Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2020

This legislative instrument specifies which commercial television broadcasting services are designated as primary commercial television broadcasting services for each licence area in Australia. It consists of two tables that map licence areas and service licence numbers to the service brand name (such as “9”, “PRIME7”, “10”, “GWN7”, “Imparja”, “10 CDT”). The instrument itself is definitional: it does not impose obligations, create offences, or establish new regulatory structures. Instead, it provides the authoritative list that the Broadcasting Services Act 1992 (the Act) uses to trigger or condition a range of legal rules. The note to each table states that Column 1 (licence area) is included for information only, and the definitive licence area is the one specified by the Australian Communications and Media Authority (ACMA) in licence area plans made under section 26 of the Act. These plans are legislative instruments available on the Federal Register of Legislation. The instrument therefore functions as a schedule that identifies the primary service for each licence area, and by extension for each commercial television licence. The first table covers what appear to be single-licence-area services (e.g., Mildura/Sunraysia TV1, Adelaide TV1) and the second table covers aggregated licence areas (e.g., South Eastern Australia TV3, Northern Australia TV3, Western Australia TV3) where multiple service brands are listed in one cell, indicating that more than one primary service is designated for that broader area. The practical effect is that any reference in the Act or in other legislative instruments to “the primary commercial television broadcasting service” for an area or a licence is given concrete meaning by this determination. Without this instrument, it would be unclear which digital standard-definition service of a commercial broadcaster is the primary service, which in turn affects obligations relating to digital conversion, anti-siphoning, and subscription television must-carry requirements.

The central concept is the primary commercial television broadcasting service. This is a term defined in the Act, but this instrument is the mechanism that identifies which services actually satisfy that definition for each licence area. The instrument uses three key identifiers: the licence area, the service licence number, and the service brand or name. The licence area refers to a geographic area defined in an ACMA licence area plan made under section 26 of the Act. Column 1 is labelled as informational, so the precise boundaries of each licence area are not set out in this instrument; they are in the separate plans. The service licence number is a unique identifier for each commercial television broadcasting licence, issued by ACMA. This number is critical because it links the instrument to the actual licence holder and the licence conditions. The service brand in Column 3 (e.g., “9”, “PRIME7”, “10”) is the familiar on-air name, but it is not definitive for legal purposes; the licence number is the key. The instrument contains separate tables: the first table lists services for individual licence areas such as Mildura/Sunraysia TV1, Spencer Gulf TV1, Broken Hill TV1, and so on, through to Mt Isa TV1. Each row pairs a licence area with a service licence number and the service brand. For many licence areas, there are multiple rows, indicating that more than one primary service exists in that area. For example, Adelaide TV1 has three rows: one each for “10”, “9”, and “7”. That means all three of those services (the digital services of the three commercial networks in Adelaide) are primary commercial television broadcasting services for that licence area. The second table lists aggregated licence areas such as South Eastern Australia TV3, which covers a larger region, and in Column 3 multiple brands are listed together (e.g., “10 CDTImparja7”) to indicate that all of those services are primary in that aggregated area. The concept of “primary” here does not mean “only” or “first”. It is a term of art that designates the standard-definition digital broadcast service of a commercial television licensee, as opposed to any high-definition or multi-channel services the licensee might offer. The instrument thus gives precision to a concept that has downstream legal consequences.

The instrument directly affects commercial television broadcasting licensees identified by the service licence numbers in Column 2. For each such licensee, their digital service as listed is the primary service. This has implications for their obligations under the Act. For example, the Act requires each commercial television licensee to provide a primary service in standard-definition digital format, and this instrument confirms which service that is. Licensees not listed are either not commercial broadcasters or do not have a primary service designation (e.g., they might only operate multi-channels or niche services). The instrument also affects subscription television broadcasters and content service providers who rely on the “primary service” definition for the anti-siphoning regime. Under Part 13A of the Act, certain sporting and other events cannot be acquired by a subscription television service unless a primary commercial television broadcasting service has a right to televise them. The instrument’s list determines which broadcasters and which services are relevant for that test. ACMA itself is affected because it uses this instrument when assessing compliance with digital conversion requirements and when regulating the allocation and renewal of licences. Viewers are indirectly affected: the primary services are the ones that must be available on free-to-air digital television as part of the licensee’s minimum obligation. In each licence area, the designated primary services are the standard channels that viewers expect to receive. The instrument is also relevant to broadcasters in aggregated licence areas: for example, South Eastern Australia TV3 lists “10 CDTImparja7” as the primary service category, meaning that licensees in that area must ensure their digital offerings match that combined designation. Telecommunications carriers and infrastructure providers must know which services are primary when negotiating transmission arrangements, because the Act may require that primary services be given carriage priority over other channels. Investors and analysts in the media sector use this list to understand which licences carry the primary service obligation, which may affect valuations and compliance costs.

