Top of the menu: ACMA puts free-to-air in the spotlight with new TV prominence framework

The ACMA has released a public consultation paper seeking views on implementing Australia’s new TV prominence framework.

Feedback and evidence from the consultation will help to determine if, and how, the ACMA uses its powers to oversee and enforce the TV prominence framework. The ACMA is accepting submissions until 5pm (AEDT), 15 October 2024.

Background

In July 2024, the Australian Government passed legislation that established a prominence framework for certain internet connected television devices (regulated television devices), such as smart televisions and smart media streaming devices, to ensure that Australians will be able to easily find and readily access broadcasting video on demand (BVOD) and linear broadcast services (together, regulated television services). Regulated television services include broadcast services provided by Seven, Nine, Ten, the ABC and SBS, and their corresponding BVOD services: 7plus, 9Now, 10play, ABC iView and SBS on Demand.

The framework will apply to all regulated television devices manufactured and supplied in Australia on or after 10 January 2026. As part of the new changes, the ACMA has been provided with powers to oversee and enforce the TV prominence framework, including the power to:

• make guidelines about regulated television devices, including determining whether a specified device is, or is not, a regulated television device;
• describe or determine requirements for a primary user interface on regulated television devices; and
• determine the circumstances in which a regulated television service is offered, including determining different circumstances for different regulated television services.

These changes emerge as a result of fundamental transitions which have occurred in the television content market over the last decade, both in Australia and overseas. The market has shifted towards on-demand services, and audiences now have the ability to select specific applications to access content on-demand, introducing a new level of competition where Australian broadcasters must compete with international content providers. In this evolving landscape, smart TVs and other regulated television devices act as the gateways for users to access these services.

The new TV prominence framework therefore aims to ensure that local broadcast and free-to-air services are given sufficient "prominence" or visibility on the main user interface of regulated television devices. By establishing minimum prominence standards, the framework is intended to guarantee that Australian audiences can easily access local free-to-air television content on connected television devices in Australia amidst the growing array of digital and on-demand services.

Key issues for consultation

Defining a regulated television service

One of the key issues on which the ACMA is seeking feedback as part of its public consultation concerns which devices are to fall within the scope of “regulated television device”. Only such devices will be subject to the minimum prominence requirements under the TV prominence framework.

Subsection 130ZZI(1) of the Broadcasting Services Act 1992 (Cth) (BSA) defines a regulated television device as domestic reception equipment that:

1. is capable of connecting to the internet and providing access to broadcasting video on demand services; and
2. is designed for the primary purpose of facilitating the viewing of audiovisual content.

In addition, the BSA provides that if required, the ACMA may determine whether a specified domestic reception equipment is, or is not, a regulated television device.

The ACMA’s preliminary view is that, consistent with the “primary purpose” test in subsection 130ZZI(1) of the BSA, smart televisions and smart media streaming devices (for example, Google Chromecast, Apple TV, Fetch TV, Hubbl and Amazon Fire TV Stick) will be considered regulated television devices under the TV prominence framework, whereas mobile phones, tablets, laptops, desk computers and video game consoles will not be considered to fall within the definition. This is because although these devices may have the purpose of facilitating the viewing of audiovisual content as one of their purposes, this is not their primary purpose, and those devices would not therefore meet the primary purpose test.

This view is in contrast to some stakeholder views which have argued for a more expansive scope, and that certain devices such as mobile phones, laptops and tablets should be included. Smart monitors and smart projectors have also been considered as potentially falling within the definition, and the ACMA regards these as “edge” cases which will require greater consideration on a case-by-case basis. Moreover, as manufacturers respond to customer demands which evolve over time, the ACMA prefaces that its guidance about regulated television devices may also change.

As part of its consultation, the ACMA is specifically seeking comment on this key issue in relation to:

• views on the proposed considerations that the ACMA should take into account when applying the primary purpose test; and
• whether further clarification is needed on whether certain devices are, or are not, a regulated television device.

Defining a primary user interface

Another key issue that the ACMA is considering as part of its consultation is in relation to the meaning of the “primary user interface” of a regulated television device. Under the TV prominence framework, all regulated television services will required to be displayed on a device’s primary user interface.

