26 Sep 2011

Convergence Review moves ahead with five new discussion papers

by Kate Jordan, Jim FitzSimons, Bruce Lloyd, Mary Still

The Convergence Review is seeking the public's views on five new discussion papers to help guide its deliberations of the future shape of Australia's media and communications sectors, with comments due by 28 October 2011.

As we noted last week, the Convergence Review is now a key element in the new media inquiry.

Media diversity, competition and market structure

This sets out four options to address media diversity:

  • no change to current rules;
  • broaden the scope of cross-media rules;
  • retain the cross-media rules, and introduce a public interest test; or
  • abolish the cross-media rules, and introduce a public interest test.

It also asks, among other matters:

  • if creeping acquisitions in the media sector are a problem for media diversity;
  • what are the effects of exclusive rights contracts;
  • the possible anti-competitive aspects of bundling; and
  • do download caps impede access to content?

Layering, licensing and regulation

Currently the Telecommunications Act uses a layered approach to regulation – that is, it (to a certain degree) regulates discrete activities in a technology-neutral manner. This discussion paper asks if this approach should be adopted across the board. How might a layered approach to media regulation be best used?

As for licensing, the paper asks what entities/services/functions subject to regulatory obligations/incentives need to be licensed? When should a licence be required to communicate?

Finally, the paper asks a raft of questions about regulation, including different levels of, and approaches to, regulation, and what incentives ought to be offered.

Spectrum allocation and management

The paper asks, among other things, if the Broadcasting Services Bands are necessary either to achieve particular spectrum policy outcomes or to maximise the overall public benefit from spectrum assigned for the delivery of content and communications services.

It also asks what approaches would best serve to achieve the outcome of maximising public benefit from use of the spectrum in the convergent environment? What approach should be taken to the licensing of multiplexes and multichannels for digital television into the future? Should television broadcasters be able to sell spectrum to other providers of multichannels? How should spectrum used for broadcasting be priced?

Australian and local content

The paper on Australian and local content ranges across the rules for defining Australian content, through to the quotas and other requirements, and the investment incentives. Questions posed include:

  • Should a revised policy framework include policy measures to promote newer forms of content?
  • Should Australian content rules be extended to convergent platforms?
  • Is the Producer Offset available to enough types of content – and is the rebate level right?

Community standards

Among other matter this paper asks:

  • Do the provisions in the current broadcasting codes of practice adequately reflect community standards and expectations?
  • Are the current co-regulatory and self-regulatory measures effective in broadcasting?
  • Is there still a need for time zone classification? and
  • Is online content successfully regulated?


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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.