TIONS

NE~ LF~ISLAIION

Three bills relating to broad-casting have been introduced into Fed-eral Parliament. These are the ABC/SBS Amalgamation Bill 1986, the Tele-vision Licence Fees Amendment Bill andthe Broadcasting Amendment Bill 1986.The ABC/SBS Amalgamation Bill has beenrejected by the Senate and the Broad-casting Amendment Bill referred to aSenate Committee. That Committee isdue to report on 28 February, 1987.The Broadcasting Amendment Bill re-fates to the equalisatlon of regionalcommercial telexislon, repealing thetelevision supplementary ifcencescheme and providing the statutorybasis for aggregation of regionaltelevision service areas. It providesa legislative base for the indicativeplans.

TELEVISION STATIO~ DRAFT CLEARANCETIMETABLE

In September the Minister forCommunications issued a draft time-table setting out when certain tele-vision stations would have to movefrom their existing channels to makeway for new FM radio services. In theearly 1960s Channels 3, 4 and 5 of thebroadcasting (known as band II) fre-

quency spectrum were assigned to tele-vision stations in regional Australia,although throughout the world band IIfrequencies were being allocated forFM radio services. Planning is al-ready underway for one major commer-cial station, WIN4 Wollongong, to moveto the UHF band. Submissions havebeen invited before the end of theyear on the draft timetable.

VOL. 7 No. 1

CONTENTS

Address by C.C. Halton, Secretaryto the Department of Communicationsto A.C.L.A., 5 December, 1986 ........ 2

Guidelines for Provision of Videoand Audio Entertainment andInformation Services ................. 6

The Radioco~munications Act andTelevision Programs Not Transmittedfor Reception by the GeneralPublic ........................... . . .. 9

A.C.L.A. News ....................... 12

News Briefs ......................... 12

The New Inquiry - A PracticalPerspective ......................... 13

International Satellite and CableTelevision Symposium ................ 16

CONTRIBUTORS TO THIS ISSUE:

Michael J. Owen is a partner ofCorrs Pavey, Whiting & Byrne.

David Watts is an associate withSly & Russell.

forlhcoming events and other contributions. Forward all correspondence and contributions to:- Editorial Board, P.O. Box K541,

Haymarkel, N,S.W. 2000. g~isler~ by Amtralia.pmt -- Pubficalion No N BH ~74

ADDRESS BY C.C. HALTON, SECRETA~I~ ~~ DEPAR’I’~ENT OF COt’~ICATIONS TO

THE AUSTRALIAN CO~INICATIONS LAW

ASSOCIATION ON 5 DECEMBER 1986

Ladles and gentlemen, I wouldlike to thank your Association for in-viting me to address this luncheontoday. I will speak about the Govern-ment’s policy of mln[mum regulationand the challenges this raises in thefield of communications.

It is well known now that thevarious methods of communicationsavailable to us are coming togetherdriven significantly by advances indata processing and data transmission.

In the "old days" the worlds ofbroadcasting, film, music, computing,publishing and telecommunications wereself contained, separate in theirtraditions and practices. Today,these industries are finding themselv-es sub-industries of an overridingarea of activity information andcommunications. They continue tooperate under different regulationsand conventions, yet the continuingprogression towards convergence oftechnology blurs regulatory distinc-tions and makes traditional structur-es seem inequitable or contradictory.

We are frequently confronted withconflicting "scenarios" for the fu-ture. For several decades technologi-cal optimists have emphasised thewonders of the so-called communica-tions revolution. Pessimists havetalked about the "electronic night-mare".

When television was first intro-duced into Australia it was seen asthe beginning of a new communicationsera in this country. Television wasregarded as the most effective means

of communication known, with both apotential to contribute positively tothe development of a better society orif uncontrolled, a threat to Australi-an society, as each new technologicalinnovation is introduced there aresimilar references to new communica-tions eras and similar predictions ofdire consequences or untold benefits.

In the past decade or so tech-nologies have developed which poseacute dilemmas for Governments. Someof the more dramatic technological

CLB 2

developments have been in the areas ofbiotechnology, the new energysciences, and communications andinformation technology.

Regulators have had difficulty inkeeping pace with the problems which

technological change p~esents. Arecent writer (Weeramantry) describedthose responsible for the law as "thesleeping sentinels" because they are"not equipped t6~deal with the issuesarising from the rapid rate-6f scien-tific and technological advance. Oneof the major challenges for Gogernmentis to ensure that the benefits oftechnology are maximised and the nega-tive consequences minimised.

The commercial application ofsatellites, lasers, digital techniquesand optical fibres over the last 15years, has created an environmentwhere convergence is not only feasiblebut attractive, on both social andeconomic ground{. As long.ago as 1974the 15th edition of the EdcyclopaediaBritannica identified the’’~echnologyof information processing and of com-munication systems’ as the fifth ofeight major fields of technology. Un-fortunately the encyclopaedia is notrequired reading for regulators.

Recent Developments

The difficulties that regulatorshave in keeping pace with the problemsraised by technological change are il-lustrated by the Federal Communica-tions Commission’s (FCC) hearings computers. In its Computer I decision(1971) the FCC sought to distinguishbetween "data processing" and "commun-ications services". It also adopteddistinctions between "hybrid communi-cations" and "hybrid data processing"services, both of which were mixedservices involving elements of bothdata processing and communicationscapabilities.

The Computer II decision (!980)attempted to draw new boundary linesbetween "basic" and "enhanced" servic-es. Corporations providing enhanced

services were required to do so

through a fully separated subsidiary.The 1986 Computer III decision elimin-ated this structural separation.

Rather than drawing distinctionslike these between services, the Jap-anese have adopted a regulatory ap-proach based on a split between infra-

structure (or facilities) and servic-es. Convergence of technology how-ever, makes these apparently simpledistinctions, increasingly difficultto maintain.

The weakness of the present legaland regulatory framework developed ina more stable less dynamic period havereceived considerable attention. In afield which is broad and rapidlychanging, it is very difficult to cap-ture each piece, fit it neatly intosome master plan and ensure that thepieces stay in place. The social,economic and technical regulatoryissues associated with existing andnew communications technologies andservices have to be addressed in amanner which provides flexibility anddoes not inhibit new solutions.

