Tuesday, August 30, 2011

ACMA says telecommunications and media laws in Australia are broken

A new report by the peak communications body in Australia has said convergence has broken most of the media and telecommunications legislation it administers. The findings are in the Australian Communication and Media Authority report Broken Concepts: The Australian communications legislative landscape(pdf). ACMA is the government body that administers 26 Acts made over half a century, accompanied by 523 regulation requirements. Their paper examined the impact of convergence pressures on 55 key pieces of legislation and found most of them wanting. To use the ACMA terminology they were either ‘broken’ or ‘significantly strained’. The issue affects the regulation of such diverse items as video games, smartphones, tablets, 3DTVs, untimed local calls, community broadcasting, program standards, cable providers, universal service obligations, emergency calls, spam, media diversity and many others.

ACMA defined convergence by five key causes of change: 1. Technological developments 2. The development of a broad communications market 3. Increased consumer and citizen engagement with the toolset 4. Regulatory Globalisation 5. Government intervention (NBN). ACMA says digitalisation has broken the connection between the shape of content and the container which carries it. Legacy service delivery used service-specific networks and devices but digital transmission systems have made delivery mostly independent of technologies. The major consequence is regulation of content based on delivery mechanism no longer makes sense as devices develop multiple functions.

ACMA found seven major regulatory consequences of convergence. Firstly, policy and legislation no longer aligns with the realities of the market, the technology or its uses. Secondly, there are gaps in coverage of new forms of content and applications. Thirdly, there is misplaced emphasis on traditional media (television) and traditional communications (voice services). Fourthly, the blurring of boundaries is leading to inconsistent treatment of similar content, devices or services. Fifth, difficulties assuring innovative services are consistent with consumer safeguards. Sixth, new issues are handled in piecemeal fashion reducing overall policy coherence. Lastly, convergence is causing institutional ambiguity with no one sure which agency is responsible for which regulation.

The main acts that govern telecommunications in Australia are the Broadcasting Services Act 1992, the Radiocommunications Act 1992 , the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999. All are well over a decade old and all were drafted before the Internet became a reality. These core acts have been added to by ‘band aid’ solutions to newer problems such as spam and interactive gambling. As a result, ACMA says the Australian communications legislative landscape now resembles a patchwork quilt. There is no overarching strategy or coordinated approach to regulating communications and media in a digital economy.

Media diversity is one of the major problems addressed by the report. It said regulation has given undue weight to the influence of print newspapers and the ability to personalise media consumption magnifies as well as limits the amount of influence a media service can have on an individual. Also the ability to access broadcast-like content through non-broadcasting services is running a hole through the Broadcasting Act’s promotion of diversity of content (which I would argue was honoured more in the breach by commercial broadcasters in any case). There are 53 other areas of ACMA’s reach which are equally broken beyond legislative repair.

ACMA Chairman Chris Chapman said the report highlighted the ever-increasing strain on old concepts struggling with new technology. “The constructs for communications and media that worked 20 years ago no longer fit present day circumstances, let alone the next 20 years," Chapman said. “These ‘broken concepts’ are symptoms of the deeper change of digitalisation breaking those now outdated propositions, including that content can be controlled by how it is delivered.”

The report dovetails with the federal government’s Convergence Review. The review panel is due to deliver its report in March. It toured Australia earlier this month hearing submissions and will continue to receive input until 28 October. Its framing paper acknowledges changes are required but appears be focussed more on broadcasting issues rather than the wider telecommunications issue. This new ACMA paper is a welcome wake-up call to the seriousness of the problem. Technology and its uses will continue to evolve in unimaginable ways. The trick will be drafting legislation that does not fetter that growth while providing citizen safeguards against unscrupulous behaviour.

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