Commonwealth Consolidated Acts Commonwealth Consolidated ActsBroadcasting Services Act 1992
1A Subsection 6(1)
Insert:
"channel B datacasting transmitter licence" has the same meaning as in the Radiocommunications Act 1992 , and includes an authorisation under section 114 of that Act by the licensee of such a licence.
1 Subsection 6(1) (definition of commercial television broadcasting licence )
Repeal the definition, substitute:
"commercial television broadcasting licence" means a licence under Part 4 to provide:
(a) in the case of a licence allocated under subsection 40(1)--a commercial television broadcasting service; and
(b) in any other case--the commercial television broadcasting services that, under section 41A, are authorised by the licence.
2 Subsection 6(1)
Insert:
"commercial television broadcasting service" means a commercial broadcasting service that provides television programs.
3 Subsection 6(1)
Insert:
"core commercial television broadcasting service" , in relation to a commercial television broadcasting licence, has the meaning given by whichever of paragraph 41A(1)(b) or (2)(a) is applicable.
3A Subsection 6(1)
Insert:
"domestic digital television receiver" has the same meaning as in the Radiocommunications Act 1992 .
4 Subsection 6(1)
Insert:
"earliest digital television switch-over day" means the earliest day on which a simulcast period (within the meaning of Schedule 4) ends.
5 After subsection 18(1)
Insert:
(1A) A HDTV multi - channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1B) A HDTV multi - channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
6 At the end of section 26
Add:
(3) If:
(a) a review is conducted under section 35A; and
(b) after the completion of the report of the review, the Minister is satisfied that a licence area plan should be varied in accordance with the recommendations in the report;
the Minister may give the ACMA a written direction requiring the ACMA to vary the licence area plan as specified in the direction.
(4) Subsection (3) does not limit subsection (2).
(5) The ACMA must comply with a direction under subsection (3).
(6) Sections 23 and 27 do not apply in relation to anything done by the ACMA in compliance with a direction under subsection (3).
6A After section 26
Insert:
26A Licence area plans--multi - channelled commercial television broadcasting services
(1) If:
(a) a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and
(b) the licence authorises the licensee to provide a HDTV multi - channelled commercial television broadcasting service in the licence area;
the relevant licence area plan is not required to deal with the HDTV multi - channelled commercial television broadcasting service.
(2) Subsection (1) ceases to have effect at the end of the simulcast period, or the simulcast - equivalent period, for the licence area concerned.
(3) In this section:
"HDTV multi-channelled commercial television broadcasting service" has the same meaning as in Schedule 4.
"simulcast-equivalent period" has the same meaning as in Schedule 4.
"simulcast period" has the same meaning as in Schedule 4.
6B After subsection 26B(1)
Insert:
(1A) Licence area plans are not required to deal with HDTV multi - channelled national television broadcasting services.
6C Subsection 26B(2)
Omit "Subsection (1) ceases", substitute "Subsections (1) and (1A) cease".
6D Subsection 26B(3)
Insert:
"HDTV multi-channelled national" television broadcasting service has the same meaning as in Schedule 4.
7 Sections 28 and 28A
Repeal the sections.
8 Before section 36
Insert:
35A Reviews about the allocation of new commercial television broadcasting licences
Initial review
(1) Before the earliest digital television switch - over day, the Minister must cause to be conducted a review of:
(a) whether one or more commercial television broadcasting licences that are broadcasting services bands licences should be allocated under section 36 for a particular area or areas of Australia; and
(b) if so, what variations (if any) should be made to any licence area plans in force under section 26.
Subsequent reviews
(2) The Minister may cause to be conducted a review of:
(a) whether one or more commercial television broadcasting licences that are broadcasting services bands licences should be allocated under section 36 for a particular area or areas of Australia; and
(b) if so, what variations (if any) should be made to any licence area plans in force under section 26.
(3) Subsection (2) does not authorise the conduct of a review before the completion of the report of a review conducted under subsection (1).
Conduct of a review
(4) The following matters must be taken into account in conducting a review under subsection (1) or (2):
(a) the objects of this Act;
(b) the matters referred to in paragraphs 23(a) to (f) in so far as they are relevant;
(c) the availability of radiofrequency spectrum;
(d) any other relevant matters.
(5) A review under subsection (1) or (2) must be conducted in a manner that provides for wide public consultation.
(6) The ACMA must make available such information as is reasonably necessary for the conduct of a review under subsection (1) or (2).
Report of a review
(7) The Minister must cause to be prepared a report of a review under subsection (1) or (2).
(8) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.
35B Allocation of new commercial television broadcasting licences
(1) If:
(a) a review is conducted under section 35A; and
(b) after the completion of the report of the review, the Minister is satisfied that a commercial television broadcasting licence should be allocated under section 36 for a particular area of Australia;
the Minister may, within 3 years after the completion of the report of the review, give the ACMA a written direction requiring the ACMA to allocate the licence under section 36 within a specified period.
(2) The ACMA must comply with a direction under subsection (1).
(3) The ACMA must not allocate a licence under section 36 unless the ACMA is directed to do so under subsection (1) of this section.
(4) If:
(a) a direction is given under subsection (1); and
(b) as a result, the ACMA allocates a commercial television broadcasting licence under section 36;
the licence is subject to the condition that the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4).
9 Subsection 36(1)
Repeal the subsection, substitute:
(1) The ACMA is to determine in writing a price - based system for allocating:
(a) commercial television broadcasting licences that are broadcasting services bands licences; and
(b) commercial radio broadcasting licences that are broadcasting services bands licences.
9A Subsection 38A(9)
Omit "services under", substitute "at least one service under each of".
10 Paragraph 38B(18)(a)
Omit "the commercial television broadcasting service concerned", substitute "commercial television broadcasting services".
11 Paragraphs 38B(18)(b) and (c)
Omit "the commercial television broadcasting service concerned", substitute "at least one commercial television broadcasting service".
12 Subsections 38B(20) and (21)
Omit all the words after "provide", substitute "at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence".
13 After subsection 40(1)
Insert:
(1A) Licences under subsection (1) are to be allocated on the basis of one licence per service.
14 Subsection 40(2)
Omit "or paragraph 36(1)(b)".
15 At the end of section 40
Add:
Referral of application to the Minister
(5) Before allocating a commercial television broadcasting licence under subsection (1), the ACMA must refer the application to the Minister.
(6) If an application for a commercial television broadcasting licence is referred to the Minister under subsection (5), the ACMA must not make a decision about the application until the Minister:
(a) gives a direction under subsection (7) in relation to the application; or
(b) gives a notice under subsection (9) in relation to the application.
(7) If:
(a) an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and
(b) the Minister is of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;
the Minister must, by written notice given to the ACMA, direct the ACMA not to allocate the licence to the applicant.
(8) The ACMA must comply with a direction under subsection (7).
(9) If:
(a) an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and
(b) the Minister is not of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;
the Minister must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of the licence to the applicant.
Minister may request additional information
(10) If an application is referred to the Minister under subsection (5), and the Minister considers that additional information is required before the Minister can decide whether to:
(a) give a direction under subsection (7) in relation to the application; or
(b) give a notice under subsection (9) in relation to the application;
the Minister may, by written notice given to the applicant within 30 days after the day on which the application is referred to the Minister, request the applicant to provide that information.
(11) If the Minister requests additional information under subsection (10), the Minister must give the ACMA a copy of the request.
Decision to be made within 60 days
(12) If the Minister does not, within 60 days after the day on which:
(a) an application is referred to the Minister under subsection (5); or
(b) if the Minister requests additional information under subsection (10)--that additional information is received;
do either of the following:
(c) give a direction under subsection (7) in relation to the application;
(d) give a notice under subsection (9) in relation to the application;
then the Minister is taken to have given a notice under subsection (9) in relation to the application.
Licence condition
(13) If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).
16 After section 41
Insert:
41A Services authorised by commercial television broadcasting licences before 1 January 2009
Licences in force immediately before 1 January 2007
(1) If:
(a) a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and
(b) the licence authorised the licensee to provide a commercial television broadcasting service (the core commercial television broadcasting service ) in the licence area;
the licence is taken to authorise the licensee to provide the following 2 services in the licence area:
(c) the core commercial television broadcasting service;
(d) a HDTV multi - channelled commercial television broadcasting service;
during the period ending immediately before 1 January 2009.