The Department provides policyadvice to the Minister for Communica-tions on all matters related to theprovision of postal, telegraphic,telephonic and other like services,including television and radio, whichare subject to Commonwealth legis-lation for which the Minister isresponsible. "The Department also isresponsible for the broadcastinginfrastructure and has a planning,licensing and regulatory function inthe administration of the electromag-netic spectrum.

The Department’s statement ofpurpose now requires it to pursue’economic and technological regulationto the minimum extent necessary’ toachieve the Government’s objectives.This reflects the Government’s generalstance on regulation, as well as thecorporate view of deparmental manage-

The key to the Government’s ap-proach is to look at the purpose whichis served by regulation: Is regula-tion necessary? Do the benefits out-weigh the costs? Do the regulationsenhance efficiency? .Do they, in gen-eral, serve the community? Cannotself-regulation achieve the same ends?

VAEIS: New Service: New Rules

The self regulatory frameworkwhich the Government has adopted forthe introduction of the new video andaudio entertainment and informationservices - commonly referred to asVAEIS - demonstrates how the use oftoday’s technology to provide newservices fits with an approach whichstresses the minimum level of economicand technical regulation. I N thebroad context of meeting the challengeof regulating new applications oftechnology, the significance of theapproach to VAEIS should not be under-estimated.

On 2 September, 1986 the Ministerfor Communications announced that theGovernment had decided that a morator-ium on pay-TV (i.e. subscriber servic-es to households) would apply for atleast four years. He also said thatvideo and audio entertainment and in-formation services to non-domesticenvironments would be introduced onceguidelines had been determined.

VAEIS can be delivered by one ora combination of technolgies, such asterrestrial microwave multlpolnt dis-tribution systems, AUSSAT transpondersor Telecom’s cable and microwave net-work. They can be authorlsed underthe Radiocommunications Act 1983 and/or the Telecommunications Act 1975.

Club Superstation and Sky Channelare the first operational examples ofVAEIS delivered via the AUSSAT sys-tem. The Minister for Communicationshas recently obtained expressions ofinterest from entrepreneurs wanting todistribute VAEIS services through MDS.

The 2 September, 1986 announce-ment foreshadowed the development ofguidelines setting out content andtechnical licensing requirements forthese new services, which would formthe basis of a self-regulatory code ofpractice to be observed by serviceproviders.

After a round of consultationswith interested parties, these guide-lines were tabled in Parliament on 17October, 1986. Service providers givethe Minister a written undertaking tocomply with these guidelines beforeapproval is given for the commencementof a service.

The primary aims of the guide-

CLB 3

lines are to protect the public inter-

est and to provide for similar programstandards where there are similaritiesin the nature of entertainment pro-grams being offered by both free-to-air broadcasting services and the newservices.

To meet the two primary aims, theguidelines refer to relevant Austral-ian Broadcasting Tribunal standards asthe basis for content and advertisingrequirements. Service providers areexpected to observe the spirit andintent of these standards. Given thespecific nature of some services, how-ever, some standards will not apply inall cases.

Content requirements in theguidelines cover:

Prohibition on cigarette advertis-ing and restrictions on alcohol andgambling advertising

s Program classification

Maintenance of levels of Australiancontent appropriate to the natureof the respective services

Provisions to inhibit the removalfrom free-to-air broadcasting ser-vices of profitable areas of pro-gramming already available to thegeneral public

¯ Annual reporting requirements.

In addition to these guidelines,service providers are, of course, sub-ject to relevant Commonwealth, Stateand Territory laws in particularthose concerning copyright, gaming andbetting, defamation, obscenity andblasphemy, trade practices, privacyand consumer protection.

Avenues for complaints are alsooutlined in the guidelines and serviceproviders are required to report oncompliance with the guidelines and tokeep a complete record of all materialtransmitted for a period of six weeksafter transmission.

The onus is on the providers tocomply with the spirit and intent ofthe guidelines and thus ensure thesuccess of the self-regulatory scheme.

We expect that the guidelines

CLB 4

will be reviewed after 12 months - not

only to see how well they are protect-ing the public interest but also ifthey are facilitating the introductionof new and varied services. It isagainst this backdrop that the successof any such self-regulatory approachmust be assessed.

Television: Review of F.xisting RulesA number of areas of existing

social, economic and technical regula-tion also need scrutinising in termsof the Government’s minimum regulationobjective. For example, the arrange-ments surrounding ownership and con-trol of broadcasting licences.

A report, Ownership and Controlof Commercial Television: FuturePolicy Directions, by the ForwardDevelopment Unit (FDU) of the Depart-ment, suggests that the current systemof ownership and control rules cur-rently regulate the interests of manypeople who neither "own", nor "con-trol", nor "influenCe" commercialtelevision companies and therefore canhave no effect upon program deci-sions. You will know that one of theParliament’s objectives in commercialbroadcasting policy is to ensurediversity of choice of quality pro-grams. The FDU report says that, tothe extent that there is a need toregulate at all, that regulationshould affect those who take program-ing decisions.

As the FDU report points out,current legislation in the Broadcast-ing Act 1942 also requires the Aust-ralian Broadcasting Tribunal (ABT) apply artificial and inflexible cri-teria to many ownership transactions.This imposes a considerable regulatoryburden on affected persons and on theABT.

The FDU’s report suggests thereis a clear need to review enforcementprovisions and associated administra-tive procedures, to simplify theregime and to make it more appropriateto modern commercial practice.

As you may know, the Minister hasalready invited comments on the FDUreport. I hope that the comments willaddress such fundamental questions as"What principles should underlie theeconomic and social regulation ofbroadcasting?" If the answer to that

question includes "encourage competi-tion" and "discourage monopolies",such principles would be likely toproduce a very different regulatoryregime from that first introducedthirty years ago.

