Commonwealth Numbered Regulations - Explanatory Statements

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BROADCASTING SERVICES (DIGITAL TELEVISION STANDARDS) AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 146

Statutory Rules 2003 No. 146

Issued by the authority of the Minister for Communications, Information Technology and the Arts

Broadcasting Services Act 1992

Broadcasting Services (Digital Television Standards) Amendment Regulations 2003 (No. 1)

Subsection 217(1) of the Broadcasting Services Act 1992 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed by the Act, or necessary and convenient to be prescribed for carrying out or giving effect to the Act.

Clauses 37E and 37F in Schedule 4 of the Act require that regulations be made that determine standards which are directed towards ensuring that commercial television broadcasting licensees and national broadcasters, respectively, simulcast an amount of high definition television (HDTV) programming during the simulcast period.

The simulcast period is set for each licence area (in the case of commercial broadcasters) or coverage area (in the case of national broadcasters) as part of arrangements for the transition to digital services. During the simulcast period each broadcaster must simultaneously transmit analog and digital versions of their service.

Clauses 37E, 37EA, 37F and 37FA of Schedule 4 of the Act, which were amended by the Broadcasting Legislation Amendment Act (No. 1) 2003, now provide that:

•       broadcasters are required to transmit at least 1040 hours per year of HDTV programs in digital mode on the HDTV version of the service in each area they service (from two years after the commencement of the simulcast period in that area or from 1 July 2003, whichever is the later);

•       where a broadcaster is required to commence transmitting the HDTV quota on a day other than 1 January, the HDTV quota for the first quota period is to be calculated on a pro-rata basis;

•       in calculating the periods of programming that count towards meeting the quota:

-       where only part of a television program meets the requirements of a HDTV program, only that part should be considered a HDTV program;

-       insubstantial amounts of non-HDTV archival material broadcast during HDTV programs may be counted; and

-       any advertising or sponsorship, community service announcement, station or program promotion, news break or weather bulletin or similar material broadcast during an HDTV program or part of an HDTV program may be counted.

Schedules 1 and 2 of the Broadcasting Services (Digital Television Standards) Regulations 2000 previously required each commercial and national broadcaster, except in specified, very limited circumstances, to:

(a)       transmit an HDTV version of its service, in addition to transmitting a standard definition television (SDTV) version of the service;

(b)       commence transmitting the HDTV version of its service as soon as practicable after it commences transmitting the SDTV version, and in any event within 2 years of the commencement of the simulcast period or before 1 July 2003, whichever is the later; and

(c)       from 2 years after the commencement of the simulcast period or 1 July 2003, whichever is the later, transmit at least 20 hours of HDTV programs each week on the HDTV version of its service.

The regulations amend the standards for HDTV quotas for commercial television broadcasters and national broadcasters in order to give effect to the changes made by the Broadcasting Legislation Amendment Act (No. 1) 2003.

The regulations replace the requirement that national and commercial television broadcasters transmit at least 20 hours of HDTV programs each week (commencing from specified dates), with an annual minimum requirement of 1040 hours of HDTV programming. In line with the legislation, the HDTV quota is calculated on a pro-rata basis for the initial quota period.

In addition, the regulations amend the Broadcasting Services (Digital Television Standards) Regulations 2000 to incorporate a requirement for commercial television broadcasting licensees and national broadcasters to keep records regarding their compliance with the HDTV quotas. Broadcasters are also required to report periodically to the Australian Broadcasting Authority (ABA) in relation to their compliance with the quotas.

The record-keeping and reporting requirements are intended to assist the ABA to enforce the HDTV quotas and to provide data to inform the statutory review of the HDTV quota provisions, required by clause 60A of Schedule 4 to the Act.

Details of the regulations appear in the Attachment.

The regulations commence on gazettal.

ATTACHMENT

NOTES ON CLAUSES

Clause 1 - Name of Regulations

Clause 1 provides for the citation of the Broadcasting Services (Digital Television Standards) Amendment Regulations 2003 (No. 1) (the Regulations).

Clause 2 - Commencement

Clause 2 provides that the Regulations will commence on gazettal.