Licences allocated on or after 1 January 2007
(2) If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2007 but before 1 January 2009, the licence authorises the licensee to provide the following 2 services in the licence area:
(a) a commercial television broadcasting service (the core commercial television broadcasting service ) transmitted in SDTV digital mode;
(b) a HDTV multi - channelled commercial television broadcasting service;
during the period ending immediately before 1 January 2009.
Licences allocated under subsection 40(1)
(3) This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).
Definitions
(4) In this section:
"HDTV multi-channelled commercial television broadcasting service" has the same meaning as in Schedule 4.
"SDTV digital mode" has the same meaning as in Schedule 4.
16A After section 51
Insert:
51A This Part does not apply to certain channel B datacasting transmitter licences
This Part does not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.
17 At the end of section 122
Add:
(7) If:
(a) there is a simulcast period , or a simulcast - equivalent period, for the licence area of a commercial television broadcasting licence; and
(b) during that period, the licensee provides a core commercial television broadcasting service in the licence area;
then, during that period, standards under subsection (1), in so far as they relate to programs for children, do not apply to a commercial television broadcasting service provided by the licensee unless that service is the core commercial television broadcasting service.
(8) If:
(a) there is a simulcast period , or a simulcast - equivalent period, for the licence area of a commercial television broadcasting licence; and
(b) during that period, the licensee provides a core commercial television broadcasting service in the licence area;
then, during that period, standards under subsection (1), in so far as they relate to Australian content of programs, do not apply to a commercial television broadcasting service provided by the licensee unless that service is the core commercial television broadcasting service.
(9) If a commercial television broadcasting licence is allocated under section 36 or subsection 40(1) on or after 1 January 2007, standards under subsection (1) do not apply to the licensee during the first 5 years of operation.
(10) In this section:
"simulcast period" has the same meaning as in Schedule 4.
18 At the end of section 123
Add:
(5) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each commercial television broadcasting service provided by a commercial television broadcasting licensee.
19 Section 146B (paragraph (a) of the definition of televise )
Omit "the licensee's commercial television broadcasting service", substitute "a commercial television broadcasting service provided by the licensee".
20 Section 204 (after table item dealing with subsection 40(1))
Insert:
Direction that a licence not be allocated under subsection 40(1) | Subsection 40(7) | The applicant |
21 Paragraph 205B(1)(a)
After "service", insert "or services".
22 Subparagraph 205B(1)(c)(i)
After "service", insert "or services".
23 Paragraph 205B(1)(d)
After "service", insert "or services".
23A After subsection 212(2A)
Insert:
(2B) The rule in subsection (2) does not prevent an action, suit or proceeding against a person under the Radiocommunications Act 1992 in relation to a breach of any of the conditions of a datacasting transmitter licence.
(2C) The Minister may give the ACMA a written direction about the exercise of the power conferred by subparagraph (1)(b)(ii).
24 Paragraph 212(3)(a)
Repeal the paragraph, substitute:
(a) a re - transmission by a commercial television broadcasting licensee of the programs transmitted by any of the licensee's commercial television broadcasting services; or
(aa) a re - transmission by a commercial radio broadcasting licensee of the programs transmitted by the licensee's commercial radio broadcasting service; or
25 Paragraph 7(1)(c) of Schedule 2
Before "the articles of association", insert "except in the case of a licence allocated under subsection 40(1)--".
26 Paragraph 7(1)(f) of Schedule 2
Omit "the broadcasting service", substitute "broadcasting services".
27 Paragraph 7(1)(h) of Schedule 2
Omit "the broadcasting service", substitute "broadcasting services".
28 Paragraph 7(1)(i) of Schedule 2
Omit "broadcasting services", substitute "at least one broadcasting service".
29 After paragraph 7(1)(m) of Schedule 2
Insert:
(ma) subject to subclauses (5) and (6), if there is a simulcast period for the licence area of the licence--the licensee will provide a HDTV multi - channelled commercial television broadcasting service during the simulcast period for the licence area;
(mb) subject to subclauses (5) and (7), if:
(i) there is a simulcast - equivalent period for the licence area of the licence; and
(ii) under the regulations, the licensee is required to provide a HDTV multi - channelled commercial television broadcasting service in the licence area during that period;
the licensee will comply with that requirement;
(mc) subject to subclauses (5), (6) and (7), if:
(i) the licence was allocated under section 38A or 38B; and
(ii) there is a simulcast - equivalent period for the licence area of the licence;
the licensee will provide a HDTV multi - channelled commercial television broadcasting service during the simulcast - equivalent period for the licence area;
30 Paragraph 7(1)(na) of Schedule 2
Omit "quotas".
31 After paragraph 7(1)(na) of Schedule 2
Insert:
(nb) if subclause 37E(1) of Schedule 4 (which deals with HDTV quotas) applies to the licensee--the licensee will comply with that subclause;
32 Paragraph 7(1)(o) of Schedule 2
Repeal the paragraph, substitute:
(o) if clause 38 of Schedule 4 (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee--the licensee will comply with that clause;
33 After paragraph 7(1)(oa) of Schedule 2
Insert:
(ob) if clause 41C of Schedule 4 (which imposes restrictions on the televising of anti - siphoning events) applies to the licensee--the licensee will comply with that clause;
34 Paragraph 7(2)(a) of Schedule 2
Before "the licensee will", insert "except in a case where the licence was allocated under subsection 40(1)-- " .
35 Paragraph 7(2)(a) of Schedule 2
After "service", insert "or services".
36 Paragraph 7(2)(c) of Schedule 2
Before "the licensee will", insert "except in a case where the licence was allocated under subsection 40(1)-- " .
37 Subparagraph 7(2A)(d)(i) of Schedule 2
After "service", insert "or services".
38 Subclauses 7(2B) and (2C) of Schedule 2
After "licence", insert "(other than a licence allocated under subsection 40(1))".
39 Subclause 7(3) of Schedule 2
Repeal the subclause.
40 At the end of clause 7 of Schedule 2
Add:
(5) Paragraphs (1)(ma) , (mb) and (mc) do not apply to a licence if a commercial television broadcasting service provided under the licence is transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8) of Schedule 4.
(6) Paragraph s (1)(ma) and (mc) do not apply to a licence if:
(a) the licensee provides a commercial television broadcasting service under the licence; and
(b) an election under subclause 6(5A) or (5AA) of Schedule 4 is in force for the service.
(7) Paragraphs (1)(mb) and (mc) do not apply to a licence if:
(a) the licensee provides an exempt remote area service under the licence; and
(b) an election under subclause 6(7B) of Schedule 4 is in force for the service.
(8) An expression used in:
(a) paragraph (1)(m), (ma), (mb) , (mc) or (p) or subclause (5), (6) or (7); and
(b) Schedule 4;
has the same meaning in that paragraph or subclause as it has in that Schedule.
41 Subparagraph 10(1)(e)(i) of Schedule 2
Omit "its broadcasting service", substitute "any of its broadcasting services".
42 Paragraph 10(1A) of Schedule 2
After "service", insert "or services".
43 Paragraphs 10(1B)(a) and (b) of Schedule 2
Omit "the licensee's commercial television broadcasting service", substitute "a commercial television broadcasting service provided by the licensee".
44 Clause 2 of Schedule 4
Insert:
"designated HDTV multi-channelled national television broadcasting service" has the meaning given by clause 5E.
45 Clause 2 of Schedule 4
Insert:
"HDTV multi-channelled commercial television broadcasting service" has the meaning given by clause 5B.
46 Clause 2 of Schedule 4
Insert:
"HDTV multi-channelled national television broadcasting service" has the meaning given by clause 5D.
47 Clause 2 of Schedule 4 (definition of simulcast - equivalent period )
Repeal the definition, substitute:
"simulcast-equivalent period" :
(a) in relation to a commercial television broadcasting service--has the meaning given by clause 4C; or
(b) in relation to a national television broadcasting service--has the meaning given by clause 4D.
