and television news services were
substitutes, it would undertake research into consumer attitudes and conduct
surveys.
Labor Senators are concerned that several competition
lawyers have cast doubt on the Commission’s ability to stop cross media mergers
on the basis that it would lessen competition in the market for news.[10]
One lawyer described the ACCC's approach as "fairly speculative, brave new
world territory".
It is important to remember that the ACCC’s interpretation
of the definition of the relevant market is subject to challenge in the Federal
Court. It
is not unprecedented for the Federal Court to permit a transaction that the
ACCC believes to be anti-competitive.[11]
In its review of broadcasting regulation, the Productivity
Commission stated that:
It is clear that the Trade Practices Act as it stands
would be unable to prevent many cross media mergers or acquisitions which may
reduce diversity. It is also clear that the adoption by the ACCC of a broader
definition of the media market would not adequately address the social
dimensions of the policy problem, and would be open to legal challenge.[12]
Labor Senators believe that this critique of the capacity of
the Trade Practices Act to adequately deal with issues of media
diversity remains convincing.
In its Media Mergers Guidance the ACCC conceded that
"ultimately, whether or not protecting competition in media markets will
maintain the current level of media diversity in Australia will not be clear
until the outcome of actual merger investigations is known."[13]
Labor
Senators believe that media diversity is too important to be left to chance.
The current cross media laws provide a guarantee of media diversity that the
ACCC's enforcement of the TPA is simply unable to deliver.
The 2 out of 3 rule
Despite expressing the view that the 5/4 test and the ACCC
represent satisfactory safeguards against excessive concentration of ownership,
the majority report recommends that the Bill be amended to prevent more than
two of the three traditional media being owned by one proprietor or company in
regional markets.
This recommendation fails to address the fundamental
problems with the Media Ownership Bill.
In particular Labor Senators note that:
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The proposal does nothing to protect media diversity in
metropolitan Australia where a majority of Australians live and work.
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The proposal does nothing to protect diversity in the 17 regional
markets where there are only five major media voices. These areas include major
centres like Bathurst, Bendigo, Coffs Harbour, Grafton, Lismore, Tamworth,
Mildura.
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Under the two out of three rule it would still be possible for
the number of owners to fall from six to four in many regional markets like
Bundaberg, Townsville and Rockhampton.
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In regional markets a person in control of both the local
newspaper and the television station would still be able to exercise an
unhealthy degree of influence.
These points were broadly acknowledged by Mr Neville MP
during the committee's hearing.[14]
Fairfax told the committee:
Regional media already is challenged from a diversity
perspective. There is already a shortage of media diversity.[15]
Given this reality, it is hard to understand how anyone
concerned about media diversity could support the measures in this Bill which
effectively guarantee further consolidation.
These provisions cannot be fixed by an amendment introducing
a 2 out of 3 rule, they must be rejected.
Local Radio
The Broadcasting Service Amendment (Media Ownership) Bill
2006 introduces measures imposing obligations on regional broadcasters to
comply with local content licence conditions and to demonstrate in a local
content plan how they will meet those conditions. ACMA will have the ability to
impose its own local content plan if it is of the view that the local content
plan submitted by a broadcaster is inadequate.
Licence conditions will set minimum levels of local news,
weather bulletins, community service announcements or other types of local
content.
These local content licence conditions will not only apply
where there is a cross media merger. They will also apply where control of a commercial
radio licence is transferred, if the format of a radio service is narrowed or
if the Minister directs ACMA to consider imposing them.
There is no doubt that the provision of local content on
radio services is of great importance to regional communities. Labor Senators
are concerned however that the measures in this Bill have been proposed without
any consultation with broadcasters.
Ms Warner from Commercial Radio Australia, told the
committee:
We were given just over a week to review and comment on
proposals that really impact on the commercial running of radio stations in
regional Australia. We believe that kind of time frame is inadequate in the
light of the significant impact which such proposals could have on the
viability of regional commercial radio stations.[16]
Regional radio broadcasters consistently told the committee
that they provided substantial levels of local content. A number broadcasters
expressed concern about the impact of the proposed regulations on the value of
their licence and their capacity to continue to provide services on a
sustainable basis.
