Australia: Minister scores a goal with sports television viewers

With the introduction of digital channels there has been growing public pressure that networks broadcast the events on the antisiphoning list on their digital channels so the public has an opportunity to watch these events live. Currently, free-to-air television networks are able to delay an event to be shown at a later time if it clashes with their usual prime time shows and impacts their ratings. This also restricts pay television networks from showing the event live. The proposed anti-siphoning reforms aim to provide a regulatory framework that protects the availability of sport on free-to-air television and maximises the possibility of coverage for the Australian sports-loving public. The Broadcasting Services Amendment (Anti-siphoning) Bill 2012 will amend the Broadcasting Services Act 1992 (Cth) with respect to the antisiphoning scheme and anti-hoarding rules.

How the anti-siphoning scheme operates

The anti-siphoning scheme operates to prevent pay television broadcasters from buying the rights to televise events on the list before free-to-air television broadcasters have purchased the rights. For events not on the list, free-to-air and pay television broadcasters compete to purchase the rights to televise those events based on their own commercial interests.

The Minister for Communications selects the events that appear on the list. However, events are automatically delisted, currently 12 weeks, before the event commences if free-to-air networks have not acquired the rights to telecast the event. The Minister can override automatic de-listing if satisfied that free-to-air broadcasters have not had a reasonable opportunity to purchase rights to a listed event.

Current anti-siphoning scheme

The current anti-siphoning scheme was established in 1994 before digital television.

The scheme doesn't require broadcasters to televise nationally significant events live or in-full, pass on unused rights to other broadcasters, or allow broadcasters to fully utilise digital multichannels to televise sports.

The new reforms aim to address these issues, and update the list of events protected by the scheme to reflect current free-toair coverage, the advent of digital television and the growing popularity of some sports.

The previous anti-siphoning list expired on 31 December 2010 and a new list took effect from 1 January 2011. The current list is divided into Tier A and Tier B events with the acquisition of broadcasting rights and the broadcasting of these events treated in the same way. That is, both tiers require the Minister's approval if a broadcaster wants to broadcast an event on one of its digital channels. Once the reforms are passed the two tiers will be treated differently.

Proposed changes to the scheme

A two-tier scheme that allows greater use of multichannels

  • Current scheme
    Free-to-air broadcasters are prohibited from premiering any anti-siphoning listed events on their digital multi-channels.
  • New scheme
    Free-to-air broadcasters permitted to premier regionally iconic or nationally significant events on their multi-channels.

With 82% of households having made the switch to digital TV, the restriction on the use of digital multi-channels to premiere anti-siphoning events can be relaxed. The anti-siphoning list will be divided into two tiers (A and B).

Tier A lists nationally iconic events such as the Melbourne Cup, the AFL and NRL grand finals, and the finals matches of the FIFA World Cup and other major international and domestic competitions. These events would be required to be shown first on a free-to-air broadcaster's main channel, with limited exceptions.

Tier B includes regionally iconic and nationally significant events, such as the round and preliminary matches of international and domestic competitions like the Summer and Winter Olympic and Commonwealth Games, which free-to-air broadcasters may premier on a free-to-air multi-channel such as 7TWO, GEM or ONE.

New coverage obligations

  • Current scheme
    No requirements to show listed events.
  • New scheme
    Coverage requirements apply to Tier A and Tier B events.

Tier A events must be shown live and in full.

Tier B events must be shown in full, and commence within four hours. The ability to delay coverage will allow for differences in times zones across the country. However, due to the general hunger of the Australian public that sporting events be broadcast live, the networks are deciding to broadcast sporting events live as recently seen by Network Nine's decision to broadcast the Friday night NRL matches live nationally on GEM which required the Minister's approval as Tier A and Tier B are not yet in place.

Must-offer rules

  • Current scheme
    There are no requirements for the broadcast rights to antisiphoning listed events to be used.
  • New scheme
    Must-offer requirements will mean that free-to-air broadcasters must use the rights they acquire to anti-siphoning listed events or offer those rights on to other broadcasters.

The current scheme does not prevent broadcasters from holding on to the rights to events they do not intend to televise, or intend to provide only limited coverage. The must-offer obligations will require that where a free-to-air broadcaster holds a right to an anti-siphoning listed event and will not meet the relevant coverage requirement, they must offer those rights to another free-to-air broadcaster in advance of the commencement of the event. If no free-to-air broadcaster takes up those rights, the subscription broadcasting rights must be offered to pay television.

Extension to automatic delisting period

  • Current scheme
    Anti-siphoned listed events are automatically removed from the anti-siphoning list 12 weeks prior to their commencement.
  • New scheme
    The automatic delisting period will be extended to 26 weeks.

The Minister will retain the current power to keep an event on the list where a free-to-air broadcaster has not had a reasonable opportunity to acquire the rights to the event.

Protections from 'siphoning off' events to new media providers

  • Current scheme
    The scheme does not affect the acquisition of rights by new media players.
  • New scheme
    Transactions concerning media rights to anti-siphoning listed events will be regulated to prevent online service providers
  • from acquiring exclusive access to such events.

Media rights to events on the anti-siphoning list cannot be acquired on an exclusive basis by online service providers. They must first be sold to a free-to-air broadcaster. This wouldn't prevent Australian sporting bodies from selling supplementary or non-exclusive rights to new media entities such as online service providers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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