48 After clause 4B of Schedule 4
Insert:
4C Simulcast - equivalent period for a licence area
If there is no simulcast period for a licence area of a commercial television broadcasting licence, the ACMA may, by legislative instrument, declare that a specified period is the simulcast - equivalent period for the licence area.
49 Before clause 5C of Schedule 4
Insert:
5B HDTV multi - channelled commercial television broadcasting service
For the purposes of this Schedule, a commercial television broadcasting service is a HDTV multi - channelled commercial television broadcasting service if:
(a) the service is provided by a commercial television broadcasting licensee; and
(b) the service is transmitted in HDTV digital mode using multi - channelling transmission capacity; and
(c) the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee.
50 At the end of Part 1 of Schedule 4
Add:
5D HDTV multi - channelled national television broadcasting service
For the purposes of this Schedule, a national television broadcasting service is a HDTV multi - channelled national television broadcasting service if:
(a) the service is provided by:
(i) the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983 ; or
(ii) the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991 ; and
(b) the service is transmitted in HDTV digital mode using multi - channelling transmission capacity; and
(c) the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned.
5E Designated HDTV multi - channelled national television broadcasting service
(1) For the purposes of this Schedule, a designated HDTV multi - channelled national television broadcasting service provided by a national broadcaster in a coverage area is:
(a) if the national broadcaster provides a single HDTV multi - channelled national television broadcasting service in the coverage area--that service; or
(b) subject to subclauses (2) and (3), if the national broadcaster provides 2 or more HDTV multi - channelled national television broadcasting services in the coverage area--each of those services.
(2) Paragraph (1)(b) does not apply to a HDTV multi - channelled national television broadcasting service provided by a national broadcaster in a coverage area if the national broadcaster gives the Minister a written notice electing that paragraph (1)(b) not apply to the service.
(3) A notice under subclause (2) has no effect if, as a result of the notice being given, paragraph (1)(b) would not apply to any of the HDTV multi - channelled national television broadcasting services provided by the national broadcaster in the coverage area.
50A After subclause 6(5B) of Schedule 4
Insert:
(5BA) An election made under subclause (5A) or (5AA) remains in force until:
(a) it is revoked, by written notice given to the ACMA, by:
(i) if neither of the licences referred to in whichever of paragraph (5A)(a) or (5AA)(a) is applicable has been transferred since the making of the election--the holder of the licence allocated under section 38A or 38B; or
(ii) if the licence allocated under section 38A or 38B has been transferred since the making of the election--the holder of that licence; or
(iii) if a parent licence referred to in whichever of section 38A or 38B is applicable has been transferred since the making of the election--the holder of that parent licence; and
(b) the ACMA approves the revocation under clause 7B.
50B Paragraph 6(7C)(b) of Schedule 4
Omit "in writing", substitute "under clause 7B".
50C Subclauses 6(7D) and (7E) of Schedule 4
Repeal the subclauses.
50D Subparagraph 6(7F)(b)(ii) of Schedule 4
Omit "the other", substitute "each other".
51 Before subclause 6(8) of Schedule 4
Insert:
HDTV multi - channelled commercial television broadcasting services
(7J) This clause does not apply to a HDTV multi - channelled commercial television broadcasting service.
Licences allocated under section 36 on or after 1 January 2007
(7K) This clause does not apply in relation to a commercial television broadcasting licence if the licence was allocated under section 36 on or after 1 January 2007.
Licences allocated under subsection 40(1) on or after 1 January 2007
(7L) This clause does not apply in relation to a commercial television broadcasting licence if the licence was allocated under subsection 40(1) on or after 1 January 2007.
51A After clause 7A of Schedule 4
Insert:
7B Revocation of multi - channelling election
Scope
(1) This clause applies if a commercial television broadcasting licensee gives the ACMA a notice of revocation under subclause 6(5BA) or (7C).
Approval of revocation
(2) If the ACMA is satisfied that there is sufficient radiofrequency spectrum available, the ACMA must, by notice in writing given to the licensee:
(a) approve the revocation; and
(b) specify a day as the day on which the revocation takes effect; and
(c) vary the relevant digital channel plan under the commercial television conversion scheme to allot a channel to the licensee.
(3) For the purposes of subclause (2), any part of the spectrum covered by a determination under subsection 34(3) is taken not to be available.
(4) The ACMA may, before the day specified under paragraph (2)(b), by notice in writing, vary the day on which the revocation takes effect.
Refusal to approve revocation
(5) If the ACMA refuses to approve the revocation, the ACMA must give written notice of the refusal to the licensee.
52 Paragraph 8(4)(b) of Schedule 4
Omit "the commercial television broadcasting service concerned", substitute "commercial television broadcasting services in accordance with the commercial television broadcasting licence".
53 Paragraph 8(7)(a) of Schedule 4
Repeal the paragraph, substitute:
(a) the holder contravenes:
(i) paragraph 7(1)(ma) of Schedule 2; or
(ii) a standard under subclause 37(1); or
(iii) a standard under subclause 37A(1); or
(iv) subclause 37E(1); or
(v) a standard under subclause 37E(3); and
Note: The heading to subclause 8(7) is altered by omitting " standards " and substituting " requirements ".
54 Paragraph 8(7)(b) of Schedule 4
Before "standard", insert "provision or".
55 Subclause 8(8) of Schedule 4
Omit "standard under subclause 37A(1) or 37E(1) or (3)", substitute "provision or standard mentioned in subparagraph (7)(a)(i), (iii), (iv) or (v)".
56 Paragraph 8(10)(b) of Schedule 4
Repeal the paragraph, substitute:
(b) paragraph 7(1)(mb) of Schedule 2; or
(c) a standard applicable to the holder under subclause 37B(1); or
(d) a standard applicable to the holder under subclause 37C(1); or
(e) a standard applicable to the holder under subclause 37G(1); or
(f) a standard applicable to the holder under subclause 37G(2).
57 Subclause 8(10A) of Schedule 4
Omit "a standard under subclause 37C(1) or 37G(1) or (2)", substitute "the provision mentioned in paragraph (10)(b) or a standard mentioned in paragraph (10)(d), (e) or (f)".
58 After subclause 9(1) of Schedule 4
Insert:
(1A) Subclause (1) does not apply to a HDTV multi - channelled commercial television broadcasting service.
(1B) Subclause (1) does not apply in relation to a commercial television broadcasting licence if the licence was allocated under section 36 on or after 1 January 2007.
(1C) Subclause (1) does not apply in relation to a commercial television broadcasting licence if the licence was allocated under subsection 40(1) on or after 1 January 2007.
59 After subclause 19(7B) of Schedule 4
Insert:
HDTV multi - channelled national television broadcasting services
(7C) This clause does not apply to a HDTV multi - channelled national television broadcasting service.
60 After subclause 20(1A) of Schedule 4
Insert:
HDTV multi - channelled national television broadcasting services
(1B) This clause does not apply to a HDTV multi - channelled national television broadcasting service.
61 Paragraph 23(7)(a) of Schedule 4
Repeal the paragraph, substitute:
(a) the national broadcaster contravenes:
(i) subclause 35AA(1); or
(ii) a standard under subclause 37(1); or
(iii) a standard under subclause 37A(1); or
(iv) subclause 37F(1); or
(v) a standard under subclause 37F(3); and
Note: The heading to subclause 23(7) is altered by omitting " standards " and substituting " requirements ".
62 Paragraph 23(7)(b) of Schedule 4
Omit "the standard", substitute "that provision or standard".
63 Subclause 23(8) of Schedule 4
Omit "standard under subclause 37A(1) or 37F(1) or (3)", substitute "provision or standard mentioned in subparagraph (7)(a)(i), (iii), (iv) or (v)".
64 Paragraph 23(10)(b) of Schedule 4
Repeal the paragraph, substitute:
(b) subclause 35AA(2); or
(c) a standard applicable to the national broadcaster under subclause 37B(1); or
(d) a standard applicable to the national broadcaster under subclause 37C(1); or
(e) a standard applicable to the national broadcaster under subclause 37H(1); or
(f) a standard applicable to the national broadcaster under subclause 37H(2).