Under section 130ZZL of the BSA, the primary user interface of a regulated television device means the interface of the device that is either or both of:

1. the home screen or main screen of the device;
2. >the main interface most commonly used to provide access to applications that make audiovisual content available on demand using a listed carriage service; and

meets the description or requirements (if any) determined by the ACMA.

The ACMA’s preliminary view is that technical or contractual obstacles may prevent manufacturers from being able to display all regulated television services on its home screen without needing to scroll. It is therefore proposed that the primary user interface should be described as a virtual space that may extend beyond the bounds of the screen. However, scrolling to reach all regulated television services should not extend indefinitely – specifically, the ACMA considers that scrolling to reach all regulated television service applications should not go beyond a space that is double the initial view.

For example, on a user interface which displays 8 icons on the initial view, all regulated applications would be required to appear within the first 16 tiles that are displayed to the user (being the 8 original icons on the initial view, and the further 8 icons that appear upon scrolling). For vertical scrolling interfaces, the ACMA has indicated that all regulated television service apps should be displayed within the first 2 ribbons or rows, and for a grid interface in which scrolling has the effect of moving between different ‘pages’, all regulated television services should be required to be displayed within the first 2 pages.

The ACMA is aware that some devices use a content aggregating interface, which does not display a scrollable list of applications on the home screen but rather displays icons of audiovisual content from across different subscription and broadcasting television services that are personalised to the user (such as by recommending titles from across different applications which are all of a particular genre). The ACMA also regards the variety of devices and operating systems, and the risk of changing market dynamics or interfering with contractual arrangements, as relevant considerations.

The ACMA is therefore seeking comment on the following specific areas:

• whether the ACMA should exercise its discretion to set specific descriptions or requirements for a device’s primary user interface, and if so, if this should include scrolling;
• whether ribbon or row layouts require different consideration to grid layouts;
• whether content aggregating interfaces should be treated differently from other regulated television devices when describing primary user interface requirements; and
• whether existing contracts between device manufacturers and content providers (e.g., streaming services) limit the ability to provide prominence to Australian broadcaster apps (BVOD) on the primary user interface.

As part of its consultation, the ACMA is also seeking evidence of images of smart TV and streaming device home screens to help the ACMA understand how BVOD and subscription video on demand (SVOD) apps are positioned across different brands, with particular interest in major manufacturers like Samsung, LG and Sony, which dominate the Australian market.

Other issues for consultation

A key requirement under the TV prominence framework is that manufacturers must not supply a regulated television device in Australia if it does not comply with the minimum prominence requirements for a regulated television service that is ‘offered’ by a regulated television service provider. Manufacturers may therefore require clarity as to when a regulated television service is no longer offered by the regulated television service provider (i.e. an app is discontinued by the service provider), or in circumstances where a new application is being offered, the lead time required by manufacturers to incorporate these new applications into the primary user interface.

To assist its consideration of these issues, the ACMA is also seeking feedback on:

• whether the ACMA should define what it means for a regulated television service to be "offered" and whether the ordinary meaning is sufficient;
• whether there is sufficient transparency around which apps are currently offered to manufacturers;
• what circumstances might justify a manufacturer rejecting an app; and
• whether different types of regulated television services require different considerations regarding the offering or rejection of apps.

The ACMA is also seeking evidence of the following:

• information on which platforms and operating systems support regulated television services;
• how app developers ensure that their apps are compatible with different devices or operating systems, including any internal or external certification processes;
• the required timelines for incorporating new regulated television service apps into devices, and when manufacturers consider an app too late to be pre-installed or added during setup; and
• data on the costs involved for both regulated television service providers when offering apps to manufacturers and for manufacturers in assessing or accepting these apps, including indicative figures on these expenses.

Key takeaways

The new TV prominence framework is particularly relevant for those in the TV industry including traditional free-to-air broadcasting networks, streaming services, and television and device manufacturers. Related industries such as advertising agencies, media companies and telecommunications providers are also likely to be interested in these changes due to its implications for audience viewership and engagement, advertising revenue and data consumption. The new framework will also directly affect how individual consumers access and interact with television content on smart TVs and similar devices.

If you would like to have a say in the new TV prominence framework, submissions are due by 5pm (AEDT), 15 October 2024 via the consultation page.