Contents
Legislation
Cases
Regulatory developments
Competition
Industry developments
Broadcasting Services Amendment Act 2006 Schedule 2 commences
Schedule 2 of the
Broadcasting Services Amendment (Media Ownership) Act 2006 commenced on 4 April 2007. Schedule 2 implements the government’s reforms to Australia’s media ownership laws.
Schedule 2 removes the following from the Broadcasting Services Act 1992:
- foreign ownership restrictions on commercial and subscription television interests, and
- most cross-media ownership restrictions on commercial radio and television licences and associated newspapers.
Schedule 2 implements the following new cross-media ownership regulations:
- no new transactions can proceed unless a minimum of five independent media operations or groups are maintained in metropolitan markets and four in regional markets (unless a lesser number were present before the transaction), and
- no more than two of the three regulated platforms (commercial radio, commercial television and associated newspapers) can be controlled by the same person/organisation in any one licence area.
Australia’s ‘reach rules’ remain unchanged. A person/organisation cannot control:
- more than one commercial television licence or two commercial radio licences in any one licence area, or
- commercial television licences reaching an audience in excess of 75 per cent of the Australian population.
The Australian Communications and Media Authority (ACMA) will be responsible for administrating a Register of Controlled Media Groups.
Schedule 2 also requires ACMA to impose the following licence conditions:
- commercial television licensees must (from 1 January 2008) broadcast a minimum level of ‘material of local significance’
- regional commercial radio licensees must maintain existing levels of ‘local presence’ if it is subject to a change in ownership or if it becomes part of a cross-media group, and
- regional commercial radio licensees must (from 1 January 2008) broadcast a minimum level of ‘material of local significance’ between 6am and 6pm on business days.
ACMA’s enforcement powers have been further increased to provide more flexible mechanisms for addressing breaches.
For further information on these changes please visit Senator Coonan's website.
Telecommunications access disputes
On 27 March 2007, the Australian Competition and Consumer Commission (ACCC) was notified of three telecommunications access disputes with Telstra Corporation Ltd, under Part XIC of the Trade Practices Act 1974. The disputes involve the following parties:
Netspace Pty Ltd
The price for the supply of domestic transmission capacity between Melbourne and Hobart is in dispute. The Domestic Transmission Service provides broadband and wideband carriage of voice, data and other communications. Access seekers can use the Domestic Transmission Service to set up their own networks for aggregated voice or data channels, or for integrated data traffic such as voice, video and data.
TPG Internet Pty Ltd
The monthly charges for the supply of the Line Sharing Service are in dispute. The Line Sharing Service uses the copper wires that provide voice telephony to supply broadband internet services. Telstra retains the ability to provide voice services and obtain line rental revenue and voice call revenue.
Network Technology (Aust) Pty Ltd
The monthly charges, connection charges and disconnection charges for the supply of the Line Sharing Service are in dispute.
On 16 April 2007, the ACCC was notified of an access dispute involving Telstra and Chime Communications Pty Ltd. The dispute relates to pricing for the supply of the Wholesale Line Rental (WLR) service provided by Telstra to Chime. The WLR service is an access service that allows an end user to connect to a carrier or carriage service provider’s public switched telephone network. It provides the end user with a telephone number and the ability to make and receive calls.
In accordance with the Trade Practices Act 1974, the arbitrations of these disputes will be conducted in private, so the ACCC is not making any public comment at this stage.
For further information of the telecommunications access disputes announced in March please visit the ACCC website. Information about the dispute involving Chime Communications is also available on the ACCC website.
On 5 April 2007, the Federal Court held that the Australian Competition and Consumer Commission (ACCC) was not entitled to issue certain consultation and competition notices to Telstra in April 2006 on the basis that they were invalid and denied Telstra adequate procedural fairness.
In December 2005, the ACCC issued a consultation notice to Telstra under section 155 of the Trade Practices Act 1974 that related to price increases of the wholesale line rental service Home Access and the retail product HomeLine Part.
In April 2006, the ACCC issued a competition notice to Telstra which differed in content to the earlier consultation notice. It provided additional information asserting that the price increases caused an anti-competitive price squeeze in the low spend consumer market.
