1 DTT Licence Feedback Radio Spectrum Management Ministry of Business, Innovation & Employment P.O. Box 1473 Wellington Summary of Submission The Ministry is seeking feedback on demand for four Digital Terrestrial Television Licence sets that the Government is proposing to allocate. In summary, the Public Media Project (PMP) submits that in the near to medium term (up to 5 years) : 1.1. There is unlikely to be any significant demand for additional DTT licence sets from existing or new commercial free-to-air TV broadcasters because of trends in the advertising market. (Sections 2.1, 2.2) 1.2. There may be some limited demand for DTT capacity commercial pay-to-view broadcasters, but it is more likely that they will opt for on-line UFB distribution as household take-up increases. (Section 2.5) 1.3. Limited demand might arise if Australian cross-media ownership rules are relaxed and major newspaper chains with interests in New Zealand decide to establish commercial broadcast television services. Again, this is an unlikely prospect in the near to medium term. (Section 2.6) 1.4. Demand for DTT licence sets from regional commercial television broadcasters is inhibited by the fragmented, single channel nature of their operations. However, allocation policy should provide scope for a regional commercial, free-to-air broadcasters cooperative to manage one licence set. (Sections ) 1.5. Allocation policy should reserve at least one licence set for future use by a nationwide and regional non-commercial multi-media operator offering a comprehensive range of digital services that include a free-to-air television broadcasting network, and required to provide programme content that: Complements services provided by commercial broadcasters;
2 Delivers more extensive daily news coverage and current affair analysis at nationwide and local levels; Enhances formal education and training programmes; Encourages public involvement in public health, security, welfare and social development; Improves communication between ethnic minorities and special interest groups and the broader community at regional and nationwide levels; Promotes public engagement in decision-making processes of local authorities and central government; and Creates opportunities for community access and creative engagement with television broadcasting. (Sections ) 1.7. The Ministers of Broadcasting and Communications & Information Technology have indicated to PMP that there will be a review the current regional and community broadcasting policy framework and regional television funding policies later this year. PMP submits that the process for allocating up to four licence sets allocation plan should be determined after this review is completed. (Section 2.17) 1.6. Three options for uncontested, fixed price, commercial allocation are proposed by MBIE. PMP submits that no decision on these options needs to be made until there is more evidence of demand for the four licence sets at the Crown s disposal and once the nature of the demand has been established. (Sections ) 1.7. The uncontested, fixed price, commercial allocation proposal does not offer any mechanism to resolve a contest between competing purchasers seeking a licence set. Before any allocation of additional licences is made, a formal consultation should take place to determine the criteria for determining allocation in circumstances where demand for sets exceeds supply. (Section 4.3) 1.8. The Ministry s proposal for allocating licences at a fixed price of $ million + GST reflects historic payments by existing commercial licence holders adjusted for the shorter life of the additional licences being made available. (Section 5) 1.9 The proposed price does not recognize the early mover advantages of existing licence holders or the loss of value of additional new DTT licences from audience fragmentation, more intense competition for advertising revenue and content funding, and diversion of advertising spend to new digital media. (Sections )
3 1.10. The proposed fixed price tilts the field in favour of incumbent commercial broadcasters and will create a significant barrier to innovation and diversity in the free-to-air television broadcasting services provided to New Zealanders. (Section 5.6) The fixed price removes one means by which any contest for a licence set could be resolved. (Section 5.7) The fixed price will increase the cost of providing local programme content to meet the broader public service objectives of the Government s non-commercial, regional and community broadcasting policies. (Sections ) The current use or lose requirements on existing licence holders are ineffective and do not promote efficient use of spectrum because they only apply to licence sets, not to the full capacity provided within sets. They have not encouraged the introduction of new free-to-air services by the major commercial TV broadcasters beyond repeater channels offering existing programmes on an hour s delay. (Section ) New use or lose requirements are needed to ensure that existing licences are used efficiently before existing holders are granted further capacity, and that new entrants and incumbents operate on a level playing field when it comes to obtaining additional capacity. (Section 6.3) New implementation requirements should reflect the distinction between the two groups of licence holders transmission providers and programme owners.