The instrument itself creates no duties or rights. It is a definitional list. However, by designating a service as a primary commercial television broadcasting service, it triggers rights and duties that are located in the Broadcasting Services Act 1992. The most significant duty is the obligation of a commercial television broadcaster to provide a primary service in standard-definition digital form. That obligation is separate from but defined by this list. If a service is listed as primary, the licensee must ensure the service is available to at least a minimum percentage of the licence area population (as required by the Act and the licence conditions). The licensee also has the right to have that service included on the digital platform ahead of any multi-channels. Under the anti-siphoning provisions, a listed primary service broadcaster has a right of first refusal to televise events on the anti-siphoning list. This right can be commercially valuable because it prevents subscription broadcasters from acquiring those events unless the primary service declines. Conversely, the licensee has a duty not to unreasonably refuse to allow other content providers to use its primary service capacity where required by the Act. For subscription television broadcasters, the Act imposes a duty to not acquire rights to certain events unless a primary service has had an opportunity to acquire them. The instrument thus indirectly creates a competitive dynamic between free-to-air and pay-TV operators. For aggregated licence areas, the listing of multiple brands together (e.g., “10 CDTImparja7”) implies that each of those services must be provided as part of the primary service bundle. That may impose additional operational duties on the licensee to transmit multiple channels as primary. The instrument also confers a right on the licensee to be treated as the primary service for the purpose of licence area planning and spectrum allocation. ACMA must have regard to the primary service when making licence area plans under section 26. The instrument gives the licensee certainty that its service is recognised as primary, which is important for investment in transmission infrastructure and for contractual arrangements with advertisers and content suppliers.

The instrument contains no penalty provisions. It does not prescribe fines, infringement notices, or court orders. Enforcement occurs under the Broadcasting Services Act 1992, which creates civil penalty provisions and offence clauses for breaches of obligations that reference the primary service definition. For example, if a commercial television broadcaster fails to provide the primary service in accordance with its licence, ACMA may issue a remedial direction, impose a civil penalty (up to a certain amount per day), or ultimately revoke the licence. However, the instrument itself is not the source of those penalties. It is merely the evidentiary tool that determines which service must satisfy those obligations. If a broadcaster provides a service that is not listed as the primary service but claims it is primary, that could be misleading and attract penalties under the Act for false or misleading representations. Conversely, if a subscription broadcaster acquires rights to an anti-siphoning event without first giving the listed primary service an opportunity to acquire them, the subscription broadcaster may be liable for a civil penalty. The instrument would be used in litigation or enforcement proceedings to prove which service is primary in the relevant licence area. ACMA has enforcement powers under the Act, including the power to investigate complaints, issue notices to comply, and seek injunctions. The instrument does not confer any private right of action; enforcement is generally by ACMA. However, a person with sufficient interest (e.g., a competitor broadcaster) may apply to the ACMA for a review of a decision or to the Administrative Appeals Tribunal for merits review of certain decisions. In practice, disputes over whether a particular service is primary would be resolved by reference to this instrument and the licence area plans. The instrument’s legislative status under the Legislation Act 2003 means it is subject to parliamentary scrutiny and can be disallowed, but once in force it has the force of law. Non-compliance with the underlying obligations can attract penalties of up to hundreds of thousands of dollars, but the instrument is not the instrument that creates those penalties.