In its evidence to the committee, the Australian
Communications and Media Authority indicated that it had not undertaken any
“extensive work in terms of local content on regional radio”.
There is no hard data on the provision of local content to
allow the committee to make an informed judgement about the adequacy of the
services currently provided or the likely financial impact of these measures.
It is clear to Labor Senators that the measures on regional
radio emerged as a last minute sop to the National Party in an attempt to win
their support for the changes to the cross media ownership provisions.
Labor Senators believe that the development of policy in
these areas requires a more considered approach.
Labor Senators endorse the majority report's recommendation
that the Minister should reconsider the local content requirements for regional
radio. These provisions should be withdrawn from the Bill. In addition, ACMA
should be directed by the Minister to conduct a detailed study of adequacy of
local content on regional radio.
If local content on regional radio needs to be strengthened
it should be done on an independent basis. There is no reason that it should be
tied to acceptance of a greater concentration of media ownership that will flow
from the abolition of the cross media laws.
BROADCASTING LEGISLATION AMENDMENT (DIGITAL TELEVISION) BILL
The digital television policies that the Government has
pursued to date have manifestly failed to rapidly move Australia to the point
where analogue broadcasts can be switched off.
According to industry data only around 20 percent of
households have purchased the necessary equipment to receive digital free to
air broadcasts.
There is a range of factors that explain the poor level of
take up. Undoubtedly however, a significant problem has been the fact that the
regulatory regime has simply failed to provide consumers with significant
incentives in terms of additional content.
Commercial multi-channelling has been prohibited,
multi-channelling by the ABC and SBS has been subject to genre restrictions
limiting the type of programs they can show and datacasting services were so
narrowly confined that the auction to allocate licences to provide these services
was abandoned due to a lack of interest.
The Digital Television Bill contains a number of measures
which relax the regulatory regime and will increase the appeal of digital
television to consumers. Labor Senators welcome these initiatives.
The decision to lift the genre restrictions on the
multi-channels of the ABC and SBS is strongly supported by Labor Senators. This is a
policy that the Opposition has advocated since before the last election.
In the UK, extra channels and interactive services offered
by the BBC have made an important contribution to generating consumer demand
for digital. Labor Senators believe that, if given the
resources, the national broadcasters could play a significant role in
developing the content that is likely to attract consumers to digital.
Labor Senators urge the Government to consider giving the
ABC and SBS extra funds to drive take-up as part of the digital action plan
that is under development.
Labor Senators also believe that the Government should
reconsider its decision not to allow the ABC and SBS to show sport on the
anti-siphoning list on its multi-channel, unless it has first been shown on its
main channel or is simulcast.
The Managing Director of the ABC, Mr Scott made a persuasive
case that such a change would be in the public interest. He told the committee:
We think that netball is a great example of this. Netball tests
are usually played in the evening, at a time when it would not be feasible to
run them live on the ABC’s main TV channel because it would interrupt the news
and other key national programming that we have been running in that timeslot
for 50 years. As a result, a delayed telecast is shown, usually on the main
channel and usually well into the evening. But, if we were able to run the
netball tests live on ABC2, viewers could choose to watch the netball live or
the normal scheduled programs.[17]
Labor Senators also welcome the decision by the Government to
allow commercial broadcasters to begin multi-channelling from 2007. The
evidence from the UK experience with the Freeview service, which provides more
than 30 free to air digital channels, indicates that multi-channelling is
likely to have a significant positive effect on take up. Research conducted by
the Interactive Television Research Centre in Perth also indicates that
multi-channelling provides a strong incentive for consumers to take up digital.[18]
While the Digital Television Bill clearly represents an
improvement over the current regime, Labor Senators remain concerned that the changes
will not be sufficient to allow Australia to begin switching off analogue
broadcasts by the Minister's revised timeframe of between 2010 and 2012.
The slow take-up of digital not only means that consumers
are missing out of the benefits of the new services available on digital
television, it also has significant economic consequences.