(sections ) 1.11 In particular, new implementation requirements should provide robust safeguards against frequency hoarding by programme provider licence holders and other anticompetitive access practices by transmission providers licence holders. PMP suggests a set of safeguards for consideration. (Section 6.19) MBIE s next steps proposals should be amended to include publication of submissions received and of its feedback report to the Ministers and the Cabinet. (Section 7.1) MBIE s current Information Request for Industry Discussion should not be regarded as fulfilling the normal stakeholder consultation process employed in policy development. PMP seek an undertaking that consultation will take place before any recommendation for policy change is adopted. (Section 7.2) PMP also submits that MBIE s next steps should include the creation of an open and transparent DTT capacity trading platform to ensure that, when additional licences are allocated, there is a fair, competitive and informed bidding for after-sale surplus
4 capacity arising unfulfilled use or lose requirements or made available by purchasers of licence sets who only make partial use of the capacity they have acquired. (Section 7.4) PMP gives qualified support to MBIE s proposal that the Government should authorize the Ministry to approve modifications to existing commercial licences that improve coverage within the areas to which these licences apply - but only where these modifications do not compromise the availability or quality of the four additional licence sets still to be allocated. (Section 8) 2 Feedback on demand for licence sets 2.1 The Public Media Project (PMP) submits there is likely to be little demand for additional licence sets from commercial free-to-air TV broadcasters until existing operators recover from their investment in digital conversion, advertising expenditure recovers fully from the recessed levels experienced since 2008, and TVNZ and MediaWorks complete their imminent investments in major studio developments. 2.2 The most significant constraint on demand for additional DTT spectrum capacity is the state of the advertising market. Expenditure on television advertising increased by just under 3.3 percent last year, but the television sector experienced a small loss in its advertising market share from 28.4 percent in 2012 to 27.9 percent in 2013 its first significant loss since 2007 when the total advertising spend peaked.
5 2.3. The latest available advertising expenditure data demonstrates the diversion of advertising spend to new interactive digital media has increased rapidly since 2008, mainly at the expense of newspapers. Over the next five years, interactive on-line media can be expected to make more significant inroads into broadcast television s share of the market, as household take-up of Ultra Fast Broadband grows and new on-line, on demand video services increase their presence in the home entertainment market New Zealand newspapers have responded to the new digital media challenge by building their own video-enhanced on-line presence. New Zealand s major commercial TV broadcasters have adopted a similar strategy making pay TV and on-line, on demand video services a focus of their current investment There may be a limited demand from commercial Pay TV broadcasters as subscription income provides them with more insulation from advertising market trends. However, it is doubtful that this will be enough to utilize the full capacity of one of the 4 licence sets available. In the medium term, UFB is likely to offer subscription-seeking content distributors are more economic distribution option.
6 2.6. If cross-media ownership rules in Australia are relaxed, there is a possibility that the Australian-owned New Zealand newspaper chains may seek entry into the television broadcasting market here. However, they are more likely to establish a television presence in their larger home markets first and this is a medium-to-long term prospect Looking ahead, PMP submits that the most likely immediate demand for DTT spectrum access will come from new regional and non-commercial TV broadcasters This demand has been suppressed by Digital Switchover policies that were primarily designed to facilitate transition by existing commercial licence-holding, nationwide network TV broadcasters and the state-owned transmission service provider, Kordia Under transition policies, regional channels in the DTT transmission area were expected to purchase spectrum access and transmission service from commercial licence holders at commercial rates More than 20 regional TV broadcasters held analogue broadcasting licences when the digital transition started. Only 10 are broadcasting on the Freeview DTT platform today. [See Appendix 1] The loss of the regional broadcasters ability to operate their own independent transmitters in most areas of New Zealand and the increased cost of obtaining spectrum access and digital terrestrial transmission services from commercial transmission providers are