ACS: Nee Services: Which Rules

The policy decisions this year onancillary communications servicesillustrate how we are responding tothe regulatory issues raised by con-verging technology. New technology isincreasingly enabling the electromag-netic spectrum to be used in ways moreefficient and previously available intheory but not in practice. The term"ancillary communications services"

(ACS) refers to additional communica-tions services carried on the samesignal as a main broadcast service,and which depend for their existenceon the transmission of the main serv-ice. Although ACS cannot be transmit-ted independently of the primary (orhost) service, they may be quite dis-tinct from it in content or purpose.

ACS are either broadcasting ornon-broadcasting in nature, dependingon the audience and the material beingtransmitted. They will therefore belicensed either under the BroadcastingAct, or under the RadiocommunlcationsAct.

As potential ACS service provid-ers develop their business plans, someinteresting problems are bound toarise for the policy makers and forthe regulators.

Radio Frequency Management

The introduction of new technol-ogy and services may also place in-creasing pressure on spectrum spaceand increase the likelihood of inter-ference. The Department is developinga spectrum plan, based on the existingAustralian table of frequency alloca-tions, for adoption under the Radio-communications Act and is establishingtechnical standards for some equipmentlikely to cause interference. Techni-cal standards for cellular radio,cordless telephones and radio con-trolled toys are currently availablefor public comment.

Use of the spectrum by govern-

tents, companies, groups and Individ-uals is regulated by the issue oflicences and our basic objective is toensure Interference-free communica-tions because the relevant parts ofthe electromagnetic spectrum are bothfinite and of vital importance to allradiocommunications. Without them20th century transport, business,entertainment and social activitieswould be virtually impossible.

"l’he Way Ahead

I mentioned earlier that it isvery difficult" to capture each pieceof technology and fit it neatly intosome master plan. At present tradi-tional broadcasting services are regu-lated under the Broadcasting Act andother services like VAEIS are regulat-ed under the Radiocommunications andTelecommunications Acts. If we wereto move to some "Communications MasterPlan", what would it look like?

Technology is being used in in-creasingly subtle ways and criteriaand definitions developed in the pastare not always an adequate guide.When is a service directed at aparticular group of people "broadcast-ing" or simply a radiocommunicationsor telecommunications service?

How can we accommodate minimumregulation for person-to-person serv-ices, services to the general publicand services designed for identifiedend-users?

Within such a framework, how doyou ensure protection of the publicinterest?

Do the policy principles andassumptions developed in earlier days,still form an adequate basis for plan-ning?

A question, then, I would like toput to you is what is the minimumlevel of regulation given the compet-ing demands of:

¯ The dynamic nature of technologicalchange

¯ Difficulties in adjusting the legalframework to technological change

The desire to provide a flexibleframework for encouraging incentiveand opportunity for entrepreneur£al

CLB 5

initiative and investment in new

services, generating new employmentopportunities

¯ Protection of the public interest

Obviously, duplicating existingregulatory regimes is not an accept-able answer. In addition, we need tomaximise our use of existing legisla-tion such as that relating to tradepractices, defamation, consumer pro-tection, obscenity and blasphemy.

So far as VAEIS are concerned, Iam confident.that the policy frameworkwhich has been adopted is a reason-able, pragmatic solution. The ser-vices are exciting and innovative app-lications of state of the art communi-cations technology - and the adoptionof a self-regulatory framework forboth terrestrial and satellite app-

lications is no mere coincidence.With the FDU report, too, the sametrend is there - to prune existingregulations back as a means of makingthe regime more flexible and moreappropriate to modern circumstances.

It is not only .the domesticenvironment which provides regulatorychallenges, we are seeing a trend to-wards the internationallsation ofbusiness activity. Companies arebeing bought and sold across nationalboundaries - a globalisation of merg-ers and acquisitions. This globalisa-tion is occurring in finance, adver-tising, communications and entertain-ment. Technology is increasingy en-suring that no country can be comfort-ably isolationist. The associatedlegal issues such as copyright,national sovereignty, content regula-tion - have already received consider-able attention.

The world economy is becoming in-creasingly oriented to the productionof services. Technology now enablesworldwide networks to develop whichlink services, such as banking, withinvestment advice and credit ratingservices. Any service which can bereduced to electronic information cannow be traded instantaneously anywherein the world.

Conclusion

Farsighted technically literatelawyers and lawmakers are needed to

CLB 6

develop regulatory frameworks designed

to promote co-operation in an emerginginternational economy.

In meeting these challenges, thefocus should be on the goals we aretrying to serve. In achieving our ob-jective of minimum regulation, whetherby means of self-regulation, somelegislative provisions or throughregulation, the policy goals shouldremain of paramount importance. Tomeet those policy goals through aminimum of regulation is my Depart-ment’s objective.

GUIDELINES FOR PROVISION OF VIDEO ANDAUDIO ENTERT~ AND INFORMATION

SERVICES

Preamble

Set out below are the VAEISguidelines issued by the M/nister forCo~unlcatlons.

"i. On 2 September, 1986 the Ministerfor Communications announced the pol-icy framework for the introduction ofVideo and Audio Entertainment andInformation Services. This announce-ment foreshadowed the development ofguidelines setting out content andlicensing requirements for these newservices, which would form the basisof a self-regulatory code of practiceto be observed by service providers.The Minister for Communications hasnow determined the Guidelines whichare to apply.

2. For the purposes of these Guide-lines, the following definitionsapply:

VIDEO AND AUDIO ENTERTAINMENT ANDINFORMATION SERVICES (VAEIS) aretransmissions of programs hy tele-communications technology on apoint to multipoint basis to ident-ified categories of non-domesticenvironments. VAEIS may be fundedby advertising revenue and/orcharge for service and/or lease ofequipment.

¯ NON-DOMESTIC ENVIRONMENTS includehotels, motels, registered clubs,

hospitals, educational institu-tions, shops, government, commerci-al and industrial buildings, coach-

es, trains, aircraft, and mar[aevessels. Domestic environments,that is, private, long-term resid-ential dwellings, households andplaces of permanent residence donot qualify to receive VAEIS.

