Toward a New Media Industry

Australia's development of policy and approach to regulating New Media is in dire need of a re-think. A quick glance at the different laws which establish the traditional communications industries reveals how New Media technologies are disrupting the status quo.

Key definitions from major legislation follow:
Definition under the Trade Practices Act 1974 - Section 151AF

Telecommunications market:
For the purposes of this Part, a telecommunications market is a market in which any of the following goods or services are supplied or acquired:
(a) carriage services;
(b) goods or services for use in connection with a carriage service;
(c) access to facilities.
A more detailed glance at the telecommunications industry in the Telecommunications Act 1997 - Section 110 reveals :
(2) For the purposes of this Part, each of the following groups is a section of the telecommunications industry:
(a) carriers;
(b) service providers;
(c) carriage service providers;
(d) carriage service providers who supply standard telephone services;
(e) carriage service providers who supply public mobile telecommunications services;
(f) content service providers;
(g) persons who perform cabling work (within the meaning of Division 9 of Part 21);
(h) persons who manufacture or import customer equipment or customer cabling;
(i) electronic messaging service providers.
Further, the Broadcasting Services Act 1992 - Section 6 reveals:
(1) In this Act, unless the contrary intention appears:
"broadcasting service" means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b) a service that makes programs available on demand on a point‑to‑point basis, including a dial‑up service; or
(c) a service, or a class of services, that the Minister determines, by notice in the Gazette , not to fall within this definition.
And the SPAM Act 2003 attempts to define electronic messaging:
Basic definition
(1) For the purposes of this Act, an electronic message is a message sent:
(a) using:
(i) an Internet carriage service; or
(ii) any other listed carriage service; and
(b) to an electronic address in connection with:
(i) an e-mail account; or
(ii) an instant messaging account; or
(iii) a telephone account; or
(iv) a similar account.
For any New Media business, navigating the legislation which is clearly focused on devices (ie telephone, television, radio etc), must be a nightmare. Further, the major policy and regulatory institutions reflect the same device bias: ACMA, ACCC, TIO, and the variety of Industry Codes (both voluntary and mandatory). Although the ACMA (the merger of the ABA and ACA) represents a significant advance in reducing some of the old silos, the policy and regulatory regime is still dominated by the Department of Broadband, Communications and the Digital Economy and the ACCC.

Clearly, the ACMA is well-positioned to take over the telecommunications functions of Part XIC of the Trade Practices Act 1974 and its status as an independent regulator would assist in removing the future of Australia's digital economy one step further from party politics. Canada's CRTC seems to be performing this function comparatively better, and is enabling greater community participation through the use of New Media technologies in establishing the emerging regulatory functions.

A specialist, independent regulator with greater authority to implement communications policy would enable DBCDE to concentrate on developing communications policy. What is obviously missing from the public debate on New Media are the two traditional policy questions: (1) How will productivity be achieved (using New Media technologies)? and (2) What is the public interest (in terms of New Media)?

The public debate must focus on the forest (communication) and avoid getting lost in the trees (devices). Indeed, Australia is desperately in need of a communications industry restructure and a new policy paradigm for New Media.