Journal of Law, Information and Science
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DR. NILOUFER SELVADURAI[∗]
Unprecedented changes in technology, infrastructure and services within the broadcasting, telecommunications and information technology sectors are challenging the continuing efficacy of media laws. In November 2006, the Government passed legislation designed to address a variety of issues relating to digital broadcasting and to give effect to its longstanding policy of reform of media ownership laws. The article examines the November 2006 reforms in relation to digital media, and considers the extent to which they address the present weaknesses of the Australian regulatory framework. It considers the operation of the multi-channelling reforms, the HDTV requirements and anti-siphoning arrangements as well as the measures to transfer the power to allocate new commercial licences from the industry regulator, the Australian Communications and Media Authority (the ACMA), to the Government.
The analysis of the reforms is followed by an examination of certain compelling industry issues that have not been addressed by the reform package. The notion that sector-specific reforms are inherently unsuited to regulating increasingly converged telecommunications, broadcasting and information technology sectors is analysed. Finally, the law reform debate to date will be considered, and conclusions drawn as to required media law reform.
It is submitted that, whilst the November 2006 reforms succeed in rectifying all the problems addressed, the package of laws is myopic in its scope and vision. What is required is a media industry wide analysis of the operation of the existing laws and the consideration of a new regulatory framework that regulates on the basis of the nature and characteristics of the service rather than on the basis of increasingly artificial sector-specific distinctions between ‘broadcasting’ and ‘telecommunications’ operations.
The continuing efficacy of media laws is being challenged by an unprecedented level of change and evolution in technology, infrastructure and services within the broadcasting, telecommunications and information technology sectors. A conundrum for those entrusted with the mandate of reform is how best to address these seismic changes within the constraints of a regulatory framework which is premised on a specific and static view of technology and services.[1]In this context of industry flux and convergence, it is interesting to consider the recent media law reforms enacted by the Commonwealth Government.
In November 2006, the Government passed legislation designed to address a variety of issues relating to digital broadcasting and to give effect to its longstanding policy of reform of media ownership laws.[2] The package of laws comprises of the Broadcasting Legislation Amendment Act (No 1) 2006 (Cth), the Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth) and the Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth).[3] The reforms have been preceded by a lengthy period of review, public debate and consultation.[4] In introducing the Bills in September 2006, Senator Helen Coonan declared that the legislation contains ‘the major planks’ of the Government’s media reform package.[5]
The purpose of the article is to examine the November 2006 reforms in relation to digital media, and consider the extent to which they address the present weaknesses of the Australian regulatory framework.[6] The operation of the multi-channelling reforms, the HDTV requirements and anti-siphoning arrangements will be considered, as will the measures to transfer the power to allocate new commercial licences from the industry regulator, the Australian Communications and Media Authority (the ACMA), to the Government.
The analysis of the reforms will be followed by an examination of certain compelling industry issues that have not been addressed by the present media law reform package. The notion that sector-specific reforms are inherently unsuited to regulating increasingly converged telecommunications, broadcasting and information technology sectors will be analysed in some detail. Finally, the law reform debate to date will be considered, and conclusions drawn as to required media law reform.
The Television Broadcasting Services (Digital Conversion) Act 1998 (Cth) created a regulatory framework for the introduction of digital television in Australia by inserting a new Schedule 4 into the Broadcasting Services Act.[7] Schedule 4 provided a mechanism and a plan for the conversion of anologue transmission to digital transmission and outlined the conditions of such digital transmission.[8]
In order to minimise the risk for operators investing in significant network infrastructure, regulatory requirements such as the moratorium on the issuing of new commercial television licences and restrictions on multi-channelling and terrestrial subscription services by free-to-air (FTA) operators were required.[9] Preventing commercial FTA broadcasters from providing digital multi-channels was necessary in order to provide new subscription service providers some protection from competition from incumbent FTA operators.[10]
The corollary to the above arrangements to support operators were provisions such as the simulcast requirement and the high definition television (HDTV) quota which were designed to minimise disruption of service to consumers.[11] These provisions ensured that during the transition from analogue to digital, consumers of both analogue and digital FTA enjoyed intrinsically the same television service.
However, it was always intended that such arrangement were to be transitional. Schedule 4 of the Broadcasting Services Act expressly required a review of arrangements to be conducted before 1 January 2006 and stipulated that analogue transmission must be switched off at the end of 2008.[12] With the moratorium on the issuing of new commercial television licences due to expire on 31 December 2006, it was imperative that the regulatory framework for digital television be reviewed.
For present purposes, of primary interest in the 2006 package of legislation is the Broadcasting Legislation Amendment (Digital Television) Act. The Act seeks to implement significant changes to the regulation of digital media operations in Australia. The central aim of the Broadcasting Legislation Amendment (Digital Television) Act is to provide additional digital services to customers and to facilitate digital take-up.[13] The Explanatory Memorandum notes that since the introduction of the transitional arrangements for digital broadcasting, digital television infrastructure has been widely deployed, and the subscription television sector has developed significantly and converted to digital. Accordingly, it is now necessary to reconsider the restrictions relating to multichannelling.[14] Additionally, it is now necessary to consider the continuing efficacy of the requirements relating to HDTV in light of the fact that the broadcasting spectrum that is available for digital television limits the extent to which multichannel and HDTV services can be provided simultaneously.[15]
The Broadcasting Legislation Amendment (Digital Television) Act amends certain critical aspects of digital television broadcasting regulation contained in the Broadcasting Services Act 1992 (Cth) and the Radiocommunications Act 1992 (Cth). It is useful to consider these changes in some detail.
