Broadcasting Legislation Amendment (Digital Dividend and
Other Measures) Act 2011
No. 36, 2011
An Act to amend the Broadcasting Services Act 1992, and
for other purposes
[Assented to 26 May 2011]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Broadcasting
Legislation Amendment (Digital Dividend and Other Measures) Act 2011.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day this Act receives the Royal Assent.
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26 May 2011
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2. Schedules 1, 2 and 3
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The day after this Act receives the Royal Assent.
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27 May 2011
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Note: This table
relates only to the provisions of this Act as originally enacted. It will not
be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table
is not part of this Act. Information may be inserted in this column, or
information in it may be edited, in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Digital
dividend
Broadcasting Services Act 1992
1 Subsection 6(1) (definition of broadcasting services
bands)
Repeal the definition, substitute:
broadcasting services bands means:
(a) that part of the radiofrequency
spectrum that is designated under subsection 31(1) of the Radiocommunications
Act 1992 as being primarily for broadcasting purposes; and
(b) that
part of the radiofrequency spectrum that is designated under subsection 31(1A)
of the Radiocommunications Act 1992 as being partly for the purpose of
digital radio broadcasting services and restricted datacasting services.
2 Subsection 6(1)
Insert:
designated re‑stack day has the meaning given
by subsection 26(1K).
3 Subsection 6(1)
Insert:
licence area plan means a licence area plan
prepared under subsection 26(1) or (1B).
4 Subsection 6(1)
Insert:
television licence area plan means a licence
area plan prepared under subsection 26(1B).
5 Subsection 26(1A)
After “plan” (first occurring), insert “prepared under subsection (1)”.
6 After subsection 26(1A)
Insert:
Television licence area plans
(1B) The ACMA may, by legislative instrument,
prepare licence area plans that:
(a) specify the channels that, under
the relevant frequency allotment plan, are to be available in particular areas
of Australia to provide the following services:
(i) commercial television
broadcasting services;
(ii) national television
broadcasting services;
(iii) other television
broadcasting services;
with the use of the broadcasting
services bands; and
(b) allot, or empower the ACMA to
allot, those channels to:
(i) particular commercial
television broadcasting licensees; or
(ii) particular national
broadcasters; or
(iii) particular providers
of television broadcasting services (other than commercial television
broadcasting licensees or national broadcasters);
as the case requires; and
(c) determine the characteristics,
including technical specifications, of the transmission of each of the
following services:
(i) commercial television
broadcasting services;
(ii) national television
broadcasting services;
(iii) other television broadcasting
services;
using those channels; and
(d) determine, or empower the ACMA to
determine, any technical limitations on the use of a particular channel that
the ACMA considers should be applicable; and
(e) determine, or empower the ACMA to
determine, whether the use of a particular channel depends on any event or
circumstances that the ACMA considers should be applicable.
(1C) A licence area plan prepared under subsection (1B)
is to be known as a television licence area plan.
(1D) A television licence area plan may allot,
or empower the ACMA to allot, different channels to:
(a) a particular commercial television
broadcasting licensee; or
(b) a particular national broadcaster;
or
(c) a particular provider of a
television broadcasting service (other than a commercial television
broadcasting licensee or a national broadcaster);
for different periods.
(1E) A television licence area plan may allot,
or empower the ACMA to allot, 2 or more channels to:
(a) a particular commercial television
broadcasting licensee; or
(b) a particular national broadcaster;
or
(c) a particular provider of a
television broadcasting service (other than a commercial television
broadcasting licensee or a national broadcaster).
(1F) A television licence area plan must be consistent
with the relevant frequency allotment plan.
(1G) A television licence area plan does not
need to identify a particular television broadcasting service by name.
(1H) When the television licence area plan for a
particular area comes into force:
(a) subsection (1) ceases to
apply to:
(i) commercial television
broadcasting services; and
(ii) national television
broadcasting services; and
(iii) other television
broadcasting services;
provided in the area; and
(b) if:
(i) immediately before the
television licence area plan came into force, a licence area plan (the existing
licence area plan) prepared under subsection (1) was in force for
the area; and
(ii) the existing licence
area plan relates wholly to television broadcasting services;
the existing licence area plan
ceases to have effect; and
(c) if:
(i) immediately before the
television licence area plan came into force, a licence area plan (the existing
licence area plan) prepared under subsection (1) was in force for
the area; and
(ii) the existing licence
area plan relates partly to television broadcasting services and partly to
other broadcasting services;
the existing licence area plan ceases
to have effect to the extent to which it relates to television broadcasting
services.
(1J) The television licence area plan for an
area that is the licence area of a commercial television broadcasting licence
must:
(a) not come into force before the end
of the simulcast period, or the simulcast‑equivalent period, for the area; and
(b) come into force before the
designated re‑stack day for the area.
(1K) For the purposes of this Act, the designated
re‑stack day for an area is:
(a) 31 December 2014; or
(b) if the Minister, by writing,
specifies a later day for the area—that later day.
(1L) The Minister must not specify a day under paragraph (1K)(b)
unless the Minister is satisfied that a failure to specify the day would be
likely to result in significant difficulties of a technical or engineering
nature for:
(a) a commercial television broadcasting
licensee; or
(b) a national broadcaster; or
(c) a provider of a television
broadcasting service (other than a commercial television broadcasting licensee
or a national broadcaster).
(1M) Sections 23 and 27 have effect as if a
function or power conferred on the ACMA by a television licence area plan were
a function conferred on the ACMA by this section.
Note: The following heading to subsection 26(2) is
inserted “Variation”.
7 At the end of section 26
Add:
Planning criteria—before designated re‑stack day
(7) Paragraphs 23(a) and (b) do not apply in
relation to:
(a) the preparation of a television
licence area plan for a particular area; or
(b) the variation of a television
licence area plan for a particular area; or
(c) the performance of a function, or
the exercise of a power, by the ACMA under a television licence area plan for a
particular area;
before the designated re‑stack day for the area.
Note: For designated re‑stack day, see
subsection 26(1K).
Ministerial direction
(8) The Minister may, by legislative
instrument, direct the ACMA about the exercise of its powers to make or vary a television
licence area plan for a particular area.
(9) The ACMA must comply with a direction
under subsection (8).
(10) Subsections (8) and (9) cease to have
effect in relation to a particular area at the start of the designated re‑stack
day for the area.
Legislative instruments
(11) If a determination made by the ACMA under
a television licence area plan is in writing, the determination is not a
legislative instrument.
(12) An instrument under paragraph (1K)(b)
is not a legislative instrument.
Definitions
(13) In this section:
national television broadcasting service has
the same meaning as in Schedule 4.
simulcast‑equivalent period has the same
meaning as in Schedule 4.
simulcast period has the same meaning as in
Schedule 4.
television broadcasting service means a
broadcasting service that provides television programs.
Note: For designation of licence areas, see section 29.
8 Subsection 26A(2)
Repeal the subsection.
9 Subsection 26A(3)
Insert:
relevant licence area plan means the relevant
licence area plan prepared under subsection 26(1).
10 After section 26A
Insert:
26AA
Compliance with television licence area plan
(1) If:
(a) a television licence area plan is
applicable to the transmission of one or more commercial television
broadcasting services in a particular area; and
(b) those services are provided under
a particular commercial television broadcasting licence;
the licensee must not transmit any of those commercial
television broadcasting services in that area otherwise than in accordance with
the television licence area plan.
(2) If:
(a) a television licence area plan is
applicable to the transmission of one or more national television broadcasting
services in a particular area; and
(b) those services are provided by a
particular national broadcaster;
the national broadcaster must not transmit any of those
national television broadcasting services in that area otherwise than in
accordance with the television licence area plan.
(3) If:
(a) a television licence area plan is
applicable to the transmission of one or more television broadcasting services
in a particular area; and
(b) those services are not provided:
(i) under a commercial
television broadcasting licence; or
(ii) by a national
broadcaster;
the provider of those television broadcasting services
must not transmit any of those services in that area otherwise than in
accordance with the television licence area plan.
(4) In this section:
national television broadcasting service has
the same meaning as in Schedule 4.
television broadcasting service means a
broadcasting service that provides television programs.
11 Subsection 26B(2)
Repeal the subsection.
12 Subsection 26B(3)
Insert:
licence area plan means a licence area plan
prepared under subsection 26(1).