The court found that the consultation and competition notices were invalid as they differed in substance. They were also found invalid on the basis that Telstra was not given sufficient opportunity to make submissions to the ACCC about the additional matters raised in the competition notice.
For more information please visit theTelstra website and theACCC website. To access the judgement visit the Federal Court website.
ACMA permits additional services on the directory assistance number
On 8 March 2007, the Australian Communications and Media Authority (ACMA) amended the Telecommunications Numbering Plan 1997 to allow phone companies to provide additional services on the shared directory assistance number (DAN) 12 23. The additional services permitted will include national and international operator-connected calls and other operator services. These additional services will be optional and chargeable.
The DAN is used by all carriage service providers (CSP) to provide directory assistance services in fulfilment of their obligations under Part 3 of Schedule 2 of the Telecommunications Act 1997. Currently, Telstra is the only CSP subject to the government’s pricing arrangements in the Telecommunications Numbering Plan 1997. The amendment of the Telecommunications Numbering Plan 1997 will involve no changes to the existing directory assistance service offered on the DAN.
Under the amendment, Telstra will be required to provide an Implementation Operation Plan (IOP) for ACMA’s approval. This will involve a consultation process with consumer groups. The IOP will provide comprehensive details of the additional services that Telstra proposes to offer on the DAN. ACMA will need to be satisfied that:
- Telstra will continue to supply directory assistance services on the DAN
- access to the supply of directory assistance services will not be diminished, and
- consumers will be adequately informed of the availability of additional services and the associated charges.
For further information on ACMA’s policy on the supply of additional services on the DAN, please visit the ACMA website.
On 26 April 2007, the Australian Communications and Media Authority (ACMA) announced the introduction of a new, location independent service type and number range to provide for the introduction of innovative communications services. The new 0550 number range and service type has been introduced under amendments to the Telecommunications Numbering Plan 1997.
The new service type and 0550 number range caters for telecommunications services that rely on the internet protocol (IP) for the digital transmission of voice telephony (VoIP services) that can either be fixed and/or location independent.
The new arrangements allow service providers a choice of number ranges. Service providers that offer traditional fixed telephone services, including close substitutes, continue to have access to geographic numbers however service providers can now choose to diversify to the new 0550 number range.
Where the service offers features that are significantly different from traditional telephone services then ACMA expects only the 0550 range will be offered. This especially relates to telephone services not fixed to a particular location.
For further information regarding the new service type and 0550 number range please visit the ACMA website.
On 2 March 2007, the Australian Communications and Media Authority (ACMA) released terms of reference for its first substantial review of the Children’s Television Standards since their introduction in 1990. The requirements for the Children’s Television Standards are set out in the Broadcasting Services Act 1992. ACMA’s review will seek to make recommendations on the efficiency, effectiveness and appropriateness of the following elements of the Children’s Television Standards:
- current quota levels, time bands and scheduling for ‘C’ and ‘P’ programs
- current limitations on the amount, timing and content of non-program material such as advertising, and
- processes for content and quality assessments.
Government mechanisms to support the development and funding of children’s television programs will not be subject to the review.
ACMA is currently undertaking a program of research on children’s television viewing habits and advertising to children, preliminary to conducting the review.
ACMA will be releasing an Issues Paper before July this year, inviting public submissions. The introduction of new standard for the Children’s Television Standards is anticipated late in 2007.
For further information, please visit the ACMA website.
On 28 March 2007, the Australian Communications and Media Authority (ACMA) announced it’s new ‘gatekeeper’ role to authorise and grant applications for the use and disclosure of information from the Integrated Public Number Database (IPND) under the Telecommunications Integrated Public Number Database Scheme 2007 (IPND Scheme).
The IPND is an industry wide database managed by Telstra of all listed and unlisted public telephone numbers. The new scheme has been created as a result of amendments to part 13 of the Telecommunications Act 1997 which governs the access to and use of data from the IPND.
Under the IPND Scheme ACMA will grant authorisations for the use and disclosure of information regarding the publication and maintenance of a Public Number Directory (PND). In addition, it will authorise applications for the conduct of research of a kind specified by the minister in the Telecommunications (Integrated Public Number Database—Permitted Research Purposes) Instrument 2007 (No 1). The IPND Scheme aims to prevent the misuse of IPND information by regulating the access of data by PND publishers and researchers.