Clause 3 - Amendment of Broadcasting Services (Digital Television Standards) Regulations 2000

Clause 3 provides for the Broadcasting Services (Digital Television Standards) Regulations 2000 (the principal Regulations) to be amended as set out in the Schedule to the Regulations.

Schedule 1 - Amendments

Item [1] - Regulation 1.03, heading

Item 1 is a minor consequential amendment related to items 2 and 3 below.

Item [2] - Regulation 1.03, after definition of Act

Item [3] - Regulation 1.03, after definition of commercial television broadcasting licensee and licensee

Items 2 and 3 insert new definitions into regulation 1.03 of the principal Regulations.

The definitions are consistent with the definitions adopted in Schedule 4 to the Broadcasting Services Act 1992 (the Act) and Schedules 1 and 2 of the principal Regulations.

Item [4] - After Part 3

Item 4 inserts new Part 4 into the principal Regulations.

Part 4 - HDTV quotas: reporting and record keeping

New Part 4 imposes reporting and record keeping obligations on commercial television broadcasting licensees and national broadcasters (television broadcasters).

Regulation 4.01 - Reporting to the ABA

New regulation 4.01 imposes obligations on television broadcasters to submit reports to the Australian Broadcasting Authority (ABA) regarding compliance with the HDTV quotas.

New subregulation 4.01(1) obliges television broadcasters, after the commencement of the HDTV quota obligations, to submit both interim and consolidated annual reports to the ABA. The interim reports will allow the ABA to monitor the compliance of the television broadcasters with the HDTV quotas during the quota period. The consolidated annual reports will provide the ABA with final data that will be used to assess the compliance of the television broadcasters with the HDTV quotas. The consolidated annual reports may also be used by the ABA to perform compliance audits, which may be conducted either randomly, or in response to specific complaints alleging a failure of a particular television broadcaster to comply with the HDTV quotas. The data obtained from the interim reports and the consolidated annual reports may also be used for the statutory review of the HDTV quota obligations in 2005, required under clause 60A of Schedule 4 to the Act.

Interim and consolidated annual reports

Subregulation 4.01(2) provides that after the commencement of the HDTV quota obligations, television broadcasters are required to submit interim reports each year.

Generally, an interim report will relate to the television broadcaster's compliance with the HDTV quotas during the first 6 months of the calendar year (the period 1 January to 30 June inclusive) (paragraph 4.01(2)(c)).

However, where the television broadcaster's first quota period does not start on 1 January (that is, the phase-in day is not 31 December), different interim reporting arrangements will apply for that first quota period (paragraphs 4.01(2)(a) and (b)).

New subregulation 4.01(3) requires television broadcasters to submit consolidated annual reports regarding compliance with the HDTV quota for each full calendar year starting after the television broadcaster's phase-in day.

However, if a television broadcaster's phase-in day is other than 31 December, the television broadcaster's first annual report must cover the entire first quota period (subregulation 4.01(4)). Where a television broadcaster has a phase-in day other than 31 December (that is the quota period starts on a day other than 1 January), the television broadcaster will have a pro-rata HDTV quota for the first quota period (proposed paragraphs 4(2)(b) and (c) of Schedules 1 and 2). The reporting obligations mirror the first quota period.

The effect of these amendments are that:

•       where the television broadcaster's phase-in day is on or after 1 January and before 30 June, the broadcaster will be obliged to submit an interim report (under paragraph 4.01(2)(a)), and a consolidated annual report covering both the period reported on in the interim report, and the period from 1 July until 31 December (inclusive) (under paragraphs 4.01(2)(a) and 4.01(4)(a));

•       where the television broadcaster's phase-in day is on or after 30 June and before 1 October, the television broadcaster will not be required to submit an interim report, but will be required to submit a consolidated annual report for the period commencing after the phase-in day and ending on 31 December (under paragraph 4.01(4)(a)); and

•       where the television broadcaster has a phase-in day on or after 1 October and before the following 31 December, the broadcaster will be obliged to submit to submit two interim reports (under proposed paragraphs 4.01(2)(b) and 4.01(2)(c)), and a consolidated annual report for the period starting after the phase-in day and ending on 31 December of the following year (under paragraph 4.01(4)(b)).

