Selvadurai, Niloufer --- "Meeting the Digital Challenge - The Need to Extend the Parameters of Reform" [2005] JlLawInfoSci 5; (2005) 16 Journal of Law, Information and Science 92
[∗] BA LLB (Hons I) Syd, Grad Dip Leg Prac UTS, PhD Macq. Lecturer, Division of Law, Macquarie University.
[1] Frieden R, ‘Adjusting the Horizontal and Vertical in Telecommunications Regulation: A Comparison of the Traditional and New Layered Approach,’ (2003) 55 Fed. Comm. L.J. 207 at 208; Frieden R, ‘Universal Service: When Technologies Converge and Regulatory Models Diverge’ (2000) 1 (13) Harvard Journal of Law and Technology 395.
[2] Department of Communications, Information Technology and the Arts, Meeting the Digital Challenge – Reforming Australia’s Media in the Digital Age, Discussion Paper, March 2006, at p1.
[3] The Communications Legislation Amendment (Enforcement Powers) Bill 2006 (Cth) has been introduced to the House of Representatives to enact the necessary appropriation measures.
[4] See Department of Communications, Information Technology and the Arts, above n 2; Department of Communications, Information Technology and the Arts, Review of the Provision of Commercial Television Broadcasting Services After 31 December 2006, September 2006; Department of Communications, Information Technology and the Arts Review of Restrictions on Multichannelling and Other Services, 2004; Department of Communications, Information Technology and the Arts, Review of the Regulation of Content Delivered Over Convergent Devices, 2004.
[5] Department of Communications, Information Technology and the Arts, ‘Government Media Reforms to be Introduced to Parliament,’ Media Release, 13 September 2006.
[6] It is not the purpose of this article to examine all aspects of the media law reform package. The Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth) is, for example, outside the ambit of the present discussion. Whilst the Act is of far reaching regulatory and political significance and has received the majority of the media’s attention, it does not relate to the present topic.
[7] See further Given J, ‘Being Digital: Australia’s Television Choice’ (1998) 3 Media and Arts Law Review 38; Australian Broadcasting Authority Specialist Group, Digital Terrestrial Television Broadcasting in Australia: Final Report of the Australian Broadcasting Authority Specialist Group on Digital Terrestrial Broadcasting, 1997.
[8] The Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 (Cth) implemented further amendments to the Schedule 4 scheme. The continuing efficacy of the scheme was considered in some detail by the Productivity Commission in its Final Report, Inquiry into Broadcasting, 2000; See also overview of law in Butler D and Rodrick S, Australian Media Law, (2004) at 541-547.
[9] Department of Communications, Information Technology, and the Arts, above n 2, 4.
[10] Ibid.
[11] Ibid.
<a name="fn13" href="#fnB13">[12] Nichills R and Spong L, ‘Digital Television in Australia’ (2002) 15 (1) TeleMedia 10.
[13] Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth) at 1.
[14] Ibid.
[15] Ibid.
[17] Certain narrow exceptions are listed in Schedule 4, cll 6(8) and 19(7B) in relation to such matters as minor differences in programming, electronic programme guides and digital programme enhancements closely and directly linked to the individual programme.
[18] The Australian Broadcasting Corporation and the Special Broadcasting Service.
[19] National broadcasters are permitted to provide educational, science, religion, health and children’s programmes on digital channels but are prohibited from providing national news broadcasts, drama, movies and certain sports.
[20] Broadcasting Services Act 1992 (Cth), Sch 4, Pt 4; See further Mentzines D and Costelloe R, ‘Digital Television and Datacasting – A Realisation of the Dream or a Dog’s Breakfast?’ (2000) 4(5) TeleMedia 53.
[21] Broadcasting Legislation Amendment (Digital Television) Act 2006, Schedule 1. Schedule 1 commenced on 5 November 2006, the day after the Act received Royal Assent.
[22] Broadcasting Services Act 1992 (Cth), s 28.
[23] Ibid.