VAEIS PROVIDER refers to the indi-vidual, group or organlsatlon res-ponsible for providing the contentfor the service and who has signedan agreement with the Commonwealth

undertaking to abide by the Guide-lines. With the exception of theAustralian Broadcasting Corpora-tion and such educatfon, health andwelfare bodies, Commonwealth statu-tory authorities and governmentbusiness enterprises as may beapproved by the Minister for Com-munications, no government depart-ment, statutory authority, agencyor company set up by government maybe a VAEIS provider.

END USER refers to an individual,group or organisatlon which hasmade arrangements with a VAEIS pro-vider to receive VAEIS and/orequipment capable of receivingVAEIS.

BROADCAST includes both radio andtelevision 5roadcasts unless other-wise specified.

AUSTRALIAN means a person who wasborn in or is ordinarily residentin Australia.

ways:VAEIS are regulated in three

(a) VAEIS providers are subjectto relevant Commonwealth,State and Territory legisla-tion, in particular, con-cerning copyright, gamingand betting, defamation,obscenity and blasphemy,classification and exhibi-tion of films and video pro-gram material, trade prac-tices, privacy and consumerprotection.

(b) special conditions

licence and/or contract.

(c) an agreement with the Com-monwealth to comply with aset of Guidelines issued bythe Minister for Communlca-tioos.

4. VAEIS can be delivered by one ora combination of several technologies,such as Multipoint Distribution Sys-tems, AUSSAT satellite, or Telecom’snetwork. These Guidelines, which formthe basis for a self-regulatory codeof practice for VAEIS providers, willapply to all VAEIS regardless of thedelivery method.

5. Radlocommunlcatlons licencesissued to VAEIS providers will be sub-ject to conditions covering the encod-ing of transmissions, identificationof categories of end users, specific-ation of the purpose of the service,and the technical parameters withinwhich VAEIS is required to operate.

6. Those VAEIS providers who enterinto contracts with Telecom will besubject to arrangements to those llst-ed in paragraph 5 above.

7. VAEIS are communications servicesproviding innovative types of program-ming and formats. The standards to beadopted in the provision of VAEIS areset out below. Given the specificnature of some VAEIS, some standardsmay not apply in all cases. Queriesabout the Guidelines or their applic-ability to particular services shouldbe addressed to the First AssistantSecretary, Radio Frequency ManagementDivision, Department of Communica-tions, PO Box 34, BELCONNEN, ACT 2616.

8. Complaints concerning program andadvertising content can be directed tothe VAEIS provider, the Secretary,Department of Communications, or theAdvertising Standards Council, asappropriate.

Standards

9. VAEIS will be restricted topeople present in the ~1o~-domestic en-vironments of end users. This condi-tion is not meant to exclude limitedprovisio~ o~ ~a~’[lities for the pur-

CLB 7

poses of management and monitoring by

the VAEIS provider.

I0. VAEI$ providers of entertainmentservices will make particulars of allprogram content to be supplied, in-cluding program classification in thecase of video material, readily andregularly available to all end users.

Ii. Where the content of their serv-ice is similar to material that iscurrently subject to Australian Broad-casting Tribunal (ABT) program and ad-vertising standards, VAEIS providerswill observe the spirit and intent ofthese standards. More particularly,the standards to be observed includethose listed in the attachment.

12. VAEIS providers will ensure thatthe Media Council of Australia (MCA)advertising code requirements are ful-filled.

13. Since the ABT and MCA standardschange from time to time, it is theobligation of VAEIS providers to keepthemselves informed of. any changes,and to observe those changes.

14. VAEIS providers will not transmitAO programs at times other than thoseapplying to free-to-air televisionexcept where, arrangements have beenmade to ensure that the programs arenot accessible to persons under theage of 18. Films or other materialthat is classified "R" or "X" will notbe carried under the authority ofVAEIS licence or contract.

15. VAEIS providers will not transmitadvertisements for alcoholic drinks oradvertisements relating to betting orgambling at times other than those ap-plying to free-to-air television ex-cept where arrangements have been madeto ensure that they are not accessibleto persons under the age of 18. Ad-vertisements soliciting business con-cerning forecasts of results of sport-ing events may not be transmitted atany time.

16. VAEIS providers will not transmitadvertisements for, or for the smokingof, cigarettes, cigarette tobacco, orany other tobacco products at anytime.

CLB 8

17. If, during an election period, aVAEIS provider transmits election mat-ter reasonable opportunities will beafforded for the transmission of elec-tion matter to all political partiescontesting the election.

18. VAEIS providers will ensure thatthe services are identifiably Austral-ian by maintaining levels of Austral-ian content appropriate to the natureof the respective service. Austral-ians will be employed as far as poss-ible in the performance, productionand presentation of programs and ad-vertisements. Where drama (includingmovies, plays, telemovies and serials)is a substantial component of a ser-vice, VAEIS providers will ensure thata reasonable balance is maintained be-tween foreign and locally producedmaterial.

19. VAEIS are not intended to removefrom free-to-air broadcasting profit-able areas of programming alreadyavailable to the general public.VAEIS providers will not exercise anyrights they may have to such programsin such a way .that. would precludetheir availability for viewing by thegeneral public.

20. VAEIS providers will maintain acomplete recording of all materialtransmitted for a period of six weeksafter transmission so that it may berecalled for inspection should theneed arise.

21. All video entertainment servicesfor which radiocommunications licenceshave been fssued will be transmittedin B-MAC.

22. In providing the facilities andmaterial for VAEIS, VAEIS providerswill not participate in, or facili-tate, arrangements that would be in-consistent with the spirit and intent

of the Guidelines.

23. VAEIS providers will make avail-able to the Minister for Communica-tions, within six months after 30 Juneeach year, a report of their compli-ance with these Guidelines and (on commercial-in-confidence basis) anaudited balance sheet and profit andloss account, and a statutory declara-

tion stating gross earnings during

that year.