Digital broadcasting is far more efficient in its use of
spectrum than analogue broadcasting. There are large gains to be made from
freeing up the spectrum currently used for analogue broadcasting for
alternative services like wireless broadband or new television channels. This
digital dividend—the benefit of redeploying the spectrum currently used for
analogue broadcasting—could be worth hundreds of millions of dollars. In Britain,
the government has estimated that the digital dividend is worth up to £2.2
billion for the UK economy.
Labor Senators believe that the Minister should direct her
department to prepare a report estimating the size of the digital dividend for Australia
as a way of marshalling public support for achieving switchover.
Rapid transition to digital is important for the local
television production industry. As consumers around the world move to embrace
digital applications, like interactive television, Australian producers must
keep up or risk losing export markets.
A lengthy transition to digital television also imposes a
direct cost on the Commonwealth budget. According to the Government's own
figures, it currently costs around $75 million to meet the analogue broadcasting
costs of the ABC and SBS and to assist regional broadcasters.
There is a clear economic imperative to achieve digital
switch-over as soon as practicable.
Even after the passage of this Bill, the regime will have a
number of restrictions which do not appear to be conducive to accelerating the
take-up of digital.
The most significant limitation is the fact that until 2009,
commercial broadcasters will only be able to multi-channel in high-definition
format rather than in standard definition.
Labor Senators are concerned that the market for HD services
will be too small to entice broadcasters to begin multi-channelling. It is of
note that the leading proponent of multi-channelling, the Seven Network, told
the committee that:
We do not have plans to commence an HD service at this stage.
The reason is that high definition is only available to about five per cent of
the population, making it very difficult to justify when you have to fund it
through advertising revenue. Also, the cost of equipment to consumers is three
times the cost of SD equipment.[19]
Labor Senators believe that the effectiveness of HD
multi-channelling in promoting digital take-up should be subject to review by 1 January 2008.
The proposed new regime still
contains at its core a problem which has undermined the effectiveness of the
current regulatory framework. Incumbent free to air broadcasters have little or
no incentive to aggressively drive the transition to digital. This is because
the Government has made clear that there will be no new terrestrial commercial
free to air service until analogue switch off is achieved.
If the Government is successful
in auctioning the currently unallocated spectrum for the proposed Channel A and
Channel B services, there will be no capacity to introduce a fourth network.
In these circumstances, Labor
Senators recommend the examination of the following options:
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Setting a firm date for switching off analogue broadcasting to
provide certainty for the industry and consumers. It will also focus the minds
of policy makers on the steps that need to be taken to make switch-off
achievable.
-
Lifting the prohibition on broadcasting sport that is on the
anti-siphoning list on a multi-channel once the Minister certifies that the
percentage of households able to receive digital broadcasts exceeds a specified
trigger point.
-
Exempting free to air broadcasters from license fees on the
revenue generated by their multi-channels until they have been in operation for
three years to provide additional incentives to invest in these services.
Community Television
Labor Senators endorse the majority report’s recommendation
that digital television spectrum should be made available to community
television broadcasters.
It is a ridiculous situation that more than five years after
digital broadcasts commenced in Australia, consumers still lose access to
community television when they make the switch to digital.
Mr Melville, General Manager of the Community Broadcasting
Association of Australia, told the committee of the dire impact of failure to
secure access to digital spectrum for the sector:
It will be one of erosion of audience by increment to a point of
survivability, I guess. It may not look like there are many digital-only
households at the moment, but who knows what it will be like in six months or a
year? Even a 15 or 20 per cent erosion of the viability of these not-for-profit
services puts them pretty much on the edge.[20]
Community Broadcasters have heard promises of action on this
issue from the Government going back to former Minister Alston in 1998. It is
time that the Government fulfilled its commitment to the sector.
New Digital Channels
A key plank of the media package announced by the Government
was the decision that unallocated spectrum would be auctioned to provide ‘new
and innovative’ services.
In September, the Minister announced that this spectrum
would be divided into Channel A and Channel B.
Channel A will be available to provide narrowcasting and
datacasting services. The free to air networks will be prohibited from bidding to
acquire this spectrum.