[24] Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth), Schedule 2, s 8, inserts new ss 35A and 35B into the Broadcasting Services Act 1992 (Cth).
[25] Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth), Schedule 2, s 15, inserts a new s 40(5)-(13) into the Broadcasting Services Act 1992 (Cth).
[26] Broadcasting Services Act 1992 (Cth), s 115.
[27] See further Australian Broadcasting Authority, Investigations into Events on the Anti-Siphoning List Report to the Minister for Communications, Information Technology and the Arts, 2001.
[28] Department of Communications, Information Technology and the Arts, above n 2 at p 3.
[29] Schedule 4 of the Broadcasting Services Act expressly required a review of arrangements to be conducted before 1 January 2006.
[30] Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth) at 4.
[31] Department of Communications, Information Technology and the Arts, ‘Economic Impact of Multichannelling,’ www.dcita.gov.au>broadcasting>polict reviews>digital broadcasting policy reviews, at p 22.
[32] Department of Communications, Information Technology and the Arts, above n 2, at 5. Such a development would for example reduce the ability of subscription television to provide compelling sports coverage
[33] See for example, Australian Broadcasting Authority, Australian Broadcasting Authority (Specialist Group on Digital Terrestrial Television Broadcasting), above n 7; Australian Broadcasting Authority, ‘Allocation of Non-BSB Commercial Broadcasting Licences’, (1998-99) 72 ABA Update 18; Australian Broadcasting Authority, Narrowcasting for Radio: Guidelines and Information about Open and Subscription Narrowcasting Radio Services, 2002; Australian Broadcasting Corporation, Management of the Conversion to Digital Broadcasting: Audit Report No.27, 2004-2005; Australian Communications Authority (NGN Framework Options Group), Policy and Regulatory Considerations for New and Emerging Services, 2004; Input of engineer consultants is also evident in the Australian Communications Authority, Regulatory Issues Associated with Provision of Voice Services Using Internet Protocol in Australia, Discussion Paper, October 2004.
[34] Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth), Schedule 2, inserts a new s 35A into the Broadcasting Services Act 1992 (Cth).
[35] Department of Communications, Information Technology and the Arts, above n 2.
[36] Ibid at 3.
[37] Ibid.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Since the mid 1980’s the word ‘convergence’ has come to denote the dissolving of the clear boundaries between formerly discrete industries. The word was initially used to describe the dissolving of the clear boundaries between the telecommunications and information technology sectors. More recently, it has been used to describe the erasure of the clear boundaries between the telecommunications and broadcasting or electronic media sectors; See further S Brand, The Media Lab: Inventing the Future at MIT (1988) at 10.
[42] Department of Communications, Information Technology and the Arts, above n 2.
[43] Dertouzos M, What Will Be: How the New World of Information Will Change Our Lives (1997) for a discussion of how the changes in mass communication in the twentieth century have impacted on law, including statutory construction; See also review of text by D Calone, ‘The Times They are a-Changing’ (1997) 11 (1) Harvard Journal of Law and Technology 275.
[44] Aegis Group Study (UK), Digital at the Tipping Point (2004) at 23.
[45] Budde P, Digital Media, Convergence, Triple Play and IPTV (2006) at 6.
[46] Ibid.
[47] Madden G, Traditional Telecommunications Networks (2003).
[48] Beyda W, Data Communications: From Basics to Broadband (2005.
[49] See further Austerberry D, The Technology of Video and Audio Streaming (2004).
[50] OECD, Convergence or Collision - Information Computer Communications Policy (1992).
[51] OECD, Directive for Science, Technology and Industry, Webcasting and Convergence: Policy Implications, DSTI/ICCP/TISP, 1997.
[52] Egan BL, Information Superhighways Revisited – The Economics of Multimedia (1996).
[53] See further P Boczkowski, ‘Multiple Media, Convergent Processes, and Divergent Products: Organizational Innovation in Digital Media Production’ (2005) 597 (1) The Annals of the American Academy of Political and Social Science 32.
[54] The European Commission, Framework Directive 2002/21 EC, OJ [2002] L108/33.