13 After subsection 27(1)
Insert:
Consultation—decisions relating to television licence
area plans
(1A) Subsection (1) does not apply to:
(a) the preparation of a television licence
area plan for a particular area; or
(b) the variation of a television
licence area plan for a particular area; or
(c) the performance of a function, or
the exercise of a power, by the ACMA under a television licence area plan for a
particular area; or
(d) the variation of a frequency
allotment plan, to the extent that the variation:
(i) relates to the
determination of the number of channels that are to be available in a
particular area to provide television broadcasting services; and
(ii) was made in connection
with the preparation or variation of a television licence area plan for the
area;
before the designated re‑stack day for the area.
Note: For designated re‑stack day, see
subsection 26(1K).
(1B) If, before the designated re‑stack day for a
particular area, the ACMA takes any of the following actions:
(a) the ACMA prepares a television
licence area plan for the area;
(b) the ACMA varies a television
licence area plan for the area;
(c) the ACMA performs a function, or
exercises a power, under a television licence area plan for the area;
(d) the ACMA varies a frequency
allotment plan, to the extent that the variation:
(i) relates to the
determination of the number of channels that are to be available in the area to
provide television broadcasting services; and
(ii) was made in connection
with the preparation or variation of a television licence area plan for the
area;
the ACMA must, in taking the relevant action, make
provision for consultation with:
(e) commercial television broadcasting
licensees who are likely to be affected by the preparation or variation of the
plan; and
(f) national broadcasters; and
(g) community television broadcasting
licensees who are likely to be affected by the preparation or variation of the
plan; and
(h) such other persons (if any) as the
ACMA considers appropriate.
Note: For designated re‑stack day, see
subsection 26(1K).
Note: The following heading to subsection 27(2) is
inserted “Record‑keeping requirements”.
14 Subsection 29(1)
Omit “section 26”, substitute “whichever of subsection 26(1)
or (1B) is applicable”.
15 Section 205PA
After:
• The Federal Court may grant
injunctions in relation to contraventions of subsection 121FG(3) or section 136A,
136B, 136C, 136D or 136E or subclause 49(3) of Schedule 6 (which deal with
the provision of unlicensed services).
insert:
• The Federal Court may also
grant injunctions in relation to contraventions of section 26AA (which
deals with television licence area plans).
16 Section 205Q
Before “61AH”, insert “26AA,”.
17 At the end of subclause 7(1) of Schedule 2
Add:
; (s) if a television licence area plan
applies to the licence area—the licensee will comply with subsection 26AA(1).
18 At the end of subclause 9(1) of Schedule 2
Add:
; (k) if a television licence area plan
applies to the licence area—the licensee will comply with subsection 26AA(3).
19 Paragraph 6(3)(ha) of Schedule 4
Repeal the paragraph, substitute:
(ha) the objective that, if the television
licence area plan for a licence area comes into force immediately after the end
of the simulcast period for that area, each holder of a commercial television
broadcasting licence for that area is to transmit the commercial television
broadcasting service concerned in digital mode in that area after the end of the
simulcast period using such channel or channels as are allotted under the television
licence area plan for that area;
(hb) the objective that, if the television
licence area plan for a licence area does not come into force immediately after
the end of the simulcast period for that area, each holder of a commercial
television broadcasting licence for that area is to transmit the commercial
television broadcasting service concerned in digital mode in that area during
the period:
(i) beginning at the end
of the simulcast period; and
(ii) ending immediately
before the television licence area plan comes into force;
using such channel or channels
as the ACMA allots under the scheme or a digital channel plan, having regard
to:
(iii) the need to plan the most
efficient use of the spectrum; and
(iv) the other relevant
policy objectives of the scheme;
(hc) the objective that, if the television
licence area plan for a licence area does not come into force immediately after
the end of the simulcast period for that area, each holder of a commercial
television broadcasting licence for that area is to transmit the commercial
television broadcasting service concerned in digital mode in that area after
the television licence area plan comes into force using such channel or
channels as are allotted under the television licence area plan for that area;
20 Paragraphs 6(5A)(e) and (5AA)(e) of Schedule 4
Omit “and (ha)”, substitute “, (ha), (hb) and (hc)”.
21 At the end of subclause 6(5B) of Schedule 4
Add:
; (c) the objective that, if the television
licence area plan for that area comes into force immediately after the end of
the simulcast period for the licence area, the holder is to transmit the
commercial television broadcasting services provided under the commercial
television broadcasting licences referred to in whichever of paragraph (5A)(a)
or (5AA)(a) is applicable in digital mode in that area after the end of the
simulcast period using multi‑channelling transmission capacity of a channel or
channels allotted under the television licence area plan for the licence area;
(d) the objective that, if the television
licence area plan for the licence area does not come into force immediately
after the end of the simulcast period for the licence area, the holder is to transmit
the commercial television broadcasting services provided under the commercial
television broadcasting licences referred to in whichever of paragraph (5A)(a)
or (5AA)(a) is applicable in digital mode in that area during the period:
(i) beginning at the end
of the simulcast period; and
(ii) ending immediately
before the television licence area plan comes into force;
using multi‑channelling
transmission capacity of a channel or channels allotted by the ACMA under the
scheme or a digital channel plan, having regard to:
(iii) the need to plan the
most efficient use of the spectrum; and
(iv) the other relevant
policy objectives of the scheme;
(e) the objective that, if the television
licence area plan for the licence area does not come into force immediately
after the end of the simulcast period for the licence area, the holder is to
transmit the commercial television broadcasting services provided under the
commercial television broadcasting licences referred to in whichever of paragraph (5A)(a)
or (5AA)(a) is applicable in digital mode in that area after the television
licence area plan comes into force using multi‑channelling transmission
capacity of a channel or channels allotted under the television licence area
plan for that area.
22 Subclause 6(5D) of Schedule 4
Omit “(3)(ha) and (n)”, substitute “(3)(hb) and (n) and (5B)(d)”.
23 After clause 7A of Schedule 4
Insert:
7AA
Allotment of channels after the television licence area plan comes into force
(1) A digital channel plan, to the extent to
which it relates to a particular licence area, ceases to have effect when the television
licence area plan for that area comes into force.
(2) The commercial television conversion
scheme, to the extent to which it allots channels for a particular licence
area, ceases to have effect when the television licence area plan for that area
comes into force.
24 Subclause 8(4) of Schedule 4
Repeal the subclause.
25 Paragraph 19(3)(ha) of Schedule 4
Repeal the paragraph, substitute:
(ha) the objective that, if the television
licence area plan for the licence area that corresponds to a coverage area
comes into force immediately after the end of the simulcast period for that
coverage area, each national broadcaster is to transmit the national television
broadcasting service concerned in digital mode in that coverage area after the
end of the simulcast period using such channel or channels as are allotted
under the television licence area plan for that licence area;
(hb) the objective that, if the television
licence area plan for the licence area that corresponds to a coverage area does
not come into force immediately after the end of the simulcast period for that
coverage area, each national broadcaster is to transmit the national television
broadcasting service concerned in digital mode in that coverage area during the
period:
(i) beginning at the end
of the simulcast period; and
(ii) ending immediately
before the television licence area plan comes into force;
using such channel or channels
as the ACMA allots under the scheme or a digital channel plan, having regard
to:
(iii) the need to plan the
most efficient use of the spectrum; and
(iv) the other relevant
policy objectives of the scheme;
(hc) the objective that, if the television
licence area plan for the licence area that corresponds to a coverage area does
not come into force immediately after the end of the simulcast period for that
coverage area, each national broadcaster is to transmit the national television
broadcasting service concerned in digital mode in that coverage area after the television
licence area plan comes into force using such channel or channels as are
allotted under the television licence area plan for that licence area;
26 Subclause 19(5A) of Schedule 4
Omit “(3)(ha)”, substitute “(3)(hb)”.
27 After clause 22A of Schedule 4
Insert:
22AA
Allotment of channels after the television licence area plan comes into force
(1) A digital channel plan, to the extent to
which it relates to a particular coverage area, ceases to have effect when the television
licence area plan for the licence area that corresponds to the coverage area
comes into force.
(2) The national television conversion
scheme, to the extent to which it allots channels for a particular coverage
area, ceases to have effect when the television licence area plan for the
licence area that corresponds to the coverage area comes into force.
28 Subclause 23(4) of Schedule 4
Repeal the subclause.
