Stephen Conroy’s anti-siphoning review discussion paper came out overnight and in the manner of such review papers under Conroy, it’s fairly flat and poses a long list of questions for respondents to address.

The review is statutorily required by the end of the year. The current anti-siphoning list expires at the end of next year.

For those who came in late, the list is an anti-competitive mechanism in broadcasting legislation that prevents sports rights holders from selling rights to a free market. Instead, free-to-air broadcasters gets first dibs and subscription television isn’t permitted to acquire them unless the FTAs don’t want them. The list in its current form is so vast that the great majority of events are never shown and could never be shown even if the FTAs wanted to — which they don’t.

Despite the flatness, it’s clear that all the risks in this review lie with the subscription television sector, or, as Conroy’s Department has taken to calling it in a minor but noticeable change of usage, the “pay television sector”, just to make sure everyone is aware that, you know, it isn’t free.

It is clear from the paper that the Government is inclined to remove the restriction on free-to-air broadcasters showing listed events on their digital multichannels — currently they can only do so. In principle this is not that bad an idea, since it will enable FTAs to manage scheduling better and target AFL and NRL games better to regions, although it will also allow the FTAs to leave normal programming on their main channel and shove lower-rating sports onto their HD channel (far fewer viewers have HD receivers than SD).

It would also be a kinghit to the subscription television sector, removing one of the few restrictions on FTAs’ capacity to outbid them — their lack of space to show programming. The restriction was the only thing the subscription television sector got out of the Howard Government’s 2006 media reforms, and the sector is intensely hostile to the idea of the restriction being removed.

The paper also raises the possibility of extending the anti-siphoning list online, to prevent rights holders from selling exclusive coverage rights to online media. As Crikey noted after the Government’s National Broadband Network announcement, the NBN potentially makes the anti-siphoning list irrelevant, by enabling rights holders to sell content directly to the national audience without having to go through the FTAs, or anyone else. The incorporation of online in the anti-siphoning list would be a staggering act of internet regulation, up there with Conroy’s plan to censor the internet, and a last bid by the FTAs to keep Australians imprisoned in the sort of old-media gaol declining audience figures demonstrate they no longer want a part of.

On the positive side, the paper does invite comment on what the criteria should be for listing events. In fact, having any criteria at all would be a start, since there is currently no definition of events of national importance and cultural significance. The “cultural” word is out of place anyway since the list contains nothing but events featuring slow-witted but well-paid athletes running around chasing things. Australia has by far the world’s biggest list, and nothing has been removed even under the “use it or lose it” principles established by Helen Coonan and ostensibly supported by Conroy.

Indeed, the paper contains the remarkable statement “in general, ACMA’s monitoring and reporting found that free-to-air broadcasters were providing adequate coverage of events” which might come as a surprise to millions of disgruntled viewers, and certainly to anyone expecting to see more than a tiny fraction of the listed tennis tournaments. Confining the list to genuinely national events would be a good start, as it would mean removing rugby league and rugby union and minority sports like golf and motor racing.

In truth, though, the discussion paper doesn’t touch on the key issue for the anti-siphoning review: whether the Government will be interested in doing any favours for News Ltd, a quarter-owner of Foxtel and half-owner of Fox Sports, which is the real moneyspinner in the subscription television sector. Judging by the current relationship between Kevin Rudd and News Ltd, that probably means the FTAs will get everything they want.

Peter Fray

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