AustLit

BROADCASTING REGULATION

Both generally and on a global basis, there are a limited number of ways in which to regulate either television or radio broadcasting.

With regard to content, there is scope to define the genres of programming—for example, there may be an obligation imposed to deliver certain quotas of drama and children’s programming, or obligations relating to the timing and availability of types of programming. This might mean that programs of certain censorship classifications must be shown after a certain time. There may also be restrictions on the country in which the programming is made, in the form of domestic content rules. Many jurisdictions restrict the ownership and control of broadcasters in terms of both nationality and ownership of other media interests. Limiting the number of participants (including by technology) can also restrict the nature of the market. In addition, there may be measures restricting entry by new firms or exit by incumbents. Having allocated spectrum as an input to the broadcasters’ operations, there may also be regulations as to the reach and availability of services, including ensuring that consumers can afford to enjoy the broadcasters’ programming.

The result is that there are only six major regulatory issues associated with broadcasting in any specific geographic area: number of licences; audience reach; foreign control; cross-media control; domestic content requirements; and censorship. Australia adopts elements of each of these regulatory options, and imposes them under the Broadcasting Services Act 1992. This legislation establishes the general licence conditions for broadcasting services.

The regulation of broadcasting is different from the regulation of other networked industries in that broadcasting can be an expression of both culture generally and specifically national or regional culture. Australian television programs have an appeal to Australians—something that does not have a parallel in sectors such as electricity or telecommunications. The effect of this distinction is that broadcasting regulation is driven by at least two social policy concerns: pluralism, which in broadcasting can mean the delivery of fair, balanced and unbiased representation of a wide range of political opinions and views; and cultural protection, which is the widely practised use of barriers in trade in services to protect the integrity of domestic culture on a national basis. Censorship and universal availability of services are additional social policy concerns. In practice, plurality requirements drive all the regulatory levers except censorship, and cultural protection drives foreign control and domestic content.

The number of commercial broadcasting licences in any geographic area in Australia is limited by availability of spectrum and decisions by the Australian Communications and Media Authority (ACMA). Commercial broadcasting licences for radio and television are issued with an apparatus licence, permitting use of the relevant spectrum. The apparatus licence is issued under the Radiocommunications Act 1992. Subscription broadcasting licences have no spectrum use rights stapled to them. There are three commercial television licences in any licence area (defined by geographic boundaries). The number of commercial radio licences will be limited by the spectrum available in high population areas and by commercial viability (determined by the ACMA) in other areas. The number of commercial television networks is fixed at three by federal government decision.

The ABC and SBS, designated as national services, also provide television and radio. In the mainland state capital cities, and other areas where digital radio has been deployed, the national and commercial broadcasters with analogue radio services are also able to provide digital services. The number of community television broadcasters is limited to one, and the number of community radio broadcasters is limited by spectrum.

The reach of a licensee is limited in three ways. The first relates only to commercial television, and requires that no person may control licensees that serve more than 75 per cent of the population of Australia. The effect of this is that the commercial networks provide services to a significant proportion of the population and then use regional affiliates to reach the balance. In 2013, a Parliamentary Committee recommended that this ‘reach rule’ be removed. The second and third limitations are interrelated. The power, location and antenna type associated with a broadcaster’s transmitter determine the technical limitations of coverage. As a practical matter, the ACMA-determined licence areas are designed with these technical limitations in mind. When services are delivered outside of the licence area, this is usually referred to a fortuitous reception.

Since amendments to the regulatory framework in 2006, Australia has not had foreign ownership restrictions as part of its regulatory framework. The broadcasting sector is considered ‘sensitive’, and foreign acquisitions of broadcasting licensees are subject to recommendations of the Foreign Investment Review Board.

There are two limits to cross-media control. The first allows cross-media transactions such as takeovers to proceed, subject to a minimum number of commercial media groups remaining in the relevant market. The minimum number is five in mainland state capitals and four in regional markets. As a result, the restriction has been called the four/five rule. In addition, there is a restriction known as the ‘two out of three’ rule, which applies in radio licence areas. This prevents anyone from owning more than two out of: a commercial television licensee; a commercial radio licensee; or a newspaper in a radio licence area. These limitations do not take into account other media such as subscription television or internet-based services. Despite these limitations, the Australia media sector is regarded as highly concentrated compared with comparable liberal democracies. This limitation of the current regime was a significant driver behind the recommendations of the Convergence Review that were made in April 2012. The Labor government did not adopt these recommendations in its March 2013 response.

There are separate Australian content requirements for commercial television and commercial radio. In the case of television, the requirements are set out in the Australian Content Standard and the Australian Content in Advertising Standard, both of which are made by the ACMA.

In the case of radio, the requirement for new Australian music is determined by the genre of the radio channel and ranges between 5 and 25 per cent. This requirement is set out in the ACMA-approved Code of Practice 4, entitled ‘Australian Music’ and made by Commercial Radio Australia. Pay television has an obligation to spend 10 per cent of its drama production costs on Australian drama.

The final area of regulation, that of censorship, is regulated by Codes of Practice adopted by commercial and subscription broadcasters, and approved by the ACMA. The classification of programming in these codes is sometimes different from that used by Australian classification. However, a review by the Australian Law Review Commission tabled in Parliament in March 2012 recommended harmonisation of the diverse classification schemes used in Australia. If these recommendations are accepted, a single round of classification will cover both theatrical release and broadcast. Despite the enforcement of the codes by the ACMA, there are regular breaches in commercial radio by talkback and breakfast presenters.

REFs: ALRC, Classification—Content Regulation and Convergent Media (2012); Convergence Review: Final Report (2012).

ROB NICHOLLS