At present, the Broadcasting Services Act 1992 (Cth) prohibits a FTA television broadcaster from broadcasting a standard definition television (SDTV) programme unless the same programme is simultaneously broadcast in analogue mode.[16] This requirement effectively prevents commercial television broadcasters from providing extra digital channels, termed ‘multi-channels,’ in addition to the digital version of the anologue programme.[17]
In contrast to commercial FTA television broadcasters, the national broadcasters[18] are permitted to provide such services during the simulcast period, subject to the specific genre restrictions in Schedule 4, cl 5A of the Broadcasting Services Act.[19]
Accompanying the above requirements, is a HDTV quota prescribing the minimum hours per year of HDTV programmes that must broadcast by commercial and national television broadcasters.[20] At present, FTA broadcasters are required to provide a minimum of 1040 hours per year of HDTV programming.
The Broadcasting Legislation Amendment (Digital Television) Act provides for the staged removal of the multi-channelling restrictions. Schedule 1 of the Act provides for the immediate removal of all genre restrictions on multi-channelling by national broadcasters, thereby enabling such broadcasters to provide a comprehensive range of digital services.[21]
Schedule 2 of the Act makes a series of amendments to the Broadcasting Services Act and the Radiocommunications Act. The result of these amendments is that as of 1 January 2007 there will no longer be a requirement that the HDTV version of a digital television service must be a simulcast of the SDTV and/or anologue service (in effect providing for one HDTV multi-channel).
Schedule 3 of the Act provides that as of 1 January 2009 commercial FTA television broadcasters will be permitted to provide a single multi-channel in SDTV digital mode.
Finally, at the end of the simulcast period, there will be a removal of all restrictions on the number of multi-channels that may be supplied by a FTA commercial television broadcaster. At the same time, all existing HDTV quotas will be removed. In order not to impose overly onerous obligations on providers of multi-channel services, the regulation of content on such services is minimal.
Section 28 of the Broadcasting Services Act created an effective moratorium on the issue of new commercial television licences by prohibiting the ACMA from allocating any such licences before 31 December 2006. The moratorium also extends to commercial television broadcasting services delivered pursuant to s 40 applications on platforms not utilising the broadcasting service bands.
It is important to note that in addition to the changes implemented by the Act, there are a variety of changes that are scheduled to automatically occur under the present legislation without the need for any further Government intervention. Accordingly, the moratorium on the allocation of new commercial television broadcasting licences automatically expired at the end of 2006,[22] as did the moratorium on the allocation of new commercial FTA licences for services delivered on alternative platforms such as wireless, satellite and cable.[23]
Interestingly, the Act expands the powers of the Minister for Communications, Information Technology and the Arts with respect to the issuing of new commercial licences under the Broadcasting Services Act.[24] The ACMA has held the responsibility for allocating such licences. Under the new arrangements, the Minister has to first make a decision that a licence should be allocated before the ACMA can exercise the power of allocation.
Further, in relation to commercial television broadcasting licences not utilising the broadcasting service bands, the Minister has the power to veto an application made to the ACMA under 40 of the Broadcasting Services Act.[25] In addition, such licences will not be subject to certain standard licence conditions and programme standards but will have certain tailored conditions and standards.
Finally, a significant reform in the present package is the allocation of two new unassigned television channels for the provision of new digital services.
Balancing the multi-channelling reforms are provisions addressing anti-siphoning. The Minister has the power to list a programme on the “anti-siphoning list” by the publication of a public notice in the Gazette.[26] Events or segments of events on the anti-siphoning list are not permitted to be shown on a SDTV or HDTV multi-channel without first being made available (or alternatively being simultaneously made available) on the main or simulcast service. The anti-siphoning requirements are strengthened by the anti-hoarding requirements. Whilst the former regulate acquisition of rights to an event, the latter deal with obligations in relation to the actual transmission of the event. The anti-hoarding rules in Schedule 4, Part 10A of the Act oblige FTA broadcasters who have acquired rights with the assistance of the anti-siphoning provisions to transmit the events or enable a national broadcaster to televise the events.
The anti-siphoning arrangements will not now be reviewed prior to the end of 2009. [27] In the meantime, a ‘use it or lose it policy’ (not supported by legislation) will be introduced to ensure that there is no exploitation of the privileges granted by the anti-siphoning regime.[28]
Even apart from the regulatory directive,[29] the nature of industry evolution necessitated a reconsideration of arrangements. Since the passing of the Acts, the subscription television market has significantly expanded, and there has been a migration of consumers from analogue to digital services. Moreover, since the inception of digital television in Australia, the perceived significance of HDTV to the future success of digital television has diminished. Accordingly, at this stage of the industry’s development it is believed that the single greatest impetus to digital take-up will be a greater availability of channels and a greater variety of service.[30]
Accordingly, the Government’s reforms of the laws relating to digital broadcasting are to be welcomed. The reforms in the area of multi-channels provide for a controlled and progressive move from the current restrictions to full multi-channelling. If multi-channelling was not permitted until a full switch over to digital occurred, it would have been likely to have restricted the development of new digital services. Conversely, allowing immediate, full multi-channelling is likely to have compromised the financial viability of suppliers of subscription television services.[31]
As the broadcasting spectrum is limited, an increase in multichannelling necessitates a reconsideration of HDTV quotas. The Act provides for a gradual removal of restrictions, with the removal of quotas occurring by the end of the simulcast period.