Radiocommunications Act 1992
29 Section 5
Insert:
BSA coverage area means coverage area within
the meaning of Schedule 4 to the Broadcasting Services Act 1992.
30 Section 5
Insert:
BSA television licence area plan means a television
licence area plan within the meaning of the Broadcasting Services Act 1992.
31 After subsection 31(1)
Insert:
(1AA) The Minister may, by written instrument, vary
a subsection (1) designation so as to enlarge or reduce the part of the
spectrum covered by the designation.
32 After subsection 31(1B)
Insert:
(1BA) The Minister may, by written instrument, vary
a subsection (1A) designation so as to enlarge or reduce the part of the
spectrum covered by the designation.
33 Subsection 31(7)
After “(1),”, insert “(1AA),”.
34 Subsection 31(7)
After “(1A),”, insert “(1BA),”.
35 After subsection 32(2)
Insert:
(2A) The rule in subsection (2) does not
apply if:
(a) a direction is in force under
section 14 of the Australian Communications and Media Authority Act
2005; and
(b) the direction requires the ACMA,
when performing its spectrum management functions, to act in accordance with particular
policy objectives that are expressed to be digital dividend policy objectives;
and
(c) the ACMA is satisfied that the
inconsistency would be likely to facilitate any or all of those objectives.
36 After subsection 100(3A)
Insert:
(3AA) Subsection (2) does not prevent the ACMA
from issuing an NBS transmitter licence that authorises the operation of one or
more transmitters for transmitting one or more national broadcasting services
that are covered by a licence area plan in force under section 26 of the Broadcasting
Services Act 1992.
37 Subsection 100(5)
After “section”, insert “100B, 102A,”.
38 After section 100
Insert:
100AA
NBS transmitter licences—authorised channels
(1) If:
(a) an NBS transmitter licence was
issued under section 100; and
(b) the licence is in force
immediately before the end of the simulcast period, or the simulcast‑equivalent
period, for a BSA coverage area; and
(c) the licence authorises the
operation of one or more radiocommunications transmitters for transmitting one
or more national television broadcasting services in that coverage area;
then, after the end of that period, the licence authorises
the operation of the transmitter or transmitters concerned for transmitting
those services in digital mode in that BSA coverage area using the channel or
channels allotted to the national broadcaster concerned under:
(d) if a BSA television licence area
plan is in force for the BSA television licence area that corresponds to that
BSA coverage area—the BSA television licence area plan; or
(e) otherwise—the national television
conversion scheme or a digital channel plan.
(2) If:
(a) an NBS transmitter licence is
issued under section 100 when a BSA television licence area plan for the
BSA television licence area that corresponds to a coverage area is in force;
and
(b) the licence authorises the
operation of one or more radiocommunications transmitters for transmitting one
or more national television broadcasting services in digital mode in that
coverage area;
the licence authorises the operation of the transmitter or
transmitters concerned for transmitting those services in digital mode in that
area using the channel or channels allotted to the national broadcaster
concerned under the BSA television licence area plan for that BSA television
licence area.
(3) If:
(a) an NBS transmitter licence is
issued under section 100 when no BSA television licence area plan for the
BSA television licence area that corresponds to a coverage area is in force;
and
(b) subsection (1) does not
apply; and
(c) the licence authorises the
operation of one or more radiocommunications transmitters for transmitting one
or more national television broadcasting services in digital mode in that
coverage area;
the licence authorises the operation of the transmitter or
transmitters concerned for transmitting those services in digital mode in that
area using the channel or channels allotted to the national broadcaster
concerned under the national television conversion scheme or a digital channel
plan.
(4) In this section:
BSA television licence area means a BSA
licence area for a commercial television broadcasting licence.
digital channel plan means a digital channel
plan covered by clause 22A of Schedule 4 to the Broadcasting
Services Act 1992.
national television broadcasting service
means a national broadcasting service that provides television programs.
national television conversion scheme has the
same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
NBS transmitter licence means a transmitter
licence for a transmitter that is for use for transmitting, to the public, a
national broadcasting service.
simulcast‑equivalent period has the same
meaning as in Schedule 4 to the Broadcasting Services Act 1992.
simulcast period has the same meaning as in
Schedule 4 to the Broadcasting Services Act 1992.
39 After subsection 100B(2B)
Insert:
(2C) If:
(a) an NBS transmitter licence issued
under this section is in force immediately before the end of the simulcast
period, or the simulcast‑equivalent period, for a BSA coverage area; and
(b) the licence authorised the
operation of one or more radiocommunications transmitters for transmitting one
or more national television broadcasting services in digital mode in that area;
the licence is cancelled at the end of that period.
40 Subsection 100B(3)
Insert:
simulcast‑equivalent period has the same
meaning as in Schedule 4 to the Broadcasting Services Act 1992.
41 Subsection 100B(3)
Insert:
simulcast period has the same meaning as in
Schedule 4 to the Broadcasting Services Act 1992.
42 At the end of section 102A
Add:
(6) If:
(a) a transmitter licence issued under
this section is in force immediately before the end of the simulcast period, or
the simulcast‑equivalent period, for a BSA licence area; and
(b) the licence authorised the
operation of one or more radiocommunications transmitters for transmitting one
or more commercial television broadcasting services in digital mode in that
area;
the licence is cancelled at the end of that period.
(7) In this section:
commercial television broadcasting service
means a commercial broadcasting service that provides television programs.
simulcast‑equivalent period has the same
meaning as in Schedule 4 to the Broadcasting Services Act 1992.
simulcast period has the same meaning as in
Schedule 4 to the Broadcasting Services Act 1992.
43 Subsection 102AC(1)
Repeal the subsection, substitute:
(1) If:
(a) a transmitter licence issued under
section 102 was in force immediately before the end of whichever of the
following periods is applicable to the licence area of a commercial television
broadcasting licence (the related licence):
(i) the simulcast period
for the licence area;
(ii) the simulcast‑equivalent
period for the licence area; and
(b) the transmitter licence is held by
the licensee of the related licence; and
(c) immediately before the end of the
applicable period, the transmitter licence authorised the operation of one or
more radiocommunications transmitters for transmitting one or more commercial
television broadcasting services in accordance with the related licence;
then, after the end of the applicable period, the
transmitter licence authorises the operation of the transmitter or transmitters
concerned for transmitting:
(d) one or more HDTV multi‑channelled
commercial television broadcasting services; and
(e) one or more SDTV multi‑channelled
commercial television broadcasting services;
in accordance with the related licence, using:
(f) if a BSA television licence area
plan is in force for the licence area—the channel or channels allotted to the
licensee of the related licence under the BSA television licence area plan; or
(g) otherwise—the channel or channels
allotted to the licensee of the related licence under the commercial television
conversion scheme or a digital channel plan.
Note: The heading to section 102AC is altered by
inserting “issued before the end of the simulcast period etc.” after “licences”.
44 Subsection 102AC(2)
Insert:
commercial television conversion scheme has
the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
45 Subsection 102AC(2)
Insert:
digital channel plan means a digital channel
plan covered by clause 7A of Schedule 4 to the Broadcasting
Services Act 1992.
46 After section 102AC
Insert:
102AD
Transmitter licences issued after the end of the simulcast period
etc.—authorised channels
(1) If:
(a) a transmitter licence is issued
under section 102 after the end of whichever of the following periods is
applicable to the licence area of a commercial television broadcasting licence
(the related licence):
(i) the simulcast period
for the licence area;
(ii) the simulcast‑equivalent
period for the licence area; and
(b) the transmitter licence is held by
the licensee of the related licence; and
(c) the transmitter licence authorises
the operation of one or more radiocommunications transmitters for transmitting
one or more commercial television broadcasting services in accordance with the
related licence;
the transmitter licence authorises the operation of the
transmitter or transmitters concerned for transmitting those services in
digital mode in accordance with the related licence, using:
(d) if a BSA television licence area
plan is in force for the licence area—the channel or channels allotted to the
licensee of the related licence under the BSA television licence area plan; or
(e) otherwise—the channel or channels
allotted to the licensee of the related licence under the commercial television
conversion scheme or a digital channel plan.
(2) In this section:
commercial television broadcasting licence
has the same meaning as in the Broadcasting Services Act 1992.
commercial television broadcasting service
means a commercial broadcasting service that provides television programs.
commercial television conversion scheme has
the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
digital channel plan means a digital channel
plan covered by clause 7A of Schedule 4 to the Broadcasting
Services Act 1992.
