ACMA defined convergence characterised by five causes of change: 1. Technological developments 2. The development of a broad communications market 3. Increasing consumer and citizen engagement with the toolset 4. Regulatory globalisation 5. Government intervention (eg NBN). ACMA says digitalisation has broken the connection between the shape of content and the container which carries it. Legacy service delivery used service-specific networks and devices but digital transmission systems have made delivery mostly independent of technologies. Regulation of content based on delivery mechanism no longer makes sense as devices develop multiple functions.
ACMA found seven regulatory consequences of convergence. Firstly, policy and legislation no longer aligns with market realities, the technology or its uses. Secondly, there are gaps in coverage of new forms of content and applications. Thirdly, there is misplaced emphasis on traditional media (television) and communications (voice services). Fourthly, the blurring of boundaries is leading to inconsistent treatment of similar content, devices or services. Fifth, consumer safeguards are not keeping up with innovative services. Sixth, new issues are handled in piecemeal fashion reducing overall policy coherence. Lastly, convergence is causing institutional ambiguity with no one sure which agency is responsible for which regulation.The core acts that govern telecommunications in Australia are the Broadcasting Services Act 1992, the Radiocommunications Act 1992 , the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999. All were drafted before the Internet became entrenched. These acts have been added to by band aid solutions to newer problems such as spam and interactive gambling. ACMA says the Australian communications legislative landscape now resembles a patchwork quilt. There is no overarching strategy or coordinated approach to regulating communications and media in a digital economy.
The report said regulation gave undue weight to the influence of print newspapers and the ability to personalise media consumption magnifies and limits the influence a media service can have on an individual. Also the ability to access broadcast-like content through non-broadcasting services is running a hole through the Broadcasting Act’s promotion of diversity of content (honoured more in the breach by commercial broadcasters). There are 53 other areas of ACMA’s reach broken beyond legislative repair.
ACMA Chairman Chris Chapman said the report highlighted the strain on old concepts struggling with new technology. “The constructs for communications and media that worked 20 years ago no longer fit present day circumstances, let alone the next 20 years,” Chapman said. “These ‘broken concepts’ are symptoms of the deeper change of digitalisation breaking those now outdated propositions, including that content can be controlled by how it is delivered.”
The report dovetails with the federal government’s Convergence Review. The review panel is due to deliver its report in March. It toured Australia earlier this month hearing submissions and will continue to receive input until 28 October. Its framing paper acknowledges changes are required but appears to focus on broadcasting issues rather than the wider telecommunications issue. This new paper is a wake-up call to the seriousness of the problem. Technology and its uses will continue to evolve in unimaginable ways. The trick will be drafting legislation that does not fetter that growth while providing citizen safeguards against unscrupulous behaviour.