Broadcasting Services Determination Deemed Digital Radio Licence Areas

Transcription

1 Bradcasting Services Determinatin Deemed Digital Radi Licence Areas Cmmunity Bradcasting Assciatin f Australia Cmments in relatin t the ACMA cnsultatin paper Remake f the Bradcasting Services (Deemed Digital Radi Areas) Determinatin 2007 and deeming additinal licence areas in Canberra and Darwin T: F: E: ffice@cbaa.rg.au PO Bx 564 Alexandria NSW 1435 ABN Sydney: Level 3, Btany Rad, Alexandria NSW 2015 Melburne: Abbtsfrd Cnvent, Studi C1.11, 1 St Heliers Street, Abbtsfrd VIC

2 DIGITAL RADIO: DEEMED LICENCE AREAS DETERMINATION 2017 CBAA COMMENTS Page 1 1. Intrductin 1.1 On 1 Nvember 2017, the Cmmunity Bradcasting Assciatin f Australia (CBAA) received a letter and cpy f a draft Determinatin prpsed t be made under subsectin 8AD(3) f the Bradcasting Services Act 1992, entitled Bradcasting Services (Deemed Digital Radi Licence Areas) Determinatin The letter and draft Determinatin were accmpanied by a Cnsultatin Paper entitled Autmatic sunsetting f legislative instruments Prpsal t remake the Bradcasting Services (Deemed Digital Radi Licence Areas) Determinatin 2007 and deeming additinal licence areas fr cmmunity digital radi bradcasting services fr Canberra and Darwin, Octber The cnsultatin paper prvides backgrund t the deeming prcess, the situatin f previus and existing deemed areas, and cnsideratin f the cmmunity bradcasting licence areas prpsed t be deemed in Canberra and Darwin. 1.4 The cnsultatin paper and the draft Determinatin were circulated by the ACMA t all licensees perating services within r verlapping the Canberra RA1 and Darwin RA1 Licence Areas, as well as t the licensees f print handicapped statins 2RPH and 3RPH, as the licensees f existing services that have been previusly deemed by way f the ACMA Determinatin made in 2007: NSW Cmmunity RA1 t be same as Sydney RA1, and Victrian Cmmunity RA1 t be the same as Melburne RA The CBAA has itself als circulated and brught the draft Determinatin and cnsultatin paper t the attentin f the cmmunity radi bradcasting licensees perating services within r verlapping the Canberra RA1 and Darwin RA1 Licence Areas, as well as t the licensees f 2RPH and 3RPH. 1.6 The cnsultatin paper invited cmments n the prpsed 2017 Determinatin by COB 9 Nvember 2017, nting that the timeframe requires a very fast turnarund. 1.7 The ACMA has advised that the shrt timeframe fr cnsultatin is related t ACMA plans t invite applicatins fr the Fundatin categry 1 digital radi multiplex transmitter (DRMT) licences in Canberra and Darwin n 20 Nvember The categry 1 DRMT licence is fr transmitting cmmercial and cmmunity radi services. The ACMA is mving frward t extend permanent licensing f digital radi in Canberra and Darwin. 1.9 A categry 3 DRMT licence has already been issued t enable permanent bradcasts by the ABC and SBS in these areas In rder fr incumbent cmmunity radi bradcasting licensees t sign a jint written ntice and t be eligible t subscribe fr shares in a digital cmmunity radi representative cmpany each licensee s Licence Area must be the same as the relevant cmmercial licence area, r be deemed t be the same The CBAA ntes and agrees that settling the deeming f cmmunity licences as sn as pssible will prvide certainty fr cmmunity bradcasting licensees in relatin t participatin in the frmatin f the digital cmmunity radi bradcasting representative cmpanies While the turnarund time fr cmments n the cnsultatin paper is very fast, the CBAA nevertheless appreciates the pprtunity t make cmment Given the shrt timeframe fr cnsultatin, the ACMA may wish t have regard t cmments made by cmmunity radi licensees that are directly affected by the Determinatin, even if thse cmments were t arrive subsequent t 9 Nvember It shuld be nted that, as a general principle in seeking cmments, nt-fr-prfit cmmunity licensees require a lnger timeframe fr Bard cnsultatin and cnsideratin. 1 Nte that by way f subsectin 8AD(2) f the Bradcasting Services Act 1992 the licence areas Hbart RA2 and Hbart RA4 are taken t be the same as the cmmercial radi bradcasting licence area in which is situated the General Pst Office f Hbart