straining the capacity of regional television operators and further development of the sector is uncertain Regional television broadcasting service providers are currently fragmented, single channel operations. Only a few were in a position to contemplate simulcasting during the six year transition to DSO, and no serious consideration was given in the 2009 consultation to the potential for cooperative ownership of a licence set and negotiation of transmission service supply at a discounted bulk rate The potential for a regional cooperative can be explored now, with the allocation of an additional four licence sets under consideration. One licence set should be reserved while this potential is explored The development of a network of non-commercial nationwide and regional TV broadcasting service providers is another source of demand that should be considered in the development of allocation policy All non-commercial regional TV broadcasting licences were cancelled at the DSO. The Ministry will be aware that non-commercial regional licences were issued originally
7 without a spectrum charge and but with requirements to provide a diverse range of public services that complement the programming provided by commercial networks PMP is aware that the Government has asked an important question: Can the configuration and funding of public broadcasters be improved to get better value for money? We submit the allocation policy should address this question by reserving DTT capacity for a new, non-commercial multi-media operation that would include a nationwide and regional network and a commitment to the provision of programme services that: Complement services provided by commercial broadcasters; Provide more extensive daily news coverage and current affair analysis at nationwide and local levels; Enhance formal education and training programmes; Encourage public involvement in public health, security, welfare and social development;i Cater to the needs of ethnic minorities and special interest groups at regional and nationwide levels; Promote public engagement in decision-making processes of local authorities and central government; and Create opportunities for community access and creative engagement with television broadcasting The Ministers of Broadcasting and Communications & Information Technology have indicated to PMP that they intend to authorize a collaborative effort by the Ministry for Culture & Heritage and NZ On Air to review the regional and community broadcasting policy framework and regional television funding policies later this year PMP submits that the proposed sale and allocation of up to four licence sets should only be initiated after this review is completed and new policies for regional and noncommercial television broadcasting are defined The sale of the four licence sets to existing commercial TV broadcasters and transmission providers would exhaust the Crown s DTT spectrum stock and create a major impediment to the development of more diverse and innovative non-commercial and regional television services in the future.
8 3 Background The Ministry s Information Request outlines existing DTT licence set ownership, and states that each set contains sufficient frequencies to broadcast up to 12 standard definition services, or up to four high definition services. There are 4 additional sets still to be allocated The Ministry has indicated at its Auckland workshop that all existing licensed sets are in use with the exception of the World TV licence set Table 1 in the Information Request indicates that there is a significant amount of unused capacity within the sets that have been allocated. It is unlikely that this capacity will be fully utilized by the existing licence holders for viable commercial services in the foreseeable future At present, there is no evidence of any significant domestic commercial demand for the four licence sets that the Government is proposing to allocate. Certainly, there is no evidence of adequate domestic commercial demand to merit the sale of all four sets in a single allocation process There may be domestic demand for capacity to provide pay-to-view options but this would make inefficient use of broadcast spectrum as there are other digital delivery options for pay-to-view services MBIE expresses the opinion that the spectrum capacity within the 4 additional licence sets proposed for allocation is not suitable for non-broadcast technologies, such as cellular or fixed wireless networks. That may be so at present, but given the speed of digital technology changes it is unlikely to be true throughout the entire period between now and PMP submits that the first priority in the allocation of the additional DTT licence sets and the frequency capacity they contain should be assigned to the provision of new regional and non-commercial free-to-air television broadcasting services that will broaden the diversity of programme content, encourage innovation in programme production, and provide for more public interaction and creative engagement with broadcast television media. Simple fixed price commercial allocation of the 4 additional licences at historic commercial values will not secure the delivery of these services.
