Broadcasting Regulation - an overview

Marcus Bezzi

General Manager Legal

ACMA

4 September 2006

Regulation of broadcasting by ACMA

ACMA regulates:• planning and licensing of broadcasting services

(including introduction of datacasting and digital broadcasting services);

• limits on ownership and control of broadcasting and datacasting licences;

• requirements for investment by the pay TV industry in Australian content;

• content of broadcasting services and certain internet and telephone content.

Sources of regulation

Key legislation under which ACMA regulates broadcasting services:•Broadcasting Services Act 1992;•Radiocommunications Act 1992;•Radio Licence Fees Act 1964;•Television Licence Fees Act 1964.

Sources of regulation…

Key legislation under which ACMA regulates some internet and telephone content:•Broadcasting Services Act 1992 (schedule 5);•Interactive Gambling Act 2001;•Telecommunications Act 1997;•Telecommunications (Consumer Protection and Service Standards) Act 1999.

Other sources of regulation…

• National broadcasters-– Australian Broadcasting Corporation Act 1983

– Special Broadcasting Services Act 1991

– Only limited regulation by ACMA under the BSA.

• ACMA must consider other State and Federal laws concerning content, e.g.-– Classification (Publications, Films and Computer Games)

Act 1995 ( classification administered by OFLC)

– State Acts prohibiting or regulating certain content.

Broadcasting Services Act (“BSA”)• “Broadcasting service” -

means delivery of television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include: (a) a service (including a teletext service) that provides no more than data,

or no more than text (with or without associated still images); or(b) a service that makes programs available on demand on a point-to-

point basis, including a dial-up service; or(c) a service… that the Minister determines… not to fall within this

definition, eg most forms of IPTV - TV or radio programs delivered over the internet (without the use of broadcasting services band spectrum).

• http://www.reeltime.tv/home.php

• http://bigpondguide.com/0_100

• http://www.abc.net.au/vod/default.htm

• http://www.aph.gov.au/live/webcast1.asp

• http://au.news.yahoo.com/video/public/index.html?pn=2

• http://www20.sbs.com.au/sbs_front/index.html

BSA – regulatory policy

• Different levels of regulatory control apply according to the degree of influence that different types of broadcasting, datacasting and internet services have in shaping community views.

• Address public interests without imposing unnecessary financial or administrative burdens on service providers.

• Accommodate technological change and encourage development and provision of services made possible by new technologies.

• Broadcasting Services Band Spectrum is more regulated because it is a relatively scarce public resource

BSA - planning

• Broadcasting is generally restricted to part of the spectrum (broadcasting services bands) set aside for that purpose.

• ACMA regulates use of the spectrum for broadcasting purposes by– planning the number, types and technical characteristics of

broadcasting services to be available in particular areas (“licence areas”) through a public process; and

– allocating and renewing broadcasting licences.

Licensing – types of services• National broadcasters (not licensed under BSA);• Commercial broadcasting services (individual licences);• Community broadcasting services (individual licences, but no

fee for access to spectrum);• Subscription television broadcasting (individual licences);• Subscription broadcasting (other than TV) and subscription

narrowcasting services (class licence);• Open narrowcasting (class licence);• International broadcasting services (individual licence);• Datacasting services (individual licence).

Licensing - conditions• All licences are subject to the standard licence conditions

applicable to the licence type;• ACMA may impose additional conditions upon individual

licences;• ACMA may impose additional conditions on a whole class of

class licences;• Transmitter licences under the Radiocommunications Act are

also required;• ACMA may investigate complaints about breaches of licence

conditions;• It is an offence to breach certain licence conditions, other

sanctions include rectification notices, suspension and cancellation of licences.

BSA – ownership and controlThese rules limit:• the number of commercial TV broadcasting licences a person can control

within a licence area and across combined licence areas;• the number of commercial radio broadcasting licences a person can control

in a licence area;• control by a person or through a company directorship of both a

commercial TV broadcasting licence and a datacasting transmitter licence;• the number of directorships of companies controlling commercial TV or

radio broadcasting licences that a person can hold;• foreign ownership and foreign directorship of commercial TV licences;• ownership, control or directorships of companies that control various

combinations of commercial TV and radio broadcasting licences and newspapers with 50% or more circulation in a licence area.

BSA ownership and control

• ACMA may approve temporary breaches of the ownership and control rules for specified periods.

• It is an offence to breach the ownership and control rules without prior approval.

• ACMA may issue a notice requiring that action be taken to end a breach of the ownership and control rules and it is an offence not to comply with such a notice.

Content – TV and RadioContent is regulated by:• standard licence conditions on a licence type;• additional conditions on an individual licence;• standards made by ACMA applying to children’s TV

and Australian content on TV or to a section of the broadcasting industry;

• codes of practice developed by sections of the broadcasting industry and registered by ACMA.

Content – TV and Radio…

• The BSA prescribes the matters that codes of practice should address but an industry group may decide how to address those matters.

• If a person is not satisfied by a broadcaster's response to a complaint about compliance with a code, they may complain to ACMA.

• ACMA may investigate complaints about compliance with licence conditions and codes and publish its report.

Content – TV and Radio…

• ACMA’s response to a breach will depend on whether the breach was of a code or a standard and the type of licensee involved.

• Sanctions may include, making recommendations in the case of national broadcasters; or seeking undertakings, imposing additional licence conditions, suspending or cancelling licences in the case of commercial broadcasters.

Content - internet

• ACMA regulates offensive internet content under schedule 5 to the BSA and prohibited interactive gambling content under the Interactive Gambling Act.

• ACMA can issue notices to internet content hosts requiring them to take down the content and require internet service providers to offer content filters which prevent access to such content to their customers.

• ACMA is involved in educational strategies aimed at safe use of the internet and an internet industry code of practice was registered this year.

Kids What To Do (And Not To Do) To Be Cybersmart

Ask your parents or carer before you give anyone on the internet your name or address, your 'phone number or any other personal details. This includes the name of your school, your photo or any personal information about your friends or family.

Meeting people online might be fun, but remember the people you meet online may not be who they say they are. Someone claiming to be a 12 year - old girl may be a 40 year-old man.

If you want to meet someone you have so far only met online, ask a parent or another adult to go with you and always meet in a popular public place, preferably during the day.

Keep your password a secret, never give it to anyone (even your best friend). If someone writes something rude or something that makes you feel uncomfortable

in chat or email, leave the chatroom and don't respond to the email. Tell your parent or another adult you trust if you see upsetting language, nasty

pictures or something scary on the internet. Always ask a parent or adult before you fill out any forms, or give out money or

credit card details. Don't accept any offers that seem too good to be true - they probably are.

Administrative review

Many decisions made by ACMA are subject to: • internal review;• merits review by the Administrative Appeals Tribunal;• judicial review by the Federal Court on a question of law –

e.g. denial of natural justice, jurisdictional error, ultra vires;• A person whose rights are affected by a decision may also

seek reasons for that decision (ADJR Act).• The Freedom of Information Act provides for access to agency

documents.• Most subordinate legislation made by ACMA is subject to

public consultation and parliamentary scrutiny.