Broadcasting Fact Sheet - updated May 2010
The regulation of broadcasting in Australia is principally set out in the Broadcasting Services Act 1992 (Cth). The ACMA is charged with administering the Act by monitoring the broadcast, datacast, internet and commercial content service industries, utilising a range of functions and powers to achieve good regulation and enforce sanctions where appropriate. [s5 BSA]. The national broadcasters (ABC and SBS) are governed by their own Acts.
Main functions of the ACMA- broadcasting
- Licensing- including planning, issuing and renewing licences.
- Oversees content regulation- developing program standards and licence conditions and supporting the development of codes of practice.
- Administers ownership and control rules [see Media Ownership fact sheet]
- Administers the introduction of digital television and digital radio
Contemporary regulation is informed by the convergence of traditional and ‘new’ (internet-based) media. As a consequence, the demarcation between broadcasting and telecommunications/internet regulation is less defined; and achieving consistent policy remains a challenge for governments. For example, the debate over content regulation on the Internet has posited solutions that are antithetical to those in television and radio. The very rationale for broadcasting regulation has been questioned, as audiences have access to an ever increasing range of services.
- National broadcasters ABC and SBS are statutory corporations that are primarily government funded. SBS allows a small proportion of advertising on its television service. Along with the BSA, the Australian Broadcasting Corporation Act 1983 and Special Broadcasting Service Act 1991 and govern regulation.
- Commercial broadcasters are funded by advertising, and must compete for spectrum at auction. They provide general interest free to air programming on radio and television.
- Community broadcasters are not for profit organisations that derive their revenue from sponsorship. They may cater for special interests (youth, indigenous, arts etc.) or provide programs of general interest to the community as a whole. Licenses are allocated on merit.
- Class licences are specialised services that include subscription radio broadcasters and narrowcasters. Narrowcast services target special interest groups, particular locations or periods of time.
- Subscription television broadcasters (Pay TV) provide their service through cable, satellite and microwave. They may also derive some revenue from advertising.
- Datacasting services deliver content in the form of text, data, speech, music or other sounds or visual images, or in any combination of these forms. The services use the broadcasting services bands as a means of delivery. Licences are allocated under the BSA.
- International broadcasting services are targeted, to a significant extent, to audiences outside Australia. The service must use a transmitter within Australia as a means of delivery.
Part 3 of the Act details planning of broadcasting services, and establishes relevant criteria for the ACMA to consider. In particular, the ACMA must develop licence area plans and frequency allotment plans in consultation with the public. These determine the amount of radio and television services in a geographic area.
Allocation processes differ according to the type of licence. For example, commercial licences are granted using a price-based (auction) system [s 36], whilst community licences are awarded on merit [s 84]. In most cases, the ACMA must not grant a licence if there is a significant risk that the applicant would commit an offence, breach a civil penalty provision or breach a licence condition. Provisions for renewal vary between classes of licence; notably the ACMA must automatically renew a commercial broadcasting licence unless it is likely that the incumbent would breach the Act.
The ACMA may also determine licence conditions [see content regulation for further discussion].
Under s 123, industry groups representing commercial, community and narrowcast licences develop, in consultation with the ACMA, codes of practice that are to be applicable to the broadcasting operations of each sector. The public has the right to complain directly to the broadcaster with respect to possible breaches of the codes, generally within 30 days of broadcast [see, for example, commercial codes for TV and radio]. If no response is received within 60 days, then, under s 148, the complainant can take up the matter with the ACMA, whereupon an investigation can be conducted under Part 11 of the Act. The ACMA can give a remedial direction [for some licences] or accept an enforceable undertaking to ensure future compliance. Informal agreements between broadcaster and the ACMA can also be made. In addition to investigations being triggered by complaints, they can be instigated by the ACMA itself or directed by the Minister.
In the development of codes of practice, broadcasters may address matters of concern to the community, including but not limited to:
- preventing the broadcasting of programs that, in accordance with community standards, are not suitable to be broadcast by that section of the industry;
- methods of ensuring that the protection of children from exposure to program material which may be harmful to them is a high priority
- methods of classifying programs that reflect community standards; and
- promoting accuracy and fairness in news and current affairs programs
- it is satisfied that it provides appropriate community safeguards for the matters covered
- it was endorsed by a majority of providers of broadcasting services in that section of the industry
- members of the public have been given an adequate opportunity to comment.
Reviews are not mandated by the Act, but generally occur every three to five years (see, for example, commercial radio codes).
Codes developed by the ABC and SBS are notified to the ACMA, but are not registered. The ABC and SBS also have editorial policies and codes of practice.
Some aspects of content regulation are governed by compulsory program standards. These are imposed in areas where industry self regulation is deemed to be insufficient. Standards can be made in two ways (see Part 9):
- Parliamentary mandated under the Act. Standards (and codes) are amendable by Parliament under s 128.