Balancing such reforms is the recognition that consumer migration to digital services has not reached a level to justify the removal of anti-siphoning regulation. Accordingly, it is important to ensure that events on the anti-siphoning list are not provided on multi-channels.[32]
The changes to the institutional arrangements are perhaps not wholly welcome. It is arguable that the decision to allocate channels is a precise and technical matter that is best performed by the ACMA taking into account the technical and economic interests of the industry as a whole. The Australian Broadcasting Authority (the ABA) and Australian Communications Authority (the ACA), the predecessors of the ACMA, typically made decisions on such matters as spectrum allocation and licensing following careful deliberation and consultation with industry groups and technical experts.[33] Whilst the 2006 Act provides that the decision of the Minister will be informed by a review,[34] it remains to be seen if the same rigorous processes will be followed in a context where direct decision making power is vested in the Minister.
Overall, the media law reforms designed to meet the digital challenge are sensible and carefully implemented. However, whilst the reforms are to be embraced, it is arguable that they are not sufficiently comprehensive in their ambit and that the parameters of reform have not been sufficiently widely set.
In March 2006, the Government released its seminal Discussion Paper on media law reforms titled Meeting the Digital Challenge – Reforming Australia’s Media in the Digital Age.[35] It is noted that the role of media regulation is to closely monitor who may enter the market and what services such operators may offer. This has been necessary to ensure both the quality and diversity of services offered to consumers.
The report observes that the present approach to media regulation enshrined in the Broadcasting Services Act is “analogue” in nature, and that the approach is based on outdated regulatory distinctions between different types of broadcasting. It is noted that such regulation ceases to be effective in an environment in which digital technologies enable new services to be offered by both new and existing participants in the media industry. It is noted that:
In a converged environment, it will become increasingly difficult to regulate the emergence of new players and new services. Digital services blur the distinction between the traditionally distinct telecommunications, broadcasting, print and IT sectors as they deliver an increasingly common range of services.[36] [Emphasis added.]
Further, it is recognised that this evolution extends beyond the entertainment media services to the market for news and public information. The emergence of weblogging sites, news services transmitted on mobile phones, online news services and interactive current affairs reporting are provided as examples of such metamorphosis.[37]
The developments require Governments to shift from models that seek to control market structures to providing a new media regulatory framework that provides efficiencies of scale and scope for existing incumbent operators, whilst still encouraging new entrants and emerging technologies and services to contribute to diversity and competition in the industry.[38]
Accordingly, the report is comprehensive in its scope and in its identification of the relevant issues. It is hence disappointing that this industry wide vision has not been translated into the Broadcasting Legislation Amendment (Digital Television) Act. The discussion of the need to replace the ‘analogue approach’ to media regulation based on outdated ‘regulatory distinctions between different types of broadcasting’ is nowhere evident in the Act. [39] There are no measures in the legislation to implement an industry wide approach to the regulation of electronic communications. The Act is wholly limited to fine-tuning the existing framework in relation to digital television.
The report implicitly acknowledges the effects of convergence in the context of the issue of new commercial television licences:
There is therefore a need to implement the Government’s commitment regarding its role in the allocation of commercial FTA licences in relation to section 40 licences to ensure a consistent, technologically neutral approach to the allocation of licences for services in the BSB [broadcasting service bands].[40] [Emphasis added.]
Again, this issue is not pursued, and the accompanying legislation does not embody measures to address the problem.
The nature of evolution in telecommunications and broadcasting technologies, services and markets is such that the traditional boundaries between ‘broadcasting,’ ‘telecommunications’ and ‘information technology’ are becoming increasingly blurred or converged.[41] In such a fluid environment, it is questionable if isolated amendments to existing sector-specific laws can meet the ‘digital challenge.’[42]
It is widely accepted that the prime reason for the convergence of the information technology, telecommunications and broadcasting sectors is the increased reliance on digital technology.[43] It is estimated that 50% of all media will be digital by 2007 and that the penetration of digital media is likely to accelerate beyond that date with two-thirds of all media using digital transmission. This is expected to increase to 80% by 2020.[44] The importance of digitalisation and digital content led to the Creative Industries Cluster Study of 2004.[45] The study reported that the digital content industry is worth an estimated $21 billion and comprises approximately 3.5% of GDP, and that as such is a significant driver of economic growth.[46]
As a result of the application of digital technology, almost any type of information (including text, sound and images) can be transmitted on a variety of digital transmission infrastructures (including wireless, television, fixed telephone, mobile telephone and internet) and utilised in its original form by the recipient.
The traditional world of communications required distinct infrastructure for each communications service.[47] A nationwide wired, intelligent circuit-switched network conveyed voice. A single voice channel had to be set aside for each call. A separate system of broadcast stations utilising wireless technology carried video to users in a defined region. Data was added to voice by a system which converted information from digital form to analogue and back again. In such a media landscape, it was sensible to have separate and discrete regulatory frameworks dedicated to broadcasting and telecommunications.
However, advances in digital technology, combined with the advances relating to fibre optics and compression technology, are leading to a convergence of networks.[48] Developments in packet-switching technologies have facilitated the transmission of digitalised information across different networks without regard to the underlying technology.[49] Digitally transmitted material can be carried over broadcasting networks or over terrestrial wired or wireless infrastructure. Digitalised information can be conveyed over any physical infrastructure, wireless, fibre-coax, microwave or direct broadcast satellite.
This convergence of networks has facilitated the convergence of services.[50] Sport, news and music video can, for example, be streamed live over the Internet to multiple users in a manner similar to a broadcast. Conversely, digital television offers the interactivity and point-to-point, tailored service typically associated with telecommunications. Voice over Internet Protocol services (VoIP), Internet Protocol Television (IPTV) and wireless Internet are further reducing the relevance of the delineations between the sectors.[51]
It is also clearly evident that there is rapid and dynamic product development in the markets experiencing convergence. Firms within these industries are pursuing cross-product and cross-service development.[52] Not all new services are hybrid products that have resulted from cross-sectoral activity. Many of these products can be seen to be based on common technology and operate on common network structures. However both categories of new services can be seen to be broadly illustrative of service convergence.