Under these provisions all television broadcasters will be obliged to submit reports to the ABA in relation to compliance with the HDTV quotas at the same time, irrespective of whether the report relates to a full period, or a partial period.

Timeframe for the submission of reports

New subregulation 4.01(5) provides that television broadcasters are required to submit interim reports and consolidated annual reports within 30 days after the end of the relevant reporting period, or within such longer period agreed to by the ABA.

Content of reports

New subregulation 4.01(6) lists the information that must be included by television broadcasters in interim and consolidated annual reports. The television broadcasters are required to report against each of the listed matters, and will need to break down the aggregate figures in the report on a monthly basis.

Each television broadcaster will be required to report the following information to the ABA:

•       the total number of hours of high-definition television programs broadcast (paragraph 4.01(6)(a)); and

•       the total number hours of high-definition television programs broadcast during prime viewing hours (paragraph 4.01(6)(b)).

The aggregate figure to be supplied by a television broadcaster under paragraph 4.01(6)(a) is to include the total number of hours where the entire program meets the definition of "high-definition television program" (under clause 37L of Schedule 4 to the Act), plus the sum total (expressed in hours) of the duration of the parts of programs which meet the definition.

If the television broadcaster is a commercial television broadcasting licensee, the television broadcaster must also report on:

•       the total duration of the programs containing archival material (subparagraph 4.01(6)(c)(i));

•       the total duration of the archival material itself (subparagraph 4.01(6)(c)(ii)); and

•       the maximum proportion of archival material contained in any one program (subparagraph 4.01(6)(c)(iii)).

Under subclause 37L(3), archival material can be included by a television broadcaster when calculating the total amount of high-definition television programs broadcast, provided that archival material only represents an "insubstantial proportion" of the television program or incidental material broadcast. The ABA will require commercial television broadcasting licensees to specify the maximum amount of archival material contained in any one program broadcast during a particular month (ie. expressed as a percentage of the program), to ensure that the ABA is able to assess whether or not the archival material broadcast represents an "insubstantial proportion" of the program.

National broadcasters will not be required to report on archival material. Subclause 37L(2) of Schedule 4 to the BSA sets a different standard for HDTV for national broadcasters compared with commercial television broadcasting licensees, and allows national broadcasters to fulfil their HDTV quotas using `upconverted' SDTV or analog material. For technical reasons, all material in the HDTV version of the digital television signal must comprise either programs originally produced in HDTV, or upconverted programs. Therefore, in the case of national broadcasters, all archival material in a program will be upconverted (and therefore comply with the HDTV standard for national broadcasters).

As the reports are to be broken down on a monthly basis, new subregulation 4.01(7) clarifies that where a report relates to a month which includes the television broadcaster's phase-in day, the television broadcaster is only required to report on that period of the month after the broadcaster's phase-in day. This provision ensures that the report will correspond with the television broadcaster's HDTV quota obligations.

Approved form for reports

New subregulation 4.01(8) provides that the interim reports and consolidated annual reports submitted by the television broadcasters must be in a form approved by the ABA.

Regulation 4.02 - Secretary or SES employee may request copy of report

New regulation 4.02 allows the Secretary, an SES employee or an acting SES employee of the Department of Communications, Information Technology and the Arts (the Department) to obtain a copy of either an interim report or a consolidated annual report submitted by a television broadcaster to the ABA. Where a request is made for access to a report, the ABA must provide access to a copy of the report as soon as practicable.

This regulation facilitates the provision of information regarding HDTV quota compliance by the ABA to the Department in the lead up to the statutory review of the HDTV quota obligations, required by clause 60A of Schedule 4 to the BSA.

