Australian Greens' Additional Comments
The Australian Greens support the effort to ensure that up to
247,000 households in remote areas have access to a similar variety of
television programming as their counterparts in metropolitan areas. It is
always more difficult to provide equitable access to services in the more
distant corners of our country, and it is good to see that this has been given
due attention in the context of the switchover to digital television.
Unfortunately, unlike the Senators in the majority, we are not
reassured that the concerns of National Indigenous Television (NITV), the Rural
Health Education Foundation (RHEF), The Western Australian Government's
Westlink service, and other narrowcasters and community broadcasters in a similar
position, have been adequately addressed. As reflected in the majority report,
the primary concern of these organisations is that the Bill does not make any
provision for them to have access on non-discriminatory terms to the new
satellite service, and hence to the set top boxes that will be used to receive
the commercial and national free to air television services, nor does it
provide for open access such that any who seek it may secure access subject
only to capacity constraints.
The Department of Broadband, Communication and the Digital
Economy (DBCDE) does not quite put the issue to rest by pointing out that the
Bill does not exclude narrowcasters and community broadcasters. By leaving
their fate to the vagaries of commercial negotiations with the licensees, the
Bill leaves open the possibility that they may ultimately be excluded, or they
may have to pay for access on terms and conditions which are not equivalent to
those applying to commercial and national free-to-air television services.
This would be a very peculiar state of affairs—publicly-funded narrowcasters
unable to get fair access to publicly-funded satellite transmission so that
they can be received for free by the public.
DBCDE points out that the Bill leaves the narrowcasters and
community broadcasters in the same situation that they are presently in with
respect to their transmission on the Aurora platform. That is, they must
negotiate access independently on a commercial basis. However, this response
overlooks some important differences between Aurora and the new platform.
Namely:
- The new platform is being funded by the public to the tune of $40
million per year, so the government is perfectly justified dictating a few
terms to guarantee access by the narrowcasters it has funded to provide
important services to the community. Aurora, on the other hand, is a private
business owned and paid for by Optus.
- Optus is in the business of selling access to Aurora, so it has a
clear commercial imperative to grant access to whoever can pay. The commercial
incentives of the licensees of the new platform are not so straightforward,
especially given that they will themselves often be affiliated with
broadcasters that may see some current or future access seekers as competition.
As acknowledged in the majority report, the fact that Optus
will continue to operate Aurora until 2013 also provides scant comfort to NITV,
Westlink and others in their position. With at least four times more
commercial and national free-to-air television services available on the new
platform than on Aurora, and a need to establish duplicated direct to home
satellite reception facilities to all TV sets and recording devices from the
satellite dish onwards to view the few channels remaining on Aurora, it is
reasonable to assume that NITV et al will lose a significant share of their
audiences.
DBCDE advised that:
...it is a condition of the grant deed entered into with
commercial broadcasters to deliver the satellite service that the broadcasters
must not do anything that would restrict any providers of: national
broadcasting services; commercial radio broadcasting services; community
broadcasting services; or open narrowcasting broadcasting services from
negotiating with the satellite platform provider to achieve access to the satellite
service.[1]
This is welcome, but an obligation not to do anything that
restricts negotiation leaves open the possibility that negotiation will involve
the licensee setting unreasonable terms to prevent the access seeker from
gaining access or to exploit its gatekeeper role to extract undue profits.
Further, if it is considered a wise precaution to put the above
provision into the grant deed with the licensee, why not put an equivalent
provision into the Bill? The grant deed is a confidential, commercial
document, it is time-limited, and it only applies to one licensee. By
contrast, addressing this issue in the Bill itself would promote greater
transparency, reassure the sector, and settle the issue in a more comprehensive
and enduring manner.
There is no reason to believe that the government has any
interest in precluding narrowcasters or community broadcasters from gaining
access to the new satellite platform. They simply appear not to have been
considered. This may be due to deficiencies in the consultation process, as
suggested by NITV, Westlink and others.[2]
Whatever the case, their concerns seem reasonable and the Australian Greens
urge the government to look at amendments to ensure that publicly-funded
narrowcasters and community broadcasters are able to gain access to the new
platform, subject only to satellite capacity constraints.
Senator Scott Ludlam
Australian Greens
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