05 May 2010

New bill creates satellite services to fix digital TV black spots

by Mary Still

The Federal Government has identified certain regional areas of digital television signal deficiency or so-called "black spot areas", and committed $40 million per year over four years to build and operate a new satellite service to bring digital television to all Australians who cannot receive terrestrial digital television services.

The Broadcasting Legislation Amendment (Digital Television) Bill 2010 introduces a legislative framework for implementing this new satellite service by amending both the Broadcasting Services Act 1992 and the Copyright Act 1968. It creates three new commercial licence television areas specifically for the new satellite service:

  • South Eastern Australia, comprising the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria;
  • Northern Australia which will cover the Northern Territory and Queensland; and
  • Western Australia.

Satellite service licences

Only certain existing remote commercial television broadcasting licensees can apply for licenses. Eligible existing licensees can apply for the licences as joint venturers with other eligible licensees.

It is intended that there will be one new commercial satellite service licence granted per satellite licence area. The legislation is intended to deliver the same number of digital television channels that are available in metropolitan areas to regional viewers. The satellite service licensee will be required to provide a service that offers three main channels, three standard-definition multi-channels and three high-definition multi-channels.

Certain related remote area terrestrial commercial broadcasters will be obliged to provide commercial digital channels. Where this is not available, metropolitan television broadcasters must provide replacement channels, and they must also make their programming content available on the satellite service where requested by a satellite service licensee.

There is however no requirement that satellite service licensees provide identical programming to that in metropolitan areas. The licensee will be able to adjust or substitute programming to the extent that it is permitted by commercial agreement. This means that, for example, a satellite service licensee could show a local sporting event or broadcast local advertising rather than one that had no relevance to the local area.

It is also intended that this will give regional viewers access to local news currently broadcast in their local terrestrial licence areas through a dedicated news channel in the South-Eastern and Northern Australian satellite areas.

In order to serve the dedicated news channel, regional commercial television broadcasters will be required to make available local news and information program material that is of relevance to the satellite service licensee.

The Bill also seeks to ensure that the existing obligations on the terrestrial transmission of anti-siphoning events will also apply to services provided by a satellite service licensee (including the anti-siphoning rules relating to digital multi-channels).

Copyright and acquisition of property

The Federal Government has said that it expects the satellite broadcasting service licensee to reach a commercial agreement with metropolitan and regional broadcasters for the provision of programming, including local news and information for broadcast under the satellite service. Where satellite broadcasting licensees are unable to reach commercial agreements, the Federal Government will introduce a statutory licensing scheme in order to provide equitable remuneration to licence holders.

This means that Copyright Act would be amended to provide that the copying, broadcasting and re-broadcasting by a satellite broadcasting service licensee of a particular broadcast by a particular metropolitan or regional broadcaster does not infringe the copyright in the broadcast, or in any work, sound recording or cinematographic film included in the broadcast, if a remuneration notice given to the relevant collecting society is in force.

Program standards and captioning requirements

The Australian contents standards, the Children's Television Standards and the Commercial Television Industry Code of Practice, all impose requirements on broadcasters in relation to material that is broadcast on television. Satellite service licensees will be required to comply with these standards and requirements, although the Bill also takes into account the regulatory and technical complexities that satellite service licensees face when broadcasting across different zones, which could cause particular difficulties as there are regulations in relation to when certain content can be shown. As a result the Bill will allow a satellite service licensee to nominate the time in a particular geographic location against which its services will be regulated.

Other amendments

In a small number of license areas where historically there were fewer than three commercial terrestrial broadcasters, the current legislation does not allow commercial broadcasters to provide full digital television services. The Bill amends the Broadcasting Services Act to allow commercial broadcasters in areas such as regional South Australia, Griffith and Broken Hill to apply for third digital-only commercial licences.

In addition, the Bill recognises the special circumstances of terrestrial broadcasters operating in these smaller markets and will permit these broadcasters to provide all of their digital services in standard definition format only. Clearly, these broadcasters will still have the option to provide viewers with high-definition multi-channels but they will not be required to do so.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.