47 Paragraph 109(1)(d)
Omit “a condition”, substitute “if subsection 26(1) of the Broadcasting
Services Act 1992 applies—a condition”.
48 Paragraph 109(1)(d)
Omit “by the ACMA under subsection 26(1) of the Broadcasting
Services Act 1992”, substitute “by the ACMA under that subsection”.
49 After paragraph 109(1)(d)
Insert:
(da) if a BSA television licence area
plan is applicable to the transmission of one or more television broadcasting
services under the authority of the licence—a condition that the licensee, and
any person so authorised, must not operate, or permit operation of, such a
transmitter otherwise than in accordance with any relevant technical
specifications determined under the plan;
50 At the end of section 109
Add:
(3) In this section:
television broadcasting service has the same
meaning as in section 26 of the Broadcasting Services Act 1992.
51 At the end of subsection 153H(1)
Add:
; and (c) the licence is not:
(i) an NBS transmitter
licence; or
(ii) a transmitter licence
issued under section 101B; or
(iii) a transmitter licence
issued under section 101C; or
(iv) a transmitter licence
issued under section 102.
52 After paragraph 153P(2)(da)
Insert:
(db) both:
(i) the licence is a
transmitter licence that authorises the operation of one or more radiocommunications
transmitters for transmitting one or more broadcasting services (within the
meaning of the Broadcasting Services Act 1992) in digital mode in a BSA
licence area; and
(ii) the transmitter
licence is issued during the interim period worked out in relation to the BSA
licence area under subsection (4); or
53 At the end of section 153P
Add:
(4) For the purposes of the application of paragraph (2)(db)
to a BSA licence area, the interim period is the period:
(a) beginning at the commencement of
this subsection; and
(b) ending at the start of the
designated re‑stack day (within the meaning of the Broadcasting Services Act
1992) for the BSA licence area.
Schedule 2—Other amendments
Australian Communications and Media
Authority Act 2005
1 Paragraph 53(2)(k)
After “notice under”, insert “Part 9C of that Act or”.
Broadcasting Services Act 1992
2 Subsection 6(1) (definition of scheme administrator)
Repeal the definition, substitute:
scheme administrator:
(a) in relation to a conditional
access scheme for the South Eastern Australia TV3 licence area or the Northern
Australia TV3 licence area—has the meaning given by subsection 130ZB(8); or
(b) in relation to a conditional
access scheme for the Western Australia TV3 licence area—has the meaning given
by subsection 130ZBB(9).
3 After subsection 41B(1A)
Insert:
(1B) Subsection (1) does not apply to a
remote area licence.
4 After subsection 41B(2A)
Insert:
(2AA) Subsection (2) does not apply to a
remote area licence.
5 After subsection 41B(2D)
Insert:
Remote area licences in force immediately before 1 January
2009
(2DA) If a remote area licence for a licence area
was in force immediately before 1 January 2009, the remote area licence is
taken to authorise the licensee to provide the following services in the
licence area:
(a) the core commercial television
broadcasting service;
(b) either:
(i) a HDTV multi‑channelled
commercial television broadcasting service and a SDTV multi‑channelled
commercial television broadcasting service; or
(ii) 2 SDTV multi‑channelled
commercial television broadcasting services;
during the simulcast period, or the simulcast‑equivalent
period, as the case may be, for the licence area.
Remote area licences allocated on or after 1 January
2009
(2DB) If a remote area licence for a licence area is
allocated on or after 1 January 2009 but before the end of whichever of
the following periods is applicable:
(a) the simulcast period for the
licence area;
(b) the simulcast‑equivalent period
for the licence area;
the remote area licence authorises the licensee to
provide:
(c) the following services in the
licence area:
(i) a HDTV multi‑channelled
commercial television broadcasting service;
(ii) 2 SDTV multi‑channelled
commercial television broadcasting services; or
(d) 3 SDTV multi‑channelled commercial
television broadcasting services in the licence area;
during the simulcast period, or the simulcast‑equivalent
period, as the case may be, for the licence area.
6 Subsection 41B(4)
Insert:
remote area licence means a commercial
television broadcasting licence for a remote licence area (within the meaning
of Schedule 4).
7 After subsection 43AA(3A)
Insert:
(3AA) Subsection (1) does not require a
licensee to provide a program to the licensee of a section 38C licence
before the start date for the licence area of the section 38C licence.
8 Subsection 43AA(7)
Insert:
start date, in relation to the licence area
of a section 38C licence, has the same meaning as in Division 2 of
Part 3 of Schedule 2.
9 After subsection 43AC(3)
Insert:
Start date
(3A) Subsection (2) does not require a
licensee to provide a program to the licensee of a section 38C licence
before the start date for the licence area of the section 38C licence.
10 Subsection 43AC(5)
Insert:
start date, in relation to the licence area
of a section 38C licence, has the same meaning as in Division 2 of
Part 3 of Schedule 2.
11 At the end of subsection 130ZB(1)
Add:
for:
(a) the South Eastern Australia TV3
licence area; or
(b) the Northern Australia TV3 licence
area.
Note: The heading to section 130ZB is altered by
adding at the end “—South Eastern Australia TV3 licence area and Northern
Australia TV3 licence area”.
12 At the end of paragraph 130ZB(5)(b)
Add “or”.
13 After paragraph 130ZB(5)(b)
Insert:
(c) a declared service‑deficient
area;
14 Subsection 130ZB(9)
After “category C reception area”, insert “(but not in a declared
service‑deficient area)”.
15 After paragraph 130ZB(10)(a)
Insert:
(aa) is not in a declared service‑deficient
area; and
16 After subsection 130ZB(13)
Insert:
(13A) For the purposes of subsection (13),
if:
(a) at a particular time, a reception
certificate was issued to a person; and
(b) after that time, the person has
not moved to new premises;
the person is taken to be eligible for the reception
certificate.
17 After subsection 130ZB(15)
Insert:
(15A) The 12th objective is that, if:
(a) at a particular time, a person was
in a category B reception area; and
(b) at that time, a conditional access
system that relates to any of the commercial television broadcasting services
provided under the section 38C licence enabled the person to receive those
commercial television broadcasting services; and
(c) after that time:
(i) the person ceases to
be in the category B reception area; and
(ii) the person has not moved
to new premises;
the conditional access system must enable the person to
receive those commercial television broadcasting services.
(15B) The 13th objective is that, if:
(a) at a particular time, a person was
in a declared service‑deficient area; and
(b) at that time, a conditional access
system that relates to any of the commercial television broadcasting services
provided under the section 38C licence enabled the person to receive those
commercial television broadcasting services; and
(c) after that time:
(i) the person ceases to
be in the declared service‑deficient area; and
(ii) the person has not
moved to new premises;
the conditional access system must enable the person to
receive those commercial television broadcasting services.
18 Subsection 130ZB(16) (paragraph (b) of the
definition of related terrestrial licence area)
Omit “38C(1); or”, substitute “38C(1).”.
19 Subsection 130ZB(16) (paragraph (c) of the
definition of related terrestrial licence area)
Repeal the paragraph.
20 Subsection 130ZB(16) (notes 1 and 2 after the definition
of simulcast period)
Repeal the notes.
21 Subsection 130ZB(16) (after the definition of terrestrial
licence area)
Insert:
Note 1: For adequate reception, see
section 130ZFA.
Note 2: For applicable terrestrial digital
commercial television broadcasting services, see section 130ZG.
Note 3: For declared service‑deficient area,
see section 130ZH.
22 After section 130ZB
Insert:
130ZBB
Objectives of conditional access scheme—Western Australia TV3 licence area
Scope
(1) This section applies to a commercial
television broadcasting licence allocated under section 38C for the
Western Australia TV3 licence area.
Objectives
(2) A conditional access scheme for the
section 38C licence area complies with this section if the scheme is
directed towards the achievement of the objectives set out in this section.
(3) The first objective is that:
(a) the scheme should specify the
related terrestrial licence areas as areas that are, subject to paragraph (c),
taken to be areas (category A reception areas) in
which people are unable to receive adequate reception of all of the applicable
terrestrial digital commercial television broadcasting services; and
(b) if a terrestrial licensee for a
related terrestrial licence area is authorised, under paragraph 7(2A)(d) of
Schedule 2, to provide a commercial television broadcasting service
outside the related terrestrial licence area to one or more persons who are in
the section 38C licence area—the scheme should provide that those persons
are, subject to paragraph (c) of this subsection, taken in to be in a
category A reception area; and
(c) the scheme should provide that a person
in a category D reception area is taken not to be in a category A reception
area.