3 DIGITAL RADIO: DEEMED LICENCE AREAS DETERMINATION 2017 CBAA COMMENTS Page 2 2. Backgrund t Planning Digital Radi 2.1 The cnsultatin paper prvides an verview f the legislative framewrk and planning regime fr digital radi and hw it differs frm analgue radi. 2.2 Analgue radi requires an individual transmitter fr each service whereas DAB+ digital radi cmbines services frm a number f bradcasting licensees int a multiplex, which is transmitted ver a Digital Radi Multiplex Transmitter (DRMT), licensed separately. 2.3 The Radicmmunicatins Act 1992 prvides that a certain amunt f grss multiplex capacity be reserved fr designated cmmunity radi bradcasting licensees. 2.4 A designated cmmunity radi bradcasting licensee has the same licence area as the relevant cmmercial bradcasting licence area in which digital radi is t cmmence. 2.5 Under sectin 8AD f the Bradcasting Services Act 1992 (BSA) a bradcasting licence area is able t be deemed as being the same as the relevant cmmercial bradcasting licence area fr the purpses f digital radi. 2.6 Under subsectin 8AD(3) f the BSA the ACMA may, by legislative instrument, determine that a cmmunity radi bradcasting licence is deemed as being the same as the relevant cmmercial bradcasting licence area fr the purpses f digital radi. 2.7 The current legislative and planning framewrk cntemplates nly the initial phase f digital radi, where licensing and planning is based n cmmercial radi bradcasting Licence Areas. 2.8 The ACMA cnsultatin paper has nted that in the initial phase f digital radi intrductin nly wide-area cmmunity licensees were able t participate in digital radi. In part, this reflected the fact that in the majr cities even with tw DRMT licenses, the ttal capacity reserved fr cmmunity bradcasters was insufficient t accmmdate all cmmunity bradcasting licensees. 2.9 The cnsultatin paper ntes that, while the situatin f sub-metrplitan services in the majr cities sits utside f the initial legislative and planning framewrk, the situatin in reginal areas is a mre cmplex setting The cnsultatin paper als ntes that in many reginal areas there will be cmmunity radi services whse relatinship t the cmmercial radi Licence Area des nt clearly fit int either metr r sub-metr mdels fund in the majr cities and that this will require judgement calls t be made at the apprpriate time The CBAA agrees with this summary analysis and als agrees with the ACMA prpsal t cnsider deeming in reginal areas n a case-by-case basis While the ACMA cnsultatin paper and the current cmments by the CBAA deal specifically with Canberra and Darwin, there are sme general pints t be made and there will be further issues t cnsider in reginal planning fr cmmunity digital services Unlike allcatin such as Canberra, where there will be 5 designated cmmunity radi bradcasting services many reginal lcatins will have a number f key cmmunity radi services that functin as subsets f the cmmercial radi licence area, r may sit utside f and/r verlap with ne r mre cmmercial licence areas These services, which are likely t be the nly cmmunity radi services in the area, will require different cnsideratins in terms f digital radi planning and may result in a different set f cmments by the CBAA t thse related t Canberra and Darwin.