Finally, there is evidence of corporate convergence, of firms entering into vertical alliance to improve cross-sector market share and capitalize on the opportunities created by network and service convergence.[53]
In such a converged environment, it is submitted that the parameters of reform need to be broadened and encompass the electronic communications sector as a whole. As such the regulatory framework for electronic communications introduced in the European Union in 2003 is of interest.[54] The framework replaces sector-specific broadcasting and telecommunications licensing with a common framework that considers all operations conducted by a single media operator when imposing the relevant regulatory requirements.[55]
The European Commission, Framework Directive[56] defines ‘electronic communications networks’ to mean ‘transmission systems which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed and mobile terrestrial networks, networks used for radio and television broadcasting and cable television networks.’[57] Whilst the definition lists a variety of transmission technology, the use of ‘including’ ensures that the definition will be able to embrace future technology. ‘Electronic communications service’ is defined to mean ‘a service, normally provided for remuneration, which consist in the conveyance of signal on electronic communications networks.’ Services providing, or exercising editorial control over, content transmitted using electronic communications networks are expressly excluded.[58]
In examining the regulatory options to meet the digital challenge, it is useful to consider the operation of this new regulatory framework which moves away from technology based regulation towards technology neutral regulation of electronic communications.
Additionally, it is questionable whether the present inherently vertical laws are suited to regulate cable networks that are predominantly horizontal in structure. Data communications networks have for decades been constructed around principles of protocol layering.[59] Networks employ varying functional rules or protocols. These protocols are typically constructed in layers. For example, the protocols for physical network facilities commonly form the base layer, with protocols for user applications and content constructed on the respective layers above. The Internet Protocol (IP) tier typically exists above the physical network tier and below the user application and content layers. The evolution of technology has meant that there has been an increasing movement towards a common IP platform.[60] Increasingly the boundaries between networks and services are blurring. A key characteristic of this ‘IP-centric’ world is a mesh of virtually interconnected networks.[61]
Despite the market reality of horizontal network layers, the regulatory framework for communications has not responded to technological evolution, and continues to regulate on the basis of ‘vertical,’ sector-specific rules. [62] Wired telephone services, wireless telephone services, broadcast television and radio services and satellite broadcast services are hence subject to different forms of regulation. Such regulatory structures, variously described as ‘legacy definitions’ or ‘silos,’ dictated by a black-and-white or all-or-nothing approach, serve to artificially separate communications networks, services and industries from each other.[63]
In such an environment of merging and converging technologies and operations it is no longer sensible to maintain sector-specific regulation. Indeed the continuation of such laws risk compromising the economic efficiency and equity of the media regulatory framework.
The continuing regulation of a converged media industry with sector-specific laws compromises the efficiency and equity of the industry. To obtain parity in regulation, it is necessary to ensure that, where all other factors are equal, similar services are regulated in a similar manner.[64]
If suppliers of similar services are treated unequally, it will be the regulation and not the ability of a supplier to satisfy consumer demand that will determine success in the market.[65] Where regulation rather than market forces determines success, it is likely to lead to a reduction in the quality of services, and the level of research and development and investment in the industry, as well as a distortion of prices.[66]
In regulating emerging services such as IPTV, VoIP and datacasting that display convergent characteristics it is important to ensure that the dictates of parity are maintained. These services defy the distinction between ‘broadcasting services’[67] and ‘telecommunications industry’[68] that serves to govern the ambit of operation of the Broadcasting Services Act and the Telecommunications Act as such services typically display characteristics of both ‘broadcasting’ and ‘telecommunications.’
The July 2005 merger of the formerly distinct ABA and ACA to form the ACMA reflects recognition of the convergence of the broadcasting and telecommunications sectors. When introducing the ACMA, Senator Coonan, the Minister for Communications, Information Technology and the Arts, expressly remarked on the need to amend institutional arrangements to accommodate the effects of convergence:
The merger of the two regulators recognises the changing nature of the telecommunications, broadcasting and media industries. Convergence of technology and new technology developments are challenging the old regulatory structures and ACMA will be well placed to deal with these new challenges in the future. [Emphasis added].
Given the Government’s willingness to legislate to address the effects of convergence in the realm of institutional arrangements, it is curious that this commitment does not extend to the reform of substantive laws relating to licensing and operations in the Broadcasting Services Act, the Radiocommunications Act, Telecommunications Act, and Parts XIB and XIC of the Trade Practices Act 1974 (Cth).
It is a repeated finding that economies that actively apply and effectively regulate new technologies and emerging services typically enjoy a higher degree of economic prosperity than those economies for which the development and effective regulation of new technology is not a priority.[69] The broadcasting and telecommunications services sectors make a significant contribution to the Australian economy.[70] In 2002-2003, the commercial television broadcasting operations generated $3.45 billion. This represented a 6.7% increase over the previous year. During the same period, commercial radio broadcasting operations generated $774.2 million. This represented a 6% increase over the previous year.
It has been observed that the stimulation of a healthy regulatory environment for the fostering of innovation typically facilitates technological advance, enabling efficiency gains through the reduction of costs.[71] This then typically enables greater profit, thereby enabling greater investment, economic prosperity and consumer welfare.[72]
Further, it has been noted that countries that fail to effectively regulate the converged environment risk being left behind in the global economy if trading competitors take better advantage of the opportunities offered
by convergence.[73] It is necessary to provide the most appropriate regulatory setting for the newly developing and converging telecommunications and broadcasting sectors as convergence has the potential to act as a catalyst for economic growth.
