LawFont.com

This issue of “What is…?” provides a brief look at the emerging technology of datacasting, and considers some of the regulatory and legal issues that are raised by this new form of broadcasting. In Australia the ability to datacast is becoming a hot topic, not least because it is expected to be included in the upcoming media industry reforms.

Technical definition and practical applications

In short, datacasting generally refers to the broadcast of multimedia or other data content using the transmission stream of a digital television service provider. Technically speaking, datacasting involves the transmission of data using radio waves, and while it usually refers to information provided by digital television providers to supplement digital television programming, it may also be broadcast via digital signals on analog television or radio. Datacasting generally does not refer to data considered to be “inherent” to the broadcast medium, and as such is not usually thought of as including program guide information. Moreover, datacasting does not apply to the transmission of data via channels devoted to data (such as via cable modems).

In the digital television context, datacasting content may or may not relate to a particular television program. Typical content includes news, stock market, weather, and other information. Datacasting may also involve interactive content, such as online shopping or gaming, or other multimedia content.

Datacasting provides a flexible system for the transmission of data over existing broadcasting channels. In the digital television context, the applications include enabling viewers to view additional information related to the program that they are watching, or to view unrelated information provided by a source other than the television channel providers. In some situations it enables interactivity applications, such as the ability of viewers to “vote” in response to programs broadcast via television. Datacasting via digital television is considered by some as potentially providing some of the functionality of a personal computer connected to the Internet, such as ecommerce and other interactive applications. And as the upcoming regulatory reforms contemplate, datacasting may also provide another form of content for a range of devices other than television sets, such as mobile phones or other devices.

This sort of functionality is already a reality in the United States, where National Datacast enables the transmission of data via over 300 Public Broadcasting Service and commerical digital television stations nationwide. National Datacast transmits content that can be received on a variety of devices, including MP3 players, fax machines, PCs, and televisions.

Regulatory and legal issues

Datacasting is viewed by the Australian government as a significant technology. The Broadcasting Services Act 1992 (Cth) states at section 3(ba) that the objects of the Act include “to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs”. However, it is also clear from the text of the Act that broadcasting policy is not intended to be applied equally across all technologies. At section 4(1):

The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services, datacasting services and Internet services according to the degree of influence that different types of broadcasting services, datacasting services and Internet services are able to exert in shaping community views in Australia.

Historically, datacasting was intended by the Australian government as a means of using unused digital television spectrum for broadcasting services other than traditional television programs. Existing regulations allow the informational broadcasting and interactive services referred to above, as well as government services and email, but prevent the use of datacasting spectrum for traditional television programs, e.g., news shows, documentaries, dramas, sitcoms.

Prospective datacasters must hold a datacasting licence, whether or not they are currently a commercial or national broadcaster. The Australian Communications and Media Authority (ACMA), as the successor to the Australian Broadcasting Authority (ABA), administers the licensing system, and maintains a register of datacasters, including licence details and transmitter licences. This register is publicly available.

As in the overall broadcasting context, there are restrictions on who may be a datacaster. Only the following entities may hold datacasting licences: Australian companies, the national broadcasters, Government bodies, or a body corporate established under Australian law for a public purpose. So while domestic entities are free to register as datacasters, foreign companies are excluded from the datacasting system. It is unclear whether the expected liberalisation of foreign media ownership and cross-media limits will apply to datacasting, or just the “traditional” fields of television, radio, and print media.

Senator Helen Coonan, the Communications minister, is expected to release the government’s new media policy in the coming weeks, which is thought will relax some of the restrictions on datacasting, as well as the more publicised foreign ownership and cross-media limit rules. At the 2005 ACMA Broadcasting Conference, Senator Coonan announced that from 1 January 2007, datacasters will be allowed to provide any type of content permitted under the Broadcasting Services Act 1992 (Cth), other than a full-fledged free-to-air commercial television service (as is already provided in the Act).

While it is not expected that datacasting rules will be relaxed sufficiently to permit traditional television broadcasting via the unused spectrum (which would effectively allow the creation of new television networks outside of the applicable regulations), it is thought that datacasters will be allowed to provide programming for hand-held devices, such as mobile phones, as is currently allowed through the 3G mobile telephone network.

How datacasting is regulated in the future will have an impact on the media industry in general. While it is unlikely that digital television datacasting spectrum will be allowed to be used to support a “traditional” broadcasting network, it is clear that the liberalisation planned for other parts of the media industry would alter the dynamic in datacasting as well. But even if liberalisation in the form of none or lesser foreign ownership restrictions (for example) did not take place, permitting datacasting to a range of other devices is likely to spur innovation in the technology and media fields.