4 DIGITAL RADIO: DEEMED LICENCE AREAS DETERMINATION 2017 CBAA COMMENTS Page 3 3. Future pathways beynd the initial phase 3.1 The ACMA cnsultatin paper ntes that the cncept f wide-cverage statins as being the nly statins able t participate in digital radi has been a feature f the initial phase f digital radi intrductin. 3.2 As nted, the current legislative and planning framewrk cntemplates nly the initial phase f digital radi, where licensing and planning is based n cmmercial radi bradcasting Licence Areas. 3.3 While the cncept may have merit in terms f the initial phase, it is nw timely fr this t be re-visited. 3.4 Planning fr digital radi is nw well advanced and, in due curse, there will be a full natinal frequency allcatin and alltment plan agreed by industry and the ACMA. 3.5 There is nw scpe fr the ACMA t timetable the explratin f further services within the same verall frequency allcatin. This will lead t an increase in services and further efficient use f spectrum. 3.6 The ACMA is currently in the late stages f finalising a natinal alltment plan. This substantial amunt f wrk will enable further allcatins and digital radi channel plans t be published as and when digital radi services are rlled ut t further reginal areas acrss Australia. This regin by-regin apprach t planning acrss the natin was undertaken in rder t give greater certainty t allcatins. 3.7 Armed with this frward planning data, it is pssible fr allcatins t be made in further areas f Australia with greater certainty and in ding s, there will be little chance f subverting the future implementatin f further services in ther adjacent licence areas. The CBAA has supprted this apprach as being fair and equitable insfar as it ensures a pathway fr services that are able t take up digital radi. 3.8 Nw that this wrk is near t mature, the CBAA believes there is scpe fr the ACMA t cnsider, n a case-by-case basis, the prvisin f spectrum fr the trial f lw(er) pwer limited cverage digital radi services. 3.9 It seems reasnable t expect there will be cases where spectrum allcated (r ntinally allcated) in respect f a cmmercial Licence Area may be efficiently and judiciusly re-used in an area utside f that intended Licence Area, s lng as it is used n a lw pwer and limited cverage basis There wuld seem t be little cause fr cncern at such frequency re-use. In fact, if there were frtuitus receptin f ut-f-area signals frm an adjacent r secnd adjacent Licence Area due t verspill, the intrductin f lw pwer limited cverage services wuld act t prevent such receptin: an utcme that may well be favured by cmmercial licensees in the verspill area The intrductin f this new layer f small-scale services sits utside f the current legislative framewrk that is in place fr the initial phase f digital radi. The CBAA is nt suggesting replacing that framewrk, but is suggesting that there be an additinal scpe added t the legislative framewrk t at least enable services t be implemented, n a case-by-case basis, in sub-set areas f cmmercial Licence Areas and als in areas f (reginal) Australia where there is, in fact, n cmmercial radi Licence Area and s a lgical gap in the current legislative framewrk Ahead f this legislative and plicy develpment wrk, it seems reasnable that the ACMA cnsider authrising trial licensing f small-scale digital radi licences where there is demnstrated interest and wherewithal. The CBAA can envisage ptential interest in remte, sub-metrplitan and sme therwise under-served reginal and rural areas It is als true that nt all areas may fit well with a digital radi (DAB+) slutin. The CBAA supprts DAB+ as the mainstay radi digitisatin slutin fr delivery f live radi services. A key feature is that the resulting radi service is freely available The CBAA als supprts the cmplementary use f nline/mbile delivery as a ptential slutin fr radi digitisatin in areas that have lw ppulatin densities, are hyper-lcal r fr service with highly targeted bjectives, prvided this is paired with legislatin ensuring licensed radi services are zer-rated, and s akin t being freely available.

