Foxtel/Fox Sports is in breach of its subscription television broadcasting licence

Posted on October 30, 2019

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By SB Tang

Later tonight, the Australian cricket team will play Pakistan in a T20 international match at the Gabba.

The match will not be broadcast live on free-to-air television in Australia. Instead, it will be exclusively broadcast live on Foxtel/Fox Sports, a pay TV service which only 21.5 per cent of the Australian population subscribes to. Foxtel/Fox Sports is 65 per cent owned by Rupert Murdoch’s News Corp and 35 per cent owned by Telstra.

Here’s the problem: every Test match, one-day international match and T20 international match played by the Australian team in Australia is supposed to be broadcast live on free-to-air television, because it’s on the anti-siphoning list.

In order to fully understand what the anti-siphoning list is, we have to go back to the mid-’90s. Prior to the introduction of pay TV in 1995, federal parliament passed anti-siphoning legislation to prevent pay TV services capturing the right to broadcast “events of national importance and cultural significance”. The Minister for Communications can protect such events by placing them on what’s known as the anti-siphoning list.

Cricket is Australia’s national sport. The Australian Test cricket team pre-dates the Australian nation itself by over 23 years. Unsurprisingly then, any official match played by the Australian cricket team on Australian soil has always been — and still is — on the anti-siphoning list. (To be clear, there are three official formats of international cricket — Test matches, 50-over matches and T20 matches — and all official matches played by the Australian cricket team in any of those three formats on Australian soil are on the anti-siphoning list.)

The anti-siphoning legislation — and the presence of all the Australian cricket team’s home matches on the anti-siphoning list — has always been strongly supported by both of Australia’s major political parties. The legislation was originally enacted by a Labor government, but multiple Liberal governments since have happily maintained it. As Daryl Williams, the then Minister for Communications in a Liberal government in the midst of its third term, put it in June 2004 (emphasis added):

With these changes, the government reaffirmed its commitment to the anti-siphoning scheme.

The scheme continues to protect the access of Australian viewers to events of national importance and cultural significance by giving priority to free-to-air television broadcasters in acquiring the broadcast rights to those events.

This remains an important policy objective for the government.

With fewer than one in four households having access to subscription television at this time, the rationale for the anti-siphoning scheme remains valid.

How does the federal anti-siphoning scheme actually work?

The federal statutory authority responsible for enforcing compliance with the anti-siphoning legislation, the Australian Communications and Media Authority, provides the following clear explanation on its website (emphasis added): “Compliance with the anti-siphoning provisions is a licence condition on subscription TV and commercial TV licensees.”

Thus, Fox Sports’ acquisition of the exclusive Australian live TV rights to one-day international and T20 international matches played by the Australian cricket team in Australia constitutes a blatant breach of its subscription television broadcasting licence.

Specifically, clause 10(1)(e) of schedule 2 of the Broadcasting Services Act 1992 (Cth) states that a subscription television broadcasting licensee “will not acquire the right to televise, on a subscription television broadcasting service,” one-day international and T20 international matches played by the Australian cricket team in Australia “unless”: ABC or SBS has the right to televise those events; or a commercial free-to-air broadcaster covering a total of more than 50 per cent of the Australian population has the right to televise those events. Neither of those disjunctive conditions are satisfied in the case of Fox Sports’ acquisition of the exclusive Australian live TV rights to one-day international and T20 international matches played by the Australian cricket team in Australia.

The Australian Financial Review reported that before accepting Foxtel/Fox Sports’ six year, $1.182 billion TV broadcasting offer in April 2018, Cricket Australia rejected a six year, $960 million dollar offer from the free-to-air network Channel Ten that would’ve complied with the federal anti-siphoning scheme by televising every Test match, one-day international match and T20 international match played by the Australian cricket team in Australia live and free-to-air.

The ACMA is the federal statutory authority responsible for enforcing compliance with the anti-siphoning scheme. Foxtel/Fox Sports’ ongoing exclusive televising of one-day international and T20 international matches played by the Australian cricket team in Australia constitutes a breach of the anti-siphoning scheme and a breach of Foxtel’s subscription television broadcasting licence.

As far as I am aware, to date, the ACMA has not taken any action against Foxtel/Fox Sports. Earlier today, I wrote to the ACMA via email and asked them to please take action to force Fox Sports and Cricket Australia to comply with the anti-siphoning scheme and discourage any future non-compliance. Specifically, I asked the ACMA to give the ABC, SBS or Channel 7 the right to televise one-day international and T20 international matches played by the Australian cricket team in Australia without having to make any payment to Cricket Australia or Fox Sports. (Channel 7 should already have the infrastructure in place since they are currently televising all Test matches played by the Australian cricket team in Australia.)

If you care about the Australian people’s (supposedly legally protected) right to view “events of national importance and cultural significance” on free-to-air TV and the rule of law in Australia, then I’d suggest you write to the ACMA. Their email address is: info@acma.gov.au

I have provided a pro forma email template below that you can use.

I’d add two final points. Firstly, the removal of one-day international and T20 international cricket from live, free-to-air television clearly undermines the Australian cricket team’s prospects of future success. Most of Australia’s best cricketers come from working-class, lower-middle-class or rural backgrounds. As kids, they get inspired to play by watching the Australian cricket team play live on free-to-air TV at home. That won’t happen if the Australian team’s home one-day international and T20 international matches continue to be broadcast exclusively live on Foxtel/Fox Sports — because their families can’t afford $61 per month for Foxtel.