[55] See further Levy D, Europe’s Digital Revolution: Broadcasting Regulation, the EU and the National State (1999).
[56] The European Commission, Framework Directive 2002/21 EC, OJ [2002] L108/33.
[57] Ibid Art 2 (a).
[58] Ibid Art 2 (b).
[59] Whitt R, ‘A Horizontal Leap Forward: Formulating a New Communications Public Policy Framework Based on the Network Layers Model’ (2004) 56 Federal Communications Law Journal 587 at 590; See also Lawrence B and Chung M, ‘The Layers Principle: Internet Architecture and the Law,’ University of San Diego School of Law and Legal Theory Research Papers (2003) No. 55 at p 29; Werbach K, ‘A Layered Model for Internet Policy,’ (2002) 37(1) Telecommunication & High Technology Law 39 at 39-40; and Weinberg J, ‘The Internet and ‘Telecommunications Services,’ Universal Service Mechanisms, Access Charges, and other Flotsam of the Regulatory System,’ 16 Yale Journal on Regulation 211 at 213.
[60] See Frieden R, ‘Whither Convergence: Legal, Regulatory and Trade Opportunism in Telecommunications’ (2002) 18 Santa Clara Computer & High Technology Law Journal 171.
[61] Whitt, above n 60, at 591.
[62] Ibid.
[63] Ibid.
[64] Ismail S, ‘Parity Rules: Mapping Regularity Treatment of Similar Services’ (2004) 56 Federal Communications Law Journal. 447 at 448.
[65] Katz M, ‘Regulation: The Next 1000 Years’ in Entman R (ed), Six Degrees of Competition: Correlating Regulation with the Telecommunicaitons Marketplace (2000), at p 129.
[66] Ibid.
[67] Broadcasting Services Act 1992 (Cth), s 6.
[68] Telecommunications Act 1997 (Cth), s 7.
[69] Scherer F, New Perspectives on Economic Growth and Technological Innovation (1999); P Drysdale (ed), The New Economy in East Asia and the Pacific (2004) .
[70] John S, Australian Use of Information Technology and its Contribution to Growth (2002).
[71] IDATE, Market Developments in Telecommunications and Integrated Communications Services to the Year 2010, (1997); Norcontel (Ireland) Ltd, Economic Implications of New Communication Technologies on the Audiovisual Markets, (1997).
[72] Cohen W and Levin R, ‘Empirical Studies of Innovation and Market Structure’ in R Schmalensee and R Willig (eds), Handbook of Industrial Organisations (1989).
[73] Bohlin E, ‘Convergence and the Development of East-Asia’ (1999) 23 Telecommunications Policy 213, 214-216; and KPMG, Public Policy Issues arising from Telecommunications and Audiovisual Convergence, September 1996.
[74] Taylor M, ‘Issues on Broadband: Transactional, Regulatory and Intellectual Property’ (2005) 6 (1) Business Law International 76, 85-89. Interestingly, the present regime for the governance of electronic communications is likely to have its embryonic origins in such discussion. A variety of policy platforms around the world at this time endorsed the primacy of a knowledge based economy. The 1998/1999 Development Report of the World Bank focused on the importance of “Knowledge for Development” and emphasised the connection between knowledge and economic growth. Similarly in the in 1998 the United Kingdom released a White Paper outlining the role of digital technology in knowledge based economies.
[75] Fransman M, Telecoms in the Internet Age: From Boom to Bust to …? (2002).
[76] For example with respect to the telecommunications interconnection regime, discrimination may occur if interconnection is offered to an operator of a public telecommunications network but not to the operator of a public broadcasting network. Such an interconnection may be of relevance in the context of services which rely on broadcast media to download information and services and then rely on a telecommunications network to provide a return channel for the information and services; Green paper at p 28.
[77] Howley K, Community Media: People, Places and Communication Technologies (2005); J Servaes, Communication for Development: One World, Multiple Cultures (1999); M Jussawalla, “The Impact of ICT Convergence on Development in the Asian Region” (1999) 23 Telecommunications Policy 217, 218-234; and Taylor, above n 74.