5 DIGITAL RADIO: DEEMED LICENCE AREAS DETERMINATION 2017 CBAA COMMENTS Page 4 4. Existing deemed licence areas unchanged 4.1 The CBAA endrses the retentin f deeming f Licence Areas in the 2017 Determinatin that were previusly deemed in the 2007 Determinatin. 4.2 It is understd that the need t remake the 2007 Determinatin is due t ver-arching prvisin f the Legislatin Act 2003 that requires that mst legislative instruments are repealed n the tenth anniversary f thse registratin, in this case the 2007 Determinatin is due t sunset n 1 April The intent f the deeming decisins that led t the 2007 Determinatin was surely that the affected Licence Areas wuld be deemed in perpetuity. There is n sense f time limitatin stated r implied by sectin 8AD f the Bradcasting Services Act This is especially relevant, given the implicatins f deeming include enabling eligibility fr sharehlding and cmmitment t the Digital Representative Cmpany, and a cmmitment t participate and invest in use f digital radi multiplex capacity. 4.5 It is appreciated that the ACMA may well have attempted t have the Determinatin t be cnsidered evergreen and that, as a general statement irrespective f bradcasting issues, btaining that status fr legislative instruments may be a challenge akin t the metaphrical camel passing thrugh the eye f a needle. 4.6 S, the CBAA cnsiders the remake f the 2007 Determinatin a prcedural matter necessary t preserve the lng-term intentin f the 2007 Determinatin and fully supprts the n-ging Determinatin that: NSW Cmmunity RA1 be deemed t be the same as Sydney RA1; and Victrian Cmmunity RA1 be deemed t be the same as Melburne RA1 fr the purpses f digital radi. 4.7 In effect this affects the licensees f services f print handicapped radi reading services 2RPH and 3RPH and ensures their cntinued equivalent status as designated licensees in respect f the DRMT licences in Sydney and Melburne respectively. 5. Deeming f services in Darwin Darwin RA2 5.1 The cnsultatin paper utlines the histry f the Darwin RA1 Licence Area as reflecting the service area f the frmer 8DN AM cmmercial Service, surrendered in The current tw cmmercial licensees, 8HOT and 8MIX, are planned in FM and planned t cver an area cextensive with Darwin RA The cnsultatin paper ntes that the Darwin RA2 lies within Darwin RA1 and cvers the Darwin municipality and Palmerstn municipality. It cvers 4% f the Darwin RA1 gegraphical area and 60% f its ppulatin. 5.4 Given that the existing cmmercial licensees are in fact nt planned in a way that achieves cverage f the Darwin RA1 but are instead planned t cver the area cextensive with Darwin RA2, it fllws that the tw cmmunity licensees with the Darwin RA2 Licence Area match the cmmercial services in terms f cverage. 5.5 The CBAA therefre fully supprts the ACMA prpsal that the 2017 Determinatin include an additinal Determinatin that: Darwin RA2 be deemed t be the same as Darwin RA1 fr the purpses f digital radi. 5.6 In effect this affects the services f the Religius-Christian cmmunity licensee, 8GGG, and f the Indigenus cmmunity licensee, 8KNB and ensures their equivalent status as designated licensees in respect f the DRMT licences in Darwin.

6 DIGITAL RADIO: DEEMED LICENCE AREAS DETERMINATION 2017 CBAA COMMENTS Page 5 Darwin RA3 5.7 The cnsultatin paper ntes that the Darwin RA3 Licence Area cvers the same area as Darwin RA2 with the additin f the reginal areas f Adelaide River, Batchelr, Jabiru and Lake Bennett. 5.8 The reginal areas f Adelaide River, Batchelr and Lake Bennett fall with the Darwin RA1 Licence Area, Jabiru sits utside. 5.9 It fllws that the ne cmmunity licensee with the Darwin RA3 Licence Area has cverage that matches r imprves upn the cmmercial services in terms f cverage The CBAA therefre fully supprts the ACMA prpsal that the 2017 Determinatin include an additinal Determinatin that: Darwin RA3 be deemed t be the same as Darwin RA1 fr the purpses f digital radi In effect this affects the services f the General cmmunity licensee, 8TFM and ensures their equivalent status as a designated licensee in respect f the DRMT licences in Darwin The CBAA wuld add that, given there is existing cverage that sits utside f the Darwin RA1 that future cnsideratin might be given t varying the Darwin RA1 Licence Area t include thse areas The CBAA als ntes that the Darwin RA3 licensee currently perates multiple FM transmitters acrss Darwin RA While it is nt currently cntemplated, it may be that there is a future case fr in-fill transmitters t supprt imprved cverage fr the Darwin digital service The CBAA again makes the case that it ught be pen fr (third) parties apart frm the DRMT licensee, but, f curse, under agreement and c-rdinatin with the DRMT licensee, t be able initiate the implementatin and peratin f transmitter fr in-fill r extensin r re-transmissin