An interest in the benefits that can be derived from innovation and new technologies and the creation of desired ‘knowledge economies’ was a significant theme in the policy and planning in the late 1990s in European economies. [74] At the present time, the pursuit of a knowledge economy has been replaced by the pursuit of an interconnected economy and the focus is perhaps more on myriads of modes of communication than content. In either event, regulation must have as a central objective the stimulation of technological innovation as a prime driver of economic growth.
In order to achieve this objective of economic growth through technological advance, it is important to establish a consistent and transparent regulatory framework that reduces the risk of investing. The fostering of technological innovation also requires fair and equitable access and supply agreements that do not impose unnecessary regulatory burden and does not unfairly discriminate between incumbent operators or new entrants.[75]
Regulating essentially similar services differently on the basis of the technology used to deliver the service could hence represent discriminatory treatment that might lead to a reduction in investment and technological advance and lead to an ultimate reduction in the choice and quality of services offered to consumer.[76]
Similarly, the correlation between access to technology and information and social welfare is well established.[77] Access to technology and information can translate into a better standard of education whilst reduced access may form a significant disadvantage and translate to lower socio-economic standing.[78] Similarly, access to electronic commerce, internet applications and effective means of communication is important to the success of the corporate consumer.[79]
Accordingly, a central objective of regulation and regulatory reform is ensuring access by consumers to the fruits of technological advance.[80] This involves both ensuring real choice for consumers and ensuring that such services are offered in the market at a reasonable price.
This object can be achieved by creating a regulatory framework that encourages the most efficient allocation of resources, allowing production and delivery costs to be minimised. An effective competition policy is necessary to ensure that these minimised costs are passed onto consumers in the form of competitive prices.[81]
Whilst not designing specific reform options to address the effects of convergence, the Australian law reform discourse has acknowledged the effects of convergence.[82] In a few instances, the need to consider legislative change to address the weaknesses of the present sectoral frameworks has also been specifically acknowledged. [83]
At present, the above comments[84] can perhaps be divided into two categories. The first category of comments falls into the “wait and see” approach which is based on the premise that there has not been sufficient technological change or evidence of convergence to necessitate comprehensive legislative reform.
This approach is perhaps best reflected in the Broadcasting Inquiry Report[85] by the Productivity Commission. The Commission acknowledges the possible future effect of convergence:
The pace of technological change in media and communications may increase in the near future. For example, the consequence for broadcasting policy of cheap, ubiquitous, international broadband networks would be far reaching. New measures would be required to achieve the Government’s basic objectives.
In these circumstances, many of the regulatory arrangements relied upon by broadcasting policy would cease to be effective. Policy creating stringent, platform specific content restrictions would be left behind by services using less regulated media platforms. Substantial elements of current broadcasting regulation are vulnerable to change of this sort.[86] [Emphasis added.]
The Commission concludes that:
Convergence presents a challenge for broadcasting policy. Technological change is a feature of the media industries, but shifts in technology and the emergence of new media markets have created new uncertainties. Nevertheless…there is a false choice in the notion that government must decide a wholly new policy framework to accommodate change, or the regulatory status quo because sufficient change has not yet occurred.[87]
The above reluctance to reform does not deny the phenomenon of convergence but rather questions the extent of the effect. Hence it does not form a principled opposition to reform. Further, as this report was released in 2000, it is likely that such report would offer a different view in 2007.
The Commission’s alternative to the adoption of a ‘wholly new policy framework’ is to ensure that the present framework remains technologically neutral:
The main lesson to be drawn from the present uncertainty is the need for regulation that remains as far as possible technologically and competitively neutral…Social and cultural regulation then needs to be designed around achieving the Government’s broad policy objectives, rather than through the imposition of a myriad of platform or sector-specific obligations and privileges. [88]
However as has been seen, the extent of the technological developments and emerging services is such that it is no longer possible for regulation to remain ‘technologically and competitively neutral’ within the parameters of the present legislative regime.
A second category of comments within the law reform discourse can perhaps be described as the ‘need to consider reform but outside the parameters of the present inquiry’ approach.
This approach is evident in the report on the Review of the Regulation of Content Delivered over Mobile Communications Devices[89] where it is noted that it is necessary to consider:
[N]ew and emerging services…which services will not be covered by the existing arrangements (i.e. a gap analysis) and whether there are services that could be subject to more than one set of arrangements.[90]
The report acknowledges the above issue in the context of the regulation of content but does not seek to offer any options for reform.
The limited consideration of the issue of the effects of convergence and the reluctance to design a new regulatory framework is perhaps partly attributable to the increasingly technical nature of this area of law, and the difficulty faced by lawyers in understanding the engineering and information technology issues that are required for comprehensive reform. Accordingly, legislative reform in the area has been piecemeal and lacking an overreaching vision and cohesion.
In light of the divide between technical experts and lawyers, the reform to date has been driven by industry needs, and has been confined to specific and narrow issues rather than a comprehensive and consistent review of the impact of regulation. Regulators typically lack the necessary technical expertise and resources to drive the reform debate.[91] Regulators typically have backgrounds in law and economics and there is an emerging gap between the legal regulators and technical experts with engineering and systems expertise.[92]
It is submitted however that this disengagement of the regulator from the core technical issues facing the telecommunications and broadcasting sectors is dangerous and not in the interests of consumers. The result of this approach is the existence of a patchy and inconsistent regulatory framework characterised by regulatory gaps, regulatory overlap and regulatory inconsistency.
A closer relationship between engineers and lawyers is required to bridge this deepening knowledge gap. There is a need for lawyers to come to terms with the technical and engineering based aspects of the industry, and work together with technical experts to create an effective regulatory framework that reflects the realities of technology and industry.
