Broadcasting Regulation - an overview Marcus Bezzi
- an overview
General Manager Legal
4 September 2006
Regulation of broadcasting by ACMA
• planning and licensing of broadcasting services
(including introduction of datacasting and digital
• limits on ownership and control of broadcasting and
• requirements for investment by the pay TV industry
in Australian content;
• content of broadcasting services and certain internet
and telephone content.
Sources of regulation
Key legislation under which ACMA regulates
•Broadcasting Services Act 1992;
•Radiocommunications Act 1992;
•Radio Licence Fees Act 1964;
•Television Licence Fees Act 1964.
Sources of regulation…
Key legislation under which ACMA regulates some
internet and telephone content:
•Broadcasting Services Act 1992 (schedule 5);
•Interactive Gambling Act 2001;
•Telecommunications Act 1997;
•Telecommunications (Consumer Protection and
Service Standards) Act 1999.
Other sources of regulation…
• National broadcasters-
– Australian Broadcasting Corporation Act 1983
– Special Broadcasting Services Act 1991
– Only limited regulation by ACMA under the BSA.
• ACMA must consider other State and Federal laws
concerning content, e.g.-
– Classification (Publications, Films and Computer Games)
Act 1995 ( classification administered by OFLC)
– State Acts prohibiting or regulating certain content.
Broadcasting Services Act (“BSA”)
• “Broadcasting service” -
means delivery of television programs or radio programs to
persons having equipment appropriate for receiving that
service, whether the delivery uses the radiofrequency
spectrum, cable, optical fibre, satellite or any other means or a
combination of those means, but does not include:
(a) a service (including a teletext service) that provides no more than data,
or no more than text (with or without associated still images); or
(b) a service that makes programs available on demand on a point-to-point
basis, including a dial-up service; or
(c) a service… that the Minister determines… not to fall within this
definition, eg most forms of IPTV - TV or radio programs delivered
over the internet (without the use of broadcasting services band
BSA – regulatory policy
• Different levels of regulatory control apply according to the
degree of influence that different types of broadcasting,
datacasting and internet services have in shaping community
• Address public interests without imposing unnecessary
financial or administrative burdens on service providers.
• Accommodate technological change and encourage
development and provision of services made possible by new
• Broadcasting Services Band Spectrum is more regulated
because it is a relatively scarce public resource
BSA - planning
• Broadcasting is generally restricted to part of the
spectrum (broadcasting services bands) set aside for
• ACMA regulates use of the spectrum for
broadcasting purposes by
– planning the number, types and technical characteristics of
broadcasting services to be available in particular areas
(“licence areas”) through a public process; and
– allocating and renewing broadcasting licences.
Licensing – types of services
• National broadcasters (not licensed under BSA);
• Commercial broadcasting services (individual licences);
• Community broadcasting services (individual licences, but no
fee for access to spectrum);
• Subscription television broadcasting (individual licences);
• Subscription broadcasting (other than TV) and subscription
narrowcasting services (class licence);
• Open narrowcasting (class licence);
• International broadcasting services (individual licence);
• Datacasting services (individual licence).
Licensing - conditions
• All licences are subject to the standard licence conditions
applicable to the licence type;
• ACMA may impose additional conditions upon individual
• ACMA may impose additional conditions on a whole class of
• Transmitter licences under the Radiocommunications Act are
• ACMA may investigate complaints about breaches of licence
• It is an offence to breach certain licence conditions, other
sanctions include rectification notices, suspension and
cancellation of licences.
BSA – ownership and control
These rules limit:
• the number of commercial TV broadcasting licences a person can control
within a licence area and across combined licence areas;
• the number of commercial radio broadcasting licences a person can control
in a licence area;
• control by a person or through a company directorship of both a
commercial TV broadcasting licence and a datacasting transmitter licence;
• the number of directorships of companies controlling commercial TV or
radio broadcasting licences that a person can hold;
• foreign ownership and foreign directorship of commercial TV licences;
• ownership, control or directorships of companies that control various
combinations of commercial TV and radio broadcasting licences and
newspapers with 50% or more circulation in a licence area.
BSA ownership and control
• ACMA may approve temporary breaches of the
ownership and control rules for specified periods.
• It is an offence to breach the ownership and control
rules without prior approval.
• ACMA may issue a notice requiring that action be
taken to end a breach of the ownership and control
rules and it is an offence not to comply with such a
Content – TV
Content is regulated by:
• standard licence conditions on a licence type;
• additional conditions on an individual licence;
• standards made by ACMA applying to children’s TV
and Australian content on TV or to a section of the
• codes of practice developed by sections of the
broadcasting industry and registered by ACMA.
Content – TV and Radio…
• The BSA prescribes the matters that codes of practice
should address but an industry group may decide how
to address those matters.
• If a person is not satisfied by a broadcaster's response
to a complaint about compliance with a code, they
may complain to ACMA.
• ACMA may investigate complaints about compliance
with licence conditions and codes and publish its
Content – TV and Radio…
• ACMA’s response to a breach will depend on
whether the breach was of a code or a standard and
the type of licensee involved.
• Sanctions may include, making recommendations in
the case of national broadcasters; or seeking
undertakings, imposing additional licence conditions,
suspending or cancelling licences in the case of
Content - internet
• ACMA regulates offensive internet content under schedule 5
to the BSA and prohibited interactive gambling content under
the Interactive Gambling Act.
• ACMA can issue notices to internet content hosts requiring
them to take down the content and require internet service
providers to offer content filters which prevent access to such
content to their customers.
• ACMA is involved in educational strategies aimed at safe use
of the internet and an internet industry code of practice was
registered this year.
What To Do (And Not To Do) To Be Cybersmart
Ask your parents or carer before you give anyone on the internet your name or
address, your 'phone number or any other personal details. This includes the name
of your school, your photo or any personal information about your friends or family.
Meeting people online might be fun, but remember the people you meet online may
not be who they say they are. Someone claiming to be a 12 year - old girl may be a
40 year-old man.
If you want to meet someone you have so far only met online, ask a parent or
another adult to go with you and always meet in a popular public place, preferably
during the day.
Keep your password a secret, never give it to anyone (even your best friend).
If someone writes something rude or something that makes you feel uncomfortable
in chat or email, leave the chatroom and don't respond to the email.
Tell your parent or another adult you trust if you see upsetting language, nasty
pictures or something scary on the internet.
Always ask a parent or adult before you fill out any forms, or give out money or
credit card details.
Don't accept any offers that seem too good to be true - they probably are.
Many decisions made by ACMA are subject to:
• internal review;
• merits review by the Administrative Appeals Tribunal;
• judicial review by the Federal Court on a question of law – e.g.
denial of natural justice, jurisdictional error, ultra vires;
• A person whose rights are affected by a decision may also
seek reasons for that decision (ADJR Act).
• The Freedom of Information Act provides for access to agency
• Most subordinate legislation made by ACMA is subject to
public consultation and parliamentary scrutiny.