The ACMA intends to publish guidelines on the types of services that may be provided as narrowcasting television services under the Broadcasting Services Act 1992 (BSA). These guidelines will set out the ACMA’s approach to certain matters it must consider when deciding which category a broadcasting service falls into and, ultimately, encourage industry to seek formal opinions from the ACMA on the categories of new services. The guidelines will assist parties who are contemplating providing narrowcasting television services on the proposed new Channel A or Channel B.
Categories of broadcasting services are defined in the BSA. Subscription narrowcasting and open narrowcasting services are defined in sections 17 and 18.
Under section 21 of the BSA, a person may apply to the ACMA for an opinion about the category a service falls in to. The ACMA must consider certain matters set out in section 22 of the BSA when providing such an opinion.
The provision of broadcasting services on Channel A and Channel B is authorised by datacasting transmitter licences issued under the Radiocommunications Act 1992 (RA). Section 109A of the RA prohibits the provision of certain types of services on those channels but permits narrowcasting services on both channels.
Date of effect
The ACMA intends to publish the guidelines in April 2007.
The narrowcasting television service guidelines are intended to set out the factors the ACMA will consider when giving an opinion about the category into which a broadcasting service falls.
The guidelines will help to inform:
- industry about the regulation of proposed services, and
- the ACMA’s consideration of applications for a section 21 opinion.
While providing useful direction, the guidelines will not pre-empt any opinion that the ACMA may provide on an application. This is because the ACMA’s section 21 opinions will depend on a detailed assessment of any proposed service against the matters set out in section 22 of the BSA.
A prospective provider of a narrowcasting television service should apply to the ACMA as soon as possible for a section 21 opinion on the category into which the service will fall.
Information about applying for an opinion is on the ACMA’s website at www.acma.gov.au
Section 21 of the BSA establishes a timeframe that encourages ACMA to provide an opinion within 45 days of receiving an application.
The guidelines are under development. A consultation draft was published on the ACMA’s website on 15 February 2007, with submisisons due to the ACMA by 9 March 2007.
Next steps and expected timing
- December 2006 to January 2007 – drafting of guidelines.
- February to March 2007 – consultation on draft guidelines.
- April 2007 – publication of guidelines.
Important dates for industry
- 15 February 2007 – draft guidelines published for consultation.
- 9 March 2007 – submissions due to the ACMA.
- April 2007 – guidelines finalised and published.
Legal obligations on industry
Providers of broadcasting services must ensure that they hold appropriate transmitter and broadcasting service licences.
There are legal penalties for providing broadcasting services without a licence, including those in Part 10 of the BSA and Part 3.1 of the RA).
Under the BSA, subscription narrowcasting and open narrowcasting services are provided under class licences, meaning that individual licences for the services are not required. However, the operators of such services must ensure that their services meet the legislative criteria for narrowcasting services and that their services comply with the conditions of the class licences.
To help ensure compliance with the licensing requirements of the BSA, prospective narrowcasting service providers should apply to the ACMA for an opinion about the category a proposed service falls in to. Such applications can be made at any time, though prospective providers of open narrowcasting television services are encouraged to apply to the ACMA for an opinion as soon as possible.
Consequences of failing to comply with obligations
While narrowcasting services are authorised by class licences and individual broadcasting service licences are not required, providers of subscription narrowcasting and open narrowcasting services must ensure that their services meet the legislative requirements a for those service categories. The BSA contains legal penalties for providing a broadcasting service without the appropriate licence for that category of broadcasting service (see Part 10 of the BSA).
The RA prohibits the provision of certain types of services on Channel A and Channel B (see section 109A). Providing a service in a category other than what is permitted for Channel A and B may amount to a breach of the RA (see section 113 of the RA).
For further information, go to www.acma.gov.au/mediareform.
Tel: (02) 9334 7856
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This publication is a general outline only. It is not legal advice. You should seek professional advice before taking any action based on its contents.