being digital: australia's television choice€¦ · the convergence of television and other...

Being Digital: Australia's Television Choice Jock Given*

Director, Communications Law Centre

Australia is facing major decisions about the technical, structural and social shape of its television industry, with the federal government currently considering options for the introduction of "digital terrestrial television broadcasting" (D1TB). This article examines the possibilities of the technology, the political and industrial environment within which it was developed, and the steps taken to introduce it in Australia, the United States and the United Kingdom. It explores the reassertion of "scarcity" as a central feature of media and communications policy debate which has occurred partly as a result of the particular way in which D1TB technology has been developed. With this scarcity comes the opportunity to reinvent traditional notions of the public interest in media and communications services for the digital age. Australia's choices are about who gets access to the spectrum liberated by D1TB, and at what financial and regulatory price.

No sooner had the federal government decided to ditch plans to reform Australia's media ownership rules last year, than the daily press took aim at a new Packer v Murdoch battleground: Digital Terrestrial Television Broadcasting (DTTB).J

In truth, the story was an old one by this time. The report which all the fuss was about2 had been

* Jock Given is the Director of the Communications Law Centre, a public interest research, teaching and p_ublic education organisation specialising in media and communications law and policy. The centre was established in 1988 and is affiliated with the University ofNSW and Victoria University of Technology.

The Communication Law Centre's submission to the federal government on DTIB "Digital TV: An Agenda for Australian Television in the 21st Century" wiII be on the centre's Web site at http://www.comslaw.org.au from early March 1998. I Davies and Kidman, "Digital TV: Packer's next big battleground", The Sydney Morning Herald, 5 December 1997, p 31; Burke, "A lot of digital agitation", Australian Financial Review. 17 December 1997, p 14; Kohler, "Seven sale signals digital duel", Australian Financial Review, 20-21 December 1997, back page. 2 Australian Broadcasting Authority Specialist Group, Digital Terrestrial Television Broadcasting in Australia: Final Report oj the Australian Broadcasting Authority Specialist Group on Digital Terrestrial Television Broadcasting (ABA, Sydney, 1997) (Specialist Group Final Report).

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published several months before. The key decisions it addressed had already been taken in the United States and the United Kingdom.

But it was, unquestionably, a good story: a dazzling new technological opportunity - a "digital" one at that, in this digital age - with huge consequences for technical and financial control of media and communications audiences and customers; a fight between major media proprietors; a stacked committee; and a strong whiff of a government listening much harder to some views than others in a policy development process that had been all but invisible to the outside world.

What was going on and why did we know so little about it?

Technology - what might be possible

Federal Communications Commission Chair, William Kennard, told the NAPTE conference in New Orleans in January 1998 that the transition to digital technology "is truly a transforming event of our times". He said:

"When the history of communication in this decade is written, it will be a story of how communications technologies' - all technologies -

MEDIA AND ARTS LAW REVIEW - Volume 3

telephones, cable TV, cellular and broadcastingconverted to digital technology.,,3 "Digital television" is a confusing term, for there

is much that is already digital about television. Digital video cameras are now available as consumer products; many of the graphics used in television pictures are generated by digital equipment (computers are digital devices, so anything that' uses them, which means just about everything these days, is digital); the distribution of signals between television stations is often digital (for example, on optical fibre links).4 Sixty Minutes has gone digital - having held out with 16mm film for the origination of its images while much of the rest of the television industry has move9 to the defacto analogue standard Betacam SP, the program is being produced digitally "end to end" from the first show in 1998.5

What "digital television", especially "digital terrestrial television" refers to is the transmission of digital signals from the television sta.tion right .to audiences in their homes. In Australia, terrestnal television (the "free-to-air" networks, Nine, Seven, Ten, the ABC and the SBS), cable television (Foxtel and Optus) and MDS pay TV services still transmit analogue signals from their towers and head-ends, although the Galaxy satellite services employ digital signals transmitted to customers' set-top boxes. Services using the Optus satellites currently employ analogue transmission to customers' dishes, but will shift to digital with the introduction of the Aurora platform. Digital program pr?d~ction can. and does occur without digital transmIssIOn, and vIce versa, although some of the capabilities of digital transmission will only be exercised if the content has been produced in a digital environment.

The motivations for digital television have come from a number of different directions: better television, more television, interactive television, the introduction of conditional access technology, and the convergence of television and other media and communications products and services.

3 Kennard (Chair, Federal Communications Commission). Remarks (as prepared for delivery) to 35th Annual NAPTE Conference, New Orleans, 19 January 1998. 4 This is even more the case when speaking of "digital radio". News journalists tape interviews on digital recorders and some edit wholly on digital equipment. "Disk" jockeys play music from, digital compact disks. Some radio stations can be heard over the (digital) Internet. '. " 5 Jackson, "Another scoop for 60 Minutes as TV turns dIgital. The Australial/, 3 February 1998, p 33.

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Being Digital: Australia's Television Choice

Better television A fundamental challenge for new television

systems has been the delivery. to au~ien~es of enhanced picture and sound quality. Rephcatmg the cinema experience has been a central motivation for the designers of "high definition television" (HDTV) systems. Although the full aesthetic and social nature of the cinema experience, especially as redefined by the post home video mUltiplex cinema boom, cannot be precisely replicated in the ho~e, three elements of the television experience WhICh could be upgraded were the resolution ("sharpness") of the television image, the shape of the screen/image (changing the "aspect ratio" from current television's 4/3 to a wide-screen 16/9), and improving the quality of the sound. .

Producing programs in HDTV offered crea.tIve attractions - live images (for example, for televIsed sport) at a level of resolution previou~l~. only attainable on film; the post-productIOn fleXIbIlIty of video at film-like resolution; enhanced, or cheaper, special effects capabilities. Wide screen formats were argued to offer a more natural frame !or viewing by the human eye and more expansIve visual possibilities. .

Transmitting programs digitally also promIses better quality transmission, because of the ability to transmit "error correcting" information as part of the signal. The already-improved image and sound doesn't lose as much (or, in theory, anything at all) on the way from the program producer to the audience. This "robustness" may be particularly important for people in areas of poor or volatile reception.