The scheme provides for the:
- making of applications
- assessment of applications
- duration that the authorisation will apply, and
- outlines the process for when an authorisation will end.
In addition, the IPND Scheme imposes conditions on the granting of authorisations. Conditions include the manner that corrections are dealt with and information that must be provided to consumers who are contacted by researchers.
For further information on the IPND scheme, please visit the ACMA website.
ACCC lifts competition notice
On 2 March 2007, the Australian Competition and Consumer Commission (ACCC) revoked the competition notice relating to Telstra’s wholesale line rental price rise. The ACCC’s decision involved taking the following factors into account:
- changing regulatory circumstances
- changing market circumstances, and
- the declaration of the Wholesale Line Rental (WLR) service on 1 August 2006.
These factors indicated that the ACCC no longer had reason to believe that Telstra’s wholesale and retail pricing is anti-competitive because the regulatory processes attached to the declaration of the WLR service now enable competitive outcomes to be achieved.
The WLR service is an access service pursuant to Part XIC of the Trade Practices Act 1974, that allows an end-user to:
- connect with a carrier or carriage service provider’s public switched telephone network, and
- make and receive any 3.1 kHz bandwidth calls including local, national and international long distance calls the declaration of the WLR service.
For further information please visit the ACCC website.
ACCC and ACMA to share confidential media merger information
On 5 March 2007, the Australian Communications and Media Authority (ACMA) and the Australian Competition and Consumer Commission (ACCC) announced their intention to obtain consent to confidential information being provided to both of the agencies, from parties involved in a media merger. This arrangement is expected to assist ACCC and ACMA media merger investigations in relation to the following aspects:
- transparency: reducing the risk of merger parties supplying different information to the ACCC and ACMA
- efficiency: eliminating time-consuming, iterative steps for merger parties, and
- consistency: between ACCC and ACMA decisions to the extent that tests and processes overlap.
In a media merger investigation, the ACCC considers whether the merger will substantially lessen market competition in contravention of section 50 of the Trade Practices Act 1974. ACMA considers whether the merger is in contravention of any prohibitions in the Broadcasting Services Act 1992 (as amended in October 2006).
The arrangement between ACMA and the ACCC was made in anticipation of the government announcement of the commencement of changes to cross-media ownership laws on 4 April 2007. Operation of the new cross-media laws will increase the likelihood that the ACCC and ACMA will be investigating the same media mergers concurrently.
For further information please visit the ACCC website.
On 29 March 2007, Telstra awarded a multibillion-dollar contract to French company, Alcatel, to supply and lay a 9,000 kilometre undersea data cable between Sydney to Hawaii. According to Telstra’s Chief of Network and Technology, Lawrence Paratz, the contract was awarded after receiving tenders from a number of parties.
The cable will improve data, voice and video transmission capability to the United States and reduce Telstra’s reliance on third parties such as Southern Cross Cables (jointly owned by Telecom NZ and Singapore Telecommunications). Telstra has undertaken this direct investment in order to meet the growth in internet broadband.
For further information please visit the Sydney Morning Herald website.
On 10 April 2007, the Australian Communications and Media Authority (ACMA) found that the licensee of commercial radio service 2GB Sydney, Harbour Radio Pty Ltd, breached clause 1.3 of the Commercial Radio Codes of Practice 2004 (Code) by broadcasting material that was likely to promote violence or brutality.
The material broadcasted during Breakfast with Alan Jones related to the discussion of factors contributing to unrest in the Cronulla area of South Sydney in December 2005. In the investigation ACMA noted that the material broadcast was for the purpose of public interest, however it was not satisfied that the related comments were presented reasonably or in good faith.
The breaches relate to sections 1.3 (a) and (e) of the Code which provide that a licensee must not broadcast a program which is likely to incite or encourage violence or brutality, or is likely to vilify any person or group on the basis of attributes such as ethnicity.
The licensee has made submissions that ACMA’s analysis of the Code and findings pose practical problems for commercial radio licensees, particularly those providing talk back services.
The Code is due for review in late 2007 which will provide the opportunity for the commercial radio industry and the public to comment on sections 1.3(a) and (e) and other relevant provisions.
For further information please visit the ACMA website.
More information
For information regarding possible implications for your business, contact a member of the Technology & Communications team.