65 Subclause 23(10A) of Schedule 4
Omit "a standard under subclause 37C(1) or 37H(1) or (2)", substitute "the provision mentioned in paragraph (10)(b) or a standard mentioned in paragraph (10)(d), (e) or (f)".
66 After clause 35 of Schedule 4
Insert:
(1) If there is a simulcast period for a coverage area, a national broadcaster must provide at least one HDTV multi - channelled national television broadcasting service in the coverage area during that period.
(2) If:
(a) there is a simulcast - equivalent period for a coverage area; and
(b) under the regulations, a national broadcaster is required to provide a HDTV multi - channelled national television broadcasting service in the coverage area during that period;
the national broadcaster must comply with that requirement.
67 Part 4 of Schedule 4 (heading)
Repeal the heading, substitute:
Part 4 -- Standards and HDTV quotas
68 Division 2 of Part 4 of Schedule 4 (heading)
Repeal the heading, substitute:
Division 2 -- HDTV quotas and standards
69 Before clause 37E of Schedule 4
Insert:
37DA This Division does not apply in relation to licences allocated under subsection 40(1)
This Division does not apply in relation to a commercial television broadcasting licence if the licence was allocated under subsection 40(1).
70 Subclauses 37E(1), (2), (2A) and (2B) of Schedule 4
Repeal the subclauses, substitute:
(1) During the HDTV quota period for a commercial television broadcasting licence, the licensee must transmit at least the HDTV quota of high - definition television programs in HDTV digital mode on the HDTV multi - channelled commercial television broadcasting service provided by the licensee in the licence area.
(2) For the purposes of subclause (1), the HDTV quota period for a commercial television broadcasting licence is the period:
(a) beginning:
(i) if the licence was in force immediately before 1 January 2007 and is not the licence with the service licence number SL1150827--at the start of 1 January 2007; or
(ii) if the licence is in force immediately before 1 January 2008 and the service licence number of the licence is SL1150827--at the start of 1 January 2008; or
(iii) in any other case--at the start of the first day after the end of the 2 - year period that begins when the licensee is required to commence transmitting a commercial television broadcasting service in the licence area concerned; and
(b) ending at the end of the simulcast period , or the simulcast - equivalent period, for the licence area concerned.
Note: The licence referred to in subparagraph (a)(ii) was allocated to Mildura Digital Television Pty Ltd for the Mildura/Sunraysia TV1 licence area.
(2A) For the purposes of subclause (1), the HDTV quota for a calendar year, or a part of a calendar year, included in the HDTV quota period is as follows:
(a) for a calendar year--1040 hours;
(b) for a part of a calendar year--1040 hours reduced on a pro - rata basis.
71 Subclause 37E(3) of Schedule 4
Omit "the HDTV version of the commercial television broadcasting service concerned", substitute "the HDTV multi - channelled commercial television broadcasting service provided by the licensee in the licence area".
72 Subclause 37E(4) of Schedule 4
Repeal the subclause, substitute:
Application
(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a HDTV multi - channelled commercial television broadcasting service in a licence area that is not a remote licence area, if the service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8).
(5) Subclauses (1), (2) and (3) do not apply to a commercial television broadcasting licence if an election under subclause 6(5A) or (5AA) is in force for a commercial television broadcasting service provided under the licence.
Note 1: For high - definition television program , see clause 37L.
Note 2: For prime viewing hours , see clause 37M.
73 Clause 37EA of Schedule 4
Repeal the clause.
74 Subclauses 37F(1), (2), (2A) and (2B) of Schedule 4
Repeal the subclauses, substitute:
(1) During the HDTV quota period for a national broadcaster, the national broadcaster must transmit at least the HDTV quota of high - definition television programs in HDTV digital mode on a designated HDTV multi - channelled national television broadcasting service provided by the broadcaster in the coverage area.
(2) For the purposes of subclause (1), the HDTV quota period for a national broadcaster is the period:
(a) beginning at the start of 1 January 2007; and
(b) ending after the end of the simulcast period , or the simulcast - equivalent period, for the coverage area concerned.
(2A) For the purposes of subclause (1), the HDTV quota for a calendar year, or a part of a calendar year, included in the HDTV quota period is as follows:
(a) for a calendar year--1040 hours;
(b) for a part of a calendar year--1040 hours reduced on a pro - rata basis.
75 Subclause 37F(3) of Schedule 4
Omit "the HDTV version of the national television broadcasting service concerned", substitute "a designated HDTV multi - channelled national television broadcasting service".
76 Subclause 37F(4) of Schedule 4
Repeal the subclause, substitute:
Application
(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a designated HDTV multi - channelled national television broadcasting service in a coverage area that is not a remote coverage area, if the service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(8).
Note 1: For high - definition television program , see clause 37L.
Note 2: For prime viewing hours , see clause 37M.
77 Clause 37FA of Schedule 4
Repeal the clause.
78 Subclauses 37G(1), (1A), (1B) and (1C) of Schedule 4
Repeal the subclauses, substitute:
(1) The regulations may determine standards that require each commercial television broadcasting licensee to meet specified quotas in relation to the extent to which high - definition television programs, or specified kinds of high - definition television programs, are transmitted in HDTV digital mode on the HDTV multi - channelled commercial television broadcasting service provided by the licensee in the licence area.
79 Subclause 37G(2) of Schedule 4
Omit "HDTV version of the commercial television broadcasting service concerned", substitute "HDTV multi - channelled commercial television broadcasting service provided by the licensee in the licence area".
80 Subclauses 37G(3) and (4) of Schedule 4
Repeal the subclauses, substitute:
Application
(3) Subclauses (1) and (2) apply in relation to the transmission of a HDTV multi - channelled commercial television broadcasting service in a remote licence area, if the service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(10A).
(4) Subclauses (1) and (2) do not apply to a licence if:
(a) the licensee provides an exempt remote area service under the licence; and
(b) an election under subclause 6(7B) is in force for the service.
(5) If there is a simulcast period for the licence area of a commercial television broadcasting licence, subclauses (1) and (2) cease to apply to the licence at the end of that period.
(6) If there is a simulcast - equivalent period for the licence area of a commercial television broadcasting licence, subclauses (1) and (2) cease to apply to the licence at the end of that period.
Note 1: For high - definition television program , see clause 37L.
Note 2: For prime viewing hours , see clause 37M.
81 Subclauses 37H(1), (1A), (1B) and (1C) of Schedule 4
Repeal the subclauses, substitute:
(1) The regulations may determine standards that require each national broadcaster to meet specified quotas in relation to the extent to which high - definition television programs, or specified kinds of high - definition television programs, are transmitted in HDTV digital mode on a designated HDTV multi - channelled national television broadcasting service provided by the broadcaster in a coverage area.
82 Subclause 37H(2) of Schedule 4
Omit "the HDTV version of the national television broadcasting service concerned", substitute "a designated HDTV multi - channelled national television broadcasting service".
83 Subclause 37H(3) of Schedule 4
Repeal the subclause, substitute:
Application
(3) Subclauses (1) and (2) apply in relation to the transmission of a designated HDTV multi - channelled national television broadcasting service in a remote coverage area, if the service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(10A).
(4) If there is a simulcast period for a coverage area, subclauses (1) and (2) cease to apply to the coverage area at the end of that period.
(5) If there is a simulcast - equivalent period for a coverage area, subclauses (1) and (2) cease to apply to the coverage area at the end of that period.
Note 1: For high - definition television program , see clause 37L.
Note 2: For prime viewing hours , see clause 37M.
84 Clause 37J of Schedule 4
Repeal the clause.
85 Division 3 of Part 4 of Schedule 4
Repeal the Division, substitute:
Basic rules
(1) Subject to this clause, each commercial television broadcasting licensee, and each national broadcaster, must provide a captioning service for:
(a) television programs transmitted during prime viewing hours; and
(b) television news or current affairs programs transmitted outside prime viewing hours.
Note: For compliance by licensees, see clause 7 of Schedule 2.
(2) Subclause (1) does not require the provision by a commercial television broadcasting licensee of a captioning service for a television program covered by paragraph 6(8)(d).