Note: For category D reception area,
see subsection (8).
(4) The second objective is that the scheme
should:
(a) specify one or more areas included
in the Perth TV1 licence area; or
(b) specify a method for ascertaining
one or more areas included in the Perth TV1 licence area;
that are taken to be areas (category B reception
areas) in which people are unable to receive adequate reception
of all of the applicable terrestrial digital commercial television broadcasting
services.
(5) The third objective is that a conditional
access system that relates to any of the commercial television broadcasting
services provided under the section 38C licence must enable persons in:
(a) a category A reception area; or
(b) a category B reception area; or
(c) a declared service‑deficient
area;
to receive those commercial television broadcasting
services.
(6) Subsection (5) has effect subject to
subsections (18) and (19).
(7) The fourth objective is that the scheme
should provide that so much of the section 38C licence area as is not:
(a) a category A reception area; or
(b) a category B reception area; or
(c) a category D reception area;
is a category C reception area.
Note: For category D reception area,
see subsection (8).
(8) The fifth objective is that the scheme
should:
(a) specify one or more related
terrestrial sub‑areas; or
(b) specify a method for ascertaining one
or more related terrestrial sub‑areas;
each of which is taken to be an area (a category D
reception area) in which people will, after the end of the simulcast
period, or the simulcast‑equivalent period, as the case may be, for the related
terrestrial licence area in which the related terrestrial sub‑area is included,
be able to receive adequate reception of all the applicable terrestrial digital
commercial television broadcasting services.
(9) The sixth objective is that the scheme
must:
(a) if the scheme is developed by a
body or association that the ACMA is satisfied represents commercial television
broadcasting licensees—identify a company; or
(b) if the scheme is formulated by the
ACMA—identify the ACMA;
as the scheme administrator for the scheme.
(10) The seventh objective is that the scheme
must authorise the scheme administrator to issue a certificate (a reception
certificate) to:
(a) a person in a category C reception
area (but not in a declared service‑deficient area); or
(b) a person in a category D reception
area (but not in a declared service‑deficient area);
stating that the person is unable to receive adequate
reception of all of the applicable terrestrial digital commercial television
broadcasting services.
(11) The eighth objective is that a conditional
access system that relates to any of the commercial television broadcasting
services provided under the section 38C licence must enable a person who:
(a) is in:
(i) a category C reception
area; or
(ii) a category D reception
area; and
(b) is not in a declared service‑deficient
area; and
(c) holds a reception certificate;
to receive those commercial television broadcasting
services.
(12) Subsection (10) has effect subject to
subsections (18) and (19).
(13) The ninth objective is that, if an
application for a reception certificate is made in accordance with the scheme,
the application must:
(a) be dealt with by the scheme
administrator within 15 business days after receiving the application; and
(b) be accepted, and dealt with,
without requiring:
(i) the payment of a fee
by the applicant; or
(ii) the applicant to incur
any expenses (other than the expense of filling in the application and sending
it to the scheme administrator).
(14) The tenth objective is that, if:
(a) a person is in a category D
reception area; and
(b) the category D reception area is
included in a related terrestrial licence area;
the scheme must not allow the person to apply for a
reception certificate before the earlier of the following:
(c) the start of the designated
digital service day for the category D reception area;
(d) the end of the simulcast period,
or the simulcast‑equivalent period, as the case may be, for the related terrestrial
licence area.
Note: For designated digital service day,
see subsection (15).
(15) The 11th objective is that, if:
(a) a category D reception area is
included in a related terrestrial licence area; and
(b) a particular day (the relevant
day) occurs during the simulcast period, or the simulcast‑equivalent
period, as the case may be, for the related terrestrial licence area; and
(c) the relevant day is the first day
on which all of the core/primary commercial television broadcasting services that
are authorised to be provided in the category D reception area are being:
(i) provided in the category
D reception area; and
(ii) transmitted in digital
mode;
then:
(d) the scheme must provide that the
relevant day is the designated digital service day for the category
D reception area; and
(e) the scheme must require the scheme
administrator:
(i) to give the ACMA a written
notice informing the ACMA that the relevant day is the designated digital
service day for the category D reception area; and
(ii) to do so as soon as
practicable after the relevant day.
Note: The ACMA must maintain a Register in which the
ACMA includes any designated digital service days, see section 130ZEA.
(16) The 12th objective is that the scheme must
authorise the scheme administrator to revoke a reception certificate issued to
a person if the person is no longer eligible for the reception certificate.
(17) For the purposes of subsection (16),
if:
(a) at a particular time, a reception
certificate was issued to a person; and
(b) after that time, the person has
not moved to new premises;
the person is taken to be eligible for the reception
certificate.
(18) The 13th objective is that, if persons
are:
(a) in a local market area; and
(b) not in a category A reception
area; and
(c) not in a category D reception
area;
a conditional access system that relates to any of the
commercial television broadcasting services provided under the section 38C
licence must not enable those persons to receive those commercial television
broadcasting services earlier than 6 months before the time when the local
market area becomes a digital‑only local market area.
(19) The 14th objective is that, if persons
are:
(a) in a simulcast area; and
(b) not in a local market area; and
(c) not in a category A reception
area; and
(d) not in a category D reception
area;
a conditional access system that relates to any of the
commercial television broadcasting services provided under the section 38C
licence must not enable those persons to receive those commercial television
broadcasting services earlier than 6 months before the end of the simulcast
period for the simulcast area.
(20) The 15th objective is that, if:
(a) at a particular time, a person was
in a category B reception area; and
(b) at that time, a conditional access
system that relates to any of the commercial television broadcasting services
provided under the section 38C licence enabled the person to receive those
commercial television broadcasting services; and
(c) after that time:
(i) the person ceases to
be in the category B reception area; and
(ii) the person has not
moved to new premises;
the conditional access system must enable the person to
receive those commercial television broadcasting services.
(21) The 16th objective is that, if:
(a) at a particular time, a person was
in a declared service‑deficient area; and
(b) at that time, a conditional access
system that relates to any of the commercial television broadcasting services
provided under the section 38C licence enabled the person to receive those
commercial television broadcasting services; and
(c) after that time:
(i) the person ceases to
be in the declared service‑deficient area; and
(ii) the person has not
moved to new premises;
the conditional access system must enable the person to
receive those commercial television broadcasting services.
(22) In this section:
digital‑only local market area has the same
meaning as in Schedule 4.
local market area has the same meaning as in
Schedule 4.
related terrestrial licence area means a
terrestrial licence area mentioned in column 3 of item 3 of the table in
subsection 38C(1).
related terrestrial sub‑area means an area
included in a related terrestrial licence area.
simulcast area means an area covered by
paragraph 6(3)(c) of Schedule 4.
simulcast period has the same meaning as in
Schedule 4.
terrestrial licence means a commercial
television broadcasting licence other than a commercial television broadcasting
licence allocated under section 38C or subsection 40(1).
terrestrial licence area means the licence
area of a terrestrial licence.
Note 1: For adequate reception, see
section 130ZFA.
Note 2: For applicable terrestrial digital
commercial television broadcasting services, see section 130ZG.
Note 3: For declared service‑deficient area,
see section 130ZH.
23 Subparagraph 130ZC(1)(d)(iii)
After “this section”, insert “or section 130ZCA”.
24 Subsection 130ZC(1) (note)
Repeal the note.
25 Subsection 130ZC(1)(da)
Repeal the paragraph, substitute:
(da) the ACMA is satisfied that:
(i) if the scheme is for
the South Eastern Australia TV3 licence area or the Northern Australia TV3
licence area—the scheme complies with section 130ZB; or
(ii) if the scheme is for
the Western Australia TV3 licence area—the scheme complies with section 130ZBB;
and
26 Paragraph 130ZCAA(1)(e)
Repeal the paragraph, substitute:
(e) the ACMA is not satisfied that:
(i) if the new scheme is
for the South Eastern Australia TV3 licence area or the Northern Australia TV3
licence area—the new scheme complies with section 130ZB; or
(ii) if the new scheme is
for the Western Australia TV3 licence area—the scheme complies with section 130ZBB;
and
27 Paragraph 130ZCAB(1)(a)
After “130ZC”, insert “or 130ZCA”.
