121FZX The ACMA may make determinations about online content services etc.
(1) The purpose of this section is to provide for the ACMA to make determinations dealing with any of the following circumstances or events that would otherwise affect the operation of this Part:
(a) the nature, ownership or structure of online content services;
(b) changes in the nature, ownership or structure of online content services;
(c) temporary cessations of online content services;
(d) online content services being combined with other services (whether the other services are online content services or not);
(e) online content services splitting into separate services (whether all of the separate services are online content services or not);
(f) any other circumstances or events, involving online content services, that could result in:
(i) qualifying expenditure amounts not being available to be used by the entities or online content services to which the amounts are reasonably attributable; or
(ii) expenditure requirements not being required to be acquitted by the entities or online content services to which the expenditure requirements are reasonably attributable.
(2) The ACMA may, by writing, determine that this Part is to operate, in relation to one or more specified online content services, in a way that reduces, eliminates or otherwise addresses the effect of specified circumstances or events of a kind mentioned in subsection (1).
(3) Without limiting subsection (2), the kinds of determinations that the ACMA may make include the following:
(a) a determination that a change in an online content service (including a change in the nature, ownership, structure or providers of the online content service) does not affect the continuity of the online content service;
(b) a determination that an online content service is, at or after a specified time or for a specified period, taken to be, or not to be, the same online content service as a particular online content service at a specified time or for a specified period;
(c) a determination that 2 or more online content services are taken to be a single online content service;
(d) a determination that specified parts of an online content service are taken to be separate online content services;
(e) a determination that an online content service is taken to be, or not to be, a major SVOD service for one or more specified SVOD reporting years;
(f) a determination that an online content service is taken to be, or not to be, a regulated SVOD service for one or more specified SVOD reporting years;
(g) a determination that specified expenditure is taken to have been incurred, or not to have been incurred, by a specified online content service;
(h) a determination that specified revenue is taken to have been derived, or not to have been derived, by a specified online content service.
(4) A determination under subsection (2):
(a) may have effect on, at or after a specified time (which may be before the determination is made), or for a specified period (which may begin before the determination is made); and
(b) may relate to circumstances that existed, or an event that occurred, before the commencement of this Part.
(5) A determination under subsection (2) that has effect before the determination is made does not result in:
(a) a person being liable for a civil penalty order in relation to a contravention of subsection 121FZJ(1) for a current year (within the meaning of that subsection) that ends before the determination is made; or
(b) a person being liable for a civil penalty order in relation to a contravention of subsection 121FZP(1) or 121FZS(1) that occurs before the determination is made.
Determination has effect
(6) A determination under subsection (2) has effect accordingly.
Determination is not a legislative instrument
(7) A determination under subsection (2) is not a legislative instrument.
121FZY Review of this Part
Review of this Part
(1) The Minister must cause a review to be conducted of:
(a) the operation, effectiveness and implications of:
(i) this Part; and
(ii) the remaining provisions of this Act to the extent to which they relate to this Part; and
(b) whether any changes could be made to this Part, or the provisions mentioned in subparagraph (a)(ii), in order to improve the operation and effectiveness of this Part or those provisions.
(2) The review must commence as soon as practicable after the end of the 4 year period starting on the day that this Part commences.
Report
(3) The persons undertaking the review must give the Minister a written report of the review. The report must not include information that is commercially sensitive.
(4) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sittings days of that House after receiving the report.
121FZZ Minister may request report
(1) The Minister may, by written notice given to the ACMA, request the ACMA to:
(a) prepare a report about any one or more of the following:
(i) SVOD services;
(ii) expenditure by SVOD services on eligible Australian programs;
(iii) the acquittal of expenditure requirements by SVOD services;
(iv) access to eligible Australian programs by users of SVOD services;
(v) developments in the SVOD service industry; and
(b) give the report to the Minister.
(2) The ACMA must comply with a request under subsection (1).
Part 9—Content rules, program standards and codes of practice
121G Australian content—transmission quota
Programs transmitted on primary commercial television broadcasting service
(1) A commercial television broadcasting licensee must ensure that, for:
(a) the calendar year that began on 1 January 2013; and
(b) each later calendar year;
the percentage worked out using the following formula is not less than 55%:
Start formula start fraction Total hours of Australian programs transmitted during the year over Total hours of programs transmitted during the year end fraction times 100 end formula
where:
total hours of Australian programs transmitted during the year means the total number of hours of Australian programs that were transmitted:
(a) during targeted viewing hours in the year; and
(b) on the primary commercial television broadcasting service provided by the licensee.
total hours of programs transmitted during the year means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the year; and
(b) on the primary commercial television broadcasting service provided by the licensee.