The first HDTV systems were analogue, and the idea that drove them - better quality images and sound - is still, perhaps disingenuously, at the centre of the arguments for the transition to digital television.

More television Digital television also promises more television

because digital transmission systems ma~e more efficient use of available spectrum. It uses bIts of the VHFIUHF spectrum we currently don't use. It becomes possible to transmit seve.ral st~n~?rd definition television channels, or one hIgh defInItIOn channel, from one transmitter, using the same "bandwidth" (through the air or through a cable) which was once required to transmit one standard definition channel. However, this provides a

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conceptual challenge to regulatory mechanisms which have been based on the concept of one transmitter utilising one frequency or channel to deliver one service or program stream.

Further, not only do digital transmission systems offer better image and sound quality and more services, they provide the ability to alter that quality and number of services relatively easily. At one time of the day, the transmitter may be sending five standard definition television services to viewers. At another, it might be transmitting a single high definition signal. This dynamic quality provides even greater challenges for traditional regulatory models, particularly in regulating the ownership and control of media services.

Interactivity Digital television promises some measure of

interactivity, although the precise nature of it varies depending on the type of transmission medium employed. Existing television broadcasting has an element of interactivity when viewers ring a number on the screen to purchase an advertised item or to vote for a particular option in a TV poll. Cable TV can have quite sophisticated interactivity, of the point-and-click kind we have come to understand from the Internet. More conceptually complex hybrid systems, where the television signal comes through the air, but return commands from the viewer/user are transmitted through telephone lines, might achieve similar results without the technical complexity being apparent to the user.6

Conditional access Digital transmission also provides the

opportunity to introduce conditional access technology. Most terrestrial broadcasters around the world have traditionally offered their services freeto-air (France's pay TV broadcaster, Canal+, was an early terrestrial subscription broadcaster). If policymakers allow it, digital transmission might see freeto-air broadcasters starting subscription services. When combined with digital's multi-channel capabilities, this provides a significant threat to existing pay TV broadcasters,

6 Manktelow, "Net TV arrives - and it's cheap", The Australial/, 17 February 1998, p 33.

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Convergence But perhaps the most important aspect of "digital

television" is that it places television within the common technical currency of contemporary communications. The (digital) computer is in the centre of all scenarios of the industrial and social future, and anyone who runs a business whose output can't communicate directly with it is nervous. Digital transmission is seen as critical if conventional television broadcasters are to be as central to the emerging communications universe as they have been to the receding one, "Web TV", where the Internet and television services are integrated into the same screen, is one example of the domestic shape of this convergence,

This common currency has both technical and rhetorical elements. "Digital television offers viewers and broadcasters alike the opportunity to move into the technology of the twenttfirst century", says the ABA's Specialist Group. The title of Nicholas Negroponte's "road map for survival on the information superhighway"g tells us that in the 1990s, "digital" is not something you acquire, it's something you are supposed to be. Governments which lectured on the necessity for unfettered markets and "technological neutrality" (thinking about media and communications in terms of the services, or content, they offer rather than the means by which they deliver it) nevertheless mandated a digital transmission system for satellite pay TV in Australia,9 promised the shut-down of the analogue "AMPS" mobile telephony system to ensure the development of digital GSM networks lO

7 Specialist Group Final Report, pIS. S Negroponte, Being Digital (Hodder and Stoughton, Rydalmere, 1995). 9 Broadcasting Services Act 1992 (Oh), s 94. Announcing the government's plans to legislate for digital pay TV, Transport and Communications Minister Bob Collins, the same Minister who had just introduced the "technology neutral" Broadcasting Services Bill into the Parliament, boasted Australia would "become the first country in the world to mandate digital pay television": Media Release 33/92, 2 November 1992. 10 The government licensed three carriers (OplUS, Telecom and Vodafone) to establish mobile networks using digital GSM technology. The two which did not also build an AMPS network (OplUS and Vodafone) received commitments from the government that the AMPS network, which provided Australia's first mobile telephony services, would be almost completely shut down in 2000. See, for example, "Deed of Agreement between the Commonwealth of Australia and Arena GSM Pty [VodafoneJ Ltd under Section 70 of the Telecommunications Act relating to Public Mobile Carrier Licences and Conditions, 22 December


and required Telstra to make "digital data capability" available to 96 per cent of Australians by 1998. Jl

No one is sure whether the television future will be cables, or satellites or MDS or VHF/UHF, but most are absolutely sure about it being digital.

But what's it really about?

The early (analogue) HDTV developments were technical fantasies for consumer electronics companies, occasionally inspired by creative audiovisual possibilities, but more often frustrated by the increasing durability of the TV sets they'd sold to consumers who no longer had any reason to replace them. The developments were also, in Europe, fantasies for governments who saw the possibility of a state-backed industrial consortium finally putting a line in the global sand and developing a European product in a massive consumer market which could succeed, ahead of those developed by the now dominant force in world consumer electronics markets, the Japanese.

This is an important continuing element in the policy debate - digital TV will require television viewers to buy new TV sets, and that makes the people who manufacture them very excited. It also makes the politicians who realise they might get the blame for making the old ones redundant a little cautious.

TV networks which were more worried about their audiences than about a place in the technological sun on board a lumbering HDTV industrial supertanker, watched these developments with interest but without much conviction. HDTV would be seriously expensive and it was unclear where the additional revenue to pay for it would come from, particularly to those who wondered whether "cinema in the home" would provide a sufficiently persuasive marketing pitch to audiences who had, since the 1980s video boom, decisively rediscovered cinema in the cinema. HDTV, at the time, was also something that required so much bandwidth to transmit that most assumed it would only happen with new delivery systems, like cable

1992, cl 3.6. The government has recently revisited this decision following protests from rural users affected by the poorer coverage of digital networks. Senator Richard Alston (Minister for Communications, the Information Economy and the Arts) "Regional phone coverage maintained", Media Release 11/98, 5 February 1998. 11 Telecommunications Act 1997 (Cth), s 66.