28 Paragraph 130ZCAB(1)(b)
Repeal the paragraph, substitute:
(b) if the scheme is registered under
section 130ZC—the ACMA is satisfied that:
(i) if the scheme is for
the South Eastern Australia TV3 licence area or the Northern Australia TV3
licence area—the scheme is not achieving one or more of the objectives set out
in section 130ZB; or
(ii) if the scheme is for
the Western Australia TV3 licence area—the scheme is not achieving one or more
of the objectives set out in section 130ZBB.
29 Subsection 130ZCAB(2)
Omit “the body or association that developed the scheme”,
substitute “the appropriate body or association”.
30 Subparagraph 130ZCAB(2)(a)(i)
After “130ZC”, insert “or 130ZCA”.
31 After subsection 130ZCAB(2)
Insert:
(2A) For the purposes of subsection (2), the
appropriate body or association is:
(a) if the scheme is registered under
section 130ZC—the body or association that developed the scheme; or
(b) if the scheme is registered under
section 130ZCA—a body or organisation that the ACMA is satisfied
represents commercial television broadcasting licensees.
32 Paragraph 130ZCA(3)(a)
Repeal the paragraph, substitute:
(a) the ACMA is satisfied that:
(i) if the scheme is for
the South Eastern Australia TV3 licence area or the Northern Australia TV3
licence area—the scheme complies with section 130ZB; or
(ii) if the scheme is for
the Western Australia TV3 licence area—the scheme complies with section 130ZBB;
and
33 Subsection 130ZCA(7)
Repeal the subsection.
34 After section 130ZE
Insert:
130ZEA
ACMA to maintain register of designated digital service days
(1) The ACMA is to maintain a Register in
which the ACMA includes any designated digital service days (within the meaning
of section 130ZBB) for category D reception areas (within the meaning of
that section).
(2) The Register is to be maintained by
electronic means.
(3) The Register is to be made available for
inspection on the ACMA’s website.
(4) The Register is not a legislative
instrument.
35 Paragraph 130ZF(1)(b)
Repeal the paragraph, substitute:
(b) either:
(i) a person is in a
category C reception area (within the meaning of the scheme), but is not in a
declared service‑deficient area; or
(ii) if the scheme is for
the Western Australia TV3 licence area—a person is in a category D reception
area (within the meaning of the scheme), but is not in a declared service‑deficient
area; and
36 At the end of subsection 130ZF(13)
Add “if the revocation is on the ground that the holder of the
reception certificate is no longer eligible for the reception certificate”.
37 At the end of Part 9C
Add:
130ZH
Declared service‑deficient areas
Declaration
(1) If:
(a) the ACMA is satisfied that the
number of applicable terrestrial digital commercial television broadcasting
services provided to persons in a particular area (the relevant area)
is less than the number of commercial television broadcasting services required
by clauses 7B and 7C of Schedule 2 to be provided under a commercial
television broadcasting licence allocated under section 38C; and
(b) the relevant area is included in a
terrestrial licence area; and
(c) the terrestrial licence area is
wholly or partly included in the licence area of the section 38C licence;
the ACMA must, by legislative instrument, declare that the
relevant area is a declared service‑deficient area for the
purposes of this Part.
(2) The ACMA must not make a declaration
under subsection (1) in relation to an area if:
(a) part of the area is included in a
local market area; and
(b) the remainder of the area is
outside the local market area.
(3) The ACMA must not make a declaration
under subsection (1) in relation to an area (the relevant area)
before:
(a) if:
(i) the relevant area is included
in a local market area; and
(ii) the local market area
became a digital‑only local market area before the commencement of this
section;
the end of the 9‑month period
beginning when the local market area became a digital‑only local market area;
or
(b) if:
(i) the relevant area is
included in a local market area; and
(ii) the local market area
becomes a digital‑only local market area after the commencement of this
section;
the end of the 3‑month period
beginning when the local market area becomes a digital‑only local market area;
or
(c) if:
(i) the relevant area is
included in a terrestrial licence area; and
(ii) the relevant area is
not included in a local market area; and
(iii) the simulcast period,
or the simulcast‑equivalent period, as the case may be, for the terrestrial
licence area ended before the commencement of this section;
the end of the 9‑month period
beginning when the simulcast period, or the simulcast‑equivalent period, as the
case may be, for the terrestrial licence area ended; or
(d) if:
(i) the relevant area is
included in a terrestrial licence area; and
(ii) the relevant area is
not included in a local market area; and
(iii) the simulcast period,
or the simulcast‑equivalent period, as the case may be, for the terrestrial
licence area ends after the commencement of this section; and
the end of the 3‑month period
beginning when the simulcast period, or the simulcast‑equivalent period, as the
case may be, for the terrestrial licence area ends.
Revocation
(4) If:
(a) a declaration is in force under subsection (1)
in relation to a particular area (the relevant area); and
(b) the relevant area is included in a
terrestrial licence area; and
(c) the terrestrial licence area is
wholly or partly included in the licence area of a commercial television
broadcasting licence allocated under section 38C; and
(d) the ACMA is not satisfied that the
number of applicable terrestrial digital commercial television broadcasting
services provided to persons in the relevant area is less than the number of
commercial television broadcasting services provided under the section 38C
licence;
the ACMA must, by legislative instrument, revoke the
declaration.
Certain satellite services to be disregarded
(5) For the purposes of subsections (1)
and (4), disregard a commercial television broadcasting service provided under
a section 38C licence if the service is authorised by paragraph
41CA(1)(g).
Definitions
(6) In this section:
digital‑only local market area has the same
meaning as in Schedule 4.
local market area has the same meaning as in
Schedule 4.
number includes zero.
simulcast‑equivalent period has the same
meaning as in Schedule 4.
simulcast period has the same meaning as in
Schedule 4.
terrestrial licence means a commercial
television broadcasting licence other than a commercial television broadcasting
licence allocated under section 38C or subsection 40(1).
terrestrial licence area means the licence
area of a terrestrial licence.
Note: For applicable terrestrial digital
commercial television broadcasting services, see section 130ZG.
38 Paragraph 7(1)(ma) of Schedule 2
Omit “(5) and (6)”, substitute “(4C), (5), (6) and (7)”.
39 Paragraphs 7(1)(mb) and (mc) of Schedule 2
After “subject to subclauses”, insert “(4C),”.
40 After subclause 7(4A) of Schedule 2
Insert:
(4B) For the purposes of paragraphs (1)(k)
and (m), ignore the broadcast of a commercial television broadcasting service
in analog mode in a digital‑only local market area if:
(a) the broadcast of the service in
the digital‑only local market area occurs accidentally; or
(b) the broadcast of the service in
the digital‑only local market area occurs as a necessary result of the
provision of commercial television broadcasting services outside the digital‑only
local market area.
(4C) Paragraphs (1)(ma), (mb) and (mc) do
not apply to a commercial television broadcasting service provided by a
licensee to the extent to which the service is provided in an area that, under
clause 9A of Schedule 4, is an exempt digital transmission area in
relation to the licence.
41 Subclause 7(7) of Schedule 2
Omit “(1)(mb)”, substitute “(1)(ma), (mb)”.
42 Paragraph 7(8)(a) of Schedule 2
After “(4A),”, insert “(4B),”.
43 At the end of clause 7D of Schedule 2
Add:
(4) Subclause (1) does not require the
section 38C licensee to broadcast a program before the start date for the
licence area of the section 38C licence.
Note: For start date, see clause 7H.
44 Paragraph 6(3)(ga) of Schedule 4
After “to be made”, insert “using a transmitter located”.
45 Subclause 6(7B) of Schedule 4
Omit “at or about the time when the exempt licence was allocated.”,
substitute:
within the 12‑month period beginning at the later of the
following:
(c) when the exempt licence is
allocated;
(d) the commencement of this paragraph.
46 Clause 6C of Schedule 4
Repeal the clause.
47 After clause 9 of Schedule 4
Insert:
9A
Areas exempt from digital transmission requirements—commercial television
broadcasting licensees
Areas exempt from digital transmission requirements
(1) If an area is an exempt digital
transmission area in relation to a commercial television broadcasting licence,
the licensee is not required to comply with:
(a) the commercial television
conversion scheme; or
(b) an implementation plan;
to the extent that the scheme or plan would require the
licensee to transmit a commercial television broadcasting service in digital
mode in the exempt digital transmission area.
