The Australian Competition and Consumer Commission (ACCC) and the Australian Communications and Media Authority (ACMA) intend to facilitate the flow of information between the two agencies during media merger investigations in a way that protects confidential information while helping to ensure that each agency’s investigations are fully effective, the Chairman of the ACCC, Mr Graeme Samuel, and the Chairman of ACMA, Mr Chris Chapman, said today.

In particular, the ACCC and ACMA will ask parties involved in a media merger who provide confidential information to either agency to agree to that information being provided to the other agency. This will allow the ACCC and ACMA to share this information with each other in a transparent and more efficient way, Mr Samuel and Mr Chapman said.

Once the new cross-media laws commence, it is very possible that the ACCC and ACMA will be considering the same media mergers at the same time. While the ACCC and ACMA will conduct separate investigations, there is some overlap in the tests and processes they will apply. Access to all available information will help ensure that ACCC and ACMA decisions are consistent to the extent that the tests and processes overlap. The arrangements will also reduce the risk that merger parties may provide different information to the two agencies or that a transacting party’s timetable is not further complicated by iterative steps that each agency undertakes.

Changes to Australia’s cross-media laws were enacted in October 2006 but the Australian Government has not yet announced when the repeal of prohibitions on cross-media ownership and foreign control of television licences will commence. That repeal occurs on the proclamation of Schedule 2 of the Broadcasting Services (Media Ownership) Amendment Act 2006.

The ACCC will consider whether a media merger substantially lessen competition in a market in contravention of section 50 of the Trade Practices Act 1974.

ACMA will consider whether a media merger contravenes any of the prohibitions in the Broadcasting Services Act 1992, as amended in October 2006. These include a prohibition on mergers that result in an unacceptable media diversity situation (that is less than five independent media operations or groups in metropolitan areas, and less than four in regional areas). In addition, a person will not be permitted to control more than two out of three types of media operations (that is, free-to-air television, radio or associated newspapers) in any radio licence area.

Importantly, it is anticipated that each agency’s tests and processes in the area of prior approvals of transactions, especially concerning the utilisation of enforceable undertakings, will be of most utility to transacting parties if they can be coordinated as closely as possible.