Broken concepts
The Australian communications
legislative landscape
AUGUST 2011
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acma | 1
Contents (Continued)

Executive summary

1.1Purpose

1.2Background

1.3Key conclusions

2Introduction

2.1Legislative context—change and fragmentation

2.2Sources of pressure

3Broken concepts

3.1Ordering rationale

3.2 Convergence pressures on key legislative terms and concepts

Media diversity

Australian identity

Long-term interests of end users

Any-to-any connectivity

Universal service

Protection from unsolicited communications

Efficient allocation and use of spectrum

Broadcasting services band licensing

Influence in broadcasting

Program standards and codes of practice

Licence area plans

Carrier licensing

Universal service obligation

National Relay Service

Standard marketing plan

Customer Service Guarantee

Co- and self-regulatory measures

Do Not Call Register

Radiocommunications licensing (Apparatus licence)

Radiocommunications licensing (Spectrum licence)

Radiocommunications Licensing (Class licence)

Certificates of proficiency

Carrier

Carriage service provider

Content service provider

Internet service provider

Cabling provider

Emergency call person

Broadcasting service

Program

Commercial broadcasting service

Content service

Subscription broadcasting service

Community broadcasting service

Narrowcasting service

Datacasting service

Standard telephone service

Untimed local call

Carriage service

Network unit

Universal service area

Alternative telecommunications service

Integrated public number database (IPND)

Technical standards

Public mobile telecommunications service

Emergency call service

Telemarketing call

Marketing fax

Interactive gambling service

Radiocommunication/ device

Label

Television program

Third-party authorisations

4.Case studies

4.1Technology case studies

4.1.1Standard telephone service

4.1.2Mobile applications

4.1.3Mobile premium services

4.2Foundation case studies

4.2.1Broadcasting service

4.2.2Content service

4.2.3Influence in broadcasting

4.2.4Device and radiocommunications device

4.2.5Carrier

acma | 1

Executive summary

1.1Purpose

This paper examines how the process of convergence has broken, or significantly strained, the legislative concepts that form the building blocks of current communications and media regulatory arrangements.

1.2Background

The Australian Communications and Media Authority (the ACMA) is in a unique position to reflect on the processes and implications of convergence. The ACMA administers some 26 Acts thathave been made over the past half-century, accompanied by some 523 pieces of regulation. The ACMA has witnessed firsthand the rapid change in communications and media, and has observed a range of consequences arising from convergence.

This paper selects 55 legislative concepts that form the building blocks of current communications and media regulatory arrangements (set out in Table 2) and analyses them with reference to convergence pressures to interrogate their contemporary and future relevance. Within the ACMA, convergence is primarily framed to refer to the merging of the previously distinct platforms by which information is communicated. The historical distinctions between radiocommunications, telecommunications, broadcasting and the internet are blurring. Convergence is characterised by five key causes of change. These are:

  1. Technological developments. Digitalisation is separating services from transport layers. Previously distinct media, such as voice telephony, broadcasting and internet applications, are converging into common interfaces on single devices.
  2. Market developments and associated changes in industry structure. Liberalisation of telecommunications markets has resulted in multiple competing networks offering electronic services. Broadcasting, media, information technology and telecommunications markets are merging into a broad communications market.
  3. Changing consumer and/or citizen engagement. Data delivery is increasingly ubiquitous and consumers are increasingly substituting data-based communications (for example, email, short message service (SMS) and social networking applications) for voice services. Content production is also shifting away from industry as users generate their own content and share it via the internet. Private and public service delivery is also shifting online. These developments are changing the way citizens interact with each other, procure services and participate in the public sphere.
  4. Globalisation of markets and regulation. Extended supply chains and the global reach of the internet is challenging regulation designed for local and national markets.
  5. National digital communications strategies. Direct public sector investment in communications infrastructure (for example, the National Broadband Network—NBN) is reshaping competition dynamics and presenting other public policy challenges (such as the delivery of consumer safeguards via industry obligations and the migration of telecommunications to IP delivery).

1.3Key conclusions

Of the 55 legislative concepts reviewed in this paper, the majority are either ‘broken’ or under significant strain from the effects of convergence (see Chapter 3).

The ‘broken concepts’ set out in this paper should be viewed as manifestations of a deeper dynamic. Key to this dynamic is that ‘digitalisation has broken the nexus between the shape of content and the container which carries it’ (that is, services are now independent of platforms).[1] As set out in Figure 1, legacy delivery arrangements followed service-specific networks and devices. Technological change in the form of digital transmission systems means that service delivery is now largely independent of network technologies. This can be conceivedanddepicted as a shift from the vertical, sector-specific approach to the horizontal, layered approach.

Figure 1 Convergence in networks and service layers

One important consequence of this change is that regulation constructed on the premise that content could (and should) be controlled by how it is delivered is losing its force, both in logic and in practice. In practical ways, this is affecting the day-to-day work of the regulator in administering legislation and applying these concepts to innovative services and delivery mechanisms that were not envisaged at the time existing core legislation was enacted. These inputs are described in further detail in selected case studies at chapter 4.

