Anti-siphoning re-emerged on the political agenda yesterday with Phil Coorey breaking that the Government had settled on a “use it or lose it” amendment to the scheme. The Australian’s Lara Sinclair last night followed up with a report about a proposed two-tier anti-siphoning system.

Some background: the current anti-siphoning list expires in December. The anti-siphoning mechanism itself is legislative but the list is a ministerial creation — Stephen Conroy can amend it at any time himself, including to temporarily remove certain events. There was, however, a statutory requirement for a review of the anti-siphoning scheme by the end of 2009, which Conroy and his Department launched last year. The new list will therefore reflect the outcome of the Government’s review, which has been eternally promised to us by Conroy but never quite, we understand, made it out of the Rudd in-tray in the intervening months.

The end of the year isn’t, strictly speaking, an absolute deadline for resolving the new list — there’s unlikely to be too many broadcast rights that can be snapped up in the brief window between 31 December and whenever a new list is gazetted. Nevertheless, the issue needs to be resolved sooner rather than later. The list is traditionally viewed through the prism of free-to-air versus subscription television but the real victims of the list are sports rights holders, who obtain less revenue for their products because anti-siphoning limits competition, in what amounts to an uncompensated transfer of revenue to the free-to-air networks.

The extended delay in resolving the new list affects sports rights holders, including high-profile ones like the AFL.

Subscription TV sources say their understanding of the Government’s intentions, though in the absence of direct confirmation, is that, as per Sinclair’s piece, there will be a two-tier system, but it’s more complicated than that. First, the Government will prune the list. The likes of FreeTV deny it, but the current list is so extensive and so poorly-worded that the vast majority of events are never seen on free-to-air TV.

Every single event of the Olympic and Commonwealth Games is on there — every race, every every round, every moment involving every competitor, regardless of who they are. Every match at Wimbledon — which Nine no longer wants to broadcast — and the Australian Open, from the first-round mixed doubles and wheelchair events through to the men’s singles final, is on there. All, notionally, have to be shown by the FTAs rather than subscription TV.

And there are events that even FTA representatives admit privately could fall off the list without anyone missing them — the French Open finals, the Australian and overseas golf tournaments, the netball. Indeed, the latter aside, the list is very much the reflection of the sporting interests of the wealthy white males who’ve drawn it up for most of the last twenty years.

How dramatically the list will be pruned remains to be seen — if it’s just the French Open and golf, for example, the subscription sector will go ballistic. They want to see up to 75% of events removed, and they’re absolutely right.

Then the remainder will be divided into two tiers. There will be a small set of events that closely conform to the actual wording that has traditionally guided the idea of anti-siphoning: events of “national importance and cultural significance”. a requirement that a quick glance at the currently list shows has been consistently honoured in the breach rather than the observance. These will be the truly major national events — the Melbourne Cup and the AFL and NRL grand finals, for example, though not multi-sport events like the Olympics. They will need to be shown by the free-to-air networks live.

The remainder of the events, the second tier, will need to be shown live or with only a limited delay, and will include perhaps only half of each week’s round of AFL matches, which are screened on FTA television. Crucially, it appears those events may also be screened on a digital multichannel.

The free-to-airs can’t show listed events only on their multichannels at the moment — they need to have already been broadcast on their “main channel”, or shown simultaneously. But the idea of a “main channel” is rapidly becoming obsolete, and will definitely become so when analog is switched off in three years. The subscription sector used to regard permitting multichannelling of listed events, which the free-to-air networks have long demanded, as a virtual declaration of war, but it now appears — although they’ve never said this – they’re more resigned to it.

None of that solves the problem of what constitutes “broadcast”, because an ongoing problem is the failure of broadcasters to screen the football codes nationally – AFL doesn’t rate in Sydney, and NRL, even NRL finals involving the Storm, rarely rate in Melbourne.

And quite how a “use it or lose it” mechanism will work isn’t clear. Here’s some trivia — “use it or lose it” still theoretically remains the policy of both the Coalition and Labor, having never been repudiated by either of them, although it has always been a dead letter under Stephen Conroy, who remarkably told ACMA to stop sending him reports of what the FTAs weren’t showing.

The problem with any “use it or lose it” mechanism is that, as long as its implementation is a matter for a minister to decide, nothing will ever be removed from the list unless it is convenient for the FTAs, and even then they are so bloody-minded as to be willing to oppose any removal on principle that it’s not in their interests to do anything to accommodate the subscription sector.

The latter proposed a legislative mechanism for “use it or lose it” back in 2006, whereby events not screened live or on a slight delay would automatically be removed from the anti-siphoning list, but the Howard Government was unwilling to go that far. But any “use it or lose it” mechanism that isn’t automatic and legislated won’t be worth the press release it’s issued on.

Nonetheless, the view from the subscription sector is that, subject to detail like exactly how many of the events will be pruned, they’ll be able to live with the new list, albeit unhappily, and expect the free-to-airs to do likewise.

Stepping back, there are two problems with all this, beyond the fact that anti-siphoning is a punitive, anti-competitive interference by politicians in a free market. One is the complicated regulatory framework that a two-tier/multichannelling framework will require — and the fact that the current multichannelling prohibition requires an amendment to the Broadcasting Services Act to remove, meaning a bill will have to run the new minority-era parliamentary gauntlet. And what a more vocal Caucus will think of anything that makes life easier for News Ltd via its interest in subscription TV remains to be seen.

Secondly, why on earth are we tolerating politicians playing TV programmer?  Stephen Conroy has no better grasp of what audiences want to see than anyone else, he only has his own sporting obsessions (including Australian soccer, which he is desperately keen to add to the list). But he and his colleagues are currently working out what sport you’ll get to see and how you’ll get to see it.

A spokeswoman for Stephen Conroy said a response to the anti-siphoning review would be made soon.

Disclosure: Bernard Keane worked in the Department of Communications on media policy, including anti-siphoning, under the Howard Government.