9 4 Proposed allocation of licence sets MBIE seeks feedback on the proposal to allocate one or more licence sets by uncontested commercial allocation MBIE has proposed three allocation options for consideration. A] Allocate full nationwide licence sets only, to individual parties. B] Allocate full nationwide licence sets, shared among a consortium of parties. This could suit individual parties that wish to broadcast fewer than 12 standard definition channels. C] Allocate individual licences for particular transmission sites (regions). This could suit regional broadcasters PMP does not support the proposal for uncontested, fixed price, commercial allocation as the universal solution for allocating the additional licence sets and submits that : No allocation option decisions need to be made until there is more evidence of demand for the four licence sets at the Crown s disposal There is no reason why a combination of the three options proposed should not be available when it is established that there is demand for additional licences and the nature of the demand is identified The allocation proposal does not provide a mechanism for resolving a contest between rivals seeking the licence or licences offered. Before any allocation of additional licences is made, a formal consultation should take place on the criteria for allocation in circumstances where there is competition for a licence set on offer. This situation might not arise in the near future but it could occur between now and 2033 when current licence are scheduled to expire. 5 Pricing The Ministry proposes that licence sets are allocated at a fixed price based on payments made by broadcasters who were allocated their licences in the DSO process, and suggests a duration-adjusted price of between $ $1.615 million + GST per set.
10 The Ministry says we do not see a good reason to charge a different price for any further allocations of DTT licence sets, unless the conditions attached to the licence were different PMP presumes the proposed fixed price was determined by historic prices paid by commercial broadcasters exercising rights to convert transitional digital licences to longterm licences, adjusted for the shorter life-span of the additional DTT licences that will be allocated There are good reasons why the commercial price for the four licence sets should be lower than the price paid by the established broadcasters and transmission service providers who enjoyed early mover advantages arising from the highly-selective issue of DTT transitional licences with analogue-to-digital conversion rights. 5.3 If an uncontested fixed price commercial sale is contemplated, the price should reflect the diminished value of the additional DTT licences to new purchasers, and should take into account the following factors: The ability of existing licence holders to use their current surplus capacity to introduce additional broadcast services at lower costs than new licence purchasers facing high costs for zero-based start-ups and audience-building: the increased fragmentation of audiences by the accelerating development of on-line media services since current licences were issued; and the increased level of competition for advertising revenue and content funding available to television broadcasters The impacts of these market changes will be significantly greater for new entrants purchasing the additional licence sets being introduced. The simple time-based adjustment proposed is not adequate compensation for the loss of value that has already occurred New licence holders will not have the benefit enjoyed by existing commercial licence holders who have been operating digital and terrestrial television services for 5 to 6 years before DSO and selling advertising in a period when new digital media were relatively minor players in the market Fixed price commercial allocation may suit the financial interests of the real spectrum owner (the Crown), but it is not fair on licence purchasers - existing or new or the viewing public. Inevitably, it will create a significant barrier to innovation and diversity in the free-to-air television broadcasting services provided to New Zealanders.
11 5.7. Fixed price allocation alone does not provide the Ministry with a mechanism for determining the allocation of a licence set when more than one potential purchaser seeks its use. This is unlikely to happen in the near term, but it could happen before the life of the DTT licences expires in Allocation policy should be durable and stand for the term of the licences to provide certainty for the development of DTT television services The fixed price allocation proposed may be suited to the needs of existing commercial television broadcasters but it is not appropriate to the means of non-commercial broadcasters Before the DSO, non-commercial TV broadcasters were required by the terms of the licences to expand the range of local and international programme content beyond the narrow limits observed by commercial broadcasters competing to deliver the most active consumers in New Zealand to the advertisers who fund their activities Under current policies, all existing non-commercial licences were terminated at the DSO. Non-commercial broadcasters are now required to obtain frequencies and transmission services from existing commercial licence holders at normal commercial rates. There is no licence mechanism requiring anyone to deliver the content sought under the terms of the Government s regional and community broadcasting policy framework The proposed fixed price commercial allocation will simply increase the cost of providing local programme content to meet the broader public service objectives of the Government s non-commercial, regional and community broadcasting policies. 6 Implementation requirements MBIE is interested in feedback on whether it is appropriate to apply a two-year use or lose requirement to any further DTT licence allocations The existing use or lose requirement is ineffective. Its requirements are met if a broadcaster can produce tangible evidence of an intention to deliver a single service on a licence set that is able to support up to 12 standard definition services, or 4 high definition services. It has not incentivized the major commercial television broadcasters to introduce additional free-to-air programme services beyond the introduction of four + 1 hour repeater channels, or to increase the diversity of their service offerings.
