D1 1535 nick abrahams

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D1 1535 nick abrahams

  1. 1. TELECOMMUNICATIONS, MEDIA AND TECHNOLOGYThe Impact of the Convergence Review Nick Abrahams Partner nick.abrahams@nortonrose.com October 201214458949 1
  2. 2. Overview of this Seminar • Context to the Convergence Review • Overview of the Final Report and its recommendations • Media ownership reforms14458949 2
  3. 3. Context to the Convergence Review14458949 3
  4. 4. Impact of convergence on regulation• Conflation of platforms, challenging traditional business models. Volume and variety of content has exponentially increased. Business models have rapidly evolved.• Convergence has caused market entry, plus existing players offering new services over new platforms.• Regulatory structures have not kept pace with these changes, creating a regulatory mismatch. 14458949 4
  5. 5. Review by the Convergence Committee Draft Terms of Terms of International precedent Reference released Reference and experiences 14 December 2010 Background Paper Glen Malcolm Louise 340 public submissions Boreham Long McElvogue and 8 public hearings Framing (Chairman) Paper Emerging ACMA ‘Broken Concepts’ & Documents available at: Issues Paper ‘Enduring Concepts’ Reports http://www.dbcde.gov.au/digital_ec onomy/convergence_review#qanda Detailed Diversity & Licensing, Discussion Market Layering & Review of Schedule 7 of Papers Structure Regulation Broadcasting Services Act Spectrum Australian Community Allocation & and Local Standards Management Content ALRC review of copyright ALRC review of National in the digital environment Classification System Interim Report Government response as nextIndependent Media Inquiry Final Report of step in process Final (Finkelstein Report) Committee released 14458949 Report 30 April 2012 5
  6. 6. Overview of the Final Report and its recommendations14458949 6
  7. 7. Structure of report and general approach Need for a new Key guiding principles: Policy objectives approach 1. Deregulation, guided by cost-benefit 2. Long-term view Content-related 3. Principles-based policy framework Competition Media framework ownership competition 4. Consistent regulatory standards issues Content Australian Australian Local content Public and Content standards content on content on on television community regulation screen radio and radio broadcasting Spectrum Spectrum allocation and regulation management Review proposes two new regulatory agencies: • New ‘Communications Regulator’ to replace ACMA ImplementingImplementation the new • News Standards Body replaces Australian Press Council approach 14458949 7
  8. 8. PolicyNew Communications Regulator objectivesNew Communications Regulator (NCR) established ‘as soon as possible’:• NCR would replace ACMA. Phased handover of functions from NCR to ACMA.• Regulates media mergers, sets content rules and standards, but would not regulate news and commentary (except serious breaches of industry code) Australian Communications & Media Authority• Independent statutory corporation with Board (as with ACMA) that adopts a ‘company model’: part-time chair, deputy, non-exec & exec directors. Chris Chapman is chairman 8 Board members meeting• Cross-appointments between ACCC and new CR would continue. twice a month Rod Sims (ACCC) is cross-• Intended to have a high degree of political independence Ministerial directives appointed to Board subject to Parliamentary scrutiny (as with ACCC). ACMA has 620 staffWhy not simply rebadge ACMA (with more powers and a wider mandate)? Offices located in Canberra, Melbourne, Sydney• Possibly (?), NCR intended to be new body that has its own distinct culture. Six key structural divisions: - Digital transition - Comms infrastructure• Arguably (?), changes do not involve simple transfer of functions, but creation of - Digital economy - Content & consumer new functions and powers within new regulatory framework. - Corporate services - Legal servicesWe assume that the NCR would inherit ACMA staff and assets. 14458949 8
  9. 9. Policy Need for a new approach objectivesOLD MODEL Print Broadcast Internet TelecomsContent The philosophy driving theApplication reforms – ensure a consistent approach to regulation across eachLogical horizontal layer of the value chainPhysical Current model: Disjointed NEW MODEL Print Broadcast Internet Telecoms regulatory structure involving vertical silos and some gaps Content Content services Application Application services (software) Logical Carriage services New model: Horizontal regulatory structure with harmonised 14458949 Physical Infrastructure services 9 regulation at each layer