Programs transmitted otherwise than on primary commercial television broadcasting service
(2) A commercial television broadcasting licensee must ensure that, for each calendar year beginning on or after 1 January 2015, the total number of hours of Australian programs that were transmitted by the licensee:
(a) during targeted viewing hours in the year; and
(b) otherwise than on the primary commercial television broadcasting service provided by the licensee;
is not less than 1,460.
Note: See also section 121H (which deals with compliance by regional/remote commercial television broadcasting licensees).
(3) For the purposes of the application of subsection (2) to a commercial television broadcasting licensee, if a first release Australian drama program was transmitted by the licensee:
(a) during targeted viewing hours in a calendar year; and
(b) otherwise than on the primary commercial television broadcasting service provided by the licensee;
assume that the duration of the program was twice as long as the actual duration of the program.
Targeted viewing hours
(4) For the purposes of this section, targeted viewing hours are the hours:
(a) beginning at 6 am each day; and
(b) ending at midnight on the same day.
(5) For the purposes of this section, if:
(a) a television program consists of coverage of a sporting event; and
(b) the program:
(i) begins before midnight on a particular day (the first day); and
(ii) ends on the next day;
the part of the program transmitted between midnight on the first day and 2 am on the next day is taken to have been transmitted during targeted viewing hours on the first day.
Australian programs
(6) For the purposes of this section, Australian program means:
(a) if an instrument is in force under subsection (7)—an Australian program as defined by that instrument; or
(b) otherwise:
(i) an Australian program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013); or
(ii) an Australian official co‑production (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013); or
(iii) a New Zealand program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013); or
(iv) an Australian/New Zealand program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013).
(7) The ACMA may, by legislative instrument, define the meaning of the expression Australian program for the purposes of this section.
Note: See also section 16 of the Australian Communications and Media Authority Act 2005 (consistency with CER Trade in Services Protocol).
First release Australian drama program
(8) For the purposes of this section, first release means:
(a) if an instrument is in force under subsection (9)—first release as defined by that instrument; or
(b) otherwise—first release (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013).
(9) The ACMA may, by legislative instrument, define the meaning of the expression first release for the purposes of this section.
Note: See also section 16 of the Australian Communications and Media Authority Act 2005 (consistency with CER Trade in Services Protocol).
(10) For the purposes of this section, Australian drama program means:
(a) if an instrument is in force under subsection (12)—an Australian drama program as defined by that instrument; or
(b) otherwise:
(i) an Australian drama program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013); or
(ii) an Australian official co‑production (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013) that is a drama program; or
(iii) a New Zealand program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013) that is a drama program; or
(iv) an Australian/New Zealand program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013) that is a drama program.
(11) For the purposes of subparagraphs (10)(b)(ii), (iii) and (iv), drama program means a program that would be an Australian drama program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013) if the expression “Australian” were omitted from paragraphs (a) and (c) of the definition of Australian drama program in that standard as in force on 1 January 2013.
(12) The ACMA may, by legislative instrument, define the meaning of the expression Australian drama program for the purposes of this section.
Note: See also section 16 of the Australian Communications and Media Authority Act 2005 (consistency with CER Trade in Services Protocol).
Licence allocated under subsection 40(1) on or after 1 January 2007
(13) If a commercial television broadcasting licence is or was allocated under subsection 40(1) on or after 1 January 2007, subsections (1) and (2) of this section do not apply to the licensee for:
(a) the calendar year in which the licence is or was allocated; and
(b) any of the next 4 calendar years.
Ministerial direction
(14) The Minister may, by legislative instrument, give directions to the ACMA in relation to the exercise of its powers under this section.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the direction (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(15) The ACMA must comply with a direction under subsection (14).