Regulation 4.03 - Keeping records

New regulation 4.03 requires television broadcasters to keep records in relation to high-definition television programs broadcast on the service. Television broadcasters are required to keep a record for each high-definition television program broadcast after the broadcaster's phase-in day, where the program transmitted is either wholly or partly a high-definition television program (paragraph 4.03(1)(a)). Television broadcasters are also required to keep records for incidental material which meets the definition of a high-definition television program (excluding incidental material which only meets the definition as a consequence of its transmission during another high-definition television program), where the television broadcaster wishes to count towards satisfying the HDTV quota (paragraph 4.03(1)(b)). For example, where a television broadcaster has broadcast individual advertisements which are high-definition television programs, and the television broadcaster wishes to count these advertisements in meeting the HDTV quota, the television broadcaster must keep a separate record for each advertisement. Where the television broadcaster has satisfied the HDTV quota through its television programs and does not wish to count incidental material towards the HDTV quota, the television broadcaster will not be required to keep a record for that incidental material.

These provisions allow the ABA to require the recording of additional information relevant to the monitoring and/or enforcement of the HDTV obligations, and allow the ABA to standardise the form in which records are kept by the various television broadcasters. These measures are intended to ensure that the ABA can access records kept by television broadcasters after the submission of reports to audit compliance with the HDTV quotas.

Content of records

New subregulation 4.03(2) provides that each record must include the title of the program, the date of the transmission and the duration of the transmission (paragraphs 4.03(2)(a), (b) and (c)). If the television broadcaster is a commercial television broadcasting licensee, the record must also include the duration of archival material (if any) contained in the program (paragraph 4.03(2)(d)).

If the ABA notifies a television broadcaster in writing that it requires additional information to be included in the records, the television broadcaster will be obliged to include that additional information in its records (paragraph 4.03(2)(e)). Further, if the ABA notifies a television broadcaster in writing that it requires records to be kept in a particular form, the television broadcaster will be required to keep the records in the specified form (subregulation 4.03(3)).

New subregulation 4.03(4) provides that television broadcasters will be obliged to retain records for 18 months after the transmission of the program was first reported under regulation 4.01. Further, subregulation 4.03(5) provides that where the ABA notifies a television broadcaster in writing that it requires access to a record, the television broadcaster is obliged to comply with the request.

Regulation 4.04 - Secretary or SES employee may request copy of record

New regulation 4.04 allows the Department to obtain a copy of a record provided by a television broadcaster to the ABA. Where a request is made for access to a record, the ABA must provide access to a copy of the report as soon as practicable.

Item [5] - Schedule 1, clause 2A

Item 5 is a minor consequential amendment related to item 3 above.

Item [6] - Schedule 1, clause 4

Item 6 omits existing clause 4 of Schedule 1 to the principal Regulations, and substitutes new clause 4. New clause 4 reflects subclause 37E(2B) of Schedule 4 to the Act, and provides more flexibility to commercial television broadcasting licensees in satisfying the HDTV quota.

The effect of this item is to change the HDTV quota requirement for commercial television broadcasting licensees in non-remote areas from 20 hours per week to 1040 hours per calendar year (paragraph 4(2)(a)).

The HDTV quota obligations commence immediately after the television broadcaster's phase-in day. Phase-in days vary between licence areas. In cases where the phase-in day is not 31 December (ie. where the HDTV quotas do not commence on 1 January), new clause 4 allows television broadcasters in those licence areas to satisfy the annual quota on a pro-rata basis:

•       where a commercial television broadcasting licensee's phase-in day is on or after 1 January and before 1 October, the broadcaster may satisfy the HDTV quota for the remaining part of the calendar year on a pro-rata basis (paragraph 4(2)(b));

•       where a commercial television broadcasting licensee's phase-in day is on or after 1 October and before 31 December, the broadcaster may satisfy the quota over a longer period of up to 15 months (ie. the period starting immediately after the broadcaster's phase-in day and ending on 31 December of the following calendar year) (paragraph 4(2)(c)).

Item [7] - Schedule 1, notes 4 and 5

Item [8] - Schedule 2, clause 2A

Items 7 and 8 make minor consequential amendments related to item 3 above.

Item [9] - Schedule 2, clause 4

Item 9 amends the HDTV quota for national broadcasters in non-remote areas in a corresponding way to the amendments made under item 6 above for commercial television broadcasting licensees.

Item [10] - Schedule 2, notes 4 to 6

Item 10 makes minor consequential amendments related to item 3 above.