In the few instances when engineers have been involved in the reform discourse, it has enriched the resulting papers. For example, one of the most illuminating documents on the regulation of VoIP services is a paper prepared by NGN Framework Options Group titled Policy and Regulatory Considerations for New and Emerging Services.[93]
It is interesting to note that the subject of the legislative reforms needed to address the impact of convergence has over the years been linked to the creation of the ‘Information Society,’ [94] the ‘Knowledge Economy,’ [95] the ‘Global Village’, the ‘Post-industrial Society’ and the ‘Information Superhighway.[96] Whilst the nomenclature and nuances of the convergence discussion has evolved, what is consistent in the discourse is consensus as to the fact that the problems caused by convergence are increasing not decreasing.
It is submitted that there is now a compelling case for a comprehensive review of media laws across the broadcasting, telecommunications and information technology sectors. Further fine tuning of the existing sector-specific framework is unable to address the effects of convergence across the media industry. The economic and social significance of this industry accentuates the need for careful and comprehensive review.
Therefore, whilst the November 2006 reforms succeed in rectifying all the problems sought to be addressed, it is submitted that the package of laws is myopic in its scope and vision. What is required is a media industry wide analysis of the operation of the existing laws and the consideration of a movement to adopt a new regulatory framework that regulates on the basis of the nature and characteristics of the service rather than on the basis of increasingly artificial sector-specific distinctions between ‘broadcasting’ and ‘telecommunications’ operations.
[∗] BA LLB (Hons I) Syd, Grad Dip Leg Prac UTS, PhD Macq. Lecturer, Division of Law, Macquarie University.
[1] Frieden R, ‘Adjusting the Horizontal and Vertical in Telecommunications Regulation: A Comparison of the Traditional and New Layered Approach,’ (2003) 55 Fed. Comm. L.J. 207 at 208; Frieden R, ‘Universal Service: When Technologies Converge and Regulatory Models Diverge’ (2000) 1 (13) Harvard Journal of Law and Technology 395.
[2] Department of Communications, Information Technology and the Arts, Meeting the Digital Challenge – Reforming Australia’s Media in the Digital Age, Discussion Paper, March 2006, at p1.
[3] The Communications Legislation Amendment (Enforcement Powers) Bill 2006 (Cth) has been introduced to the House of Representatives to enact the necessary appropriation measures.
[4] See Department of Communications, Information Technology and the Arts, above n 2; Department of Communications, Information Technology and the Arts, Review of the Provision of Commercial Television Broadcasting Services After 31 December 2006, September 2006; Department of Communications, Information Technology and the Arts Review of Restrictions on Multichannelling and Other Services, 2004; Department of Communications, Information Technology and the Arts, Review of the Regulation of Content Delivered Over Convergent Devices, 2004.
[5] Department of Communications, Information Technology and the Arts, ‘Government Media Reforms to be Introduced to Parliament,’ Media Release, 13 September 2006.
[6] It is not the purpose of this article to examine all aspects of the media law reform package. The Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth) is, for example, outside the ambit of the present discussion. Whilst the Act is of far reaching regulatory and political significance and has received the majority of the media’s attention, it does not relate to the present topic.
[7] See further Given J, ‘Being Digital: Australia’s Television Choice’ (1998) 3 Media and Arts Law Review 38; Australian Broadcasting Authority Specialist Group, Digital Terrestrial Television Broadcasting in Australia: Final Report of the Australian Broadcasting Authority Specialist Group on Digital Terrestrial Broadcasting, 1997.
[8] The Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 (Cth) implemented further amendments to the Schedule 4 scheme. The continuing efficacy of the scheme was considered in some detail by the Productivity Commission in its Final Report, Inquiry into Broadcasting, 2000; See also overview of law in Butler D and Rodrick S, Australian Media Law, (2004) at 541-547.
[9] Department of Communications, Information Technology, and the Arts, above n 2, 4.
[10] Ibid.
[11] Ibid.
<a name="fn13" href="#fnB13">[12] Nichills R and Spong L, ‘Digital Television in Australia’ (2002) 15 (1) TeleMedia 10.
[13] Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth) at 1.
[14] Ibid.
[15] Ibid.
[17] Certain narrow exceptions are listed in Schedule 4, cll 6(8) and 19(7B) in relation to such matters as minor differences in programming, electronic programme guides and digital programme enhancements closely and directly linked to the individual programme.
[18] The Australian Broadcasting Corporation and the Special Broadcasting Service.
[19] National broadcasters are permitted to provide educational, science, religion, health and children’s programmes on digital channels but are prohibited from providing national news broadcasts, drama, movies and certain sports.
[20] Broadcasting Services Act 1992 (Cth), Sch 4, Pt 4; See further Mentzines D and Costelloe R, ‘Digital Television and Datacasting – A Realisation of the Dream or a Dog’s Breakfast?’ (2000) 4(5) TeleMedia 53.
[21] Broadcasting Legislation Amendment (Digital Television) Act 2006, Schedule 1. Schedule 1 commenced on 5 November 2006, the day after the Act received Royal Assent.
[22] Broadcasting Services Act 1992 (Cth), s 28.
[23] Ibid.
[24] Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth), Schedule 2, s 8, inserts new ss 35A and 35B into the Broadcasting Services Act 1992 (Cth).
[25] Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth), Schedule 2, s 15, inserts a new s 40(5)-(13) into the Broadcasting Services Act 1992 (Cth).
[26] Broadcasting Services Act 1992 (Cth), s 115.
[27] See further Australian Broadcasting Authority, Investigations into Events on the Anti-Siphoning List Report to the Minister for Communications, Information Technology and the Arts, 2001.
[28] Department of Communications, Information Technology and the Arts, above n 2 at p 3.
