The broadcasting anti-siphoning regime was intended to preserve access to major sporting events to so called free-to-air and public broadcasters and the anti-siphoning list mandates that broadcasting rights cannot be acquired by a subscription broadcaster unless they have first been offered to or acquired by a free-to-air broadcaster who has either declined or otherwise failed to broadcast.

Well, it seems that the goal posts have been shifted and Cricket Australia have done a deal with Channel Seven and Foxtel, putting One Day Cricket Internationals and the T20 Internationals behind the Foxtel pay wall exclusively for the first time.

The Broadcasting Services Act lists those sporting events that will be reserved for free-to-air broadcasting, this is the section dealing with cricket:

4 Events or events of a kind the televising of which should be available free to the general public.

The events specified in the Schedule are events, or events of a kind, the televising of which should, in my opinion, be available free to the general public.

(3)  Each one day cricket match that:

(a)  involves the senior Australian representative team selected by Cricket Australia; and

(b)  is played in Australia.

(4)  Each Twenty20 cricket match that:

(a)  involves the senior Australian representative team selected by Cricket Australia; and

(b)  is played in Australia.

(5)  Each match of the International Cricket Council One Day International World Cup that:

(a)  involves the senior Australian representative team selected by Cricket Australia; and

(b)  is played in Australia or New Zealand.

(6)  The final of the International Cricket Council One Day International World Cup if the final is played in Australia or New Zealand.

(7)  Each match of the International Cricket Council World Twenty20 tournament that:

(a)  involves the senior Australian representative team selected by Cricket Australia; and

(b)  is played in Australia or New Zealand.

(8)  The final of the International Cricket Council World Twenty20 tournament if the final is played in Australia or New Zealand.

So, that’s fairly clear and it would seem that the Foxtel deal would contravene these regulations but, the Minister responsible, Mitch Fifield, has a lot of discretion when it comes to what can be gifted to pay TV broadcasters for exclusive broadcasting.

Section 115 of the Broadcasting Services Act 1992 (BSA) empowers the Minister to gazette a list of events, or events of a kind, the televising of which the Minister believes should be available free to the general public but having said that, the Minister can also delist an event and take it off the list. The act gives an example of the sort of discretion the Minister can apply:

Note:

The following are examples of situations in which the Minister might exercise the power to remove an event from a notice:

Example 1

The national broadcasters and commercial television broadcasting licensees have had a real opportunity to acquire the right to televise an event, but none of them has acquired the right within a reasonable time. The Minister is of the opinion that removing the event from the notice is likely to have the effect that the event will be televised to a greater extent than if it remained on the notice.

So, that’s self-explanatory, isn’t it? A free to air broadcaster and that includes the ABC and SBS must have had a real opportunity to acquire the right to televise an event but if they have not taken up that right and broadcast the event, the Minister can remove the event or events from the list of events reserved for free to air and that gives pay TV carte blanche. But does that mean that T20 and ODI have been offered to free to air broadcasters but they have failed to take up that right and thus the Minister has taken them off the list and gifted them to Foxtel? I can’t answer that, but I have noticed that Senator Fifield yesterday stated that:

“The negotiation and allocation of broadcasting rights is entirely a matter for sporting bodies and commercial broadcasters. Government has no role in these negotiations.”

Senator Fifield said it was up to the Australian Communications and Media Authority (ACMA) to consider key industry developments to ensure that industry complies with the rules.

“Whilst the anti-siphoning list mandates that broadcasting rights cannot be acquired by a subscription broadcaster unless they have first been acquired by a free-to-air broadcaster, it does not and never has reserved broadcasting rights exclusively for free-to-air broadcasters or required free-to-air broadcasters to acquire rights to these events,” he said.

Make what you will of that statement. In one respect he says that the government has no role in the allocation of broadcasting rights but then he says that ACMA will act as the gatekeeper and in his final statement he throws the whole thing up in the air: he could have added, ‘as long as Rupert’s happy, that’s all that matters.’

This Minister is what my mother would have called ‘a bit of a worry’. Remember, it was he who gave Foxtel $30 million last July for no apparent reason and when asked why he had done so he got all vague. When probing journalists asked the federal communications department for this information they refused to release details because, they said, in true Yes Minister fashion: “documents about the deal do not exist”. It was said at the time that Foxtel were given the thirty million to encourage the development and broadcasting of minority sports. When it was suggested that the broadcasting of minority sports could be much better accommodated by public broadcasters such as the ABC and SBS and thus gain much broader community coverage than by being restricted to a subscription broadcaster that you had to pay for, the response was inaudible.

Watch this space!