Dr Martin Hirst deconstructs the Federal Parliament's long overdue media reform bill, due to report back to the Senate in November, and clues us in who wins, who loses, and where it leaves us — the public.
ONE OF THE big ticket items on the Fizza’s shopping list is some long overdue changes to Australia’s analogue media laws that are struggling to cope with digital disruption to old media channels and networks.
In the past, significant change has not been easy. The traditional alliance between media barons and political parties has become less reliable over the last 20 years. Reform of media law has always been a compromise between what the public wants (usually more control over the barons) and what the barons want (less control over their profit making activities).
The last great changes in the late 1980s froze Rupert Murdoch out of Australian television for 30 years. Abolition of the restrictions on cross-media ownership may represent the ageing mogul’s last chance to cash-in on his Australian media assets.
When the dust settles though, not much will change. Australia’s creaking television infrastructure will continue to degrade; content will continue to drift from the serious to the trivial and more of us will time-shift our viewing to downloads and streaming over multiple devices.
Amending the broadcasting laws is just tinkering.
Question Time — Minister for Communications Senator Fifield discusses proposed media reform, 1 March 2016.
Broadcasting Legislation Amendment (Media Reform) Bill 2016
This bill had its first and second readings in the first week of the new parliament. It is now with the committee, which is due to report back to the Senate early in November.
The second reading speech introducing the legislation was a textbook example of a minister saying very little by reading a predigested series of sentences into Hansard. It was boilerplate polly waffle duly placed on the record by junior minister Paul Fletcher. Who? It contained the right references to keeping the law up-to-date, but added nothing of substance to the debate.
The key changes are abolition of the 75 per cent audience reach rule. abolition of the 2 out of 3 rule limiting cross-media ownership in a single market and changes to regional and local content rules to satisfy the Nationals.
Most major industry players, young and old, have been looking for change now for more than a decade.
What they don’t want, particularly the old guard, is a reheating of the controversial Conroy proposals from the Finkelstein inquiry.
That was about a political challenge to the entrenched oligopolies, but they successfully fought it off with somewhat spurious freedom of the press arguments.
What the networks and the remaining newspaper giants want is the freedom to do deals so that, in the end, the free market has a smaller number of operators.
As a bonus, the remaining players get richer on the deal itself and the leftovers stave off bankruptcy for another five years or so. Explanatory notes to the legislation simply asserts that the 'outdated media ownership and control laws' must be repealed to 'better reflect the contemporary digital media environment'.
And yes, a lot has changed since the Broadcast Services Act of 1992 was enacted. However, these changes are not about technology alone, they are motivated by more mundane concerns, such as the bottom line.
The government argues that without an opportunity to consolidate smaller regional television stations cannot compete with online content. By abolishing the “reach rule”, mergers will allow some companies to survive.
There’s some rules to guarantee local content, but as we’ve seen these rarely prevent newsroom closures and other cutbacks in regional coverage.
Not all the big players are entirely happy.
Foxtel (jointly owned by News Corp Australia and Telstra) is unhappy that the free-to-air networks (FTVs) get to cherry pick the best live sports coverage.
Speaking at ASTRA 2016 the subscription broadcasters’ annual conference, head of Fox Sports Patrick Delaney complained to a sympathetic audience that the present laws allow free-to-air networks buy exclusivity and keep Foxtel out of large areas of the sports rights market.
The subscription providers’ lobby group ASTRA wants the reforms now before the Senate to address the so-called “anti-siphoning” rules which it says are out-of-date in the era of Internet content streaming.
The original intent of the anti-siphoning rules was to amend the Broadcast Act to stop the pay TV broadcasters from buying all the rights to televised sport. The department of communication maintains a list which is updated from time to time at the Minister’s discretion. Events on the list are available to FTV broadcasters first and therefore also exclusively on their other screens and devices via apps.
It was under this rule that the Seven network got exclusive television rights to broadcast the Rio Olympics in Australia. As The Australian’s coverage of the ASTRA conference noted, Seven’s Rio app was ‘beset by technical gliches’.
This would have delighted the audience.
The anti-siphoning rule was “never intended” to cover digital devices or streaming, according to Delany of Fox Sports.
To a degree, he’s right. It’s one of the techno-legal paradoxes that’s arisen because of the digital media revolution. The law and regulation have trouble keeping up with the speed of innovation and change.
We might even call it the “Uber effect” of digital disruption.
That Fox Sports and the subscription industry is not able to impose its will on the media reform process is a legacy of the power of the free-to-air networks, combined with the lag effects as the media landscape races ahead of the legislators.
The power of the networks is waning — replaced, in part (ironically), by the emergence of the pro-conservative media echo-chamber that is Fox News in the USA and, increasingly, Sky News in Australia.
However, power abhors a vacuum.
Rupert Murdoch has been historically locked out of the Australian FTV market. He was forced to sell his stake in Channel Ten in order to buy the Herald-Sun in the late 1980s.
Despite the pretence of individually branded channels and the “diversity” of ASTRA’s official membership, the industry lobby group is Murdoch’s only toe-hold in the Australian broadcast advertising market.
The increasing editorial and ideological alignment of Sky News and Murdoch’s principal print assets (The Australian, The Herald Sun and The Daily Telegraph) is a sign that News Corp wants to maximise the revenue potential of its stars while increasing their profile and (his) influence in national political discourse.
Scrapping the “reach” and “two out of three” rules doesn’t directly benefit Murdoch and if the anti-siphoning rules are left alone – as is likely – he has nothing of substance to gain immediately from the proposed changes.
That Rupert doesn’t immediately get his own way is a sign of a decline in his influence over local media decision making. However, Murdoch’s patience and persistence is legendary.
In the medium to long term, though, Murdoch may be a buyer of free-to-air media assets, or at least an investor. Such a move could also bring the family’s Australian branches closer together via the obvious integrations between the production skills of daughter, Elisabeth, Foxtel (Rupert and Lachlan chair the board of News Corp) and Channel 10, where son Lachlan has previously been a player.
All the current networks are in play. Fairfax Media may be tempted to make a last minute bid for continued relevance by forming an alliance with Nine. Murdoch may concentrate on newspapers, but getting more programming from his Sky studios across Foxtel and Ten’s FTV platforms makes sense.
Watch this space ...
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