Another way to view the changing landscape in communications and its impact on current legislative concepts is by examining the maturation of various vectors of change across a longer timeframe. Figure 2 (see p. 8) illustrates possible future scenariosshowing how legislative concepts may apply or not in the future against expected practical changes in service, network, device and user developments. This analysis is not intended to offer predictions, but it usefully illustrates even within an immediate timeframe how particular legislative concepts have been affected by convergence with reference to different vectors of change. For example, a broadcasting service definition applies to elements of device, service and content vectors.

Figure 2 also illustrates a growing level of communications activity that is expected to have little or no contact with legislative concepts as they are currently constructed. Cloud computing is an example of an activity that is independent of network and device-based approaches to regulation.Conversely, legacy elements such as voice services relate to a number of broken concepts such as the untimed local call. Table 1 (see pp. 9–11) outlines the relationships between the vectors and elements of them in Figure 2 and identified broken concepts.

Conducting this analysis, the ACMA has observed seven broad regulatory consequences of convergence:

  1. Misalignment of policy and legislative constructs with market, behavioural and technological realities. For example, Voice over Internet Protocol (VoIP) services are subject to different quality of service (QoS) parameters than traditional, circuit-switched telephony, and QoS parameters need to be realigned as a result.
  2. Gaps in the existing framework’s coverage of new forms of content and applications. For example, the exclusion of services providing programs using the internet from the definition of broadcasting service creates a gap that has grown in significance over time as content delivered using the internet has grown in availability and use.[2]
  3. Misplaced emphasis in the legislative framework or underlying policy that skews regulatory activity towards traditional media or communications activity. For example, many of the consumer safeguard measures under the Telecommunications Act 1997 (the Telecommunications Act) are focused squarely on the primary importance of voice services. While voice services continue to be important, there is much less emphasis in regulation on other telecommunications services that are of increasing commercial and social significance.
  4. Blurring of boundaries between historically distinct devices, services and industry sectors leading to inconsistent treatment of like content, devices or services. For example, historical distinctions between broadcasting services under the Broadcasting Services Act 1992 (the BSA) and content services under the Telecommunications Act are becoming difficult to maintain when viewers are watching content delivered as an IP television (IPTV) service provided as a bundled offering by their internet service provider (ISP) over internet-enabled television sets.
  5. Mainstreaming of innovations with associated changes in community expectations. For example, access to 000 from IP-based telephony raises questions about how the innovation will be treated with respect to applicable consumer safeguards.
  6. Piecemeal responses to new issues. Core communications legislation has been incrementally amended and supplemented to address the rapid change occurring in the communications sector over the past two decades (see Figure 3). Consequently, the present communications legislative landscape is fragmented. This has reduced the overall coherence of the regulatory scheme. For example, successive accommodation of new technologies in the Telecommunications Numbering Plan 1997has undoubtedly delivered benefits, but a fundamental rethinking of numbering arrangements is now being undertaken in order to ensure future coherence of the arrangements.
  7. Institutional ambiguity as a consequence of sectoral convergence such that severalregulators—or no regulators—have a clear mandate to address pressing market or consumer concerns. For example, use of mobile telephony as a mobile wallet (where the mobile phone account can be used as an alternative to cash or credit card) raises relevant responsibilities of financial services regulators as well as communications sector regulators.

The causes and regulatory consequences of convergence are explored for each of the concepts set out in chapter 3. The implications of these developments are explored further (for selected concepts) in the case studies at chapter 4.

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Figure 2 Communications convergence 2015–25

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Table 1 Communications convergence/broken concepts mapping