24. The Guidelines may be amendedfrom time to time in accordance withGovernment policies after a period ofconsultation.

Austral~an Broadcasting TribunalStandards relevant ~o the provlslou

of VAEIS

Interim Television Program Standards(for video programs):

General Program Standards (2)Program Classifications (3b, i0,ii)Not Suitable for Television (9)News Programs (15)Contests (16)Interviews and Telephone Conversa-tions (17)Production of Advertisements inAustralia (18, 19)

Interim Television Advertising Condi-tions (for video programs):

Children and Advertising (ba, 55)Advertising for Cinema films,Video Tapes and Video Discs (6a,

6b)Advertising of Products of a Per-sonal or Intimate Nature (Sa)Policy Statement POS07 on "Adver-tising Matter Relating to Cigar-ettes or Cigarette Tobacco"

Radio Program Standards (for audioprograms):

Prohibited Matter (2, 3)Encouragement of Australian Art-

ists (4)News Programs (5)Contests (6)Interviews and Talkback Program

(7)

Radio Advertising Conditions (for aud-

io programs):

General (2)Australian Advertisements (3)

For the purpose of VAEIS, the term"licensee" should be read as "VAEISprovider"."

T~E RADIOCO~UNICATIONS ACT ANDTELEWISION PROGRAMS NOT TRANSM/I"fEDFORRECEPTION BY TBE GEN~RAL PUBLIC

It is my intention to offer somethoughts in response to the question"How far can the Minister go to.con-trol content of programs transmittedpursuant to a licence granted underthe Radiocommunicatlons Act?".

The Radlocommunicatlons Ac~ ("theAct") was assented to in December1983, but only proclaimed to come intoeffect in August 1985. It replacedthe Wireless Telegraphy Act which wasfirst enacted in 1905.

The Act is not ordinarily legis-lation that one includes In the bundleof law referred to as "media law" -often it is only given a passingreference in the context of technicalmatters.

Let me remind you of the back-ground to the Act and the matters thatthat legislation addresses.

The constitutional basis of thelegislative power of the FederalParliament is the power to make lawsfor the peace, order and good govern-ment with respect to "postal, tele-graphic, telephonic and other llkeservices" (51(v)), In 1935 the Court of Australia, when broadcastingwas regulated under the Wireless Tele-graphy Act, held that the Commonwealthpower extended to the control ofbroadcasting. The Court placing aheavy emphasis on the notion of a"message". That emphasis persists inthe definitions to be found in theAct.

This concern about "messages" maybe illustrated by the definition of"radiocommunication" - that means:-

"(a) radio traT,~,n;ssion; (b) reception of radio trans-

mission,

for the purpose of the communica-tion of information between per-sons and persons, persons andthings or things and things."

This leads to my favourite defin-ition - s5(l) provides:-

CLB 9

"without prejudice to its effect,

apart from this sub-section, thisAct also has, by force of thissub-section, the effect it wouldhave if the reference in thedefinition of "radlocommunlca-tlon" in sub-section 3(1) forthings and things, were a refer-ence to parts of things and thesame or other parts of the samethings."

You may wonder what that is - itis a definition of radar.

The radio frequency spectrum isused by a multitude of services bothspace and terrestrial. Many of themare safety services. For example,there are the aeronautical services,the maritime services, the fixedservice, land mobiles and even radioastronomy.

The Act has, I suggest, as itsobject the regulation of the radiofrequency spectrum in all its aspectsincluding planning of the use of thespectrum, the regulation of access tothe spectrum and the regulation ofactivities that diminish the useful-ness of the spectrum. The Act, whencontrasted with the legislation incountries such as the United Kingdom,Canada, New Zealand and the UnitedStates is highly innovative, particu-larly in the area of "interference".

The Act provides the mechanismfor the licensing of all radio trans-mitters other than transmitters lic-ensed under the Broadcasting andTelevision Act, and for the licensingof receivers falling into a classspecified by a regulation. What islicensed under the Broadcasting andTelevision Act is really only thetransmitter radiating a program to thegeneral public. For example, theRadiocommunications (Licensing andGeneral) Regulations defined an out-side broadcast television service as a"radiocommunications" service fortransmitting programs" to a studio ortransmitter for broadcast to thegeneral public". That transmitter islicensed under the Act and not theBroadcasting and Television Act.

It should be noted that the Aust-ralian definitions of radiocommunica-tioas services accord with the defini-tions to be found in the Radio Regula-tions of the International Telecommun-

CLB I0

[cations Union.

The Internlt[onal Telecommunica-tions Union is created by a conventionwhich establishes the Union, a spec-lallsed agency of the United Nations,and which is responsible for, amongother things, the international co-ordination of the use of the radiofrequency spectrum and the inter-national regulation of that spectrum.Australia is a party to the conventionand the radio regulations form part ofthe convention.

The dichotomy between a broadcastservice and, for an example, an out-side broadcasting transmitter (as de-fined in the Australian Regulations)"is perhaps made clearer in the defini-tion of the broadcasting service foundin the Radio Regulations of the ITU -there it is a radiocommunicationsservice in which the transmissions areintended for direct reception by thegeneral public. The only differencebetween the Australian definition inthe Broadcasting and Television Actand the definition of the Radio Regu-lations is the use of the word"direct".

Mark Armstrong, "in his bookBroadcasting Law "and Policy in Ansi-ralla, places considerable emphasisupon the frequency on which the trans-mission takes place as a test as towhether a transmission is a "broad-cast" or not.

Clearly, for international pur-poses, a program can be transmitted ona non-broadcast frequency. Forexample, on a frequency in a bandallocated to the fixed service, ifthat transmission is providing afeeder to a transmitter which is"intended for direct reception by thegeneral public". It matters not thatthe average multi band receiver is ascapable of receiving that frequency asit is of receiving the short wavebands allocated to the broadcastingservice.

But the Act goes very much fur-ther than simply to provide a mechan-ism for the licensing of transmit-ters. It establishes a regime thatwill, with time and by setting ofstandards, and requiring those stand-ards to be adhered to, provide aregime that will lessen interference.Standards can be set for radio trans-mitters, radio sensitive devices

(audio amplifiers and even a pace-

maker can be a radio sensitivedevice), receivers (for example,standards for television receivers toincrease their immunity from interfer-

ence), and devices that emit electro-magnetic energy (that may include notonly a plastic RF welding machine, butalso a power line).