This instrument is made under the Broadcasting Services Act 1992 (the Act), and its legal force derives from that Act. The note to the tables confirms that Column 1 refers to licence areas specified by ACMA in licence area plans made under section 26 of the Act. Therefore, the instrument interacts directly with those licence area plans: they define the geographic scope, and the instrument defines which services are primary within that scope. The instrument also interacts with the digital television conversion scheme under Part 4 of the Act. That regime requires commercial television broadcasters to maintain a primary service in standard-definition digital format. The instrument identifies exactly which service fulfils that requirement for each licence area. If the instrument were amended to add or remove a service, the broadcaster’s obligations would change accordingly. The instrument is also relevant to the anti-siphoning provisions in Part 13A of the Act. The anti-siphoning list identifies events that must be televised on a primary commercial television broadcasting service before subscription television can acquire them. The instrument provides the authoritative list of those services. Without it, there would be ambiguity about which services qualify. The instrument interacts with the Australian Communications and Media Authority Act 2005, which establishes ACMA and its powers. ACMA is the body that makes licence area plans and enforces the Act. The instrument is a legislative instrument within the meaning of the Legislation Act 2003. The endnotes in the compilation reflect this: they reference the Legislation Act 2003 and the abbreviations used for amendment history. This means the instrument is subject to registration, tabling, and disallowance by Parliament. It is also subject to sunsetting provisions under the Legislation Act unless it is exempt. The instrument may interact with the Competition and Consumer Act 2010 if the definition of primary service affects market conduct, but that is indirect. In aggregated licence areas (Table 2), the instrument’s combination of multiple service brands into one cell indicates that the primary service definition covers a bundle of channels. That approach interacts with the licence conditions for those areas, which may require the licensee to transmit all of those channels as part of the primary service. The instrument does not interact with state or territory law directly, as broadcasting is a Commonwealth jurisdiction. However, state planning or heritage laws might apply to transmission infrastructure, but that is not part of this instrument’s effect.

The provided text is a compilation that includes endnotes explaining how to read the amendment history, but the actual amendment history (endnotes 3 and 4) is not reproduced. The endnote set out in the extract (Endnote 1) explains that amending laws are annotated in the legislation history and amendment history. The abbreviation key (Endnote 2) defines terms such as “ad” (added or inserted), “am” (amended), “rep” (repealed), and “rs” (repealed and substituted). This indicates that the instrument has been amended over time. The compilation number is not visible in the extract, but the structure suggests that the instrument was originally made at some date and subsequently amended by legislative instruments amending the table entries. Possible amendments could include adding new licence areas, changing the designated service brand for a particular licence number, or correcting errors. For example, new licences issued in remote areas or for aggregated zones may require updates to the table. The amendment history is typically published on the Federal Register of Legislation. From the extract, we can see that the second table (for aggregated areas) uses a different numbering system (e.g., “SL1130135”, “SL1130136”, “SL1130166”) compared to the first table which uses both older (e.g., “SL10088”) and newer (e.g., “SL1150798”) numbers. This suggests that the instrument has been updated as licences have been renewed or new services have been added. The presence of two separate tables titled “Table 1 Primary commercial television broadcasting services” (the first table repeated twice with identical content in the user’s text) may indicate a drafting duplication in the user’s input, but in the actual instrument there is likely only one Table 1 for individual areas and a Table 2 for aggregated areas. The endnotes also mention “(md not incorp)” for misdescribed amendments, meaning the amendment could not be given effect. This suggests that some past attempts to amend the instrument may have been technically flawed. For the practitioner, it is important to check the latest compilation on the Federal Register to see the full amendment history and ensure you are using the current version.

The provided text does not name any cases, and the extract does not contain any judicial decisions or litigation references. Therefore, this deep dive cannot and will not invent case law. However, it is possible that the definition of primary commercial television broadcasting service has been the subject of administrative or judicial review. For instance, a licensee might challenge ACMA’s decision to designate a particular service as primary, or a subscription broadcaster might dispute whether a service meets the definition for anti-siphoning purposes. Cases could arise in the Federal Court or the Administrative Appeals Tribunal. Without a source in the instrument, we cannot directly name any. The note to the table mentions that licence area plans are “legislative instruments available free of charge on the Federal Register of Legislation at www.legislation.gov.au”, which suggests that the validity of those plans could be challenged under the Legislation Act for procedural defects. Similarly, the determination itself (this instrument) could be subject to disallowance by Parliament. There is no evidence of successful challenges in the extract. Practitioners should be aware that the term “primary commercial television broadcasting service” was introduced as part of the digital television regulatory framework in the early 2000s, and there may have been early disputes about transitional arrangements. But since the source text does not provide any history, we must confine ourselves to stating that no litigation is recorded in the provided material. The instrument’s role is definitional rather than regulatory, so litigation is more likely to turn on the application of the Act than on the accuracy of the list. If a service is incorrectly listed or omitted, the party affected could seek judicial review of ACMA’s decision to make the determination. The note that Column 1 is “for information only” could be relevant in litigation: a party cannot rely on the licence area name to argue the scope of the licence; the definitive licence area is the one in the area plan. This distinction may have been tested in prior cases, but the instrument does not reference them.