[78] Rao M, The Nature of the Information Society: A Developing World Perspective (2003).
[79] OECD Directorate for Science, Technology and Industry, ‘Internet Traffic Exchange and the Development of End-to-End International Telecommunications Competition’ (2002) 13 Computer and Communications Policy 2.
[80] Knutsen E, ‘Techno-Neutrality of Freedom of Expression in New Media Beyond the Internet: Solutions for the United States and Canada’ (2001) 8 (2) UCLA Entertainment Law Review 46.
[81] Gillet S E and Vogelsang I, Competition, Regulation and Convergence: Current Issues and Trends in Telecommunications Policy Research (1999).
[82] Productivity Commission, Broadcasting Inquiry Report, 1999 at 3; Department of Communications, Information Technology and the Arts, Telecommunications Competition Regulation, Issues Paper, (April 2005); Department of Communications, Information Technology and the Arts, Provision of Commercial Television Broadcasting Service after 31 December 2006, Issues Paper, (July 2004); Department of Communications, Information Technology and the Arts, Report of Review of the Operation of Schedule 6 of the Broadcasting Services Act 1992 (Datacasting Services), (December 2002); Department of Communications, Information Technology and the Arts, Report of Review of the Operation of Schedule 6 of the Broadcasting Services Act 1992 (Datacasting Services) 2; Department of Communications, Information Technology and the Arts, Proposal for New Institutional Arrangements for the Australian Communications Authority and the Australian Broadcasting Authority, (15 September 2003); Department of Communications, Information Technology and the Arts, Options for Structural Reform in Spectrum Management, Discussion Paper, (2002); Department of Communications, Information Technology and the Arts, Liberalisation of the Telecommunications Sector – Australia’s Experience, (1997); Department of Communications, Information technology and the Arts, Policy and Regulatory Framework for Emerging Voice Services, Discussion Paper, (29 November 2004); Department of Communications, Information Technology and the Arts, Report to Parliament; Review of Audio and Video Streaming Over the Internet, (2000); Department of Communications, Information Technology and the Arts, Telecommunications Competition Regulation, Issues Paper, (April 2005).
[83] Department of Communications, Information Technology and the Arts, Review of the Regulation of Content Delivered Over Mobile Communication Devices, Final Report, (2004) at 2.
[84] See n 82 and 83 above.
[85] Productivity Commission, Broadcasting Inquiry Report, (2000), at 122.
[86] Ibid.
[87] Ibid at 123.
[88] Ibid.
[89] Productivity Commission, 2004.
[90] Ibid at 9.
[91] See Walters P, McDonough A and Lloyd D, ‘Unbundled or Undone: Technical and Operational Issues Associated with Local Loop Unbundling’ (2001) 5 (4) TeleMedia 55 for the application of this argument to the regulation of the local loop.
[92] Whilst technical expertise has been liberally applied to the formulation of laws relating to technical matters such customer equipment and cabling standards, interconnection facilities, connection rules, labeling, numbering and the allocation of spectrum, it has not been sufficiently integrated into the law reform process relating to substantive issues such as licensing and operations.
[93] Australian Communications Authority (NGN Framework Options Group), 2004; Input of engineer consultants is also evident in the Australian Communications Authority, Regulatory Issues Associated with Provision of Voice Services Using Internet Protocol in Australia, Discussion Paper, October 2004.
[94] See J Weinberg, ‘The Internet and Telecommunications Services, Universal Service Mechanism, Access Charges, and Other Flotsam of the Regulatory System’ Yale Journal of Regulation (1999) 16: 211.
[95] See Blackman C, ‘Convergence between Telecommunications and Other Media’ Telecommunications Policy (1998) 22 (3) 163 for an outline of these various means of classification of what is essentially the same phenomenon of innovation and change.
[96] Hundt R, You Say You Want a Revolution: A Story of Information Age Politics (2000) Yale University Press.