The Act has provision for radiofrequency planning, providing for thepublication, public comment and adop-tion of frequency plans.

Throughout the Act there is acontinuing reference to the mlnimlsa-

tlon of interference.The Act uses a series of defini-

tions that require close examination.Many of the definitions interlock with

other definitions. ""Radiocommunica-tions" utilises a definition thatdepends in turn on the definition of"radiotransmission". "Transmitter" isdefined, again in terms of "radiocom-munications" and a transmitter (whichincludes the power line) is differentfrom a "radiocommunications transmit-ter" which is really what one wouldordinarily refer to as a transmitter.

In short I suggest that the pur-pose of the Act is to regulate the useof the spectrum, to regulate access tothe spectrum, and to regulate thethings that can effect the spectrum.I suggest that the identification ofthe purpose of the legislation is ofcritical importance.

Section 25 of the Radiocommunica-tions Act provides that a licence tooperate and possess a radiocommunica-tions transmitter is subject to cer-

tain conditions. Section 25(I)(d)provides that amongst those conditions

is a "condition that the holder of thelicence shall not operate, or permitthe operation of, the transmitter insuch a manner as would be likely to

cause reasonable persons, justifiablyin all the circumstances, to be seri-ously alarmed or affronted, or for thepurpose of harrassing a person". Asomewhat lower standard than thestandard imposed by the AustralianBroadcasting Tribunal under the Broad-

casting and Television Act.Reference should also be made to

s25(1)(j) which imposes on a licence"such conditions (if any) as are pre-

scribed". An examination of theRadiocommunications (Licensing and

General) Regulations seems to showthat conditions have only been pre-

scribed for citizen band radio sta-tions and amateur stations. Referenceshould also be made to s25(1)(k) whichimposes on a licence "such other con-ditions (if any) as are specified the llcence ¯

These last two provisions ~houldbe read in conjunction with s25(8)which provides that nothing in para-graphs (1)(a) to (h) shall be taken implication to limit the generality of

the condition that may be prescribedfor the purposes of paragraphor specified under paragraph (1)(k).However, all that says is that nothingin those paragraphs shall be taken byimplication to limit conditions - con-ditions may be limited for other

reasons ¯Section 86 of the Act provides

that the decision of the Ministerunder s25 is a reviewable decisionunder the Administrative Appeals Tri-bunal Act ¯ Equally the possibleimpact of the Administrative Decisions(Judicial Review) Act should not beoverlooked ¯

Against this background onereturns to the original question -"how far can the Minister go to con-trol content of program transmittedpursuant to a licence g=anted under

the Radiocommunications Act. ¯ I takethe question to refer to content inthe sense that content is regulated bythe Australian Broadcasting Tribunal

under the Broadcasting and TelevisionAc~t, in terms of program content,Australian content, advertising con-

tent and the like.It is a general principle of

administrative law that an authoritycannot exercise the power granted fora particular purpose for a differentpurpose ¯

This principle can be illustratedby a decision of the House of Lords in

1964 - Chertsey Urban District Councilv Mixnams Properties Limited (1965) 735. There the owner of a caravansite applied for a licence under the

Caravan Sites and Control of Develop-ment Act 1960 for a site licence. Alicence was issued but the licenceimposed numerous conditions which thelicensee objected to as being ultrav[res. It was asserted that the localauthority were entitled only to impose

CLB II

conditions limited to matters of town

planning and public health. The Houseof Lords held that there was nothingin the Act suggesting any intention toauthorise local authorlties to gobeyond laying down conditions relatingto the use of the sites and it was notpermissible to regulate the user ofthe licensee’s legal power of lettingor licensing caravan spaces.

It is clear that that adm~nlstra-tire principle applies to a Ministerexercising a statutory discretion asmuch as it applies to authorities

generally - re Toohey (Aboriginal LandCommissioner) ex parte Northern LandCouncil (1981) 56 ALJR 165.

It may be therefore, if mycharacterisation of the purpose of theRadiocommunications Act is accurate,that it could be argued that theMinister’s power to impose conditionsdealing with content in much more thanthe very broad way imposed by s25(I)(d) of the Radiocomunications Act exercising a power for a purpose be-yond which that power was granted.The Broadcasting and Television Act islegislation that clearly grants thatsort of power. The question is - doesthe Radiocommunications Act?

One suspects that behind all ofthis lies a question of policy that noone is terribly anxious to grapplewith.

Michael J. Owen

This was a paper delivered at the ACLASeminar on 13 August, 1986 on NewVideo Entertainment Services. Otherpapers delivered at this Seminar werepublished in the Vol. 6 No. 3 (October

1986) issue of the Communications LawBnlletin.

~ TRIB[~AL VI~-CH~IRM~

Mr Bill Armstrong, the formermanaging director of Radio 3EON-FM inMelbourne, has been appointed as thenew Vice-Cbalrman of the AustralianBroadcasting Tribunal. Mr Armstrongtook up his position on 1 December,1986.

CLB 12

A.C.L.A. - NEWS

At the Annual General Meeting of ACLAon 30 October, 1986 the followingoffice bearers were elected:

Stephen Menzies - Chairman

Michael Law - Vice-Chalrman

Victoria Rubensohn - Secretary

Stephen Menzies - Treasurer (on temporary basis)

Executive Members:

Richard AcklandMark ArmstrongAdrian DeamerNoric DilanchianRobyn DurieDominque FisherMichael FrankelLeo GrayKate HarrisonCatriona HughesPaul MarxJudi StackJanet StrlcklandCatharlne Weigall

MBLTIPOINT DISTRIBUTION SYSTEMS

Expressions of interest fromentrepreneurs wanting to distributevideo, audio or information materialthrough multipoint distribution sys-tems ("MDS") have been sought by theGovernment. Such systems use micro-wave transmitters to distribute videomaterial or data to receivers at spec-ified locations. The systems operateon different frequencies to televisionservices and cannot be received with-out special equipment. They can standalone, or operate as part of e hybriddelivery system combined with eithersatellite or Telecom cable or both.The fee for the transmitter sites inhigh density radio locations is $9,000per annum, and elsewhere $2,130 perannum. Licences will be granted underthe Radiocommunications Act.

