When it comes to convergence, it’s clear that content is king. But take a glance at chapter three of the Convergence Review and you’ll soon see that the task of creating competition so the whole community can consume that content is incredibly complex.
So, my fellow idiots, here is an attempt to explain how the Convergence Review proposes to ensure that the content on our media remains competitive.
In a converged world there are loads of opportunities for media moguls to lock up content or undercut their competitors or steal someone else’s market. All this new technology makes a mockery of the current rules, which are based on general competition principles and not well-adapted to the rapid changes going on in communications.
Take the recent Optus Cloud case in the Federal Court as an example. First, the court said it was OK for Optus to effectively rebroadcast Telstra’s content on mobile phones. Then the Full Court said that’s nonsense. There’s confusion on issues like this right across the converged media landscape.
The poor old Australian Competition and Consumers Commission does its best to grapple with devilishly difficult concepts such as "bundling", "hubbing", "exclusive rights" and that old favourite, "network neutrality" -- as well as a load of other buzz words to describe the ways the stuff we watch and read gets packaged and processed by all the new and old forms of media.
But it ain't working.
The review found that the ACCC’s anti-competitive powers are insufficient to deal with some of these issues. In fact, that was the view of the ACCC itself, which suggested in its own submission that it’s struggling with the challenges of convergence. The review chose to ignore industry players, such as Foxtel and the pay TV lobby group, the Australian Subscription Television Association, which argued the current rules work just fine.
Despite the complexity of the problem -- well actually because of it -- the review has come up with just two recommendations.
The main one is that its new proposed over-arching media regulator will be about as flexible as a contortionist because it will be allowed to make up the rules as it goes along. It will have the job of identifying anti-competitive behaviour that affects media content and take the necessary steps to rectify it. As long as it holds a public inquiry first, it can implement all sorts of changes and make all sorts of "directions" on media policy.
This lithe-looking regulator, which I’m imaging will get about in leotards, will apparently exercise its powers alongside the stodgy, pot-bellied ACCC after they’ve sent each other memoranda-of-understanding to determine who will regulate what. The proactive new body will also be allowed to launch investigations into anything it thinks will affect the competitiveness of media content.
The concern of course, is that this is a bit like shifting goal posts during a game. But, like most of the review’s recommendations, it’s designed to future-proof the regulation of the media. As unexpected challenges emerge, the new body should be lean enough and limbered up, ready to take them on in the public’s interest.
The review argues the ACCC is not well-suited to handle anti-competitive behaviour in the media because it doesn’t have "sector specific skills and knowledge" and because it is "not inherently a rule making body". It reassures that the new body will be accountable to Parliament, along with all the competition rules it devises.
A change of this magnitude inevitably leaves many unanswered questions. The most immediate is what will happen to the regulation of telecommunications? Telecommunications is at the heart of convergence but the review has opted not to mess with it. Instead it has let the ACCC retain control of it, at least until the National Broadband Network is in place.
And there are big questions about the future of copyright, which has been beaten about the head thanks to the convergence of media. But again, the review has left this to another body, this time the Australian Law Reform Commission, which is conducting its own investigation into copyright and digital media.
It has left the anti-syphoning rules alone too. They’re the regulations that ensure that hundreds of sporting events have to be shown on free-to-air television. Although ominously the review did conclude that the list of protected events is too long and should be cut back.
There’s merit in countering complexity with flexibility. But without really knowing the philosophy behind the new regulator’s approach, it’s hard to make meaningful judgments about whether our media will become more or less competitive if these changes are implemented.