12 6.2. The use or lose requirements were introduced by a Government policy decision relating to licensing in the transition to DSO, and were initially expressed in the agreements between the Crown existing commercial analogue licence holders who gained conversion rights before DSO. 6.3 PMP submits that new implementation requirements will need to be introduced to address the post-dso situation and that these requirements should be more robust to prevent hoarding and other anti-competitive practices. It seems reasonable to expect that new implementation requirements should deliver a level playing field for both existing and new entrant licence holders seeking additional spectrum capacity A new comprehensive implementation regime should distinguish between licenced transmission providers and licenced programme service owners, for reasons outlined in the following paragraphs Licensed transmission providers need to maintain an inventory of unused capacity to serve the needs of new broadcasters. They have a strong incentive to grow profits by utilizing to the full the capacity they have obtained under their own licences but no incentive to encourage licensed programme owners using their transmission services to deliver a more diverse and innovative range of broadcast content or services. The experience of the transition to DSO illustrates the point Under the terms of a 2006 Crown Agreement, the state-owned transmission provider BCL/Kordia was granted first priority over other transition licence holders to market its DTT capacity to non-licensed broadcasters during the transition to DSO Under the terms of the Agreement, Kordia was supposed to give its first priority to providing for digital simulcasts of BCL broadcasters analogue free-to-air channels or services that existed at the date of the Agreement, and secondly, for new digital free-toair channels or services offered by the BCL broadcasters After a six month period meeting the first priority needs, Kordia was to issue a call for expressions of interest from other broadcasters. It was to make available any unused capacity, subject to its commercial terms and conditions, in the following order of priority: first, the Agent may require BCL (Kordia) to give priority to non-commercial regional/local free-to-air broadcasters; secondly, to commercial free-to-air broadcasters that do not have their own DTT licences;
13 6.5.3 thirdly, to other commercial free-to-air broadcasters; and fourthly, to any other broadcasters In stakeholder consultations that took place in 2009, these provisions were described incorrectly as a must carry provision that would require Kordia in the first instance to provide unused capacity to carry one regional service in each region 2. In fact, the regional channel provision was only to be applied at the initiative and discretion of the Crown Agent, the Ministry for Culture & Heritage The terms of the 2006 Crown-BCL (Kordia) Agreement were not published at the time. No call for expressions of interest was issued. The priorities were not enforced by the Crown Agent. Kordia was not required to give priority to non-commercial regional/local free-to-air broadcasters. All non-commercial television licences were terminated at DSO. Currently, there is no indication that non-commercial television licences will be issued in future This unhappy history should not be repeated in the design and implementation of the allocation of licences designed for the 4 additional sets available to the Crown The dominant New Zealand commercial transmission provider has displayed a natural desire to give priority to commercial nationwide broadcasters and an equally natural reluctance to serve other sectors of broadcasting that are less attractive from commercial transmission providers perspective specifically regional and noncommercial TV services PMP notes that officials have frequently heard complaints from regional broadcasters about the prices charged for DTT service by the State-owned major provider Kordia, and the assertion that Kordia prices are much higher than its minor competitor in the fringes of the DTT coverage area PMP understands that current Kordia DTT prices are largely based on the total population within the areas theoretically covered by its transmitters and not on the number of households in each coverage area that are equipped to receive DTT coverage. The current transmission pricing approach may have been appropriate in a period when analogue transmission was the dominant mode of free-to-air household television reception in New Zealand. It is not appropriate to the post-dso era when DTT appears to be the least favoured option for free-to-air television channel reception. 1 Crown Agreement with BCL/Kordia 2006, section 6. 2 Ministry of Economic Development discussion paper Digital Futures: planning for digital television and new uses August 2009, page 37, section
