Broadcast regulation in the broadband era: licensing and content regulation

The final report of the Convergence Review, which was released in April 2012, makes radical recommendations for reforming existing broadcasting regulation, essentially by proposing a convergent regulatory regime, that regulates communications content regardless of the platform by which that content is delivered. This article explains and analyses the recommendations of the Convergence Review - and of the associated reviews of the classification system by the Australian Law Reform Commission (ALRC) and of the regulation of news and commentary by the Independent Media Inquiry (IMI) - as they relate to broadcast licensing and content regulation. In doing so, the article claims that the recommendations made by the Convergence Review are seriously compromised by the inadequate analytical framework applied by the Review. In particular, the article argues that the claimed benefits of a platform-neutral approach to regulating communications content are belied by the detail of the proposed regulatory regime, which necessarily means that difficult regulatory distinctions must be drawn between different content. In any event, the most important consideration to be applied in developing a new regulatory regime is to ensure that regulation appropriately and effectively deals with the regulatory objectives sought to be achieved. This does not mean automatically applying a form of convergent regulation, especially when differences between different kinds of content or services mandate different regulatory treatment. As the Convergence Review has neither paid sufficient attention to these potential differences, nor engaged in sufficient analysis of the objectives of regulating communications services, the article concludes that the recommendations of the Review should not be implemented without further independent analysis.