THE ~EW IMQHIR¥ - A PRACTICALPEP~PECTIVE

REGULATION OF PRINT f~ANDICAPPED~TATION~

The Government in October announ-ced that radio for the print handi-capped stations would in future belicensed under the Broadcasting Act,as special interest public radio sta-tion. There are four radio for theprint handicapped stations operatingin Australia, these being in Sydney,Melbourne, Hobart and Brisbane, whilstthe fifth is temporarily off the air.The inclusion of the radio for theprint handicapped stations on thebroadcasting band will eliminate anyneed for modification of receivers topick up their signals. When the newlicensing arrangements come intoeffect holders of existing radio forthe print handicapped licences willhave to compete with other applicantsfor special interest (radio for theprint handicapped) licences.

REMOTETELEVISION CO/~ENCES

Golden West Satellite Communica-tions, the RCTS licensee for theWestern Zone, commenced broadcastingon 18 October, 1986. The satelliteup-link facility is located at Bun-bury, and is received by rebroadcast-ing facilities at Broome, Dampier,Derby, Carnarvon, Exmouth, Karratha,Kununurra, Port Hedland, Moora,Pannawonica, Roebourne and Wyndham.

Communications Law BulletinEditorial Bomrd

Robyn Durie. Michael Law,Victoria Rubcnsohn, Noric Dilanchian

Administrative SecretaryRos Gonczi

Word Processin~Gary Ross of Legal Word Whiz

l~’intin~Aliens Pt.v. Ltd.

Communications Law BulletinP,O. Box K541. Haymarkel, NSW. 2000.

On 15 May, 1986 the Broadcasting(Inquiries) Regulations came intoeffect.

The Regulations were heralded asthe means by which Inquiries could beexpedited, costs minimlsed and delaysaverted. Whilst streamlined inquiriesregnlations had, for some time, beenseen as deslrable, the Tribunal’s ex-perience with the Inquiry into a thirdcommercial licence for Perth was thecatalyst for the promulgation of thenew Inquiry Regulations although theAdministrative Review Council hadrecommended changes to the Inquiryprocess several years ago.

The aim of this Article is toprovide a commentary on how the newregulations have been put into prac-tice and how they were applied in thefirst licence grant inquiry to be heldunder them - the Newcastle FM Licencegrant. In addition, it is intended toprovide some suggestions as to how theprocedures can be improved and stream-lined in the light of the proceduresadopted.

The Newcastle Inquiry

After a false start when invita-tions for licence applications werewithdrawn, applications were requiredto be lodged by 22 July, 1986.

After some preliminary meetingswith the parties, on 12 September,1986 the Tribunal met with all theparties and submitters to the Inquiry.

Initially the new inquiry proced-ures were explained:

"Miss O’Connor explained that thenew inquiry procedures are avehicle to move the Tribunal intoan administrative rather than acurial mode. The new procedureshave more scope for co-operationbetween the Tribunal and partiesand between parties themselves.A feature of the new proceduresis the conference mode, designedto encourage discussion andidentify major issues. Mostissues will be approached in a

CL~ 13

non-adversarial manner and con-fllct will hopefully be confinedto a limited number of Issueswhich, in the end, are Irrecon-cilable and may need to be airedduring a public hearing" (ABTreport of public conference

12.9.86).

During the conference the Tribun-al made the point that the new inquiryprocedures emphasised documentationand that hearings would focus on the"funnelling" of information theparties .had provided as a result ofthe "pre-hearing procedures’; underthe new procedures a public hearing isnot automatic. Thus the inquiryemphasis has fundamentally changedfrom the presentation of an applica-tion at an oral hearing to the prepar-ation of documentation, its fillng andexchange, prior to a hearing (if any).

On the subject of cross-examina-tion, the Tribunal said that becauseinquiries are not strictly adversarial"cross-examlnation is often not appro-priate or of assistance to the Tribun-al ¯ .. I t has been the experience ofthe Tribunal that challenges to thequalifications, expertise or credibil-ity of a witness who has given evid-ence in areas such as economics ormarket research are unlikely to behelpful to the Tribunal. The Tribunalwill use its own expertise to giveappropriate weight to the materialproduced to such experts. Parties whowish to challenge qualifications,expertise or credibility of expertsshould therefore seek leave of theTribual first".

The conceptual structure given tothe Newcastle inquiry by the Tribunalinvolved four steps:-

¯ The funnelling stage - the stagewhere the parties determine theissues.

The Specifics Stage - where theparties file and serve documentsto be relied on.

The Cross-Examination in WritingStage - where the parties respondto the cases developed by theother parties.

CLB 14

The Hearing Stage - where all the

facts and issues are before theTribunal and any hearing is totidy up loose ends.

The conceptual scheme was imple-mented by directions involving a fair-ly tight time schedule, the relevantstages being:

Parties provide lists of docu-ments sought ’from other partiesand the Tribunai.

2. Parties provide requested docu-

3. Parties provide documents uponwhich they will rely.

Parties provide statements ofevidence and other material insupport of their cases.

5. Conference to assess the conductof the inquiry to date.

6. Parties to provide evidence andsubmissions in reply to thecauses of the other parties.

7. Tribunal interviews the Boards ofDirectors of the parties and tohear closing submissions (unlessevidence is to be heard orally).

8. (If required) oral hearing.

In practice the tight timetableworked well - after all it was in allapplicants’ interests to hasten thellcence gran~.

However, some criticism can belevelled at the process.

First, there is no reason whyapplicants should not, when first fil-ing their applications, file with themstatements of evidence in support oftheir applications. Such statementsshould include evidence from thedirectors an major shareholders of theapplicant companies together withevidence as to market research, tech-nical planning and financial assump-tions and predictions. This would re-quire the redesign of the applicationform to accommodate the presentationof such supporting material. Similar-

ly, there is no reason why applicants

could not lodge with their applica-tions the documents upon which theypropose to rely.