(3) Subclause (1) does not require the provision by a national broadcaster of a captioning service for a television program covered by paragraph 19(8)(d).
(4) If:
(a) there is a simulcast period , or a simulcast - equivalent period, for the licence area of a commercial television broadcasting licence; and
(b) the licensee provides a core commercial television broadcasting service in the licence area; and
(c) the licensee provides:
(i) a SDTV multi - channelled commercial television broadcasting service; or
(ii) a HDTV multi - channelled commercial television broadcasting service;
in the licence area;
then, during that period, subclause (1) does not require the provision of a captioning service for a television program transmitted on:
(d) the SDTV multi - channelled commercial television broadcasting service; or
(e) the HDTV multi - channelled commercial television broadcasting service;
unless the program has been previously transmitted on the core commercial television broadcasting service.
(5) If:
(a) a national broadcaster provides a national television broadcasting service in a coverage area; and
(b) there is a simulcast period , or a simulcast - equivalent period, for the coverage area;
then, during that period, subclause (1) does not require the provision of a captioning service for a television program transmitted on:
(c) a SDTV national television broadcasting service provided by the national broadcaster; or
(d) a HDTV national television broadcasting service provided by the national broadcaster;
unless the television program has been previously transmitted by the national broadcaster on the national television broadcasting service to which clause 19 applies.
(6) Subclause (1) does not require the provision of a captioning service by the licensee of a commercial television broadcasting licence that was allocated under subsection 40(1) during:
(a) the first year of operation of the licence; or
(b) if the ACMA, by written notice given to the licensee, allows a longer period--that longer period.
(7) Subclause (1) does not require the provision of a captioning service for:
(a) a television program, or a part of a television program, that is wholly in a language other than English; or
(b) a television program, or a part of a television program, the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language; or
(c) so much of the audio component of a television program as consists of incidental or background music.
(8) For the purposes of paragraphs (7)(a) and (b), disregard minor and infrequent uses of the English language.
Special rules
(9) If:
(a) there is a simulcast period , or a simulcast - equivalent period, for the licence area of a commercial television broadcasting licence; and
(b) during that period, the licensee transmits a television program on:
(i) a SDTV multi - channelled commercial television broadcasting service; or
(ii) a HDTV multi - channelled commercial television broadcasting service;
in the licence area; and
(c) the program has been previously transmitted on another commercial television broadcasting service provided by the licensee in the licence area; and
(d) the licensee provided a captioning service for the program when the program was so previously transmitted on the other service;
the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (b).
(10) If:
(a) there is a simulcast period , or a simulcast - equivalent period, for the coverage area of a national television broadcaster; and
(b) during that period, the national broadcaster transmits a television program on:
(i) a SDTV multi - channelled national television broadcasting service; or
(ii) a HDTV multi - channelled national television broadcasting service;
in the coverage area; and
(c) the program has been previously transmitted on another national television broadcasting service provided by the national broadcaster in the coverage area; and
(d) the national broadcaster provided a captioning service for the program when the program was so previously transmitted on the other service;
the national broadcaster must provide a captioning service for the television program transmitted as mentioned in paragraph (b).
Prime viewing hours
(11) For the purposes of subclause (1), prime viewing hours are the hours:
(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
Definition
(12) In this clause:
"program" does not include advertising or sponsorship matter (whether or not of a commercial kind).
SDTV multi - channelled commercial television broadcasting services
(13) The following provisions do not apply to a commercial television broadcasting licensee before 1 January 2009:
(a) subparagraph (4)(c)(i);
(b) paragraph (4)(d);
(c) subparagraph (9)(b)(i).
86 Before clause 41H of Schedule 4
Insert:
Division 1 -- Commercial television broadcasting services
Scope
(1) This clause applies to a commercial television broadcasting licensee if:
(a) there is a simulcast period , or a simulcast - equivalent period, for the licence area of the licence; and
(b) during that period, the licensee provides a core commercial television broadcasting service in the licence area.
Televising the whole of an anti - siphoning event
(2) During that period, the licensee must not televise on a HDTV multi - channelled commercial television broadcasting service in the licence area the whole of an anti - siphoning event unless:
(a) the licensee has previously televised in the licence area the whole of the event on the core commercial television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area the whole of the event on both:
(i) the core commercial television broadcasting service; and
(ii) the HDTV multi - channelled commercial television broadcasting service.
Televising a part of an anti - siphoning event
(3) During that period, the licensee must not televise on a HDTV multi - channelled commercial television broadcasting service in the licence area a part of an anti - siphoning event unless:
(a) the licensee has previously televised in the licence area the part of the event on the core commercial television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area the part of the event on both:
(i) the core commercial television broadcasting service; and
(ii) the HDTV multi - channelled commercial television broadcasting service; or
(c) the licensee televises the part of the event in a news or current affairs program broadcast on the HDTV multi - channelled commercial television broadcasting service.
Note: For anti - siphoning event , see subsection 6(1).
Division 2 -- National television broadcasting services
87 After clause 41H of Schedule 4
Insert:
Scope
(1) This clause applies to a national broadcaster if there is a simulcast period , or a simulcast - equivalent period, for a coverage area.
Televising the whole of an anti - siphoning event
(2) During that period, the national broadcaster must not televise on a HDTV multi - channelled national television broadcasting service in the coverage area the whole of an anti - siphoning event unless:
(a) the national broadcaster has previously televised in the coverage area the whole of the event on the national television broadcasting service to which clause 19 applies; or
(b) the national broadcaster will televise simultaneously in the coverage area the whole of the event on both:
(i) the national television broadcasting service to which clause 19 applies; and
(ii) the HDTV multi - channelled national television broadcasting service.
Televising a part of an anti - siphoning event
(3) During that period, the national broadcaster must not televise on a HDTV multi - channelled national television broadcasting service in the coverage area a part of an anti - siphoning event unless:
(a) the national broadcaster has previously televised in the coverage area the part of the event on the national television broadcasting service to which clause 19 applies; or
(b) the national broadcaster will televise simultaneously in the coverage area the part of the event on both:
(i) the national television broadcasting service to which clause 19 applies; and
(ii) the HDTV multi - channelled national television broadcasting service; or
(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the HDTV multi - channelled national television broadcasting service.
Note: For anti - siphoning event , see subsection 6(1).
88 At the end of Part 8 of Schedule 4
Add:
(1) At least one year before the earliest digital television switch - over day, the Minister must cause to be conducted a review of the following matters:
(a) the operation of Part 9 of this Act and clause 38 of this Schedule, in so far as those provisions apply to:
(i) SDTV multi - channelled commercial television broadcasting services; and
(ii) HDTV multi - channelled commercial television broadcasting services;
(b) whether Part 9 of this Act and clause 38 of this Schedule, in so far as those provisions apply to:
(i) SDTV multi - channelled commercial television broadcasting services; and
(ii) HDTV multi - channelled commercial television broadcasting services;
should be amended.
(2) The Minister must cause to be prepared a report of a review under subsection (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.
88A At the end of clause 41 of Schedule 6
Add:
(3) Subclauses (1) and (2) do not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.
88B Section 5
Insert:
"BSA exempt re-transmission service" means a service that, under subsection 212(1) of the Broadcasting Services Act 1992 , is exempt from the regulatory regime established by that Act.
88C Section 5
Insert:
"channel A datacasting transmitter licence" has the meaning given by section 98A.
88D Section 5
Insert:
"channel B datacasting transmitter licence" has the meaning given by section 98B.
88E Section 5
Insert:
"commercial broadcasting service" has the same meaning as in the Broadcasting Services Act 1992 .
88F Section 5
Insert:
"commercial radio broadcasting licence" has the same meaning as in the Broadcasting Services Act 1992 .
88G Section 5
Insert:
"community television broadcasting service" has the same meaning as in the Broadcasting Services Act 1992 .
88H Section 5
Insert:
"domestic digital television receiver" means domestic reception equipment that:
(a) is not a hand - held device; and
(b) is capable of receiving television programs transmitted in:
(i) SDTV digital mode; or
(ii) HDTV digital mode; and
(c) has such other characteristics (if any) as are specified in a legislative instrument made by the ACMA under this paragraph.