Determination
(2) On application by the holder of a
commercial television broadcasting licence, the Minister may, by legislative
instrument, determine that, for the purposes of this clause, a specified area
that is within the licence area is an exempt digital transmission area
in relation to the licence.
(3) The Minister must not make a
determination under subclause (2) that specifies an area that is within
the licence area of a commercial television broadcasting licence unless, when
the determination is made:
(a) the specified area does not have
coverage of any commercial television broadcasting service that is:
(i) provided by the
commercial television broadcasting licensee in the licence area; and
(ii) transmitted in digital
mode; and
(b) the Minister is satisfied that:
(i) fewer than 500 people
reside in the specified area; or
(ii) the specified area is
an underserviced area; and
(c) either:
(i) commercial television
broadcasting services are provided in the specified area under a commercial
television broadcasting licence allocated under section 38C; or
(ii) the Minister is
satisfied that there is another way in which people in the specified area can,
or will be able to, view an adequate and comprehensive range of commercial
television broadcasting services and national television broadcasting services.
(4) In considering, for the purposes of subparagraph (3)(b)(i),
whether fewer than 500 people reside in a specified area, the Minister must
have regard to the latest resident population statistics published by the
Australian Statistician.
Underserviced areas
(5) For the purposes of subparagraph (3)(b)(ii),
a specified area within a licence area is an underserviced area
if:
(a) the specified area does not have
coverage of one or more commercial television broadcasting services that are:
(i) provided in the
licence area; and
(ii) transmitted in analog
mode; or
(b) the specified area does not have
coverage of one or more national television broadcasting services that are:
(i) provided in the
coverage area that corresponds to the licence area; and
(ii) transmitted in analog
mode.
(6) For the purposes of subclause (5),
disregard a service that does no more than:
(a) re‑transmit programs that are transmitted
by a commercial television broadcasting service; or
(b) re‑transmit programs that are
transmitted by a national television broadcasting service.
(7) For the purposes of subparagraph (3)(b)(ii),
a specified area within a licence area is an underserviced area
if:
(a) the specified area does not, or
will not, have coverage of the commercial television broadcasting services that
are:
(i) provided in the
licence area by a person other than the commercial television broadcasting
licensee; and
(ii) transmitted in digital
mode; or
(b) the specified area does not, or
will not, have coverage of the national television broadcasting services that
are:
(i) provided in the
coverage area that corresponds to the licence area; and
(ii) transmitted in digital
mode.
(8) A reference in subclause (7) to a commercial
television broadcasting service includes a reference to a service that
does no more than re‑transmit programs that are transmitted by a commercial
television broadcasting service.
(9) A reference in subclause (7) to a national
television broadcasting service includes a reference to a service that
does no more than re‑transmit programs that are transmitted by a national
television broadcasting service.
48 After paragraph 8(10)(a) of Schedule 4
Insert:
(aa) paragraph 7(1)(ma) of Schedule 2;
or
49 Paragraph 19(3)(ga) of Schedule 4
After “to be made”, insert “using a transmitter located”.
50 Subclause 19(7CA) of Schedule 4
Repeal the subclause.
51 After paragraph 20(4)(c) of Schedule 4
Insert:
(ca) whether there are other means by
which people in the coverage area to which the implementation plan relates can
view an adequate and comprehensive range of:
(i) commercial television
broadcasting services transmitted in digital mode; and
(ii) national television
broadcasting services transmitted in digital mode;
(cb) the extent to which commercial
television broadcasting services are being, or will be, transmitted in digital
mode in the coverage area to which the implementation plan relates;
(cc) the extent to which national
television broadcasting services are being, or will be, transmitted in digital
mode in the coverage area to which the implementation plan relates by a
national broadcaster other than the national broadcaster to whom the implementation
plan relates;
52 After clause 21 of Schedule 4
Insert:
21A
Areas exempt from digital transmission requirements—national broadcasters
Areas exempt from digital transmission requirements
(1) If an area is an exempt digital
transmission area in relation to a national broadcaster, the national
broadcaster is not required:
(a) to comply with:
(i) the national
television conversion scheme; or
(ii) an implementation
plan;
to the extent that the scheme or
plan would require the national broadcaster to transmit a national television
broadcasting service in digital mode in the exempt digital transmission area;
or
(b) to submit an implementation plan
under clause 20 that relates to the exempt digital transmission area.
Determination
(2) On application by a national broadcaster,
the Minister may, by legislative instrument, determine that, for the purposes
of this clause, a specified area that is within a coverage area is an exempt
digital transmission area in relation to the national broadcaster.
(3) The Minister must not make a
determination under subclause (2) that specifies an area that is within a
coverage area unless, when the determination is made:
(a) the specified area does not have
coverage of any national television broadcasting service that is:
(i) provided by the
national broadcaster in the coverage area; and
(ii) transmitted in digital
mode; and
(b) the Minister is satisfied that:
(i) fewer than 500 people
reside in the specified area; or
(ii) the specified area is
an underserviced area; and
(c) either:
(i) national television
broadcasting services are provided in the coverage area with the use of a
satellite; or
(ii) the Minister is
satisfied that there is another way in which people in the specified area can,
or will be able to, view an adequate and comprehensive range of commercial
television broadcasting services and national television broadcasting services.
(4) In considering, for the purposes of subparagraph (3)(b)(i),
whether fewer than 500 people reside in a specified area, the Minister must
have regard to the latest resident population statistics published by the
Australian Statistician.
Underserviced areas
(5) For the purposes of subparagraph (3)(b)(ii),
a specified area within a coverage area is an underserviced area
if:
(a) the specified area does not have
coverage of one or more commercial television broadcasting services that are:
(i) provided in a licence
area that corresponds to the coverage area; and
(ii) transmitted in analog
mode; or
(b) the specified area does not have
coverage of one or more national television broadcasting services that are:
(i) provided in the
coverage area; and
(ii) transmitted in analog
mode.
(6) For the purposes of subclause (5),
disregard a service that does no more than:
(a) re‑transmit programs that are
transmitted by a commercial television broadcasting service; or
(b) re‑transmit programs that are
transmitted by a national television broadcasting service.
(7) For the purposes of subparagraph (3)(b)(ii),
a specified area within a coverage area is an underserviced area
if:
(a) the specified area does not, or
will not, have coverage of the commercial television broadcasting services that
are:
(i) provided in a licence
area that corresponds to the coverage area; and
(ii) transmitted in digital
mode; or
(b) the specified area does not, or
will not, have coverage of the national television broadcasting services that
are:
(i) provided in the
coverage area; and
(ii) transmitted in digital
mode.
(8) A reference in subclause (7) to a commercial
television broadcasting service includes a reference to a service that
does no more than re‑transmit programs that are transmitted by a commercial
television broadcasting service.
(9) A reference in subclause (7) to a national
television broadcasting service includes a reference to a service that
does no more than re‑transmit programs that are transmitted by a national
television broadcasting service.
53 Clause 35A of Schedule 4
Before “For the purposes”, insert “(1)”.
54 At the end of clause 35A of Schedule 4
Add:
(2) For the purposes of clauses 34 and
35, ignore the broadcast of a national television broadcasting service in analog
mode in a digital‑only local market area if:
(a) the broadcast of the service in
the digital‑only local market area occurs accidentally; or
(b) the broadcast of the service in
the digital‑only local market area occurs as a necessary result of the
provision of national television broadcasting services outside the digital‑only
local market area.
55 Paragraph 38(4)(c) of Schedule 4
After “provides”, insert “in the licence area another service
that is”.
56 Paragraph 38(4)(c) of Schedule 4
Omit “in the licence area;”.
57 Paragraph 38(4)(d) of Schedule 4
After “service”, insert “mentioned in subparagraph (c)(i)”.
58 Paragraph 38(4)(e) of Schedule 4
After “service”, insert “mentioned in subparagraph (c)(ii)”.
59 Subclause 38(4A) of Schedule 4
Repeal the subclause.
60 Subclause 41G(1) of Schedule 4
Omit “or (2CB)” substitute “, (2CB), (2D) or (2DB)”.