- The ACMA determines standards under s 125, where codes of practice fail or where no code of practice developed.
Standards are developed and modified following consultation with industry and the public (s 126), and the ACMA must notify the public under s 127. There is no specific timeframe for review.
The ACMA is obligated under s 123 to impose standards relating to Australian content and programs for children on commercial television [Link to Film and TV]. Subscription television broadcasting services (i.e. Pay TV providers) are subject to minimum requirements for drama expenditure under Part 7, Division 2A.
Discretionary powers can be exercised by the ACMA under s 125 if there is ‘convincing evidence’ that a code of practice is not operating to provide appropriate community safeguards. A poignant example is the development of three commercial radio standards (disclosure, advertising and compliance) in response to the ‘Cash for Comment’ inquiry. In this case the ABA found that there had been a systemic failure to ensure the effective operation of the codes of practice.
Standards developed under Part 9 have the effect of a licence condition (see Schedule 2: standard conditions), and are enforced accordingly [see below].
The ABC and SBS operate independently of Government under their own Acts and are not subject to the ACMA program standards.
Schedule 2 sets out standard conditions applicable to broadcasting licences. These cover special conditions relating to broadcast of political matter, controversial material, record keeping requirements and advertising of medicines. Conditions may also relate to matters other than content regulation. Specific conditions apply to commercial television licences (Part 3), commercial radio licences (Part 4), community broadcasting licences (Part 5), subscription television broadcasting licences (Part 6) and class licences (Part 7). Conditions in Schedule 2 cannot be varied or revoked by the ACMA.
The ACMA has the power to vary, revoke or impose an additional condition on a licence (Schedule 2 exempted). This power may be exercised, for example, when the ACMA wishes to require a licensee to comply with a code of practice. Any additional conditions must not be inconsistent with Schedule 2 or s 19 ( the ACMA may determine additional criteria). Examples of additional licence conditions developed include local content requirements for regional radio (s 43C) and additional conditions on community television licences (s 87A).
A breach of any licence condition can be enforced in the following ways:
- Remedial direction requiring compliance[ s 141]
- Pursue a civil penalty [s 140}
- Prosecution [s 139]
- Suspend or cancel the licence [s 143]
- Accept an enforceable undertaking[Part 14D].
Digital television commenced in metropolitan areas on 1 January 2001, and was progressively rolled out to regional areas. As at March 2010, 68% of households have converted, although some ‘blackspots’ in regional and remote areas exist. Analogue services are being phased out from June 2010, and will cease by 31 December 2013. This spectrum will then be reallocated by the ACMA. Government assistance is given to the elderly, disabled and other disadvantaged groups in order to assist in the conversion process. This approach is consistent with the ACMA’s obligation to formulate schemes for conversion.
Metropolitan broadcasters must broadcast at least 1040 hours of high definition television (HDTV) annually, with some exceptions for regional broadcasters. This quota is expected to be removed in 2013. Commercial broadcasters are permitted to air a dedicated high definition multichannel, along with an additional standard definition multichannel. The number of multichannels will not be restricted after 2013. National broadcasters can broadcast as many multichannels as bandwidth allows.
Although the moratorium on new commercial television licences was not extended past 2006, the Minister retains ultimate discretion in issuing new licences. A review must be conducted after 2013, in relation to whether new commercial licences should be allocated. Two unassigned channels- ‘Channel A’ and ‘Channel B’ have been created in the UHF band. It is anticipated that these channels will accommodate datacasting, narrowcasting, and mobile television services. ‘Channel A’ has been temporarily allocated to community television in metropolitan markets.
Services commenced in the five mainland capital cities (the metropolitan radio markets) in 2009. Australia uses the DAB+ standard, transmitting on VHF Band III, sharing this part of the BSB with analogue and digital television. Due to the technical capabilities of digital transmission, a licensee can broadcast additional channels as with television. However, each licensee must not occupy more than one ninth of the multiplex[s 43D].
As at May 2010, only national and commercial broadcasters have converted to DAB+. It is anticipated that some community broadcasters will commence shortly. There are no DAB+ services currently operational in regional areas and it is claimed that other digital radio systems may be more suitable. A review must be conducted by the Minister by 1 January 2011, focusing on suitable digital radio technologies for regional licence areas.
Further info : [http://www.dbcde.gov.au/radio/digital_radio/digital_radio_legislation].
There has been no date set for the cessation of analogue (AM/FM) radio services. Access issues that have been identified by the ACMA include overspill, reception in buildings and fringe area coverage. An awareness campaign has been launched by Digital Radio Australia [see digitalradioplus.com.au]. The Digital Radio Industry Report 2010 claims that 3.7% of radio listeners listened to radio on the DAB+ platform, representing 1.6% of all radio listening.