Sunday, April 14, 2024

Prominence or Providence?

For a number of years now, Australian industry group, Free TV, has asserted that “Global deals between TV manufacturers and international streaming giants have given global subscription services the most prominent positions on home screens and remote controls, while local TV services are difficult or sometimes impossible to find.”

Following through on an election commitment to local broadcasters, the Albanese Government has released exposure draft regulations for a “prominence” framework aimed at supporting access to local and free TV services in the streaming era.

The draft legislation covers both streamed linear and on-demand services provided by Australia’s free-to-air broadcasters. These include the ABC, the SBS, the commercial free-to-air broadcasters, and over-the-air community TV broadcasters. In short, if it’s broadcast free over-the-air, it’s eligible for prominence. If it’s a subscription service, it is not. Therefore, Foxtel, Kayo, as well as Netflix, Prime, Paramount+, Disney+, etc., are ineligible. Also not eligible are any free, ad-supported versions of those subscription services.

Applied to “all regulated television devices”, the minimum prominence requirements would include:

  • (a) Applications (apps) for Australian free-to-air linear and on-demand services are either installed on the device before the device is supplied or installed when the device connects to the internet for the first time after the device is supplied;
  • (b) the application must be able to be updated when an update is made available by or on behalf of the provider of the regulated television service;
  • (c) the application must be visible on the primary user interface of the device;
  • (d) the application must be of a similar size and shape to other applications that:
    • (i) are displayed on the primary user interface of the device; and
    • (ii) are designed for the purposes of providing access to a service (other than a regulated television service) that makes audiovisual content available using a listed carriage service;
  • (e) the application must be located in the same area of the primary user interface as those other applications.

There are also additional minimum prominence requirements for certain devices. If the device is capable of receiving a television broadcasting service that uses the broadcasting services bands, a user of the device must be able to access the ABC, the SBS, and broadcasting services transmitted in the licence area in which the device is located.

Each of those services must be identified and accessible on the device using the service’s logical channel number. The user must be able to access each of those services on the device by selecting a single icon or visual representation which must be visible on the primary user interface of the device.

Prominence requirements would also apply to electronic program guides (on devices where they are used).

In response to the draft legislation, Free TV has expressed its qualified approval, especially the prohibition of charging FTA Broadcasters by device manufacturers for compliance with the minimum prominence requirements, and the insertion of advertising not authorised by FTA Broadcasters.

It has also welcomed an extension of the Anti‐Siphoning scheme to prevent, not only subscription broadcast services, but also subscription streaming services, from acquiring rights ahead of FTA Broadcasters, as well as an expansion of the Anti‐Siphoning List to include women’s and diverse events.

However, the Industry group is seeking amendments to the legislation, including:

  • Reduction of the timeframe by which compliance with the requirements commences, from 18 months connected with the date of manufacture and supply, to no longer than 6 months from Royal Assent, with shorter periods to be specified in the regulations for a number of requirements.
  • Extension of the requirements to cover, not only new Regulated TV Devices but also existing Regulated TV Devices, where those devices continue to receive software updates.
  • Requirement for content provided through FTA Services, including through Free BVOD Services and delivered online by FTA Broadcasters, to be included in the content search function on Regulated TV Devices.
  • Requirement for any electronic program guide (EPG) provided within a Regulated TV Device to present FTA Services, including all the primary channels and multi‐channels of each FTA Broadcaster, including the versions of those channels streamed live over the internet. Additionally, for each EPG to place these FTA Services in the EPG prominently and ahead of other channels.

In terms of Anti‐siphoning, Free TV has asked that the list be extended so that both the free over-the-air broadcast rights and free digital streaming rights both be acquired by the relevant broadcaster before the event can be shown by a pay TV or subscription streaming provider.

Certainly, global streamers will see the legislation as protectionism while compliance always equals cost for device manufacturers, even if it is just a software update. Global streamers will also wave the flag for their locally produced productions and, while these are an essential development for their presence in this market, they will not devote the resources needed for local sport and news coverage, and that is why this legislation is vital.

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