Copyright Act 1968
61 Subsection 135ZZJA(2)
Repeal the subsection (including the note), substitute:
(2) This Part does not apply in relation to a
retransmission if:
(a) the retransmission is a re‑broadcast
by a satellite BSA licensee; and
(b) subsection 135ZZZI(1) or (2)
applies to the re‑broadcast.
Radiocommunications Act 1992
62 Subsection 100(5)
Omit “102AF,”.
63 Sections 102AE and 102AF
Repeal the sections.
Schedule 3—Transitional provisions
Part 1—Designation of licence areas
1 Designation of licence areas
(1) If:
(a) the ACMA has, under section 29
of the Broadcasting Services Act 1992, designated an area (the relevant
licence area) as the licence area of a particular commercial television
broadcasting licence; and
(b) the designation of the relevant
licence area is by reference to an area described in:
(i) a licence area plan prepared
under subsection 26(1) of the Broadcasting Services Act 1992; or
(ii) a variation of such a
licence area plan; and
(c) a television licence area plan
comes into force for the relevant licence area;
the designation has effect, after the television licence area
plan comes into force, as if the designation were by reference to the corresponding
area described in the television licence area plan instead of by reference to an
area described in:
(d) the licence area plan prepared under
subsection 26(1) of the Broadcasting Services Act 1992; or
(e) a variation of such a licence area
plan.
(2) This item does not prevent the variation of the
designation of the relevant licence area in accordance with subsection 29(2) of
the Broadcasting Services Act 1992.
Part 2—Digital television conversion schemes etc.
2 Commercial television conversion scheme
(1) This item applies to the commercial television
conversion scheme that was in force under Schedule 4 to the Broadcasting
Services Act 1992 immediately before the commencement of this item.
(2) The amendments of Schedule 4 to the Broadcasting
Services Act 1992 made by this Act do not affect the continuity of the
scheme.
(3) However, the Parliament intends that the ACMA
should, within 90 days after the commencement of this item, take action under
Schedule 4 to the Broadcasting Services Act 1992 directed towards
ensuring compliance with that Schedule as amended by this Act.
(4) Subitem (2) does not apply to subclause 7AA(2)
of Schedule 4 to the Broadcasting Services Act 1992 as amended by
this Act.
3 National television conversion scheme
(1) This item applies to the national television
conversion scheme that was in force under Schedule 4 to the Broadcasting
Services Act 1992 immediately before the commencement of this item.
(2) The amendments of Schedule 4 to the Broadcasting
Services Act 1992 made by this Act do not affect the continuity of the
scheme.
(3) However, the Parliament intends that the ACMA
should, within 90 days after the commencement of this item, take action under
Schedule 4 to the Broadcasting Services Act 1992 directed towards
ensuring compliance with that Schedule as amended by this Act.
(4) Subitem (2) does not apply to subclause 22AA(2)
of Schedule 4 to the Broadcasting Services Act 1992 as amended by
this Act.
4 Digital channel plan made under the commercial television
conversion scheme
(1) This item applies to a digital channel plan that was
in force under the commercial television conversion scheme immediately before
the commencement of this item.
(2) The amendments of Schedule 4 to the Broadcasting
Services Act 1992 made by this Act do not affect the continuity of the
plan.
(3) Subitem (2) does not apply to subclause 7AA(1) of
Schedule 4 to the Broadcasting Services Act 1992 as amended by this
Act.
5 Digital channel plan made under the national television
conversion scheme
(1) This item applies to a digital channel plan that was
in force under the national television conversion scheme immediately before the
commencement of this item.
(2) The amendments of Schedule 4 to the Broadcasting
Services Act 1992 made by this Act do not affect the continuity of the
plan.
(3) Subitem (2) does not apply to subclause 22AA(1)
of Schedule 4 to the Broadcasting Services Act 1992 as amended by
this Act.
6 Variation of commercial television conversion scheme
(1) This item applies to a variation by the ACMA of the
commercial television conversion scheme if:
(a) the variation deals with transitional
and/or consequential matters in connection with the amendments made by this
Act; and
(b) the variation is made within 90
days after the commencement of this item.
(2) Clause 18 of Schedule 4 to the Broadcasting
Services Act 1992 does not apply to the variation.
(3) The ACMA must not make the variation unless a copy
of the proposed variation was made available on the ACMA’s website for a period
of at least 10 business days.
7 Variation of national television conversion scheme
(1) This item applies to a variation by the ACMA of the
national television conversion scheme if:
(a) the variation deals with
transitional and/or consequential matters in connection with the amendments
made by this Act; and
(b) the variation is made within 90
days after the commencement of this item.
(2) Clauses 32 and 33 of Schedule 4 to the Broadcasting
Services Act 1992 do not apply to the variation.
(3) The ACMA must not make the variation unless a copy
of the proposed variation was made available on the ACMA’s website for a period
of at least 10 business days.
Part 3—Other matters
8 Transitional—pre‑commencement contraventions of licence
conditions
Scope
(1) This item applies to a licence condition set out in:
(a) section 43AA of the Broadcasting
Services Act 1992; or
(b) section 43AC of the Broadcasting
Services Act 1992; or
(c) clause 7D of Schedule 2
to the Broadcasting Services Act 1992.
Contraventions
(2) If:
(a) at a time during the period:
(i) beginning at the start
of 30 June 2010; and
(ii) ending immediately
before the commencement of this item;
a person contravened the licence
condition; and
(b) if it were assumed that the
amendments of:
(i) section 43AA of
the Broadcasting Services Act 1992; and
(ii) section 43AC of
the Broadcasting Services Act 1992; and
(iii) clause 7D of
Schedule 2 to the Broadcasting Services Act 1992;
made by this Act had commenced
on 30 June 2010, the person would not have contravened the licence
condition;
the person is taken not to have contravened the licence
condition.
Note: Schedule 1 to the Broadcasting
Legislation Amendment (Digital Television) Act 2010 commenced on 30 June
2010.
9 Transitional—conditional access schemes
Scope
(1) This item applies to a conditional access scheme
that was registered under section 130ZC or 130ZCA of the Broadcasting
Services Act 1992 before the commencement of this item.
Conditional access schemes
(2) The amendments made by the following items of
Schedule 2:
(a) item 2;
(b) items 11 to 22;
do not affect the continuity of the scheme.
(3) Within 30 days after this item commences, the ACMA
must, under subsection 130ZCAB(2) of the Broadcasting Services Act 1992 as
amended by this Act, give to a body or association a notice that:
(a) requests the body or association
to develop another scheme that is expressed to replace the scheme; and
(b) specifies, under paragraph
130ZCAB(2)(b) of the Broadcasting Services Act 1992 as amended by this
Act, the matter of compliance with:
(i) if the scheme is for
the South Eastern Australia TV3 licence area or the Northern Australia TV3
licence area—section 130ZB of the Broadcasting Services Act 1992 as
amended by this Act; or
(ii) if the scheme is for
the Western Australia TV3 licence area—section 130ZBB of the Broadcasting
Services Act 1992 as amended by this Act.
(4) For the purposes of subsection 130ZCAB(1) of the Broadcasting
Services Act 1992 as amended by this Act, the ACMA is taken, when this item
commences, to become satisfied that the scheme is not achieving one or more of
the objectives set out in:
(a) if the scheme is for the South
Eastern Australia TV3 licence area or the Northern Australia TV3 licence
area—section 130ZB of the Broadcasting Services Act 1992 as amended
by this Act; or
(b) if the scheme is for the Western
Australia TV3 licence area—section 130ZBB of the Broadcasting Services
Act 1992 as amended by this Act.
10 Transitional—declarations about primary commercial
television broadcasting services
Scope
(1) This item applies to a declaration:
(a) that the ACMA is empowered to make
under subclause 41G(1) of Schedule 4 to the Broadcasting Services Act
1992 as amended by this Act; and
(b) that relates to a commercial
television broadcasting licence to which subsection 41B(2D) or (2DB) of the Broadcasting
Services Act 1992 as amended by this Act applies.
When declaration must come into force
(2) Subclause 41G(1A) of Schedule 4 to the Broadcasting
Services Act 1992 as amended by this Act has effect, in relation to the
declaration, as if the reference in subparagraph (a)(ii) of that subclause
to the commencement of that subclause were a reference to the commencement of
this item.
[Minister’s second reading speech made in—
House of Representatives on 24 February 2011
Senate on 25 March 2011]