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and satellite. For broadcasters who didn't control those delivery systems, but who did, in the 1980s, control television, this made HDTV a distinctly unattractive development.

But some things changed in the late 1980s and early 1990s. First, American consumer electronics companies were not thrilled at the prospect of watching a generation of Americans buying the next generation of TV sets from the Europeans and Japanese. They needed something to get them back in the game. Secondly, Americans and eventually everyone else decided that analogue anything was not the way to go. If television transmission infrastructure was to be overhauled, it didn't make sense to encompass only a transition to better quality pictures and sound, without a transition to digital transmission. Thirdly, compression technologies developed quickly, and bandwidth-guzzling uses like video came to be squeezed into unimaginably tiny transmission capacities. Terrestrial HDTV became thinkable. Fourthly, the broadcasters who controlled American television realised that the competition they'd had for years from cable (and now satellite), was getting serious, and broadening, with the increasingly perva!;live computer industry and the growth of the Internet. Digital video formats might eventually make mainstream broadcasters' pictures look B-grade and on-line services might see people finding new ways of accessing audiovisual experience. The broadcasters started looking much more carefully at technical ways for them to participate in the transition to digital telev~sion

which their competitors were planning. Fifthly, terrestrial broadcasters who had traditionally sent their signals in a free-to-air environment with no "gateway" control over their audiences, or seen their signals retransmitted through cable systems with their own gateways, acquired the opportunity to establish their own gateways through digital conditional access systems.

What emerged were transmission systems which utilised the "taboo" channels in the UHF and VHF bands, currently unable to be used in conjunction with the frequencies used by analogue free-to-air broadcasters (for example, Channels 8 and 9 can't both be used in the same area). The digital terrestrial transmission systems would be able to be introduced alongside the continuing analogue transmissions, with the frequencies used for analogue broadcasting available for other uses at some point in the future, once vacated.

The essence of a political deal lay at the heart of

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the technical parameters for these DTTB systems -free-to-air broadcasters would have to ask for no more than they already had - a single channel (6MHz in the United States, 7MHz in Australia, 8MHz in Europe) in the VHFIUHF band. They would commence digital transmissions and hand back the old frequency when someone required it, but no one else could use the VHFIUHF spectrum until they had done so. Further, the decision to stop analogue transmissions altogether would be a difficult one, because someone, somewhere, and perhaps many people, everywhere, would still have analogue sets which would be rendered useless (as if the introduction of FM radio had been accompanied by the closure of all AM services or the introduction of colour TV had beeri accompanied by the closure of all black and white TV services). .

Significantly, it was the Federal Communications Commission (FCC) that set these parameters in the United States. Just as the fragmented early American broadcasting industry had eventually sought the government's assistance in the 1920s to provide some structure to the chaos of unregulated access to the broadcast spectrum,12 America's broadcasting industry both engineered and responded to the FCC's digital TV strategy in the 1990s. Left behind by the more co-ordinated early HDTV moves of European and Japanese business and government, the Americans used the capacity which came from the scale of their domestic market to set a policy agenda of their own, and reshaped their technical efforts to deliver it. From 1993, six rival American systems co-operated in a most unAmerican sounding "Grand Alliance" to develop a single DTTB system, known as the ATSC Digital Television Standard, and adopted by the FCC late in 1996.

"The breakthrough that is likely to be seen by future generations as the turning point in shaping the television business of the next century was a decision by the FCC to encourage broadcasting ofHDTV (,Advanced Television', as it was more generally termed, because it actually offered a range of service possibilities) in the existing

12 This pressure led to the establishment of the forerunner to the FCC, the Federal Radio Commission: Krasnow, "The 'Public Interest' Standard: The Elusive Search for the Holy Grail", briefing paper prepared for the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (US), 22 October 1997: http://www.benton.org.

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broadcasting bands. Starting later than Europe and Japan, the United States saw the potential to revitalise its home consumer electronics industry on the back of a terrestrially based HDTV broadcasting initiative. In the same way as broadcasters were permitted to participate in the move from black and white to colour, they were given the opportunity to participate in the television of the future."t3

By developing the technical means for the transmission of digital television signals in the same VHF and UHF· frequency bands they already occupied, United States television broadcasters achieved several things. First, they put themselves at the table of those able to provide digital television services. It made them relevant in a way they hadn't been when HDTV was being pushed largely as a big bandwidth cable or satellite service. Secondly, they created vast new value for the spectrum they had long occupied by providing a mechanism to use it more efficiently. That value could only be realised if the broadcasters shuffled around the VHFIUHF spectrum, and they were always going to be strong enough to negotiate reasonable terms for the shift. The broadcasters got themselves not just relevant but centre stage. Thirdly, they gave themselves the chance of reinventing their basic business, by participating in the delivery of new kinds of services using the old "broadcasting" spectrum.14 Fourthly, they achieved all of this with a new transmission 'technology which delivers substantial additional bandwidth more cheaply than other means, particularly cable. In Australia, pay TV interests have conceded this quite explicitly:

13 Australian Broadcasting Authority Specialist Group, Digital Terrestrial Television Broadcasting in Australia: First Report of the Australian Broadcasting Authority Specialist Group on Digital Terrestrial Television Broadcasting (ABA, Sydney, 1995) (the Specialist Group First Report), p 16. 14 The Americans tried the same thing with digital radio, but with less success. They investigated "in-band" systems while the Europeans developed the Eureka 147 technology which utilises the L-Band not currently used for broadcasting. The Americans had less technical success and the Europeans move ahead, bringing with them other cquntries, like Australia, whose Digital Radio Advisory Council last year recommended the introduction of digital radio using the Eureka 147 technology. See Digital Radio Advisory Council, Digital Radio Broadcasti'lg in Australia: Final Report (Department of Communications and the Arts, Canberra, August 1997) and Report of Senator Richard Alston (Minister for Communications and the Arts), "Australia's Digital Radio Future", Media Release 111197, 19 September 1997.