cverage, especially in cases where the cverage is nt cincident with the main site cverage. Katherine RA The Darwin RA1 Licence Area includes a discrete area that cvers the Katherine cmmunity While Katherine sits within the Darwin RA1 there is n current imperative frm the Darwin cmmercial licensees t extend digital radi transmissins t the Katherine area There is als a distinct Katherine RA1 Licence Area separate t the cmmercial Darwin RA1 Katherine area. The Katherine RA1 has tw planned cmmunity licenses, 8KTR which is in peratin n FM, and a secnd that has nt been allcated The ACMA prpsal is nt t deem Katherine RA1 t be the same as Darwin RA1 fr the purpses f digital radi While the CBAA can understand the reasns fr the ACMA prpsal, this des leave the questin as t what will be the future pathway fr radi digitisatin fr Katherine cmmunity radi If at a future time there is a cmmercial decisin is t extend the Darwin RA1 services t Katherine, then the CBAA wuld expect the ACMA t cnsider the situatin f the Katherine RA1 cmmunity licensee/s Future ptins might include ffering a new digital nly licence within Darwin RA1 fr the Katherine area. This may be awkward Anther ptin may be that a stand-alne small-scale limited cverage digital service be implemented in Katherine. This wuld require either trial licensing r legislative change and is discussed elsewhere The further ptin fr a small ppulatin area may be an alternate technlgy and legislative slutin fr digitisatin f licensed radi services, such as nline/mbile delivery paired with legislated zer-rating, als discussed elsewhere.

7 DIGITAL RADIO: DEEMED LICENCE AREAS DETERMINATION 2017 CBAA COMMENTS Page 6 Arnhem Land RA The ACMA planned an Arnhem Land RA1 Licence in respnse t interest by Abriginal Resurce and Develpment Services Inc (ARDS) in prviding a cmmunity bradcasting service in the Ylngu Matha language The service was planned in AM. Hwever, ARDS has been perating since 2013 under a temprary cmmunity bradcasting licence using VHF FM spectrum Arnhem Land RA1 Licence Area is a nn-cntiguus Licence Area. It verlaps with the Darwin RA1 by 15% if measured by gegraphy, including the Darwin metrplitan area If measured by ppulatin the Arnhem Land RA1 verlaps the Darwin RA1 by 83% As the issue f lng term licence it is likely t be well after the Darwin RA1 digital start up day, it is nt pen t the ACMA t cnsider this matter in the cntext f a deeming determinatin Hwever, the CBAA ntes that, under subsectin 84A(3) f the Bradcasting Services Act 1992, if after digital radi start up day the ACMA allcates a cmmunity bradcasting licence, the licence must be allcated as: a licence t prvide an analgue cmmunity radi bradcasting service; r a licence t prvide a digital cmmunity radi bradcasting service, with nthing t prevent bth analgue and digital licences being prvided cncurrently shuld that be apprpriate Therefre, it is pen t the ACMA t subsequently cnsider the ptins as part f future planning Taking int accunt the 83% ppulatin, the case fr a digital licence will be cmpelling, even if it sits alngside r is augmented by analgue licences that enable analgue transmissin in the same r ther gegraphic areas Thse areas in the Arnhem RA1 Licence area but utside f the Darwin RA1 may be candidates fr a stand-alne digital services and/r nline mbile paired with zerrating, as discussed elsewhere The CBAA cnsiders, in the interim perid, ahead f the allcatin f a cmmunity bradcasting licence acrss the Arnhem Land RA1 licence area, that the ACMA might view the Ylnu Matha language service as entirely apprpriate as a cntent service prvider, shuld ne f the existing Darwin cmmunity bradcasting licensees (then) perating n digital radi agree and/r wish t embrace them as part f its suite f services and within the available multiplex capacity reserved fr cmmunity bradcasting. Darwin RA1 - planned but nt yet allcated 5.35 The cnsultatin paper references the planned but as yet nt allcated cmmunity radi bradcasting licence fr Darwin, and that it will be fr the Darwin RA1 Licence Area As the licence is t have a Darwin RA1 Licence Area, there is n need fr any deeming determinatin t be cnsidered The cnsultatin paper states that the licence is intended t cme int frce befre the Darwin RA1 digital radi start up day and that the ACMA will authrise the licensee t prvide bth an analgue and frm digital radi start up day ne r mre cmmunity digital radi bradcasting services. It wuld als be pen t the ACMA t licence with the abve utcmes after the digital radi start up day The CBAA therefre supprts the prpsals and utcmes utlined in the cnsultatin paper in relatin t the planned Darwin RA1 licence, ntes there is n need fr deeming, and that the result with be further cmmunity radi services t be carried within the available multiplex capacity reserved fr cmmunity bradcasting.