Channel B will be available for a wider range of uses. It
has been widely speculated that this spectrum will be used to provide mobile
television services.
The committee’s capacity to analyse issues surrounding these
new channels was severely limited because of failure of the Government to
actually table the legislation implementing its policy decisions.
Labor Senators reserve their position on the proposal until
there has been an opportunity to examine the legislation implementing the
policy in detail.
In the meantime, Labor Senators make the following general
observations about the proposals.
The services that will be made available on these new
channels are likely to serve niche markets. They will in no way compensate
consumers for the loss of media diversity that will inevitably result from the
Government’s plan to repeal the cross media ownership laws.
Labor Senators have grave concerns about whether there will
be much demand by either broadcasters or consumers for the sort of content that
will be made available on Channel A. The ethnic, religious or government
services channels spoken of by the Minister are unlikely to significantly
stimulate public demand for digital TV.
Labor Senators share the concerns expressed in the majority
report about the competition issues surrounding the Channel B licence. These
issues require much more substantial debate and analysis than was possible
during the committee’s hearing.
Labor Senators endorse the recommendation of the majority
report that access arrangements for Channel B need to be addressed by the
Government. Labor Senators believe that access provisions should be included in
the legislation. It is not acceptable for the Parliament to be asked to vote to
authorise the auction to provide these services if access arrangements are not
specified.
Anti-Siphoning: 'use it or lose it' mechanism
The Government announced as part of its media package that it
would introduce a 'use it or lose it' regime to apply to the anti-siphoning
list.
This proposal can be implemented without legislation and
consequently was not included in the Bills which were the subject of the committee’s
inquiry. Nevertheless, the operation of this regime is seen as an integral part
of the Government’s package and was the focus of passionate discussion by
representatives of both the subscription and commercial television industry.
Labor Senators endorse the principle of ‘use it or lose it’.
If free to air broadcasters fail to take advantage of the privileged access
that the anti-siphoning list gives them to listed sport, then subscription
television providers should be free to take up the rights.
There is however considerable uncertainty about how the
regime would be implemented in practice.
Free TV and Foxtel/ASTRA proposed radically different
criteria for defining whether an event has been ‘used’.
Despite the Minister having announced the Government’s
intention to introduce a ‘use it or lose it’ regime several months ago, the
Government has failed to provide full details on the approach that it intends
to take to the matter.
Labor Senators believe
that it is essential that the 'use it or lose it' mechanism does not become a
backdoor way to slash the anti-siphoning list.
There are millions of Australian
families who cannot afford pay TV who rely on an effective anti-siphoning list.
Labor Senators are
concerned that the Minister has so far refused to guarantee that her plan will
not see Australian families having to pay hundreds of dollars a year to watch
sporting events that they currently see for free.
Labor Senators do not believe that it is satisfactory to
leave the implementation of the ‘use it or lose it’ regime completely in the
hands of the Minister.
Labor Senators note that both Free TV and Foxtel have
endorsed the concept that the rules specifying the operation of the regime should
be set out in regulations.[21]
Labor Senators believe that the Digital Television Bill
should be amended to provide that the anti-siphoning list is subject to a ‘use it
or lose it’ mechanism. The details of that mechanism should be determined by
regulation and be reviewable by the Parliament.
This would provide certainty to commercial and subscription
broadcasters on the rules under which the scheme will operate. It will also
greatly improve the transparency of the scheme.
CONCLUSION
The Chair’s report endorses the Government’s claim that this
legislation must be taken as an entire package.
Labor Senators do not accept this view.
There is no reason why long overdue improvements to the
regulatory regime for digital television should be tied to an acceptance of the
Government’s cross media ownership proposals.
The proposal to repeal the cross media laws and to replace
them with a regime that will facilitate a massive concentration of media
ownership is completely unacceptable to Labor Senators.
Labor Senators will seek to amend the legislation so that
the current cross media ownership laws are retained.
Senator Lundy
Senator for the
Australian Capital Territory
Senator Wortley
Senator for South Australia
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