  10. 10. PolicyNeed for a new approach objectives Key recommendations: • New policy framework should adopt technology-neutral approach. • No licensing for the supply of content or communications, except where necessary to manage finite resources (e.g.. radiofrequency spectrum). • Accordingly, broadcasting licences would no longer be required. • Regulation should apply to ‘large enterprises that provide professional content services to significant numbers of Australians’: New concept of • must control the professional content they deliver “Content Service Enterprise” (CSE) • must meet a specified Australian user threshold • must meet a revenue threshold based on revenue derived from Significant practical supplying that professional content to those Australians issues how these definitions will apply • Substantive thresholds to be subject to periodic review by regulator with a view to regulating only the most substantial and influential entities. Thresholds not set in report, only some indication given as to level… 14458949 10
  11. 11. PolicyNeed for a new approach objectivesApplication of indicative thresholds 1. Australian users exceed 50,000 per monthwill likely catch 15 entities as 2. $50 million pa of Australian-sourced professional‘Content Service Enterprises’ content revenue (excluding user-generated content) Entities caught by new definition, hence subject to new CSE regulation Entities not caught by new definition 14458949 11
  12. 12. ContentContent standards regulation Ray FinkelsteinRecommendations from Finkelstein’s Independent Media Inquiry: QC• Self-regulatory approaches to industry regulation have not been successful in achieving the necessary level of accountability of Australian media. ‘News Standards Body’• Government should intervene to regulate journalistic standards by creating new statutory body, the ‘News Media Council’ (NMC) Replaces Australian Press Council• NMC would set journalistic standards, handle complaints, and take enforcement Membership is mandatory for Content Service Enterprises action in relation to print, online, radio and television. Membership is voluntary, but ‘encouraged’, for othersConvergence Report accepted part (but not all) of these recommendations: Enforces Media Code providing:• News content should be regulated similarly, irrespective of delivery platform. - fairness - accuracy• Current system for regulating news media is not effective. - transparency in professional news/commentary.• A self-regulatory structure should be adopted by the industry on a platform-neutral Funded primarily by members. basis in the form of a ‘News Standards Body’. Government funds any shortfall.• The ‘News Standards Body’ would replace the Australian Press Council. Credible sanctions for breaches.• After a period of time, the Government will again assess whether the self- regulatory approach is working. ABC and SBS not members (as regulated directly by Acts)• Appointing an independent government body to oversee the media is a ‘measure Phased implementation. of last resort’ if the self-regulatory approach is found not to work. 14458949 12
  13. 13. SpectrumSpectrum allocation & management regulation Historically, broadcasting spectrum treated differently to other spectrum: • Minister has designated some spectrum as broadcasting spectrum. • ‘Beauty contest’ allocation for TV. Financial selection for commercial FM radio. • Entitlement to use broadcasting spectrum linked to broadcasting licence. • Use of apparatus licensed-transmitters based on fixed fee 5 year licence. • Moratorium on fourth commercial television network. • Annual licence fees as percentage of gross earnings (up to 9% TV, 3.25% radio). Convergence Review recommends a common approach to all spectrum : • Spectrum licence for 15 year term, not linked to apparatus or any other licences. • Market-based price allocation, usually by auction. Licence can be traded/leased. • Minister would have powers to reserve spectrum to achieve policy objectives (such as public and community broadcasting). • Spectrum planning process should be required to take into account public interest considerations, including recognition of social and cultural diversity. 14458949 13
  14. 14. ImplementationImplementing the new approach3 stage approach… 1. Establish Communications Regulator Stage 1 2. Update ABC and SBS charters Stand-alone priority changes to 3. Rationalise local content rules policies, programs and legislation 4. Media ownership regulation reforms 5. Establish ‘News Standards Body’ Stage 2 1. Repeal Broadcasting Services Act 2. Enact content regulation legislation New content services legislation to replace Broadcasting Services Act 3. Migrate ACMA functions to new regulator 4. Abolish ACMA 5. Allocate new spectrum licences Stage 3 1. Repeal Telecommunications Act 2. Repeal Radiocommunications Act Reform of communications legislation to ensure technological 3. Repeal content regulation legislation neutrality 4. Repeal associated regulatory instruments 5. Enact integrated Communications Act 14458949 14