"DTTB ... has significant financial advantage over broadband cable. DTTB can provide a highspeed, virtually interactive data network at a fraction of the infrastructure cost of a cable network.

An example of the cost advantage of DTTB over cable is that rather than having to roll expansive hybrid fibre-coaxial cable past every home in an area - with resultant wastage due to the fact that only some homes choose to acquire services from the cable - the DTTB connection point to the home is the existing free-to-air antenna which has already been installed and paid for by the householder. 15

The United States efforts were matched by a differently-aimed project in Europe involving broadcasters, telecommunications carriers and consumer electronics manufacturers. Although its initial goal was a pan-European DTTB platform, this "Digital Video Broadcasting" project developed a "family" of digital transmission systems covering all television transmission media - satellite, cable, TV distribution, terrestrial TV and multi-point distribution systems. 16

The United States ATSC and the European DVB systems are now competing for adoption as Australia's DTTB transmission standard.

What started out as a quest for nicer TV pictures has become a struggle for control of the gateways between media and communications companies and their audiences and customers, a fight for control of the "broadcasting" spectrum which broadcasters have come to see as their own, and a tussle between American and European technology.

At this moment, "Digital terrestrial TV ... is more about grabbing spectrum than about consumer demand".17 But down the track, effectively turning off everyone's TV set will be a consumer and political issue that will make the AMPS shut-down look a beach.

15 ASTRA, A Report by ASTRA on Digital Terrestrial Television Broadcasting (DITB) (ASTRA, Sydney, December 1997), Part B "DTTB - Technical Issues", pp 6-7. 16 Specialist Group Final Report, pp 45-46. 17 Fell, "The HDTV Standards Debate", Australian Communications (November 1997), p 24.

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What's happened so far '"

In Australia, the fight has turned very nasty.

The Specialist Group As part of its responsibilities under the

Broadcasting Services Act for planning the broadcasting services band and advising the Minister on technological advances and service trends in the broadcasting industry,18 the ABA established a Specialist Group on Digital Terrestrial Television Broadcasting (the Specialist Group) in 1993. The ABA felt "the ABA needs to consider the planning and system development implications of digital terrestrial television broadcasting technology, which is emerging as the next major development in broadcast television". 19

The first meeting was held in May 1993 and the terms of reference were approved by the ABA soon after. They included identifying desirable national objectives for DTTB in Australia and contributing to the formulation of national policy options, evaluating candidate technologies, formulating proposals for contributions to international forums examining DTTB, and the encouragement of wide public debate.

The 23 members comprised 12 representatives from free-to-air television (seven from commercial television and five from the ABC and the SBS), seven representatives from government (four from the ABA, and one each from the then Department of Transport and Communications, the Department's Communications Laboratory and the National Transmission Agency), and a representative each from Optus, Philips Consumer Products, Broadcast Communications Ltd (NZ) and the then Telecom. The terms of reference indicate that a representative from the Community Broadcasting Association of Australia was to be invited, although no member is listed. The Specialist Group was convened and resourced by the ABA and chaired by its Director Planning, Colin Knowles (who became the head of Technolo~y Strategy and Development at the ABC in 1997).2

18 Broadcasting Services Act 1992 (Cth), s 158(m). 19 Australian Broadcasting Authority Specialist Group, "Digital Terrestrial Television Broadcasting (DTTB) Terms of Reference", Appendix I to the Specialist Group First Report, ~ 57. o Ibid, pp 57-60.

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The Specialist Group took over the "technical" work of the Committee on the Australian Television Transmission System (CATIS), which had been established by the then Department of Transport and Communications in 1989 to examine developments in television transmission, especially those relating to the possible introduction of High Definition Television (HDTV). The ABA Specialist Group was not intended to address the issues of harmonisation or program production issues which had been on the CATIS agenda.21 CATIS comprised representatives of only six organisations, two of whom were production industry organisations - the Department, FACTS, the ABC, SBS, the Australian Film Commission (AFC) and the Screen Production Association of Australia (SPAA). The ABA and the Department did not establish any other forums to consider the issues omitted from the Specialist Group terms of reference which had been seen as substantial parts of the CA TIS agenda.

The Specialist Group published a "First Report" in July 1995, which included "preliminary views" of the ABA developed "after consideration of the range of opinions presented in submissions and by members of the specialist group".22 The final report was presented to the Chair of the ABA (also a member of the Specialist Group) early in 1997.

The Final Report The Specialist Group, broadly, supported the

introduction of DTIB into Australia, with a single system standard to be adopted after completion of detailed technical evaluation trials. It was "too early to determine a fixed timetable", but "the year 2000 could be a useful target date for commencement of permanent DTIB broadcasting ... ". While it felt there should be "further studies into broadcasting infrastructure and service planning", it concluded that:

"All existing licensed commercial and national television services should be given access to a full 7MHz bandwidth DTB channel and be given full control over the use of the delivery capacity of that channel.,,23 It was the American model - guaranteed access

for existing broadcasters at no cost, and hardly a word about new players (see below).

21 Ibid, P 58. 22 Ibid, P 7. 23 Specialist Group Final Report, pp 17-19.

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The Chair of the Group noted that "[t]he work of the Specialist Group has been strongly supported bt; all elements of the Australian Television Industry". 4

However, the Australian Television Industry which received the report was a rather different creature from the one which had existed when the Specialist Group had been established. Pay TV began in Australia in January 1995 with the launch of the Galaxy service, and cable services began in September and October of that year. The numbers of channels available to some Australian audiences had increased several-fold, the numbers of television operators and channel providers had grown substantially, and around 600,000 Australian TV households were taking pay TV of some kind.