121H Australian content: transmission quota for regional/remote commercial television broadcasting licensees
Deemed compliance
(1) If:
(a) apart from this section, a regional/remote commercial television broadcasting licensee did not comply with subsection 121G(2) for a calendar year; and
(b) the regional/remote commercial television broadcasting licensee gives the ACMA a written notice that:
(i) states that the regional/remote commercial television broadcasting licensee wants to rely on this section for the calendar year; and
(ii) specifies a particular metropolitan commercial television broadcasting licensee; and
(iii) is in a form approved in writing by the ACMA; and
(c) the notice is given within:
(i) 30 days after the end of the calendar year; or
(ii) such longer period as the ACMA allows; and
(d) the total number of hours of Australian programs that were transmitted by the regional/remote commercial television broadcasting licensee:
(i) during targeted viewing hours in the calendar year; and
(ii) on such of its secondary commercial television broadcasting services as were equivalent to secondary commercial television broadcasting services of the metropolitan commercial television broadcasting licensee (the equivalent metropolitan secondary commercial television broadcasting services);
was not less than the total number of hours of Australian programs transmitted by the metropolitan commercial television broadcasting licensee:
(iii) during targeted viewing hours in the calendar year; and
(iv) on the equivalent metropolitan secondary commercial television broadcasting services;
the regional/remote commercial television broadcasting licensee is taken to have complied with subsection 121G(2) for the calendar year.
Publication of copy of notice
(2) If a notice is given under paragraph (1)(b), the ACMA must publish a copy of the notice on the ACMA’s website.
Application of subsection 121G(3)
(3) Subsection 121G(3) applies to paragraph (1)(d) in a corresponding way to the way in which it applies to subsection 121G(2).
Equivalent services
(4) For the purposes of this section, if the program content of a secondary commercial television broadcasting service provided by a regional/remote commercial television broadcasting licensee is the same, or substantially the same, as the program content of a secondary commercial television broadcasting service provided by a metropolitan commercial broadcasting licensee, then those services are equivalent to each other.
Definitions
(5) In this section:
Australian program has the same meaning as in section 121G.
metropolitan commercial television broadcasting licensee means a commercial television broadcasting licensee whose licence area is a metropolitan licence area.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia.
regional/remote commercial television broadcasting licensee means a commercial television broadcasting licensee whose licence area is a regional/remote licence area.
regional/remote licence area means any of the following licence areas:
(a) Northern New South Wales TV1;
(b) Southern New South Wales TV1;
(c) Regional Victoria TV1;
(d) Eastern Victoria TV1;
(e) Western Victoria TV1;
(f) Regional Queensland TV1;
(g) Tasmania TV1;
(h) Broken Hill TV1;
(i) Darwin TV1;
(j) Geraldton TV1;
(k) Griffith and MIA TV1;
(l) Kalgoorlie TV1;
(m) Mildura/Sunraysia TV1;
(n) Mount Gambier/South East TV1;
(o) Mt Isa TV1;
(p) Riverland TV1;
(q) South West and Great Southern TV1;
(r) Spencer Gulf TV1;
(s) Remote and Regional WA TV1;
(t) Remote Central and Eastern Australia TV1;
(u) Western Zone TV1;
(v) South Eastern Australia TV3;
(w) Northern Australia TV3;
(x) Western Australia TV3;
(y) Remote and Central Eastern Australia TV2.
secondary commercial television broadcasting service, of a commercial television broadcasting licensee, means a commercial television broadcasting service provided by the licensee that is not the licensee’s primary commercial television broadcasting service.
targeted viewing hours has the same meaning as in section 121G.
122 Program standards for children’s programs and Australian content
(1) The ACMA must, by legislative instrument, determine standards that are to be observed by commercial television broadcasting licensees.
Note: See also section 16 of the Australian Communications and Media Authority Act 2005 (consistency with CER Trade in Services Protocol).
(2) Standards under subsection (1) for commercial television broadcasting licensees are to relate to:
(a) programs for children; and
(b) the Australian content of programs.
(4) Standards must not be inconsistent with this Act or the regulations.
(6) The ACMA must ensure that, at all times after the commencement of this subsection, there is in force under subsection (1) a standard that is, or has the same effect as, the standard in section 5 of Television Program Standard 23—Australian Content in Advertising as in force on 4 August 2004.
Note: Section 5 of Television Program Standard 23—Australian Content in Advertising deals with quotas for Australian television advertisements.
(7) The Minister may, by legislative instrument, give directions to the ACMA in relation to the exercise of its powers under this section.