  15. 15. Government response • So far, nothing formal. Reforms being prepared but not finalised and not yet listed for cabinet submission. However The Australian on 8 October had this to say • Some Ministers want stronger regs to curb influence of media (esp newspapers) & others want to go more lightly. PM wants strong cabinet endorsement. Possibly by year end. • No government-funded media super regulator (Finkelstein) but rather beef up the Australian Press Council to monitor higher standards. APC has recently had more funding from media companies (except WAN) and Ninemsn & Crikey have joined. • Licence fee rebates for FTA become permanent ($200M pa) provided invested in Aust content. In return new local content requirements for digital channels. • AG Roxon working on a tort of privacy where courts could rule on a breach of privacy by media. Plus new privacy laws. 14458949 15
  16. 16. Media ownership reforms14458949 16
  17. 17. Current media ownership rules The current media ownership rules aim for diversity and include numeric rules related to radio licence areas such as: • “4/5” rule (minimum number of voices) – no less than five independent and separately controlled media operators or groups in a metropolitan commercial radio licence area, and no less than four in a regional area • “2 out of 3” rule – cannot control more than two out of three specified media platforms (commercial TV, radio or an associated newspaper) in a commercial radio licence area • “One-to-a-market” rule – cannot control more than one commercial TV broadcasting licence in a licence area, with limited statutory exceptions • “Two-to-a-market” rule – cannot control more than two commercial radio broadcasting licences in the same licence area, with limited statutory exceptions • “75% audience reach” rule – cannot control commercial TV broadcasting licences if the combined licence area exceeds 75% of the Australian population 14458949 17
  18. 18. Recommendation to abolishownership rules • No review of impact of mergers at national level • Subscription TV not relevant to diversity • 75% reach rule somewhat limited as regional TV affiliates often carry exactly same programming as metro broadcasters • National newspapers are not considered 14458949 18
  19. 19. Recommendation to abolishownership rules • Drop radio licence area concept & move to local areas (determined by regulator) • Regulate based on influence not platform – so newspapers, subscription TV & internet content providers are covered • Have a minimum number of media groups (determined by regulator) per local area – probably keep 4/5 rule but regulator can allow mergers that breach the test if “public benefit” • Large scale mergers assessed on a “public interest” test basis • Drop 75%, 2 out of 3, 1 to a market (TV) & 2 to a market (radio) • The onus to show that the outcome of a proposed deal is not in the public interest should be on the regulator 14458949 19
  20. 20. Government response • So far, nothing formal. Reforms being prepared but not finalised and not yet listed for cabinet submission. However The Australian on 8 October had this to say • Drop 4/5 voices and work with the CR’s proposed “minimum number of owners” rule. • Plus amend 2 out of 3 to include pay. Therefore can’t own newspaper, radio and FTA or Foxtel (note News is moving from 25% of Foxtel to 50% thru the takeover of Consolidated Media – not final). • Determine M&A based on “public interest test” – as per CR. Look at competition, diversity and likely influence of media organisation – with ACCC as adjudicator 14458949 20
  21. 21. Summary of key take away points14458949 21
  22. 22. Key points (report) 1. New convergent approach to broadcasting, media and content regulation. 2. Broadcasting licences replaced by wider generic concept of ‘Content Service Enterprise’ that is defined based on a user and revenue threshold. 3. Establishment of a new Communications Regulator to replace ACMA, with broad powers and functions, including concurrent jurisdiction with the ACCC. 4. Media ownership reforms. 5. Updating of National Classification Scheme. 6. Creation of ‘News Standards Body’ to replace News Media Council, coupled with threat to create a statutory body if industry self-regulation does not work. 7. Replacement of Australian screen content quotas with Uniform Content Scheme requiring financial contributions by Content Service Enterprises to local content. 8. Update of Australian radio content quotas, local content quotas and ABC/SBS charters. 9. Replacement of broadcasting apparatus licensing with 15 year spectrum licensing. 10. This government will implement something. 14458949 22
  23. 23. TELECOMMUNICATIONS, MEDIA AND TECHNOLOGYThe Impact of the Convergence Review Nick Abrahams Partner nick.abrahams@nortonrose.com October 201214458949 23

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