In December 1997, the industry association representing Australian pay TV operators, ASTRA,25 said it was "seriously concerned about the credibility of the ABA Report and its recommendations", especially at the extremely narrow composition of the "Specialist Group" which produced the Report. ASTRA was critical of the Group's dominance by free-to-air broadcasters ("the very group of interested parties with most to gain from the proposed introduction of DTIB"); the absence of representatives of the public interest, subscription services, the on-line industry, narrowcasters, data-casters and interactive services on the Group; the private nature of its work; and the fact that the group itself advised the ABA on its own terms of reference. It contrasted "this unusual and unacceptable approach to public policy development" with the "open and consultative approach" taken by the government in establishing a more widely representative and independentlychaired Advisory Council on Digital Radio. The resulting report and recommendations from the Specialist Group were "totally flawed".26

Former ABA Chair, Peter Webb, defended the Group's work, noting that Optus and Telstra (a partner in the Foxtel pay TV joint venture) had had representatives on the Specialist Group. "I

24 Colin J Knowles, Chair, ABA DTIB Specialist Group, Letter of Transmission to ABA Chair accompanying the Specialist Group Final Report, 21 January 1997. 25 Australian Subscription Television and Radio Association, formed in 1997 through the amalgamation of the Federation of Australian Narrowcasters and Subscription Services (FANSS) and the Confederation of Australian Subscription Television (CAST). 26 ASTRA, op cit n 15, pp 3-4.


understand now that, full of indignation but unable to explain its failure to participate in an open, consultative process, [the pay TV industry] wants a wider, public inquiry on these matters", he told a conference in February.27 The ABA had earlier claimed that it had met with representatives of FANSS and CAST who "support[ed] the concept of allowing the established free-to-air sector of the industry to pioneer the introduction of DTTB, provided that there will be scope for new participants when the PAL channels are returned".28

For now, the important facts are not so much who did or didn't talk to whom, although it's worth noting that if the ABA took the view that talking to Telstra meant you'd spoken to Foxtel, we'd end up with some rather different results when the Authority considered ownership and control issues. What matters is simply that the Specialist Group, by its own admission, did not consider huge issues relevant to any final decision about DTTB.

The Group interpreted its mission with sniperlike precision: to find a way for all existing free-toair broadcasters to move to digital transmission in the reasonably near future. Given the attention paid in the Broadcasting Services Act, from which the ABA derives its powers, to the desirability of expanding the number of broadcasting services, the Specialist Group's treatment of "New Services" in its report is surprisingly brief:

"The capacity for new services under DTTB would at worst be double the number of services under PAL. However, additional capacity is likely to be available immediately should it be required. In the absence of a definitive specification and detailed spectrum planning, any guess at how much capacity would be pure speculation. Nevertheless, constructive use of the DTTB capacity set aside in support of a future sixth analogue channel immediately opens an option for at least one wide coverage package.

Much depends on what is required from the new services. If they are to contribute to diversity and have more narrow focus than current mainstream commercial and national services, then HDTV may not be a priority and additional

27 Beeby. "Pay TV gets a blast for digital effort", Allstralian Financial Review. 12 February 1998, p 28. 28 ABA, Digital Terrestrial Television Broadcasting; Paper for the Minister for Commllnications and the Arts and the Department of Commllnications and the Arts (ABA, Sydney, July 1997) (ABA Response), p 12.

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services could be carried on the existing transmission channel. The need for, and timing of, such services will need to be the subject of further policy and planning debate and the outcome of the review into the use for the sixth channel. The Specialist Group has identified several possibilities, but has left the development of additional services as an 0fcen question outside its terms of reference." 9 (Emphasis added.) Thus the Specialist Group report explicitly

avoids consideration of both production' issues and, in any meaningful way, the full range of services which might be offered using the "digital spectrum". However, it notes in technical obiter that there is substantially more capacity on the "digital spectrum" than its recommendations propose to utilise in the short term.

The ABA Response In July 1997, the ABA responded to the

Specialist Group's Final Report.30 It indorsed the Specialist Group's model, supporting the "loan" of spectrum to existing broadcasters to transmit digital services to similar areas to those served under their current licences. The "analogue channel" would be returned at a date to be fixed. The response placed a strong emphasis on HDTV, believing that "consumer demand for high definition programming will grow rapidly once this becomes available",3] and proposed a minimum requirement on HDTV broadcasts to encourage sales of HDTV-capable digital sets. The ABA also argued that "DTTB should be implemented as free-to-air terrestrial services rather than any form of pay TV".32

The ABA was as cool to the idea of new services as the Specialist Group had been, taking as its policy cue the government's indications that it did not want a fourth free-to-air commercial network, its assessment that "there [does not] appear to be any consumer demand for more free-to-air commercial television services ... " and the uncertainty, at that time, about government policr on the sixth terrestrial high power frequency.3 The search for a further full service DTTB channel "should not be done as a matter of priority, given the potential costs

29 Specialist Group Final Report, p 93. 30 ABA Response. 31 Ibid. P 9. 32 Ibid, P 2. 33 Ibid, P 11.

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and disruptions to existing [spectrum allocation] arrangements".34 "Some involvement by new broadcasters might be possible at an earlier stage if the Government considers this desirable.,,35

Already dripping with its own assessments of the politically possible or desirable (instincts which might prove to be absolutely accurate), the ABA Response ends with the significant acknowledgment that the relevant spectrum had already been handed to the ABA by the Minister to plan. The Authority could simply go ahead and do DITB itself, but the "implications are wide-ranging and the ABA could not proceed with implementation without close consultation and co-operation with the Minister ... and the Department ... ".36

What's happening elsewhere

The United States17

The United States has set an aggressive timetable for the introduction of digital terrestrial services. All existing free-to-air services have been assigned a channel for digital transmission. They have not had to pay any fee for this. Those in the top ten markets will commence transmissions later this year. Digital broadcasts will be available to 53 per cent of the American public by the end of 1999. The analogue spectrum was initially required to be returned by 2006, although amending legislation in 1997 allows this date to be extended by the FCC in specific circumstances, including where less than 15 per cent of TV households in a market are not receiving digital broadcasts.

Broadcasters are required to transmit at least one free, digital programming channel of equal resolution to the current analogue system, and during the same hours of the day. They may offer high definition programming. They may also offer "non-broadcast" services, but if they choose to do so, they will have to pay aspectrum access charge.