14 6.15. PMP submits that the time has come when DTT prices are subjected to official scrutiny to determine if they are fair and reasonable and if access to and availability of DTT transmission sites is a barrier to competition for the provision of transmission services. This process should be completed before additional licence sets are allocated to existing transmission service providers Licensed programme service providers without their own transmission capacity do not have the transmission providers incentive to put all their spectrum licence capacity to work. In fact, to do so would be counter-productive because operating 12 standard channels or 4 high definition channels would increase their program and operating costs, further fragment their audiences, and diminish their ability to optimize advertising revenues It is not in the interest of a programme service provider/licence holder to make full use of the capacity at its disposal, and it is not in their interest to make it available to anyone else. Licensed programme service providers are incentivised to hoard their surplus capacity to protect the value of their existing services However, it is not in the Crown s interest to operate an allocation system that does not encourage efficient use of the broadcast spectrum and does not provide New Zealanders with a diverse and innovative range of free-to-air broadcast services It is probably too late to do anything about the use or lose requirements in existing licences held by programme service and transmission providers but much more rigorous implementation requirements should be introduced in any additional licences issued to the existing licence holders. PMP submits that: (a) (b) No additional licence sets should be allocated to existing licence-holding programme owners who do not have their own transmission facilities until they utilize the full capacity of the licence sets they already hold, and the frequencies within those sets; and No additional licence sets or individual frequency licences should be allocated to existing licence-holding transmission providers who do not have competition in the geographic coverage areas they currently serve - until they have entered into contractual arrangements that would enable at least one competing supplier to use their transmission sites and relative infrastructure on commercial terms that are determined and published the by MBIE as the licence issuing authority Section 8 of this submission refers to circumstances in which some modification of existing licences might be permitted to address inefficiencies that prevent optimum use
15 of allocated frequencies or resolve signal interference issues without compromising the Crown s ability to allocate the 4 licence sets it proposes to make available. 7 Next Steps 7.1. PMP submits that the MBIE s next steps proposal should be amended to include publication of submissions received and of its feedback report to the Ministers and the Cabinet PMP also submits that the current Information Request for Industry Discussion should not be regarded as fulfilling the normal stakeholder consultation process given that the proposal is for a significant policy change. We seek an undertaking that consultation will take place before any recommendation for policy change is adopted While consideration is being given to the allocation process, it is also important that plans are developed for fair trading in DTT capacity when initial implementation requirement periods expire PMP submits that MBIE should develop and consult on options for the creation of an open and transparent DTT capacity trading platform to ensure that, when additional licences are allocated, there is a fair, competitive and informed bidding for after-sale surplus capacity made available from unfulfilled use or lose requirements or by purchasers of licence sets who only make partial use of the capacity they have acquired. 8 Normal licensing process MBIE proposes that with the DSO process now complete, it is appropriate that MBIE return to normal commercial licensing process arrangements PMP submits that is no longer clear what the term normal commercial licensing process arrangements means today PMP considers that the proposals for fixed price commercial allocation contained in the Information Request are not the normal commercial licensing process arrangements as they are a departure from both the original auction allocation process adopted for the allocation of UHF licences, and the subsequent, highly selective, no-cost DTT spectrum licence allocation process adopted to initiate the transmission to DSO. 8.3 PMP is opposed to returning to a normal process that does not contain provisions for: Specific allocation criteria to be applied when there is competition for additional licences the government proposes to sell;
16 8.3.2 Implementation requirements that discourage spectrum hoarding by licensed programme service providers; Implementation requirements that encourage nationwide competition for the supply of DTT transmission services; New allocation policies that relieve regional and non-commercial broadcasters of the obligation to access spectrum and transmission services from existing commercial licence holders at commercial rates; and New spectrum allocation and pricing policies that take account of the scale of household adoption of free-to-air DTT reception; the scale of unutilized TV broadcasting spectrum already available to existing licence holders; the fragmentation of audiences as a result of the provision of additional DTT channels; the increasingly rapid development of new on-line digital media on the viability of free-to-air television broadcasters between now and 2033; and the growing diversity of the NZ population and its consequent need for more diversity, innovation and creative engagement in free-to-air TV broadcasting services That said, PMP submits that the Government should authorize the Ministry to approve modifications to existing commercial licences that involve frequency adjustments to improve transmission coverage and remove signal interference, but do not compromise the availability of the four additional licence sets. David Beatson Convenor Public Media Project, P.O. Box 47718, Ponsonby, Auckland. Tel (09) , Mobile ,