Secondly, ask yourself: who ultimately stands to profit from Foxtel/Fox Sports’ continuing breach of its subscription television broadcasting licence?

The answer is: Foxtel/Fox Sports itself.

In the face of competition from streaming video services, the company has been battling falling revenues ahead of its planned IPO. Its unlawful capture of the exclusive right to televise the Australian cricket team’s home one-day and T20 international matches is likely to boost their subscriber numbers.

And what is good for Foxtel is good for Rupert Murdoch. As the former Labor prime minister, Kevin Rudd, recently put it, Foxtel is “his cash cow cross-subsidising his loss-making print mastheads.”

And, as is by now well-known, Murdoch’s media empire is responsible for undermining liberal democracies across the world. So, I’d suggest we do what we can to reduce that empire’s profits. Writing to the ACMA to ask it to restore Australia’s home one-day international and T20 international matches to live, free-to-air TV will do that by reducing the attractiveness of a paid subscription to Foxtel/Fox Sports.

Here’s the pro forma template email to the ACMA:

To: info@acma.gov.au

Subject: Complaint – Foxtel/Fox Sports’ breach of its subscription television broadcasting licence

Dear ACMA

I am an Australian citizen and taxpayer. I write to complain about Fox Sports’ failure to comply with federal anti-siphoning legislation, which constitutes a breach of its subscription television broadcasting licence.

Section 115(1) of the Broadcasting Services Act 1992 (Cth) and clause 7 of the schedule to the Broadcasting Services (Events) Notice (No 1) 2010 (Cth) state that the televising of every Test match, one-day international match and T20 international match played by the Australian cricket team in Australia “should, in the opinion of the Minister [for Communications and the Arts], be available free to the general public.” Please see attached for copies of the Broadcasting Services Act 1992 (Cth) and the Broadcasting Services (Events) Notice (No 1) 2010 (Cth).

Fox Sports/Foxtel is a pay TV broadcaster. Its broadcasts are not available free to the general public. On 13 April 2018, Cricket Australia announced a six year, $1.182 billion TV broadcasting deal with Fox Sports/Foxtel which gave Fox Sports the exclusive right to televise one-day international and T20 international matches played by the Australian team in Australia for the next six years.

The deal was a blatant breach of federal anti-siphoning legislation. And it appears that Cricket Australia committed that breach knowingly. The Australian Financial Review reported that before accepting the Fox Sports offer, Cricket Australia rejected a six year, $960 million dollar offer from the free-to-air network Channel Ten that would’ve complied with federal anti-siphoning legislation by televising every Test match, one-day international match and T20 international match played by the Australian cricket team in Australia live and free-to-air.

Moreover, Fox Sports’ acquisition of the exclusive Australian TV rights to one-day international and T20 international matches played by the Australian cricket team in Australia constitutes a blatant breach of its subscription television broadcasting licence. Clause 10(1)(e) of schedule 2 of the Broadcasting Services Act 1992 (Cth) states that a subscription television broadcasting licensee “will not acquire the right to televise, on a subscription television broadcasting service,” one-day international and T20 international matches played by the Australian cricket team in Australia unless”: ABC or SBS has the right to televise those events; or a commercial free-to-air broadcaster covering a total of more than 50 per cent of the Australian population has the right to televise those events. Neither of those disjunctive conditions are satisfied in the case of Fox Sports’ acquisition of the exclusive Australian TV rights to one-day international and T20 international matches played by the Australian cricket team in Australia.

As your website explains, you are the federal statutory authority responsible for enforcing compliance with the anti-siphoning legislation and “compliance with the anti-siphoning provisions is a licence condition on subscription TV and commercial TV licensees.”

As far as I am aware, to date, you have not taken any action against Foxtel/Fox Sports for its blatant breach of a condition of its subscription television broadcasting licence.

May I please ask:

  1. Why haven’t you taken any action against Foxtel/Fox Sports for its blatant breach of a condition of its subscription television broadcasting licence?
  2. What, if any, action do you plan to take against Foxtel/Fox Sports for its blatant breach of a condition of its subscription television broadcasting licence?

Fox Sports’ ongoing exclusive televising of one-day international and T20 international matches played by the Australian cricket team in Australia constitutes a breach of the anti-siphoning legislation. You are the federal statutory authority responsible for enforcing compliance with the anti-siphoning legislation.

Accordingly, I ask that you please take the following action to force Fox Sports and Cricket Australia to comply with the anti-siphoning legislation and discourage any future non-compliance.

First and foremost, I ask that you give the ABC, SBS or Channel 7 the right to televise one-day international and T20 international matches played by the Australian cricket team in Australia without having to make any payment to Cricket Australia or Fox Sports. (Channel 7 should already have the infrastructure in place since they are currently televising all Test matches played by the Australian cricket team in Australia.)

Secondly, I ask that you punish Foxtel/Fox Sports for its blatant breach of a condition of its subscription television broadcasting licence.

Thirdly, I ask that you publicly warn TV rights sellers — such as Cricket Australia — to not breach the anti-siphoning legislation.

Yours sincerely

[X]