The general public interest obligation of television broadcasters remains, with the FCC adopting rules to ensure that current standards will continue. A separate committee, appointed by the President, is examining additional specific, noncommercial obligations. Particular issues being

34 Ibid, p 8. 35 Ibid, p II. 36 Ibid, p 13. 37 See http://www.benton.org.au.

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examined include localism, educational programs, program classification, restrictions on advertising, free time for candidates for elected office, political editorials and right of reply, a personal attack rule, a "fair break" doctrine, closed captioning and public inspection file.38

In August 1997, Broadcasting and Cable reported what it understood to be the digital TV plans of the major networks, which ranged from CBS's "single channel of HDTV as much as possible", NBC's "HDTV in prime time and [maybe] multiple channels of SDTV during the day", ABC's "multiplex of widescreen, standarddefinition pictures, some on a subscription basis", to Fox's "bullish[ness] on multi-channel SDTV". The story summarised:

"HDTV is starting to get the short shrift as stations decide they'd rather use their newfound real estate to create multiple standard-definition channels. But some broadcasters aren't sure how they will make money from the new spectrum.,,39 As long ago as March 1997, FCC Chair Reed

Hundt was prepared to question the networks' commitment to the historic transformation of television they had promised in successfully lobbying for free access to the "digital spectrum". "I'm beginning to wonder if broadcasters really want these DTV licences. A cynic would think that broadcasters just don't want someone else to have them.,,4o

The United Kingdom41

The United Kingdom has chosen a different route to digital television from the United States in several respects. It is a "multi-channel" model rather than an "HDTV" model (HDTV, though not wide screen, will be precluded until the handback of the

38 National Telecomunications and Information Administration, "A Primer on the Public Interest Obligations of Television Broadcasters", Prepared for the Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters, 22 October 1997, at http://www.benton.org.au. 39 Higgins, "HDTV falling out of favour", Broadcasting and Cable, 18 August 1997, p 4. 40 Hundt (Chair, FCC), "Broadcasting, Cable and The Franchise", speech to the National Cable Television Association, New Orleans, 18 March 1997. 41 See Department of National Heritage, Digital Terrestrial Television: The Government's Proposals (Her Majesty's Stationery Office, London, August 1995); Broadcasting Act 1996 (UK); Dennis, "The UK Broadcasting Act 1996", IIC Communications Topics, No 19, September 1996.


"analogue spectrum") which emphasises early commencement and eventually complete migration to digital transmIssIon. Multiplexes will be separately licensed and regulated from the "digital program services" carried on them. The ABA Specialist Group argues that the choice of DTTB model in the United Kingdom was encouraged by spectrum shortages.42

Six mUltiplexes have been allocated for 12 years, with an "effective guarantee" of rolling the licence over for a further 12 years. The right to use these mUltiplexes has also, separately, been allocated -one to the BBC, one to be shared by the existing free-to-air commercial broadcasters the lTV network (Channel 3) and Channel 4 and one-half of a multiplex to Channel 5. The other three-and-a-half multiplexes were allocated in June 1997 by the Independent Television Commission, through a nonprice ("beauty contest") bidding process, to a consortium called British Digital Broadcasting. BDB's main shareholders are Carlton Communications and Granada, who are also major players in the lTV network. The BDB shareholders originally included BSkyB, the dominant force in United Kingdom pay TV. It was forced by the ITC to drop out of the consortium on competition grounds, although it will still supply programs and whole channels to BDB.43

Although the structure of the United Kingdom DTTB system suggests a quest for new players, the outcome has been an underwriting of the place of existing broadcasters in the digital environment. The most beautiful "new player" around turned out to be a consortium of old players which the ITC felt was best placed to establish, through digital terrestrial transmission, a strong countervailing force to the increasing power of BSkyB in United Kingdom television.

The BBC's digital services will be offered freeto-air, lTV/Channel 4's may include some payor pay-per-view services, and BDB's "bouquet", scheduled for launch in October 1998, will include premium pay services, such as Sky Movies Screen 1 and Screen 2 and Sky Sports.44 No date has been set for switching off the analogue transmissions, although a report on -this matter is required within four years of the grant of the first mUltiplex licence.

42 Specialist Group Final Report, p 46. 43 Screen Digest, December 1997, pp 275-276. 44 Screen Digest.

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Ownership and control rules limit the number of multiplex licences which can be held by any person to a maximum of three. They also set 15 per cent of total United Kingdom television viewing time as the maximum audience "share" that can be reached by a holder of digital program licences. The provision of digital program services from two or more mUltiplexes is also restricted. Programming requirements reflect the European ''Television Without Frontiers" Directive - "majority" European content and 10 per cent independent productions. Standards for a digital terrestrial set-top box were agreed by the industry in November 1997.

In Australia, ASTRA has proposed an alternative model for DTTB which parallels the United Kingdom approach, with existing free-to-air broadcasters sharing mUltiplexes (7, 9, 10; ABC, SBS, UHF 31) leaving at least three multiplexes available for new entrants and/or new services.45

The public interest

The most remarkable feature of the debate about digital television is the way it has reasserted "scarcity" as a central feature of media and communications policy. Paradoxically, while many chant mantras about digital technology, new media and abundance, the major media and communications organisations around the world have been locked in conflict about who should get access to particular slabs of radiofrequency spectrum, and what they should be able to do with it. It's a pretty clear sign that scarcity is very much alive.

In Australia, the fights are between the television broadcasters who currently have use of substantial parts of the VHFIUHF bands, and pay TV operators, telecommunications operators, Internet service providers and others who'd either like some of it themselves, or who'd at least like the television broadcasters to have a tougher and more expensive time keeping it.46 In arguing their case, the commercial free-to-air broadcasters have worked to reinvent themselves as guardians of the public interest, favoured custodians of television's traditional public policy aspirations in the digital era.

These broadcasters got rid of a good deal of

45 ASTRA, op cit n 15, p II. 46 Burton, "Howard faces a digital dilemma", Australian Financial Review, 20 February 1998, p 31.