Vector / Element / Broken concept
Devices / PC / Content service
Games / Content service
Big screens / Broadcasting service
Smartphones / Content service
Tablets / Content service
Internet TV / Broadcasting service
3DTV / Broadcasting service
Super HD / Efficient allocation and use of spectrum
Single terminal / Cabling provider
Flex screens / Little contact with current/legacy media comms regulation
Smart homes / Cabling provider
Wall screens / Little contact with current/legacy media comms regulation
Screenless displays / Little contact with current/legacy media comms regulation
Content / Voice / Do Not Call Register
Emergency call person
Emergency call service
National Relay Service
Standard marketing plan
Standard telephone service
Telemarketing call
Untimed local call
B/cast / Broadcasting service
Broadcasting services band licensing
Commercial broadcasting service
Community broadcasting service
Datacasting service
Licence area plans
Narrowcasting service
Program standards and codes of practice
Subscription broadcasting service
Television program
User-gen / Community Broadcasting Service
Program
Mobile media / Content service provider
Program
Massive multi-channel / Broadcasting service
Virtual worlds / Content service
Global TV / Australian identity
Multi-media platforms / Program
Content meta-data / Program standards and codes of practice
Intelligent content / Program standards and codes of practice
Network / DTV / Efficient allocation and use of spectrum
3G / Datacasting service
WiFi / Network unit
Bluetooth / Network unit
Social / Any-to-any connectivity
Home network / Cabling provider
PAN / Network unit
LTE / Efficient allocation and use of spectrum
NBN / Integrated public number database (IPND)
M2M / Public mobile telecommunications service
Semantic Net / Network unit
Seamless service / Efficient allocation and use of spectrum
Radiocommunication/Device
Internet of things / Efficient allocation and use of spectrum
Smart Infrastructure / Efficient allocation and use of spectrum
Services / Fixed / Alternative telecommunications service
Carriage service
Carrier
Carrier licensing
Universal service area
Universal service obligation
Mobile / Carriage service
Carrier
Carrier licensing
Public mobile telecommunications service
Technical standards
Web/Inter / Content service
Content service provider
Datacasting service
Interactive gambling service
Internet service provider
Narrowcasting service
VoIP / Carriage service provider
Emergency call service
Untimed local call
IM / Standard telephone service
Apps mark / Program
LBS / Public mobile telecommunications service
VOD / Broadcasting service
Television program
IPTV / Broadcasting service
Television program
Cloud comp / Little contact with current/legacy media comms regulation
3DTV / Efficient allocation and use of spectrum
Unified comms / Content service
Public mobile telecommunications service
Standard telephone service
eHealth / Little contact with current/legacy media comms regulation
eEducation / Little contact with current/legacy media comms regulation
Consumer/
citizen / Local content / Australian identity
Market issues / Customer service guarantee
Content class etc / Influence test
Privacy / Integrated public number database (IPND)
Marketing fax
Protection from unsolicited communications
Spam
Telemarketing call
Gov 2.0 / Little contact with current/legacy media comms regulation
Security / Little contact with current/legacy media comms regulation
Media literacy needs / Program standards and codes of practice
Identity mgmt / Integrated public number database (IPND)
Always connected / Radiocommunication/Device
Profile automation / Program standards and codes of practice
Zero latency demand / Carriage service
Semantic content control / Program standards and codes of practice
Agent technology / Program standards and codes of practice
Regulation / Multi Acts / Long-term interests of end users
Co-regulation / Co- and self-regulatory measures
A converged regulator / Efficient allocation and use of spectrum
Convergent legislation / Co- and self-regulatory measures
Adaptive national regulation / Co- and self-regulatory measures
Common global regulatory expectations / Australian identity
Harmonised digital economy legislation / Co- and self-regulatory measures
Semantic regulation / Co- and self-regulatory measures
Global regulatory harmonisation / Australian identity
Devices / High-level relationship to vector / Label
Technical standards
Content / High-level relationship to vector / Media diversity
Network / High-level relationship to vector / Radiocommunications Licensing (Apparatus licence)
Radiocommunications Licensing (Class licence)
Radiocommunications Licensing (Spectrum licence)
Services / High-level relationship to vector / Universal service
Services / High-level relationship to vector / Universal service
Regulation / High-level relationship to vector / Certificates of proficiency
Third-party authorisations

2Introduction

2.1Legislative context—change and fragmentation

The ACMA administers some 26 communications Acts thathave been made by parliament over the past half-century.[3] These are accompanied by some 523 pieces of regulation.

The core Acts—the BSA, the Radiocommunications Act 1992 (the Radiocommunications Act), the Telecommunications Act and the Telecommunications (Consumer Protection and Service Standards) Act 1999(TCPSS Act)— are now decades old and, in some respects, are becoming difficult to apply in a converged communications and media environment. The age of these Acts—and the legislative constructs they express—is perhaps most usefully illustrated by the observation that they were made before the internet was established in Australia.

Due to the rapid change that has characterised the communications sector over the past two decades (more on this below), the core Acts have been incrementally supplemented with amendments, new schedules and a range of purpose-specific Acts (such as the Spam Act 2003 or the Interactive Gambling Act 2001). These Acts have been made in response to developments in technology, changing social attitudes and globalised shifts in economic policy. In the majority of cases, this new legislation incorporates existing legislative constructs (those established in the core Acts). For this reason, even legislation that has been adopted with knowledge of converged communications structures is based, to some extent, on dated concepts set out in the core legislation.

Figure 3 (see p. 13) sets out a legislative timeline that illustrates this incremental legislative process. As demonstrated in Figure 3, the Australian communications legislative landscape now resembles a patchwork quilt. It is fragmented and characterised by legislative ‘band-aid’ solutions that lack an overarching strategy or coordinated approach to regulating communications and media in a digital economy.

2.2Sources of pressure

Communications legislation and regulation in Australia—already fragmented from two decades of unrelenting change—is under sustained pressure from a range of sources. The ACMA has identified five key sources of pressure:

  1. Technological developments. The ‘convergence’ of previously distinct media, such as voice telephony, broadcasting and internet applications, into common interfaces on single devices is homogenising network architecture and separating services from transport layers. Services—transmitted as packets of digital data—are now technologically indistinguishable from each other. Similarly, networks are no longer technologically specific—rather, they support transport layers provisioned to transmit digital packets. This process is challenging the service- and technology-specific nature of traditional regulatory frameworks.

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