then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the pass‑through provider during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (f).
Recoupment of expenditure incurred by a part‑pass‑through provider—program is not produced as an eligible drama program
(4) If:
(a) during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and
(b) the person is a part‑pass‑through provider in relation to a subscription TV drama service because the person supplies a package of programs; and
(c) principal photography did not commence for the program before the end of the first financial year; and
(d) principal photography commences for the program during a later financial year; and
(e) when principal photography commences for the program, the drama program is not an eligible drama program; and
(f) the licensee who provided the subscription TV drama service nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;
then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the part‑pass‑through provider during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (f).
103K When expenditure incurred on a new eligible drama program
(1) For the purposes of this Division, if a person incurs expenditure on an eligible drama program, the eligible drama program is new if, and only if, the whole or a substantial part of the program has not been televised in Australia or New Zealand on a broadcasting service at any time before the expenditure is incurred.
(2) For the purposes of subsection (1), it is to be assumed that the definition of broadcasting service in subsection 6(1) extended to matters and things in New Zealand.
103L ACMA may make determinations about what constitutes program expenditure
Program material
(1) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on program material (other than eligible drama programs).
(2) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on program material (other than eligible drama programs).
(3) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on an eligible drama program.
(4) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on an eligible drama program.
Designated script development expenditure
(4A) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be designated script development expenditure.
(4B) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be designated script development expenditure.
Determination has effect
(5) A determination under this section has effect accordingly.
Determination to be of a legislative character
(6) A determination under this section is to be an instrument of a legislative character.
Legislative instrument
(7) A determination under this section is a legislative instrument.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
103M Expenditure to be nominated only once in meeting licence conditions
Channel provider and part‑channel provider
(1) If:
(a) either:
(i) a person is a channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a channel; or
(ii) a person is a part‑channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a package of programs; and
(b) the person nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;
the whole or part, as the case may be, of the expenditure must not be nominated by the person for the purposes of:
(c) the application of any other provision of this Division (other than a carry‑forward eligible drama expenditure provision) in relation to that service; or
(d) the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee; or
(e) the application of any provision of this Division in relation to another subscription TV drama service provided by another licensee.
(2) However, the rule in paragraph (1)(e):
(a) does not apply in relation to a person who is a channel provider if:
(i) the person supplies the same or a substantially similar channel to the other licensee; and
(ii) apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar channel supplied by the person is televised by the other licensee on the other subscription TV drama service; and
(b) does not apply in relation to a person who is a part‑channel provider if:
(i) the person supplies the same or a substantially similar package of programs to the other licensee; and
(ii) apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar package of programs supplied by the person is televised by the other licensee on the other subscription TV drama service.
Licensee
(3) If:
(a) a licensee provides a subscription TV drama service; and
(b) the licensee nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;
the whole or part, as the case may be, of the expenditure must not be nominated by the licensee for the purposes of:
(c) the application of any other provision of this Division (other than a carry‑forward eligible drama expenditure provision) in relation to that service; or
(d) the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee.
Subdivision B—Channel provider supplies channel
103N 10% minimum eligible drama expenditure—channel provider supplies channel
(1) If:
(a) a licensee provides a subscription TV drama service; and
(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel;
it is a condition of the licence that, for each financial year of operation, the sum of:
(c) the channel provider’s new eligible drama expenditure in relation to the subscription TV drama service; and
(d) the channel provider’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the channel provider’s total program expenditure in relation to the channel.
(2) In this section:
channel provider’s carry‑forward eligible drama expenditure, in relation to the subscription TV drama service, means the channel provider’s carry‑forward eligible drama expenditure (within the meaning of subsection 103NA(2)) for the financial year.
channel provider’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the channel provider during the financial year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
channel provider’s total program expenditure, in relation to the channel, means the total expenditure incurred by the channel provider during the financial year on the program material that is included, or available to be included, in the channel.
(2A) The channel provider is not entitled to nominate, under the definition of channel provider’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the channel provider during the financial year as exceeds 10% of the channel provider’s new eligible drama expenditure in relation to the subscription TV drama service.
(3) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).
Note: If the sum of the channel provider’s new eligible drama expenditure and the channel provider’s carry‑forward eligible drama expenditure is less than 10% of the channel provider’s total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103P and 103Q.
103NA Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription TV drama service; and
(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel; and
(c) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service for a financial year exceeds 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the channel for the financial year.
(2) For the purposes of section 103N, the channel provider’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the channel provider nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to so much of the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service as was incurred before 1 January 2006.
103P Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee
(1) This section applies if:
(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and
(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel (the first channel); and
(c) it is not the case that the channel provider supplies the same or a substantially similar channel to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the other licensee on another subscription TV drama service; and
(d) the sum of:
(i) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;
is less than 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s licence that, for the next financial year (the make‑up year):
(a) the channel provider’s make‑up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make‑up expenditure is equal to the shortfall amount; or
(c) the sum of:
(i) the channel provider’s make‑up expenditure; and
(ii) the first licensee’s make‑up expenditure;
is equal to the shortfall amount.
Definitions
(3) In this section:
channel provider’s make‑up expenditure means so much of the total expenditure incurred by the channel provider during the make‑up year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
first licensee’s make‑up expenditure means so much of the total expenditure incurred by the first licensee during the make‑up year on new eligible drama programs not included, or available to be included, in the first channel as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
shortfall amount means the amount by which the sum of:
(a) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year; and
(b) the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;
fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.
103Q Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees
(1) This section applies if:
(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and
(b) a person is a channel provider in relation to the first subscription TV drama service because the person supplies a channel (the first channel); and
(c) the channel provider supplies the same or a substantially similar channel to one or more other licensees (the additional licensees) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services); and
(d) the sum of:
(i) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;
is less than 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s licence that, for the next financial year (the make‑up year):
(a) the channel provider’s make‑up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make‑up expenditure is equal to the first licensee’s subscriber percentage of the shortfall amount; or
(c) if the channel provider’s make‑up expenditure is less than the shortfall amount—the first licensee’s make‑up expenditure is equal to the first licensee’s subscriber percentage of the difference between the shortfall amount and the channel provider’s make‑up expenditure.
Definitions
(3) In this section:
channel provider’s make‑up expenditure means so much of the total expenditure incurred by the channel provider during the make‑up year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
first licensee’s make‑up expenditure means so much of the total expenditure incurred by the first licensee during the make‑up year on new eligible drama programs not included, or available to be included, in the first channel as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
first licensee’s subscriber percentage means the percentage worked out using the following formula:
Start formula start fraction Subscribers of first licensee over Subscribers of first licensee plus Subscribers of additional licensees end fraction times 100 end formula
monthly subscriber number, for a subscription TV drama service for a particular month, means the number worked out using the following formula:
Start formula start fraction Number of subscribers to the subscription TV drama service on the first day of the month plus Number of subscribers to the subscription TV drama service on the last day of the month over 2 end fraction end formula
shortfall amount means the amount by which the sum of:
(a) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year; and
(b) the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;
fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.
subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.