For the purposes of paragraph (b), disregard clause 6 of Schedule 6 to the Broadcasting Services Act 1992 .
88J Section 5
Insert:
"HDTV digital mode" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
88K Section 5
Insert:
"national broadcaster" has the same meaning as in the Broadcasting Services Act 1992 .
88L Section 5
Insert:
"open narrowcasting television" service has the same meaning as in the Broadcasting Services Act 1992 .
88M Section 5
Insert:
"subscription television" broadcasting service has the same meaning as in the Broadcasting Services Act 1992 .
88N At the end of Division 1 of Part 3.3 of Chapter 3
Add:
98A Channel A datacasting transmitter licence
(1) The ACMA may, by writing, declare that a specified datacasting transmitter licence proposed to be issued is a channel A datacasting transmitter licence for the purposes of this Act.
(2) If such a datacasting transmitter licence is issued, the licence is a channel A datacasting transmitter licence for the purposes of this Act.
(3) A declaration under subsection (1) is not a legislative instrument.
(4) A copy of a declaration under subsection (1) is to be made available on the ACMA's Internet site.
98B Channel B datacasting transmitter licence
(1) The ACMA may, by writing, declare that a specified datacasting transmitter licence proposed to be issued is a channel B datacasting transmitter licence for the purposes of this Act.
(2) If such a datacasting transmitter licence is issued, the licence is a channel B datacasting transmitter licence for the purposes of this Act.
(3) A declaration under subsection (1) is not a legislative instrument.
(4) A copy of a declaration under subsection (1) is to be made available on the ACMA's Internet site.
89 After section 100D
Insert:
(1) If:
(a) an NBS transmitter licence is or was issued to a national broadcaster; and
(b) the NBS transmitter licence authorises the operation of one or more specified radiocommunications transmitters for transmitting one or more national television broadcasting services in digital mode using one or more channels; and
(c) the national broadcaster provides, or proposes to provide, one or more HDTV multi - channelled national television broadcasting services;
the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting HDTV multi - channelled national television broadcasting services using those channels.
(2) In this section:
"HDTV multi-channelled national television broadcasting service" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
"national broadcaster" has the same meaning as in the Broadcasting Services Act 1992 .
"national broadcasting service" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
"national television broadcasting service" means a national broadcasting service that provides television programs.
"NBS transmitter licence means" a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.
90 Subsection 102(1)
After "service", insert "or services".
90A Subsection 102(2D)
After "transmitting", insert ", in digital mode," .
90B Subsection 102(2D)
After "service", insert "or services".
90C Subsection 102(2D)
After "the licence", insert "(the related licence )".
90D After subsection 102(2E)
Insert:
(2EA) If the related licence is transferred, the new transmitter licence is taken to be issued to the person to whom the related licence is transferred.
90E After subsection 102(2F)
Insert:
(2G) If:
(a) under subclause 6(5BA) of Schedule 4 to the Broadcasting Services Act 1992 , the licensee of a commercial television broadcasting licence (the related licence ) gives the ACMA a notice of revocation of an election; and
(b) the ACMA approves the revocation under clause 7B of Schedule 4 to that Act;
the ACMA must issue to the licensee of the related licence a new transmitter licence that authorises the operation of one or more specified radiocommunications transmitters for transmitting commercial television broadcasting services in digital mode in accordance with the related licence.
(2H) The new transmitter licence comes into force on the day on which the revocation takes effect.
(2J) If the related licence is transferred, the new transmitter licence is taken to be issued to the person to whom the related licence is transferred.
90F Paragraph 102(3)(b)
After "service", insert "or services".
91 Subsection 102A(1)
After "service", insert "or services".
91A Subsection 102A(2D)
After "licensee" (first occurring), insert "of a commercial television broadcasting licence (the related licence )".
91B Subsection 102A(2D)
After "service", insert "or services".
92 After section 102A
Insert:
(1) If:
(a) immediately before 1 January 2007, there was in force a transmitter licence issued under section 102 or 102A; and
(b) the transmitter licence is held by the licensee of a commercial television broadcasting licence (the related licence ); and
(c) the transmitter licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a commercial television broadcasting service in digital mode using one or more channels; and
(d) the licensee of the related licence provides, or proposes to provide, a HDTV multi - channelled commercial television broadcasting service in accordance with the related licence;
the transmitter licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting the HDTV multi - channelled commercial television broadcasting service, using those channels, during whichever of the following periods is applicable:
(e) the simulcast period for the licence area of the related licence;
(f) the simulcast - equivalent period for the licence area of the related licence.
(2) In this section:
"commercial television broadcasting licence" has the same meaning as in the Broadcasting Services Act 1992 .
"commercial television broadcasting service" means a commercial broadcasting service that provides television programs.
"HDTV multi-channelled commercial television broadcasting service" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
"simulcast-equivalent period" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
"simulcast period" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
92A Subsection 103(1)
After "apparatus licence", insert "(other than an apparatus licence issued under subsection 102(2D), 102(2G) or 102A(2D))".
92B Subsection 103(4)
Omit "or 102A".
92C Subsection 103(4A)
Omit "section 102", substitute "subsection 102(1)".
92D Paragraphs 103(4A)(a) and (b)
Omit "section", substitute "subsection".
92E After subsection 103(4B)
Insert:
(4C) A transmitter licence issued under subsection 102(2D):
(a) subject to paragraph (b), continues in force while the related licence referred to in that subsection remains in force; and
(b) does not have effect while the related licence referred to in that subsection is suspended.
(4D) A transmitter licence issued under subsection 102(2G):
(a) subject to paragraph (b), continues in force while the related licence referred to in that subsection remains in force; and
(b) does not have effect while the related licence referred to in that subsection is suspended.
(4E) A transmitter licence issued under subsection 102A(1):
(a) subject to paragraph (b), continues in force while the related licence referred to in that subsection remains in force; and
(b) does not have effect while the related licence referred to in that subsection is suspended.
(4F) A transmitter licence issued under subsection 102A(2D):
(a) subject to paragraph (b), continues in force while the related licence referred to in that subsection remains in force; and
(b) does not have effect while the related licence referred to in that subsection is suspended.
92F After subsection 106(5)
Insert:
(5A) A system so determined must provide that a person is not eligible to apply for a channel A datacasting transmitter licence unless the person meets specified requirements.
92G Subsection 106(7)
After "(5),", insert "(5A),".
92H After subsection 106(9)
Insert:
(9A) The Minister may give written directions to the ACMA in relation to the exercise of the power conferred by subsection (5A).
92J Subsection 106(10)
After "(9)", insert "or (9A)".
92K At the end of subsection 106(11)
Add "or (9A)".
92L Paragraph 109A(1)(g)
Before "a condition", insert "if the licence is neither a channel A datacasting transmitter licence nor a channel B datacasting transmitter licence--".
92M Paragraph 109A(1)(ga)
Repeal the paragraph, substitute:
(ga) if the licence is a channel B datacasting transmitter licence--a condition that the licensee, or a person so authorised, will commence to transmit a datacasting service within 18 months after the allocation of the licence or within such longer period as is notified in writing by the ACMA;
92N Paragraph 109A(1)(h)
Repeal the paragraph.