Several aspects of this instrument can trip up the unwary. First, the note states that Column 1 (licence area) is included for information only. This means that the description of the licence area in the table (e.g., “Mildura/Sunraysia TV1”) is not the definitive legal boundary. The actual licence area is only defined in the ACMA licence area plan made under section 26 of the Act. A practitioner relying solely on the table could incorrectly assume the geographic scope. For example, “Adelaide TV1” might have boundaries that differ from the informal understanding of the Adelaide metropolitan area. Always cross-check the plan. Second, the same service brand (e.g., “9”, “10”) appears in multiple rows across different licence areas, but the service licence number is unique. A broadcaster may hold several licences, and the brand name alone is insufficient to identify which licence the instrument refers to. Confusion can arise if the brand is used in different regional areas under different ownership structures. Third, the second table (aggregated licence areas) lists multiple brands in one cell without spacing (e.g., “10 CDTImparja7”). This formatting is ambiguous: it could be read as three separate services (“10 CDT”, “Imparja”, “7”) or as one service name “10 CDTImparja7”. The correct interpretation is that each of these is a separate primary service for that aggregated licence area. The abbreviation “CDT” likely stands for “Central Digital Television” or similar. Practitioners must parse these strings carefully. Fourth, the instrument does not distinguish between standard-definition and high-definition services. By definition, the primary service is the standard-definition digital service. However, a broadcaster might operate multiple digital channels; only the one identified here is the primary service for regulatory purposes. That can lead to confusion if a viewer or advertiser assumes all channels from a licensee are primary. Fifth, the instrument includes duplicate row numbers? In the user’s input, Table 1 appears twice with identical content. That may be an error, but if the actual instrument has duplicate entries, it could cause interpretive issues. The compilation endnote system shows that the instrument may have been amended to add or remove services; a service that has been removed but remains listed by mistake could lead to incorrect obligations. Finally, the instrument is subject to disallowance. If it is disallowed by Parliament, the entire list would cease to have effect, causing regulatory chaos until a new instrument is made. This is a remote but high-impact gotcha.

Compliance with this instrument is not a standalone legal obligation; rather, compliance means correctly identifying which services are primary and then meeting the obligations that arise under the Broadcasting Services Act 1992. For a commercial television licensee, the first step is to check whether your service licence number appears in either table. If it does, that service is a primary commercial television broadcasting service. The licensee must then ensure that the service is broadcast in standard-definition digital format, and that it is available throughout the licence area to the extent required by the licence conditions and the Act. If the licensee operates multiple services (e.g., a high-definition channel and a multi-channel), the primary service is the one listed; the others are not subject to the same obligations. The licensee should also be aware that if it holds a licence in an aggregated area (e.g., South Eastern Australia TV3), the primary service may consist of multiple brands; the licensee must provide all of those services as part of its primary commitment. For a subscription television broadcaster, compliance involves checking the anti-siphoning list and ensuring that before acquiring rights to a listed event, you verify which primary services have a right of first refusal. You can use this instrument to identify the primary service in each licence area where the event is to be televised. If the event covers a national audience, you need to consider all primary services across all relevant licence areas. For ACMA, compliance means that when you make licence area plans or issue new licences, you must ensure that the primary service determination is consistent. When a new licence is granted, the determination should be amended to include that service. For a content producer or event organiser, you should check this instrument to know which broadcasters are the primary services in your target market, as those are the ones with anti-siphoning protection. For a lawyer or compliance professional, the best practice is to consult the current compilation on the Federal Register of Legislation (not a printout) and cross-reference the licence area plans. Never rely on the licence area name in Column 1 without checking the plan. Maintain an up-to-date record of the service licence numbers and the corresponding licensees, as ownership changes may occur. If you are involved in a transaction involving the sale of a broadcasting licence, confirm that the service is listed as primary; if not, the buyer may not have the same obligations or rights. Finally, if you believe an error exists in the table, you should contact ACMA to seek an amendment, as relying on an incorrect entry could lead to non-compliance with the Act.