Such a procedure would augmentthe determination of the relevantissues at the Inquiry because, from anearly stage, each of the licenceapplicants would be in a position toassess the cases being presented byother applicants rather than having towait until some time later to ascer-tain the issues.

Secondly, the opportunities forapplicants to obtain documents from

other parties should be circumscribed,at’~’least in terms of parties beingentitied to request and receive docu-ments from other applicants as ofright.

My experience with the new pro-cedures was that the "requesting docu-ments" stage could be used oppressive-ly or as a fishing expedition byapplicants. So far as I could dis-

cern, the documents obtained fromapplicants served little, if any,significance in terms of the substan-tiv@ cases ultimately presented byeach of the applicants.

A moreefficient procedure, giventhat the Tribunal might find it ofsome relevance to have access to docu-ments such as the minutes of BoardMeetings of applicant companies orother internal memoranda and reports,would be for the Tribunal to request

them to be filed at the same time thatapplications are filed, or alterna-tively, that they should be filedshortly after the application andsupporting material is filed. In anyevent, applicants seeking documentsfrom their competitors should be re-

quired to submit the reasons why theyrequire the documents the subject oftheir request.

Thus structured, the documentaryphase of a licence inquiry could be

reduced to:

i. Applications lodged togetherwith:

(a) Statements of Evidence insupport of application.

(b) Documents upon which theapplicant relies.

Conference to discuss inquiry and

to determine whether parties areto be entitled to other documentsfrom applicants.

Parties to provide evidence andsubmissions in response to the

cases put by other applicantS.

Interviews with applicants’Boards and closing submissions-

5. Oral hearing (if any).

One of the most interesting inno-vations used by the Tribunal was its

interviews with each of the Boards.The interviews took the form of

the members of the Tribunal directingquestions to each of the Boards in apublic hearing. The Tribunal was ableto question the Board members onissues that they considered to be ofsignificance. The interviews took

place without the active participationof legal representatives.

As a result, the Tribunal wasable to avoid hearing lengthy cross-examination of witnesses. The inter-views lasted about 3-4 hours in eachcase ~nd were an unqualified success.

The Tribunal left open the oppor-tunity for the parties to request anoral hearing at which cross-examina-tion would take place on certainissues after the requesting party hadestablished the need for cross-examination. Ultimately, none of the

parties considered it necessary tomake such a request.

The result of the new inquiryprocedure speaks for itself: th~ New-castle inquiry was finished in about

4½ months. A decision is to be handeddown in late February. However it istoo early to determine whether the newprocedures have led to significantsavings in costs for licence applic-ants. Certainly barristers fees arelikely to decline as there is nonecessity for their use otherwise thanin the context of an oral hearing.The costs of an inquiry are broughtforward by the new procedures. Theyare incurred in the preparation anddocumentary phase rather than at ahearing. The result is the defolia-tion of forests rather than the launchof hot air balloons.

David Watts

CL~ 15

INTEI~ATIONAL SATELLITE AND CABLETELEVISION S~fl~OSI~H TO BE HELD

A~ U.C.L.A.

The Fifth Biennial CommunicationsLaw Symposium to be conducted in LosAngeles on March 5, 1987 shall concernthe topic of "Followin$ the Foot-prints: Protecting Film and TV Rishtsin the World Satellite Marketplace".

The Symposium is being presentedby the U.C.L.A. Communications LawProgram in co-operatlon with theInternational Bar Association and theAmerican Film Marketing Association atthe Beverly Hilton Hotel in BeverlyHills, California. The Symposium isbeing held in conjunction with theAmerican Film Market which will alsobe held at the Beverly Hilton Hotel,February 26 - March 6, 1987.

The brochure advertising the Sym-posium notes in part as follows:

"Delivery of entertainment pro-grams across national borders bysatellite is a daily reality. Asnew international networksemerge, complex legal and market-ing problems arise.

Markets are becoming definedby satellite footprints ratherthan geographic boundaries.

Governments are unable tocontrol the programming’reach-ing their citizens.

Copyright owners have diffi-culty maintaining compensationcommensurate with those whosee their product."

The registration fee for the Sym-posium is US$125.00 or US$100.00 formembers of the International BarAssociation. For those who cannotattend the Symposium materials may beobtained at a cost of US$50.00 (nopostage charge is indicated in theSymposium brochure). All communica-tion may be addressed to:

Mail to: 1987 SymposiumCommunications Law

ProgramU.C.L.A. School of LawLos Angeles, CA 90024

Inquiries: Doris Davis

Conference Administrator

(213) 206-0534 (213) 825-6211

Telex: 910 342 7597.

UCLA Communications LawProgram

Retae Ans~hxto"Chairman of the BoardPanAmSat Corporation

Sllvto Berlusconl*Fininvest BroadcastingCompanyMilan

Daniel Brenner, DirectorUCLA CommunicationsLaw Program

Smart BrotmanSenior ManagementAdviser/CommunicationsBoston

Hon. Patricla DlazDerm/sFederal CommunicationsCommissionWashington, D.C.

Prof. Herbert S. DordtckChairtnan,Radio, T~, Film Dept.Temple UniversityPhiladelphia

Dr. Massimo Ferrara-SantamariaAttorney. and ProfessorRome

Charles M. FirestoneAttorney.Mitchell. Silberberg &KnuppLos Angeles

Michael Flint, SolicitorDenton, Hall, Burgin& WarrensLondon

Me| Harris, PresidentTelevision GroupParamount PicturesCorporation

P~oL Heather HudsonCollege of CommunicationUniversity of Texas, Austin

David Levine, Q.C.Sydney

,Martin Llndskogh,PresidentEsseltc EntertainmentSto~zkholm

Robert Mazer, Atto~weyChadbourne and ParkcWashington. D.C.

Claude Serra, AttorneyMandcl, Ngo & PartnersParis

Shinichi Shimizu,Director GeneralInternational Cooperation.N~IKJapan BroadcastingCorporationTok-yo

Eric H. Smith, AttorneyWashington. D.C.

Robert N. Wold,ChairmanWold Communications

"Some speakers subject tofurther confirmation