[29] Schedule 4 of the Broadcasting Services Act expressly required a review of arrangements to be conducted before 1 January 2006.
[30] Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth) at 4.
[31] Department of Communications, Information Technology and the Arts, ‘Economic Impact of Multichannelling,’ www.dcita.gov.au>broadcasting>polict reviews>digital broadcasting policy reviews, at p 22.
[32] Department of Communications, Information Technology and the Arts, above n 2, at 5. Such a development would for example reduce the ability of subscription television to provide compelling sports coverage
[33] See for example, Australian Broadcasting Authority, Australian Broadcasting Authority (Specialist Group on Digital Terrestrial Television Broadcasting), above n 7; Australian Broadcasting Authority, ‘Allocation of Non-BSB Commercial Broadcasting Licences’, (1998-99) 72 ABA Update 18; Australian Broadcasting Authority, Narrowcasting for Radio: Guidelines and Information about Open and Subscription Narrowcasting Radio Services, 2002; Australian Broadcasting Corporation, Management of the Conversion to Digital Broadcasting: Audit Report No.27, 2004-2005; Australian Communications Authority (NGN Framework Options Group), Policy and Regulatory Considerations for New and Emerging Services, 2004; Input of engineer consultants is also evident in the Australian Communications Authority, Regulatory Issues Associated with Provision of Voice Services Using Internet Protocol in Australia, Discussion Paper, October 2004.
[34] Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth), Schedule 2, inserts a new s 35A into the Broadcasting Services Act 1992 (Cth).
[35] Department of Communications, Information Technology and the Arts, above n 2.
[36] Ibid at 3.
[37] Ibid.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Since the mid 1980’s the word ‘convergence’ has come to denote the dissolving of the clear boundaries between formerly discrete industries. The word was initially used to describe the dissolving of the clear boundaries between the telecommunications and information technology sectors. More recently, it has been used to describe the erasure of the clear boundaries between the telecommunications and broadcasting or electronic media sectors; See further S Brand, The Media Lab: Inventing the Future at MIT (1988) at 10.
[42] Department of Communications, Information Technology and the Arts, above n 2.
[43] Dertouzos M, What Will Be: How the New World of Information Will Change Our Lives (1997) for a discussion of how the changes in mass communication in the twentieth century have impacted on law, including statutory construction; See also review of text by D Calone, ‘The Times They are a-Changing’ (1997) 11 (1) Harvard Journal of Law and Technology 275.
[44] Aegis Group Study (UK), Digital at the Tipping Point (2004) at 23.
[45] Budde P, Digital Media, Convergence, Triple Play and IPTV (2006) at 6.
[46] Ibid.
[47] Madden G, Traditional Telecommunications Networks (2003).
[48] Beyda W, Data Communications: From Basics to Broadband (2005.
[49] See further Austerberry D, The Technology of Video and Audio Streaming (2004).
[50] OECD, Convergence or Collision - Information Computer Communications Policy (1992).
[51] OECD, Directive for Science, Technology and Industry, Webcasting and Convergence: Policy Implications, DSTI/ICCP/TISP, 1997.
[52] Egan BL, Information Superhighways Revisited – The Economics of Multimedia (1996).
[53] See further P Boczkowski, ‘Multiple Media, Convergent Processes, and Divergent Products: Organizational Innovation in Digital Media Production’ (2005) 597 (1) The Annals of the American Academy of Political and Social Science 32.
[54] The European Commission, Framework Directive 2002/21 EC, OJ [2002] L108/33.
[55] See further Levy D, Europe’s Digital Revolution: Broadcasting Regulation, the EU and the National State (1999).
[56] The European Commission, Framework Directive 2002/21 EC, OJ [2002] L108/33.
[57] Ibid Art 2 (a).
[58] Ibid Art 2 (b).
[59] Whitt R, ‘A Horizontal Leap Forward: Formulating a New Communications Public Policy Framework Based on the Network Layers Model’ (2004) 56 Federal Communications Law Journal 587 at 590; See also Lawrence B and Chung M, ‘The Layers Principle: Internet Architecture and the Law,’ University of San Diego School of Law and Legal Theory Research Papers (2003) No. 55 at p 29; Werbach K, ‘A Layered Model for Internet Policy,’ (2002) 37(1) Telecommunication & High Technology Law 39 at 39-40; and Weinberg J, ‘The Internet and ‘Telecommunications Services,’ Universal Service Mechanisms, Access Charges, and other Flotsam of the Regulatory System,’ 16 Yale Journal on Regulation 211 at 213.
[60] See Frieden R, ‘Whither Convergence: Legal, Regulatory and Trade Opportunism in Telecommunications’ (2002) 18 Santa Clara Computer & High Technology Law Journal 171.
[61] Whitt, above n 60, at 591.
[62] Ibid.
[63] Ibid.
[64] Ismail S, ‘Parity Rules: Mapping Regularity Treatment of Similar Services’ (2004) 56 Federal Communications Law Journal. 447 at 448.
[65] Katz M, ‘Regulation: The Next 1000 Years’ in Entman R (ed), Six Degrees of Competition: Correlating Regulation with the Telecommunicaitons Marketplace (2000), at p 129.
[66] Ibid.
[67] Broadcasting Services Act 1992 (Cth), s 6.
[68] Telecommunications Act 1997 (Cth), s 7.
[69] Scherer F, New Perspectives on Economic Growth and Technological Innovation (1999); P Drysdale (ed), The New Economy in East Asia and the Pacific (2004) .
[70] John S, Australian Use of Information Technology and its Contribution to Growth (2002).
[71] IDATE, Market Developments in Telecommunications and Integrated Communications Services to the Year 2010, (1997); Norcontel (Ireland) Ltd, Economic Implications of New Communication Technologies on the Audiovisual Markets, (1997).