92P At the end of paragraph 109A(1)(i)
Add:
or (iii) that service is a BSA exempt re - transmission service;
92Q After paragraph 109A(1)(i)
Insert:
(ia) if the licence is a channel A datacasting transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service unless:
(i) the service is provided under, and in accordance with the conditions of, a BSA datacasting licence, and the service is capable of being received by a domestic digital television receiver; or
(ii) the service is an open narrowcasting television service that is capable of being received by a domestic digital television receiver; or
(iii) the service is a community television broadcasting service that is capable of being received by a domestic digital television receiver;
(ib) if the licence is a channel B datacasting transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service if the datacasting service is:
(i) a commercial broadcasting service; or
(ii) a subscription television broadcasting service that is capable of being received by a domestic digital television receiver;
(ic) if the licence is a channel B datacasting transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service if the licensee or the person so authorised is:
(i) a company that holds a commercial television broadcasting licence; or
(ii) a person who is in a position to exercise control of a commercial television broadcasting licence; or
(iii) a company, where a person is in a position to exercise control of the company and a commercial television broadcasting licence; or
(iv) a national broadcaster; or
(v) a company, where a national broadcaster is in a position to exercise control of the company;
and the datacasting service is capable of being received by a domestic digital television receiver;
(id) if the licence is a channel B datacasting transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service provided under a BSA datacasting licence if the holder of the BSA datacasting licence is:
(i) a company that holds a commercial television broadcasting licence; or
(ii) a person who is in a position to exercise control of a commercial television broadcasting licence; or
(iii) a company, where a person is in a position to exercise control of the company and a commercial television broadcasting licence; or
(iv) a national broadcaster; or
(v) a company, where a national broadcaster is in a position to exercise control of the company;
and the datacasting service is capable of being received by a domestic digital television receiver;
(ie) if the licence is a channel B datacasting transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service if:
(i) the service is a BSA exempt re - transmission service; and
(ii) the service is capable of being received by a domestic digital television receiver;
(if) if the licence is a channel A datacasting transmitter licence or a channel B datacasting transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service unless that service is transmitted in digital mode (within the meaning of Schedule 4 to the Broadcasting Services Act 1992 );
92QA Before paragraph 109A(1)(j)
Insert:
(ij) if the licence is a channel B datacasting transmitter licence--a condition that the licensee, and any person so authorised, will comply with an access undertaking in force under Division 4A in relation to the licence;
92R Subsection 109A(1A)
After "(1)(g)", insert "or (ga)".
92S Subsection 109A(1B)
Repeal the subsection, substitute:
(1B) For the purposes of subparagraph (1)(ib)(ii), it is immaterial whether a domestic digital television receiver is capable of receiving subscription television broadcasting services when used:
(a) in isolation; or
(b) in conjunction with any other equipment.
(1C) A condition specified in a licence under paragraph (1)(k) may deal with the commencement or continuity of transmission of datacasting services.
(1D) Subsection (1C) does not limit paragraph (1)(k).
(1E) Paragraphs (1)(g) and (ga) do not limit subsection (1C).
92T Subsection 109A(4)
After "subparagraphs", insert "(1)(ic)(ii), (iii) and (v), (1)(id)(ii), (iii) and (v),".
92U At the end of section 109A
Add:
(5) Subsections (2) and (3) do not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.
Ministerial directions
(6) The Minister may give the ACMA a written direction about the exercise of the power conferred by paragraph (1)(k) to specify conditions in a channel A datacasting transmitter licence.
92UA After Division 4 of Part 3.3 of Chapter 3
Insert:
Division 4A -- Access to channel B datacasting transmitter licences
118A Access to channel B datacasting transmitter licences
A reference in this Division to access to a channel B datacasting transmitter licence is a reference to access to services that enable or facilitate the transmission of one or more content services under the licence, where the access is provided for the purpose of enabling one or more content service providers to provide one or more content services.
Note: Content service provider and content service are defined in section 118M.
(1) A person is not eligible to apply for a channel B datacasting transmitter licence unless:
(a) the person has given the ACCC a written undertaking that, in the event that the licence is issued to the person, each of the following persons:
(i) the first holder of the licence;
(ii) any person authorised by the first holder of the licence to operate radiocommunications transmitters under the licence;
(iii) any future holder of the licence;
(iv) any person authorised by a future holder of the licence to operate radiocommunications transmitters under the licence;
will:
(v) comply with such obligations in relation to access to the licence as are ascertained in accordance with the undertaking; and
(vi) do so on such terms and conditions as are agreed with the holder of the licence (or the person so authorised) or, failing agreement, on such terms and conditions as are ascertained in accordance with the undertaking; and
(b) the ACCC has accepted the undertaking.
(2) The undertaking must be in a form approved in writing by the ACCC.
(3) The undertaking must be accompanied by the fee (if any) specified in the Procedural Rules. The amount of the fee must not be such as to amount to taxation.
(4) The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.
(5) The Procedural Rules may make provision for or in relation to a time limit for giving the undertaking.
118C Further information about access undertaking
(1) This section applies if a person gives an access undertaking to the ACCC.
(2) The ACCC may request the person to give the ACCC further information about the access undertaking.
(3) If:
(a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and
(b) the person does not give the ACCC the information within the time limit allowed by the Procedural Rules;
the ACCC may, by written notice given to the person, reject the access undertaking.
(4) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the ACCC may refuse to consider the access undertaking until the person gives the ACCC the information.
(5) The ACCC may withdraw its request for further information, in whole or in part.
(6) Information obtained by the ACCC under this section is taken to be protected Part XIB or XIC information for the purposes of section 155AB of the Trade Practices Act 1974 .
118D ACCC to accept or reject access undertaking
(1) This section applies if a person gives an access undertaking to the ACCC.
Decision to accept or reject access undertaking
(2) After considering the access undertaking, the ACCC must:
(a) accept the access undertaking; or
(b) reject the access undertaking.
(3) If the ACCC rejects the access undertaking, the ACCC may give the person a written notice advising the person that, if the person:
(a) makes such alterations to the access undertaking as are specified in the notice; and
(b) gives the altered access undertaking to the ACCC within the time limit allowed by the Procedural Rules;
the ACCC will accept the altered access undertaking.
Notice of decision
(4) If the ACCC accepts the access undertaking, the ACCC must give the person a written notice stating that the access undertaking has been accepted.
(5) If the ACCC rejects the access undertaking, the ACCC must give the person a written notice:
(a) stating that the access undertaking has been rejected; and
(b) setting out the reasons for the rejection.
118E Duration of access undertaking etc.
(1) If:
(a) a person gives an access undertaking to the ACCC in relation to a channel B datacasting transmitter licence; and
(b) the ACCC accepts the access undertaking; and
(c) the licence is issued to the person;
the access undertaking:
(d) comes into force when the licence is issued; and
(e) remains in force while the licence is in force; and
(f) is suspended while the licence is suspended.
(2) To avoid doubt, if:
(a) an access undertaking is in force in relation to a channel B datacasting transmitter licence; and
(b) the licence is transferred;
then:
(c) the transfer does not result in the lapse of the access undertaking; and
(d) the transferee, and any person authorised by the transferee to operate radiocommunications transmitters under the licence, is bound by the access undertaking.
(3) If:
(a) a channel B datacasting transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, an access undertaking was in force in relation to the original licence;
the access undertaking:
(c) remains in force while the new licence is in force, as if:
(i) it were an access undertaking in relation to the new licence; and
(ii) each reference in the access undertaking to a holder of the original licence were a reference to a holder of the new licence; and
(d) is suspended while the new licence is suspended.
118F Variation of access undertakings
(1) This section applies if an access undertaking is in force in relation to a channel B datacasting transmitter licence.
(2) The licensee may give the ACCC a variation of the access undertaking.
Decision to accept or reject variation
(3) After considering the variation, the ACCC must decide to:
(a) accept the variation; or
(b) reject the variation.
(4) If the ACCC rejects the variation, the ACCC may give the person a written notice advising the person that, if the person:
(a) makes such alterations to the variation as are specified in the notice; and
(b) gives the altered variation to the ACCC within the time limit allowed by the Procedural Rules;
the ACCC will accept the altered variation.
Notice of decision
(5) If the ACCC accepts the variation, the ACCC must give the licensee a written notice:
(a) stating that the variation has been accepted; and
(b) setting out the terms of the variation.
(6) If the ACCC rejects the variation, the ACCC must give the licensee a written notice:
(a) stating that the variation has been rejected; and
(b) setting out the reasons for the rejection.
118G Further information about variation of access undertaking
(1) This section applies if the licensee of a channel B datacasting transmitter licence gives the ACCC a variation of an access undertaking.
(2) The ACCC may request the licensee to give the ACCC further information about the variation.
(3) If:
(a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and
(b) the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;
the ACCC may, by written notice given to the licensee, reject the variation.
(4) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the ACCC may refuse to consider the variation until the licensee gives the ACCC the information.
(5) The ACCC may withdraw its request for further information, in whole or in part.
