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Anti-siphoning rules for pay TV and sport

Anti-siphoning provisions

Part 7 of the Broadcasting Services Act 1992, empowers the Minister to protect the free availability of certain types of programs:

  • ss115(1) of the Act empowers the Minister, by notice published in the Commonwealth Government Notices Gazette (the Gazette), to specify an event, or events of a kind, the televising of which should in the opinion of the Minister be available free to the general public;
  • ss115(1A) of the Act empowers the Minister, by notice published in the Gazette, to amend a notice under subsection 115(1) to specify an additional event, or events of a kind, the televising of which should, in the opinion of the Minister, be available free to the public;
  • ss115(2) of the Act empowers the Minister, by notice published in the Gazette, to amend a notice under ss115(1) to remove an event from the notice;
  • ss115(3) provides that notices under s115 are disallowable instruments.

It is a condition of licence (Schedule 2, part 6, Clause 10) that a subscription television broadcasting licensee not acquire the right to broadcast on its subscription television broadcasting service an event to which a notice under subsection 115(1) applies unless a national broadcaster or a commercial broadcasting licensee (who is part of a network reaching at least 50 per cent of the population) has acquired the right to broadcast the event.

If the free-to-air broadcaster does not wish to acquire the rights offered it may make a commercial decision not to do so. In such a situation, a pay TV licensee cannot acquire the right to broadcast the event until either the Minister has exercised his discretion to remove the event from the anti-siphoning list, or, the event has been completed for a week at which time automatic delisting will occur.

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Addition or removal of events from the list

Apart from the automatic removal of complete events from the anti-siphoning list, the Act gives the Minister a wide discretion to add events or remove events. The Broadcasting Services Amendment Act 1995 clarified the Minister's powers in this regard.

The Act does not specify the criteria to which the Minister should have regard in forming an opinion whether to add an event to the anti-siphoning list. The Act does not preclude any future events being listed nor does it need to be an event that has previously been available free to the general public. However, the Minister needs to form an opinion that the televising of an event, or events of a kind, should be available free to the general public.

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Role of the Australian Communications and Media Authority

The Australian Communications and Media Authority (ACMA) has two main statutory roles in regard to the anti-siphoning provisions:

  • to monitor compliance by pay TV licensees with the conditions of their licences; and
  • to monitor and report to the Minister on the operation of the anti-siphoning provisions in accordance with Broadcasting Services (Anti-Siphoning Monitoring) Direction (No.1) 2005.

ACMA will monitor free-to-air coverage of events on the anti‑siphoning list from 1 January 2006 until 31 December 2010, when the current list is due to expire.

ACMA will formally monitor which events have been acquired by free-to-air or national broadcasters and the extent of their rights to those events; how those rights are used and whether unused or partially-used rights are offered to other broadcasters, including pay TV.

ACMA will report to the Minister as regularly as practicable, but no less than once every six months.

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  • Document ID: 8473 |
  • Last modified: 6 February 2008, 2:11pm