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Given

regulation in the 1980s and early 1990s by asking why they should be treated so differently from any other business New Zealand's sweeping experiment, Thatcher's lTV assault, Mark Fowler's FCC, the Department of Transport and Communications' Broadcasting Services Act in Australia. Unfortunately, opening up access to the spectrum (a little) gave some clues as to just how much others might be prepared to pay for the bits the broadcasters were already sitting on. The prospect of the transition to digital, and the accompanying prospect that someone might question the appropriateness of allowing broadcasters' tenure of the broadcast bands to continue uncontested, has reminded the free-to-air networks, if reminding were needed, of the longterm benefits which have accrued to them from the oligopolistic market structures erected by the public rationers of scarcity. Broadcasters have rediscovered the value of being special.

Governments and regulators have rediscovered the value of having something to offer them. In the United States, the debate about digital TV has become a debate about the future of free-to-air TV. A "rails run" into digital transmission has been the carrot with which to ensure free-to-air broadcasters' commitment to providing television "in the public interest" into the future.

Former FCC Chair, Reed Hundt, made this barter quite explicit:

"We want consumers to embrace digital service quickly. The reasons are to ensure free broadcast television in a digital world, to guarantee a medium that serves the public interest and to recover analogue spectrum ... Free TV has come to play an essential role in American society.,,47

Hundt wanted to see the institutions of broadcast television, with their history of services required by law to serve the "public interest, convenience and necessity,,48 in the middle of the new information, entertainment and educational universe.

"Television can help provide content that will permanently take the PC from a plaything for the affluent, a spreadsheet for accountants, and a zippy mail for the typing types, to what it ought to be destined to be: the Model T of the

47 Hundt (Chair. Federal Communications Commission), "DTV and OARS: Let's get on with it", speech to NAB State Leadership conference, 24 February 1997: hnp://www.fcc.org. 48 Communications Act 1934 (US) Title III.

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information highway, the vehicle that puts everyone on the road - the vehicle that in effect builds the road.,,49 New FCC Chair Bill Kennard is running a similar

line. He told the 1998 NATPE conference: "Perhaps the greatest promise of digital television is its potential to allow you to expand on your service to the public.

You should be proud of this tradition of service. In fact, I believe that is the very reason Congress decided that the American people should make such a huge investment in your industry by giving you the spectrum you need to broadcast digital television. And this is a huge investment. It has made broadcasters the envy of other industries starved for more bandwidth ... [A]t the end of the day, we must develop a framework to ensure that the public interest remains vibrant and meaningful in the digital age. Broadcasters have been given new ways to expand into the digital age, so it is only fair to expect that they grovide new ways of serving the public interest."s This task is currently underway, with the

appointment of the Presidential Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, to report by I June 1998.

The Broadcasting Services Act: futureproof?

DTTB raises challenges not just for policy but for its implementation through legislation.

When the Broadcasting Services Act was introduced, it was said to provide "a coherent regulatory framework based on a need to accommodate future developments". In particular, it stressed that "We cannot and must not continue to ignore new technologies such as Digital Audio Broadcasting and compressed digital video".51

However, the Digital Radio Advisory Council, the Specialist Group and the ABA have argued that the legislation is likely to require substantial

49 Hundt (Chair, Federal Communications Commission), "A New Paradigm for Digital Television", speech to "Digital Convergence: Reshaping the Media", New York, 30 September 1996: http://www.fcc.gov. 50 Kennard (Chair, Federal Communications Commission), remarks (as prepared for delivery) to 35th Annual NAPTE Conference, New Orleans, 19 January 1998. 51 Senator Bob Collins, Second Reading Speech, Broadcasting Services Bill 1992 (Cth), 4 June 1992, Senate Hansard, p 3599.


amendments to facilitate the introduction of digital broadcasting. 52 Despite the claims in the Second Reading Speech, the ABA says "The BSA [Broadcasting Services Act] was not drafted with digital technology in mind", but goes on to acknowledge that this was probably less about ignorance than "primarily because the implications were far from clear at the time".53 The view that the BSA would need substantial amendments if DTTB were to be introduced has been enthusiastically supported by ASTRA, which argues that amendments will be required to the provisions covering the concepts of "service", categories of service, program standards, licensing, ownership and control, and planning. ASTRA also suggests that amendments might be necessary to the Television Licence Fees Act 1964.54

Nevertheless, one might question whether the amendments which would be "necessary" to implement DTTB result from the inherent nature of the technology, or from the particular policy choices which are likely to be made about how DTTB is to be implemented.

One example is instructive. It is argued that "the current legislation was drafted for analogue technology and does not provide for multichannelling by a television licensee".55 While it is true that a licence under the BSA provides the holder with the right to transmit a single program stream or "service ,,56 and does not contemplate "multi-channelling" by a single licensee, the BSA does not assume that one service corresponds to one transmission. Indeed, the severing of this link was the precise purpose of the "service-based amendments" in 1985. Many separately licensed services can be distributed as part of the same

. 52 Digital Radio Advisory Council, op cit n 14, Ch 3 "Implementation Issues"; Specialist Group Final Report, Ch 4 "Regulatory Considerations"; ABA Response, p 12. 53 Specialist Group Final Report. 54 ASTRA, op cit n IS, Part C "OTIS - Legislative Issues",

ff 1-2. Ibid. The Specialist Group Final" Report raises the same issue

at pp 89-89. 56 The Federal Court has determined that the term "service" in the BSA generally refers to the output of one channel. Alllaigalllaled Televisioll Services PI)' LId \' FOXTEL Digital Cable Teb'isioll PI), Ltd (unreported, Fed Ct, No NG 734 of 1995, Davies J, 20 October 1995) (Foxle/), paras 7-15; cited with approval on appeal AlIllIlgalllaled Televisioll Services PI), Ltd v FOXTE~ Digital Cable Televisioll PI), Ltd (unreported, Fed Ct, No G873 of 1995, Lockhart, Wilcox, Hill JJ, 26 April 1996), paras 11-21.

