Review Of The Spectrum Allocation Powers Of The Australian Broadcasting Authority - Attachment A
Views Of Submitters
The following is a summary of views contained in submissions to the review.
Commercial Broadcasters
Submissions by FACTS and the Ten Network provided qualified support for expanded spectrum clearance powers for the ABA, subject to a number of conditions being met:
- Any enhanced clearance powers should not permit widespread changes to channel allocations of established free-to-air broadcasters, and should be subject to statutory public interest criteria.
- A distinction should be drawn between main transmitters (serving ten percent or more of licence area populations) and other transmitters/translators:
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- Compensation for main transmitter channel changes should comprise a component for loss of revenue as well as all direct costs to the affected broadcaster and viewers.
- In other cases, direct costs to broadcasters and viewers should be payable.
- A ten year notification period should apply to changes to main transmitter channels, and at least two years in other cases.
- All channel clearance decisions should be disallowable instruments and there should also be a right of judicial appeal.
Public Broadcasters
The ABC and SBS argued that the review into the ABA's spectrum clearance powers is premature, pending actual experience of the operation of datacasting services in the market. They proposed that the review should be included with other more comprehensive reviews relating to spectrum matters scheduled under the BSB. However, if enhanced ABA spectrum clearance powers are to be pursued at this time, the ABC and SBS proposed that this should include provision for full compensation on a "polluter pays" basis, and that a 10-15 year notification period be provided for all proposed channel changes.
CBAA support for enhanced ABA clearance powers was similarly qualified. The CBAA considers that such powers should be exercised only as a last resort where no other spectrum is available; there should be a 'no disadvantage' test for existing broadcasters; and Commonwealth-funded compensation should be payable to affected broadcasters required to change channels with less than 10 years notification.
Other industry submitters
In its submission, ntl supported the enhancement of spectrum clearance powers for the ABA, including powers to require new licensees to pay compensation for the direct costs to incumbent broadcasters and viewers of mandated channel changes. There would be a need to develop agreed public interest criteria for channel clearance and implementation processes, in the form of statutory rules or binding Codes of Practice. Reasonable compensation would also need to be negotiated or determined. Ntl also suggested the need for Ministerial reserve powers and right of judicial appeal by affected parties.
Ntl considered that this 'polluter pays' model might increase the number and quality of channels for new services such as datacasting. It indicated that further review of ABA spectrum allocation powers in the future was also desirable.
John Fairfax Holdings Ltd opposed the payment of compensation to broadcasters. It also considered that the review should focus on ensuring clearance of analog spectrum at the conclusion of the simulcast period notionally after 2008.
Telstra also opposed compensation to broadcasters. However, it favoured Commonwealth-funded compensation to viewers who may need to modify reception equipment as the result of channel changes. It also supported a streamlined ABA clearance process that would provide for clearance of channels, as required, within an eighteen month period.
DCA shared Fairfax's view that the review should focus on spectrum clearance after the simulcast period. It considered that any spectrum clearance measures, in the interim, should not place an unreasonable burden on new players. To this end, DCA recommended that any compensation to broadcasters in respect of channel changes should be for direct costs and should be settled prior to auction, to avoid the current user being able to hold the buyer to ransom.
The AIIA submission called for a wider review to embrace both the ABA and ACA spectrum management powers, with a view to aligning spectrum management across all radiocommunications bands. The Association considered that this would be more appropriate in an environment of increasing technological convergence.
ABA and ACA
The ABA, in its submission and in assisting with drafting of the review's Issues Paper, raised a number of possible adjustments to its powers:
- the power to allocate a licence subject to mandatory clearance, with
- compensation for costs incurred by broadcasters/viewers in the reallocation of channels that might otherwise detract from optimum spectrum usage;
- measures to enhance clearance powers in respect of unused channels; and
- removal of provisions in the BSA relating to the Frequency Allotment Plan to achieve administrative savings.
The ACA indicated in its submission that, while compensation was not normally payable for clearance of non-BSB spectrum, compensation options might be advantageous in limited circumstances. These could include situations in which early access to spectrum was desirable in the public interest.
During the course of the review, the ABA has completed digital channel planning in all capital cities and a number of regional areas, and has also undertaken several analog planning tasks. In the light of this experience, stakeholder submissions to the review, and further legal consideration of specific issues raised in those submissions, both Authorities have agreed that the existing clearance and compensation powers under the BSA and RA are adequate in relation to current spectrum clearance requirements.
WA Department of Commerce and Trade
The submission from the Department of Commerce and Trade, Western Australia, proposed that broadcasting licences be issued subject to reviews at set periods in relation to efficient spectrum usage. The submission also suggested that the public interest might be addressed through tools such as Communications Impact Assessments and significant public information programs, and that the ABA needed to be adequately resourced to effectively utilise any enhanced spectrum powers.
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