8 DIGITAL RADIO: DEEMED LICENCE AREAS DETERMINATION 2017 CBAA COMMENTS Page 7 6. Deeming f services in Canberra Canberra RA1 6.1 The cnsultatin paper utlines licence planning fr Canberra, nting that there 4 cmmercial radi bradcasting licences planned fr the Canberra RA1 Licence Area, with callsigns 2CA, 2CC, 2ROC and 1CBR. 6.2 There are als 4 cmmunity radi bradcasting licences planned in Canberra RA1, with callsigns 1XXR, 1ART, 1CMS and 1WAY. 6.3 As these 4 cmmunity licences have a Canberra RA1 Licence Area these licensees are designated cmmunity radi bradcasting licensees as defined in the Radicmmunicatins Act 1992 and there is n need fr any deeming determinatin t be cnsidered. 6.4 In effect their existing licenced status results in eligibility f the General cmmunity licensee (2XX) 1XXR, the Arts and Music cmmunity licensee (Artsund) 1ART, the Ethnic cmmunity licensee (Ethnic Bradcasters Cuncil) 1CMS, and the Religius- Christian cmmunity licensee (Canberra Christian Radi) 1WAY t participate in digital radi in Canberra. Canberra RA2 6.5 The cnsultatin paper ntes that the Canberra RA2 Licence area is cextensive with the Canberra RA1 Licence Area with the additin f the twn f Wagga Wagga. 6.6 The ne cmmunity licensee with the Canberra RA2 Licence Area has cverage which matches r exceeds the cmmercial radi services in the Canberra RA1 Licence Area. 6.7 The CBAA therefre fully supprts the ACMA prpsal that the 2017 Determinatin include an additinal Determinatin that: Canberra RA2 be deemed t be the same as Canberra RA1 fr the purpses f digital radi. 6.8 In effect this affects the service f the Print Handicapped cmmunity licensee, 1RPH and ensures their equivalent status as a designated licensee in respect f the DRMT licences in Canberra. 6.9 The CBAA ntes that the lra2 Licence Area fr 1RPH adds cverage the twn f Wagga Wagga t the cverage f Canberra Therefre, as and when digital radi services are cntemplated fr Wagga Wagga, the ACMA will need t ensure there is psitive cnsideratin given t deeming 1RPH a secnd time, t ensure inclusin in Wagga Wagga digital radi This highlights anther aspect f where the current adherence t digital radi planning and licensing based slely n histric cmmercial licence areas can result in utcmes at dds with best efficiency and apprpriate service utcmes. Queanbeyan RA1, Yass RA1 and Tuggeranng RA The cnsultatin paper ntes that the licences areas Queanbeyan RA1, Yass RA1 and Tuggeranng RA1 verlap with Canberra RA1 r, in the case f Tuggeranng, are a subset The ACMA cnsiders these three services as lcal cverage services, planned fr a specific gegraphic area. The cmmunity f interest is described as general t each gegraphic area, with n ver-arching ther cmmunity f interest The ACMA des nt prpse t deem these licence areas t be the same as Canberra RA1 fr the purpses f digital radi While the CBAA can understand the reasns fr the ACMA prpsal, this des leave the questin as t what will be the future pathway fr radi digitisatin fr these lcalised cmmunity services Stand-alne small-scale limited cverage digital services are an ptin t cnsider. This wuld require either trial licensing r legislative change and is discussed elsewhere Anther ptin at sme future stage, may be fr the ACMA t cnsider licensing further cmmunity digital radi nly services in the Canberra RA1. A further ptin fr small ppulatin and/r target areas may be an alternate technlgy and legislative slutin fr digitisatin f licensed radi services, such as nline/mbile delivery paired with legislated zer-rating, als discussed elsewhere.