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transmission: for example, "television" and teletext are distributed as part of the same transmission (the BSA's express exclusion of teletext from the definition of "broadcasting service" in s 6 acknowledges that it would otherwise fall within the definition of a broadcasting service) and direct-tohome satellite transmissions distribute television and radio services as part of the same transmission. One form of licensing, for satellite-delivered subscription television services licensed before I July 1997, expressly authorises multi-channel "services".57

It would be perfectly feasible under the Act to hand out more television licences, each authorising the transmission of a single service or program stream, to use the expanded transmission capacity offered by digital broadcasting. This is precisely the model which ASTRA proposes to restrict existing television broadcasters to transmitting a single digital standard definition television service (three broadcasters would share one transmitter).58 It is neither necessary not desirable, as a consequence of the technology itself, to amend the BSA to provide for the licensing of the whole digital bit-stream as a single "broadcasting service". Indeed, one might question why we should again apply "broadcasting" regulation to any digital "non-broadcast" services (for example, text services) which might be transmitted along with the digital "broadcasting" service, having extricated them from this fate amid such legislative fanfare in 1992.

Why amendments are likely to be "necessary" is because we are unlikely to decide as a matter of policy that single-pro gram-stream licensing offers the most effective way to use technology which offers the capacity for multi-channelling and particularly for dynamic alterations to the numbers of program streams being transmitted at any point in time.

One approach which might be taken is to replace the category of "commercial television broadcasting licence" with a category of "free-to-air television service licence". A "free-to-air television service" would authorise the delivery of more than one discrete program stream, including dynamically variable numbers of program streams. The licence would authorise a service whose purpose, or primary

57 Broadcaslillg Services Acl 1992 (Cth), s 93. This provision was identified by Davies J at first instance in Foxlel as an exception to the general rule that one "service" generally refers to the output of one "channel": see para 13. 58 ASTRA, op cit n 15, Part B "OTIS - Technical Issues".

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Given

purpose, is the transmission of television programs to audiences free of charge. If "primary purpose" were chosen, the capacity for dynamic alteration of the service mix would mean there could be no simple numerical definition of it. The following matters could be taken into account by the ABA, which might also be given a power to issue advisory opinions on the matter: • the overall transmission capacity - data rate; • the number of discrete services.

Where at least 75 per cent of these measures is devoted to free-to-air television services, the overall service would generally be regarded as one whose primary purpose is the provision of a free-to-air television service.

This approach would preserve the concept of "service-based" licensing and could leave excluded from BSA regulatory coverage any "non-program" elements of the potentially multi-dimensional service which fell outside the range of services covered by the BSA (if "primary purpose" rather than "sole purpose" purpose were chosen). It could also permit the elimination of the distinction between "broadcasting" and "narrowcasting", currently made according to increasingly arbitrary distinctions about the intended breadth of appeal of programs, which seems likely to be further tested in an environment of multi-channel free-to-air services. This would leave the distinctions between different categories of television as institutional (profitmaking commercial; non-profit community; public sector ABC and SBS) and financial (free-to-air or subscription). It would also provide a simple mechanism for implementing any migration for licensed television broadcasters from the analogue transmission of a "commercial" service to the digital transmission of a "free-to-air" service.

Being digital

The same Australian government which is facing up to decisions about digital television is currently tiptoeing its way through the minefield created by its predecessor's decision to shut down the analogue AMPS mobile telephone network in 2000. That decision, made in 1992, was taken on the basis that the analo§ue AMPS technology was "becoming outdated", 9 although it was also felt that the GSM

S9 Senator Bob Collins (Minister for Transport and Communications), "Arena-GSM is Australia's third mobile carrier", Media Release 39/92, 15 December 1992.

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digital system would permit the development of competing mobile telephony networks. It provides a sharp reminder of the need for governments and policy-makers to fly some distance from the sun in making their predictions about the long-term merits to consumers of particular technologies and services, even those that come with such futureproof labels as "digital".

Australians, as the saying goes, sign up to any new electronic gadget - colour TV, VCRs, CDs, PCs, mobile phones. But so too, having paid good money for something that works, like an analogue mobile phone in the bush, they react rather poorly to being told they're going to have to upgrade to something that costs more and doesn't work as well. Elected governments find it even harder than commercial businesses to bring them that kind of news. If DTTB means there's more television but you have to buy a new TV to get it, throw out your otherwise perfectly good one, and then pay for a lot of programs you used to get for free, the transition to digital might indeed be Bill Kennard's "truly transforming event of our times".

Australia's television choice

If Australians are going to be digital, the place they currently go most often when they have time on their hands, free-to-air television,6o is going to have to be digital. But there are a lot of choices about how we might get there.

The choices are not as broad as they might have been and they are not as broad for the people of a· small country, Australians, as they are for those whose consumer market can call the global technical shots. It is no bad thing for Australia to be a follower rather than a leader in large scale technology choices, but with decisions about the structure of DTTB implementation made two years ago in the United Kingdom and the United States, we already are.

Australia's choices are about who gets access to the spectrum liberated by DTTB, and at what financial and regulatory price.

The challenge is to see digital television not simply as a necessary step to allow existing broadcasters to be part of the digital universe, but as an opportunity to maintain and develop a distinctive

(\() Given, "Commercial TV: Bucks, Blokes, Bureaucrats and the Bird" in Public Voices, Private Interests: Australia's Media Policy (Allen and Unwin, Sydney; 1995), piS.


Australian television industry in the 21st century, a rare moment in the rush to abundance when the public can make some demands about the kind of Australian media and communications universe they want.

Some of the special qualities we have come to ask, and often receive, from television - its free availability to all Australians wherever they live, whatever their level of income and wealth, whatever their special needs; the breadth, quality and popularity of its programs; its relevance to Australians and the opportunities it provides for their creative output - will need to be reasserted in

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the digital age. Other qualities, like the diversity of its control and the competitiveness of all its activities, will need to be demanded more insistently.

Those who seek access to the VHFIuHF spectrum whose value has been so significantly enhanced by the invention of digital terrestrial television transmission, and who promise so much from their use of it, will need to be given some flexible space to get on with the job. But they will also need to give back some commitments, firmly underwritten by effective regulation and thoughtful, active regulators.

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