Suddenly we now have a media regulator with real teeth, and media proprietors are worried and furious.

A surprise, unanimous High Court decision yesterday upheld ACMA’s arguments in its action against Sydney radio station, 2DayFM, (owned by Southern Cross Austereo). Thanks to the High Court’s ruling, which amounts to an expanded interpretation of the Broadcasting Services Act, ACMA has the power to rule on criminal offences against the act, and could potentially move to revoke licences from broadcasters deemed to be in breach of their licensing conditions. This is the kind of power the body and its leadership over the years have always aspired to — backing its oversight of the country’s electronic media with the actual power to take something of value away from the groups involved. Which could, if it happens, put those groups out of business.

This is the most important decision in media regulation for years, and has led to a spontaneous and aggrieved reaction from commercial radio and TV. Malcolm Turnbull’s communications portfolio is now the most sensitive in the land as a conga line of media billionaires, executives, editors and producers start clamouring for ACMA’s new-found powers to be neutered.

It’s no wonder the commercial radio and TV industries are up in arms, warning that ACMA has now been made, in the words of Free TV Australia, “policeman, judge and jury, despite the fact that it is not set-up [sic] to determine criminal law matters.” That was a phrase we heard from Southern Cross yesterday, as well as Commercial Radio Australia. The trio have called for the Broadcasting Services Act to be changed to neuter ACMA — you can bet their lobbyists will be on the phone to Turnbull this morning. It wouldn’t be surprising to soon see those calls amplified by editorials in the News Corp press, which is always wary of regulatory overreach.

While commercial TV and radio are directly in ACMA’s sights — it is constantly dealing with complaints about broadcasts and the on-air content and behaviour of news and current affairs programs and reporters, it is News Corp, not Seven West Media, Nine Entertainment, Network Ten, Southern Cross, or any of the other electronic media that will be most directly impacted by the High Court decision.

News is the biggest electronic media group in the country. It owns 50% of pay TV monopoly Foxtel (with Telstra, which will also be impacted by ACMA’s new powers, because it wants to move deeper into the electronic/digital space). News also owns Fox Sports Australia, the largest pay TV content supplier. News also wants to buy control of Australian News Channel, which operates Sky News for Foxtel. Foxtel, broadcast through satellite and cable, is directly regulated by ACMA, through the narrowcast broadcast code of practice.

Furthermore, News Corp is looking at taking a stake in Network Ten through a joint Foxtel-Discovery bid for the free-to-air network. Any such partial ownership, however indirect, would also place News Corp in ACMA’s sights.

News, like Fairfax Media, is looking to generate more electronic/digital content for any platform — pay TV, free to air, mobile, streaming video. All of that is covered, to varying degrees by the powers of ACMA, which now is suddenly stronger and more powerful than anyone in the media had ever thought possible.

For years, ACMA was tolerated as a minor irritant by the electronic media, a price to pay for all that self-regulatory rubbish governing the content and behaviour of companies with broadcasting licences. Now, instead of having a regulator with fairly circumscribed powers, the media in this country faces one armed to the teeth — courtesy of the High Court decision. What complicates matters for the industry (and its expensive lawyers) and the government is that the six-member High Court, which heard arguments in the case, was unanimous in its decision. It is very hard to find a new case to run to challenge a unanimous decision.

So far as the commercial media is concerned, it’s now the time for Malcolm Turnbull to earn his keep as Communications Minister. The pressure on him will be immense, as it will Prime Minister Abbott, to change the law to neuter ACMA’s newly granted teeth. Instead of trying to slither into the prime ministership, Malcolm will have to play a mere minister’s role. It could make or break his higher ambitions. And it is the last thing tony Abbott wants in the lead up to the next federal election — a nasty brawl with media owners over what will seem to the public, a good idea: the strong enforcement of media law, brought about because of a disastrous and irresponsible prank phone call that led a British nurse to commit suicide.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey