In the old days of majority government, rank had its privileges. One particular privilege was that of playing national TV programmer, which fell to the Minister for Communications courtesy of the powers the Broadcasting Services Act conferred on him or her.

But unlike most ministerial responsibilities, broadcasting regulation is a subject on which anyone who watches TV thinks they’re an expert.

With a minority government, suddenly everyone thinks they can play national TV programmer. Last week it was the Greens — reacting to an erroneous Age story about AFL matches moving to subscription TV —  threatening to stymie any changes to the anti-siphoning list of which they disapproved and to add events (bizarrely, foreign sporting events in which Australia doesn’t even take part) to it. The opposition has said it will also disallow any changes that saw events move to subscription television (good to see the coalition embracing competition and market freedom).

Last night it was Rob Oakeshott, threatening to disallow any changes that constituted a “bad deal for Australia”.

Anti-siphoning’s a “bad deal for Australia” given three-quarters of listed events aren’t shown live, free-to-air networks treat viewers with contempt, sports rights holders are ripped off and subscription TV systematically prevented from offering competition with the FTA oligopoly, but it’s not in the interests of politicians or most of the mainstream media to point that out.

The Greens, the coalition and Oakeshott might have got a bit too caught up in new paradigm vibe, however, because the anti-siphoning mechanism doesn’t quite work the way they appear to think it works.

The anti-siphoning list is made under the BSA (s.115 to be precise), by the Minister for Communications. It’s a disallowable instrument, which means that once it is tabled in both houses of parliament, an MP or senator can move to disallow it. So if Stephen Conroy tables a new list next week, the Greens, or the coalition, or Rob Oakeshott, can indeed move to block it.

Problem is, the present list expires on December 31. After that, there’s no list. No protection of any kind. If the new list is disallowed, there’s no anti-siphoning scheme at all. Just a whole lot of uncertainty for everyone — FTA TV, subscription TV, and most of the sports rights holders, and especially the AFL, which wants to negotiate its new round of rights for its expanded competition from 2012.

Disallowing the new list would also enable Stephen Conroy to charge — correctly, as it turns out — that whoever did so was removing any protection for FTA coverage of major events. Which won’t go down well with sports-loving voters.

As for adding events, as the Greens have threatened to do, good luck there. The instrument can only be disallowed, not amended.

And there’s no capacity for anyone other than Conroy to make the anti-siphoning list. There’s no equivalent to a private member’s bill here — under the Broadcasting Services Act, only the minister can make the list. Anyone else’s anti-siphoning list has no legal effect.

It’s a different matter for the mooted changes to enable the FTA oligopoly to show listed events on their digital multichannels (that is currently prohibited; removing the prohibition will enable the FTAs to shift all but the highest-rating sports entirely off their main channel in favour of normal programming). That requires amendments to the BSA, which will need to go through both houses, during the first half of next year most likely. These changes can be blocked or amended by anyone with a mind to do so. Of course, the only parties that will aggrieve will be the FTA networks.

In short, when it comes to anti-siphoning, Conroy has the whip hand — unless you want to get rid of the anti-siphoning list entirely or keep the FTAs from putting sport on their multichannel.

Both of which would suit subscription TV just fine.

Peter Fray

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Peter Fray
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