[72] Cohen W and Levin R, ‘Empirical Studies of Innovation and Market Structure’ in R Schmalensee and R Willig (eds), Handbook of Industrial Organisations (1989).
[73] Bohlin E, ‘Convergence and the Development of East-Asia’ (1999) 23 Telecommunications Policy 213, 214-216; and KPMG, Public Policy Issues arising from Telecommunications and Audiovisual Convergence, September 1996.
[74] Taylor M, ‘Issues on Broadband: Transactional, Regulatory and Intellectual Property’ (2005) 6 (1) Business Law International 76, 85-89. Interestingly, the present regime for the governance of electronic communications is likely to have its embryonic origins in such discussion. A variety of policy platforms around the world at this time endorsed the primacy of a knowledge based economy. The 1998/1999 Development Report of the World Bank focused on the importance of “Knowledge for Development” and emphasised the connection between knowledge and economic growth. Similarly in the in 1998 the United Kingdom released a White Paper outlining the role of digital technology in knowledge based economies.
[75] Fransman M, Telecoms in the Internet Age: From Boom to Bust to …? (2002).
[76] For example with respect to the telecommunications interconnection regime, discrimination may occur if interconnection is offered to an operator of a public telecommunications network but not to the operator of a public broadcasting network. Such an interconnection may be of relevance in the context of services which rely on broadcast media to download information and services and then rely on a telecommunications network to provide a return channel for the information and services; Green paper at p 28.
[77] Howley K, Community Media: People, Places and Communication Technologies (2005); J Servaes, Communication for Development: One World, Multiple Cultures (1999); M Jussawalla, “The Impact of ICT Convergence on Development in the Asian Region” (1999) 23 Telecommunications Policy 217, 218-234; and Taylor, above n 74.
[78] Rao M, The Nature of the Information Society: A Developing World Perspective (2003).
[79] OECD Directorate for Science, Technology and Industry, ‘Internet Traffic Exchange and the Development of End-to-End International Telecommunications Competition’ (2002) 13 Computer and Communications Policy 2.
[80] Knutsen E, ‘Techno-Neutrality of Freedom of Expression in New Media Beyond the Internet: Solutions for the United States and Canada’ (2001) 8 (2) UCLA Entertainment Law Review 46.
[81] Gillet S E and Vogelsang I, Competition, Regulation and Convergence: Current Issues and Trends in Telecommunications Policy Research (1999).
[82] Productivity Commission, Broadcasting Inquiry Report, 1999 at 3; Department of Communications, Information Technology and the Arts, Telecommunications Competition Regulation, Issues Paper, (April 2005); Department of Communications, Information Technology and the Arts, Provision of Commercial Television Broadcasting Service after 31 December 2006, Issues Paper, (July 2004); Department of Communications, Information Technology and the Arts, Report of Review of the Operation of Schedule 6 of the Broadcasting Services Act 1992 (Datacasting Services), (December 2002); Department of Communications, Information Technology and the Arts, Report of Review of the Operation of Schedule 6 of the Broadcasting Services Act 1992 (Datacasting Services) 2; Department of Communications, Information Technology and the Arts, Proposal for New Institutional Arrangements for the Australian Communications Authority and the Australian Broadcasting Authority, (15 September 2003); Department of Communications, Information Technology and the Arts, Options for Structural Reform in Spectrum Management, Discussion Paper, (2002); Department of Communications, Information Technology and the Arts, Liberalisation of the Telecommunications Sector – Australia’s Experience, (1997); Department of Communications, Information technology and the Arts, Policy and Regulatory Framework for Emerging Voice Services, Discussion Paper, (29 November 2004); Department of Communications, Information Technology and the Arts, Report to Parliament; Review of Audio and Video Streaming Over the Internet, (2000); Department of Communications, Information Technology and the Arts, Telecommunications Competition Regulation, Issues Paper, (April 2005).
[83] Department of Communications, Information Technology and the Arts, Review of the Regulation of Content Delivered Over Mobile Communication Devices, Final Report, (2004) at 2.
[84] See n 82 and 83 above.
[85] Productivity Commission, Broadcasting Inquiry Report, (2000), at 122.
[86] Ibid.
[87] Ibid at 123.
[88] Ibid.
[89] Productivity Commission, 2004.
[90] Ibid at 9.
[91] See Walters P, McDonough A and Lloyd D, ‘Unbundled or Undone: Technical and Operational Issues Associated with Local Loop Unbundling’ (2001) 5 (4) TeleMedia 55 for the application of this argument to the regulation of the local loop.
[92] Whilst technical expertise has been liberally applied to the formulation of laws relating to technical matters such customer equipment and cabling standards, interconnection facilities, connection rules, labeling, numbering and the allocation of spectrum, it has not been sufficiently integrated into the law reform process relating to substantive issues such as licensing and operations.
[93] Australian Communications Authority (NGN Framework Options Group), 2004; Input of engineer consultants is also evident in the Australian Communications Authority, Regulatory Issues Associated with Provision of Voice Services Using Internet Protocol in Australia, Discussion Paper, October 2004.
[94] See J Weinberg, ‘The Internet and Telecommunications Services, Universal Service Mechanism, Access Charges, and Other Flotsam of the Regulatory System’ Yale Journal of Regulation (1999) 16: 211.
[95] See Blackman C, ‘Convergence between Telecommunications and Other Media’ Telecommunications Policy (1998) 22 (3) 163 for an outline of these various means of classification of what is essentially the same phenomenon of innovation and change.
[96] Hundt R, You Say You Want a Revolution: A Story of Information Age Politics (2000) Yale University Press.
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