(6) Information obtained by the ACCC under this section is taken to be protected Part XIB or XIC information for the purposes of section 155AB of the Trade Practices Act 1974 .
118H Decision - making criteria
Acceptance of access undertaking
(1) The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept access undertakings.
(2) In deciding whether to accept access undertakings, the ACCC must apply criteria determined under subsection (1).
Acceptance of variation of access undertaking
(3) The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept variations of access undertakings.
(4) In deciding whether to accept variations of access undertakings, the ACCC must apply criteria determined under subsection (3).
118J Register of access undertakings
(1) The ACCC is to maintain a Register in which the ACCC includes all access undertakings that are in force.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Internet.
118K Enforcement of access undertakings
(1) This section applies if an access undertaking is in force in relation to a channel B datacasting transmitter licence.
(2) If:
(a) the ACCC; or
(b) any person (the affected person ) whose interests are affected by the access undertaking;
thinks that a person (the third person ) has breached the access undertaking, the ACCC or affected person may apply to the Federal Court for an order under subsection (3).
(3) If the Federal Court is satisfied that the third person has breached the access undertaking, the Court may make all or any of the following orders:
(a) an order directing the third person to comply with the access undertaking;
(b) an order directing the third person to compensate any other person who has suffered loss or damage as a result of the breach;
(c) any other order that the Court thinks appropriate.
(4) The Federal Court may discharge or vary an order granted under this section.
(1) The ACCC may, by legislative instrument, make rules:
(a) making provision for or in relation to the practice and procedure to be followed by the ACCC in performing functions, or exercising powers, under this Division; or
(b) making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the ACCC under this Division; or
(c) prescribing matters required or permitted by any other provision of this Division to be prescribed by the Procedural Rules.
(2) Rules under subsection (1) are to be known as Procedural Rules.
(3) The Procedural Rules may make provision for or in relation to any or all of the following:
(a) the confidentiality of information or documents given to the ACCC by a person who gave the ACCC an access undertaking or a variation of an access undertaking;
(b) the form and content of undertakings, variations or other documents given to the ACCC under this Division;
(c) requiring the ACCC to give information to the ACMA about the operation of this Division;
(d) requiring the ACMA to give information to the ACCC that is relevant to the operation of this Division.
(4) The Procedural Rules may make provision for or in relation to a matter by empowering the ACCC to make decisions of an administrative character.
(5) The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking if:
(a) the ACCC is satisfied that the access undertaking:
(i) is frivolous; or
(ii) is vexatious; or
(iii) was not given in good faith; or
(b) the ACCC has reason to believe that the access undertaking was given for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Division.
(6) The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking given by a person in relation to a channel B datacasting transmitter licence if (apart from section 118B) the person is not eligible to apply for the licence.
(7) Subsections (3), (4), (5) and (6) do not limit subsection (1).
In this Division:
"access" has the meaning given by section 118A.
"access undertaking" means an undertaking under section 118B.
"content service" means a service covered by subparagraph 109A(1)(i)(i) or (ii), but does not include a service covered by subparagraph 109A(1)(ib)(i) or (ii).
"content service provider" means a company who provides, or proposes to provide, a content service.
"Procedural Rules" means Procedural Rules made under section 118L.
92V Paragraph 125(1)(a)
Omit "(h), (i)", substitute "(i), (ia), (ib), (ic), (id), (ie), (if)".
92VA Paragraph 125(1)(a)
Before "or (j)", insert ", (ij)".
92W Subsection 128C(1)
Omit "(h), (i)", substitute "(i), (ia), (ib), (ic), (id), (ie), (if)".
92WA Subsection 128C(1)
Before "or (j)", insert ", (ij)".
92X Section 128D
Omit "(h), (i)", substitute "(i), (ia), (ib), (ic), (id), (ie), (if)".
92XA Section 128D
Before "or (j)", insert ", (ij)".
92Y Section 128E
Repeal the section.
Part 2 -- Transitional provisions
93 Determinations under subsection 36(1) of the Broadcasting Services Act 1992
(1) This item applies to a determination that:
(a) was in force immediately before the commencement of this item; and
(b) was made under subsection 36(1) of the Broadcasting Services Act 1992 .
(2) The determination, to the extent to which it deals with the allocation of:
(a) commercial television broadcasting licences that are broadcasting services bands licences; and
(b) commercial radio broadcasting licences that are broadcasting services bands licences;
has effect, after the commencement of this item, as if it had been made under subsection 36(1) of the Broadcasting Services Act 1992 as amended by this Schedule.
93A Approval of revocation of multi - channelling election etc.
(1) This item applies to a notice that was given under subclause 6(7D) of Schedule 4 to the Broadcasting Services Act 1992 before the commencement of this item.
(2) The notice has effect, after the commencement of this item, as if it had been given under subclause 7B(2) of Schedule 4 to the Broadcasting Services Act 1992 as amended by this Schedule.
93B Variation of the day on which a revocation of a multi - channelling election takes effect
(1) This item applies to a notice given under subclause 6(7E) of Schedule 4 to the Broadcasting Services Act 1992 before the commencement of this item.
(2) The notice has effect, after the commencement of this item, as if it had been given under subclause 7B(4) of Schedule 4 to the Broadcasting Services Act 1992 as amended by this Schedule.
93C Variation of program standards
(1) This item applies to a variation by the ACMA of a program standard if:
(a) the variation deals with transitional and/or consequential matters in connection with the amendments made by this Schedule; and
(b) either:
(i) the variation was made before the commencement of this item in accordance with section 4 of the Acts Interpretation Act 1901 ; or
(ii) the variation is made within 30 days after the commencement of this item.
(2) Section 126 of the Broadcasting Services Act 1992 does not apply to the variation.
(3) Section 17 of the Legislative Instruments Act 2003 does not apply to the variation.
(4) The ACMA must not make the variation unless a copy of the proposed variation was made available on the ACMA's Internet site for a period of at least 5 business days.
93D Variation of commercial television conversion scheme
(1) This item applies to a variation by the ACMA of the commercial television conversion scheme if:
(a) the variation deals with transitional and/or consequential matters in connection with the amendments made by this Schedule; and
(b) either:
(i) the variation was made before the commencement of this item in accordance with section 4 of the Acts Interpretation Act 1901 ; or
(ii) the variation is made within 30 days after the commencement of this item.
(2) Clause 18 of Schedule 4 to the Broadcasting Services Act 1992 does not apply to the variation.
(3) Section 17 of the Legislative Instruments Act 2003 does not apply to the variation.
(4) The ACMA must not make the variation unless a copy of the proposed variation was made available on the ACMA's Internet site for a period of at least 5 business days.
93E Variation of national television conversion scheme
(1) This item applies to a variation by the ACMA of the national television conversion scheme if:
(a) the variation deals with transitional and/or consequential matters in connection with the amendments made by this Schedule; and
(b) either:
(i) the variation was made before the commencement of this item in accordance with section 4 of the Acts Interpretation Act 1901 ; or
(ii) the variation is made within 30 days after the commencement of this item.
(2) Clause 33 of Schedule 4 to the Broadcasting Services Act 1992 does not apply to the variation.
(3) Section 17 of the Legislative Instruments Act 2003 does not apply to the variation.
(4) The ACMA must not make the variation unless a copy of the proposed variation was made available on the ACMA's Internet site for a period of at least 5 business days.
94 Transmitter licences issued under section 102 of the Radiocommunications Act 1992
(1) This item applies to a transmitter licence that:
(a) was in force immediately before 1 January 2007; and
(b) was issued under subsection 102(1) of the Radiocommunications Act 1992 .
(2) To avoid doubt, the amendment of subsection 102(1) of the Radiocommunications Act 1992 made by this Schedule does not affect the continuity of the transmitter licence.
95 Transmitter licences issued under section 102A of the Radiocommunications Act 1992
(1) This item applies to a transmitter licence that:
(a) was in force immediately before 1 January 2007; and
(b) was issued under subsection 102A(1) of the Radiocommunications Act 1992 .
(2) To avoid doubt, the amendment of subsection 102A(1) of the Radiocommunications Act 1992 made by this Schedule does not affect the continuity of the transmitter licence.