So, you live in an area with bad TV reception. Or you’re an AFL nut with the misfortune to live in Sydney. Or you live in the sticks and want the news from your capital city, not the local hicksville service.

The National Broadband Network should be the solution to your problems. No transmission problems, because it’s coming down fibre, without interference or reflection. And you could select to watch whatever television network you wanted at any time, because they’ll all be available. You can watch the AFL on a Melbourne service, or the news from Brisbane, even if you live in Mt Isa.

Except, that’s not how it will work, at least, not under the law as it currently stands. Not for commercial television broadcasters, at least. Under the current regulatory framework, commercial free-to-air television broadcasters will be banned from the NBN unless they deliberately confine their signals to the area for which they’re licensed to broadcast.

The reason is contained in one of the many godawful decisions inflicted on Australian communications policy by Richard Alston, whose dead regulatory hand still reaches from beyond the political grave to strangle innovation in this country’s ICT industry.

The incident itself caused a furore at the time but has since been forgotten, if only because Stephen Conroy is busy trying to run his own version of Alston’s agenda. When Alston was getting his framework for digital television through the Senate in 2000, there was growing interest in IPTV and other forms of internet-delivered content. At the suggestion of his Departmental Secretary, Neville Stephens, Alston included in the digital television bill a proposal for a review by the then-ABA of whether streamed audio-visual content “should be regarded as a broadcasting service.” By the time the bill had passed through the Senate, it had become a legislated review that had to be done by 2002.

The Internet Industry Association smelled a rat. The digital television legislation had been crafted exactly as Kerry Packer had demanded, locking up spectrum to prevent any additional television services being offered either by new competitors or incumbents. Alston had even invented a risible new type of content, “datacasting”, which was intended to be like television but without anything interesting, to chew up digital spectrum without threatening the interests of the commercial free-to-air networks. Online media companies suspected that Alston was doing the bidding of Packer to try to impose licensing on providers exploring the possibility of using the internet to compete with free-to-air TV — or for that matter anyone sending A/V material online. They launched a highly-vocal campaign accusing Alston of trying to stifle the internet at the behest of old media.

Alston quickly gave in and had his department conduct a quick and dirty review that concluded A/V content streamed over the internet was not broadcasting — with the exception of content that was “a service that delivers television programs and radio programs using the broadcasting services bands.” That is, A/V content delivered online wasn’t “broadcasting” unless a TV network made its broadcast service available on the internet.

Incidentally, that’s why the Big Brother turkey slap fell into a regulatory hole, because Ten wasn’t broadcasting it at the time, only streaming it live.

As a consequence, commercial television networks can’t put their services on the internet, because they’re not licensed to broadcast outside their licence area, and if they made their programming stream available online, it would be broadcasting under the Alston determination, and could be received outside their licence area. TV networks and their controllers are also not allowed to reach more than 75% of the population. A TV service on the NBN would, unless somehow restricted, be available to nearly every household in the country.

The NBN will pose quite a few problems, not just for specific aspects of the Broadcasting Services Act, but its overall approach. The way we regulate media content is mostly based on the now-quaint notion of geographically-limited services, in which the laws of physics prevent broadcasting signals going very far before they peter out or interfere with other services. Licensing areas also pander to both the commercial imperatives of media companies and the vanity of politicians. Licence areas enabled competition to be controlled, and help broadcasters localise advertising. And politicians like the idea of local broadcasters who would provide coverage of them.

Such notions are irrelevant to online services, and an NBN, which is supposed to reach nearly every house in the country, in particular. Content is as local or as global as the user wants it to be.

But once you tug at the licence area thread, the whole thing starts to unravel. Licence areas are the foundation on which our media diversity rules — the 75% reach rule for TV, the remaining 2-out-of-3 cross-media rule, the 5/4 diversity rule — are built. The NBN will be an entirely new platform for content in every licence area in the country, offering multiple content options even in its slower rural speed of 12 Mbs.

The cross-media rules will become meaningless — and are becoming so already. There has been a sense of absurdity about them for years in the way they imply radio and newspapers (some newspapers — The Australian and The AFR aren’t covered by the cross-media rules) are equal in influence to television. The crisis enveloping newspapers will shortly make their arbitrariness even more apparent.

Other forms of media regulation will also be rendered irrelevant. The anti-siphoning rules are an anti-competitive — and quite possibly unconstitutional — regime that punishes the owners of certain types of property by preventing them from selling that property — sports rights — to the highest bidder, for purely political reasons. The NBN, providing a delivery mechanism into every TV set and computer in the country, means rights holders won’t have to sell them to media companies or, for that matter, anyone. They can charge viewers directly to watch the matches they want to watch.

Australian content rules, too, will become moot when it will be just as easy to watch US or UK programming directly as it is to watch Australian-made shows. Local content will have to stand or fall on quality and cost, like most other goods and services in the economy.

On the history of Australian media policy to date, politicians’ instinctive reaction will be to try to impose traditional forms of regulation on the NBN, to treat it like a bigger form of a TV transmission tower, and to work out which companies win and which lose from the regulatory framework, and start working out trade-offs to keep everyone happy. Everyone except the consumer, who won’t be represented in such discussions. Fortunately this time around the consumers have a lot more power than the passive, unprotesting eyeballs they’ve traditionally been treated as.

To fully understand the consequences and opportunities of the NBN, you need to achieve a small epiphany, and realise that that hole in the wall through which the fibre will come is entirely agnostic about what it delivers — where it is from, who has made it, whether it breaks the law or not. It is not television, radio, newsprint, or “web content” that comes through it — it is a stream of 1s and 0s, and the user has total control of it. That is entirely antithetical to the current media regulatory framework. We need a new one.

Peter Fray

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