For some time now the Federal Government has been considering new legislation around what device manufacturers must show on the TVs being sold in Australia, and just how easy it is for Australian’s to find free content alongside or instead of paid subscription content like Netflix or Disney+

Last week in Canberra leaders of our National TV Networks, Foxtel, Netflix and Fetch TV sat before the Senate Environment and Communications Legislation Committee to discuss the draft Communications Legislation Amendment relating to Prominence and Anti-siphoning.

I watched all of it, and it’s fascinating – but also problematic.

At it’s core, Prominence legislation seeks to ensure that Australians who purchase a new TV are given the automatic option to see the Free-to-Air Broadcaster apps (BVOD) like ABC iView, SBS On Demand, 10Play, 7Plus and 9Now in the top and most prominent position, a space currently taken up by large global app providers.

When questioned by the senators, Netflix’s Ben Cox suggested that his company’s investment in the engineering with Chip and TV manufacturers was important for the entire streaming industry and the trade off for their efforts and expense was inclusion in the TV’s themselves from the outset.  

The commercial terms under which apps appear and are displayed on your TV are confidential, and as an owner you aren’t even aware that in fact the apps that appear by default on your new TV may do so because there is a financial arrangement in place between that App and the TV maker.

Likewise, consumers are not made clearly aware when there is a share of revenue agreement with an app or provider and a platform like a Smart TV.

Most worrying though was the opening statement by The SBS Managing Director James Taylor.  His remarks shone a clear light on the commercial nature of these deals to have one app or another on your TV.

Mr Taylor said “In June 2018, the manufacturer of the best-selling connected TV in Australia wrote to SBS and advised that unless we agreed to a 15% revenue share arrangement and a placement fee, SBS would be removed from the ‘app launcher’ on the TV homepage for that brand. “

“When SBS refused to pay, the manufacturer carried through on their threat making it much harder for audiences to find the SBS On Demand app.“

“Then, in August 2020, that manufacturer delivered the same demand, but this time threatening to take SBS On Demand off the platform entirely. It was difficult for me to even find a representative in Australia for us to challenge this with – a reflection of how these corporations are imposing their global commercial rent seeking activities from thousands of kms away with no regard to local audiences or the public interest.“

He went on to explain that it wasn’t just one company either and that it’s still going on, as recently as late last year, telling the Senate Committee “In August 2023 we received notification from another platform operator that unless SBS agreed to pay them 30% of the revenue we derived from being on their platform, they would exclude us entirely”

Most Australians would be blissfully unaware that these kinds of deals are taking place, which is inherently why the Government is investigating the prominence of Free to Air on modern TVs.

While many might argue that Free to Air has diminished in it’s prominence in Australian viewing habits, Fetch TV CEO Scott Lorson proved that wrong, submitting to the committee that their data of real-world usage by their large scale installed user base showed that Free to Air content and viewing made up over 55% of all viewing on the Fetch Platform, going on to present Fetch TV as the high-watermark for how Free to Air services and content can be integrated into a platform.

TV Manufactures were represented at the Committee by Evelyn Soud from the Consumer Electronics Suppliers Association (CESA) who submitted that Australia is 1% of the global TV market, and in other markets where Government regulation is being investigated but that it is no where near as prescriptive as that which is being proposed here In Australia.  

Ms Soud stated that “CESA TV members currently provide easy availability of both the Free to Air Live TV and BVOD streaming apps by live tv tiles, Home Screen or App Store searches and other access points.”

However, she then went on to point out that the Department’s own survey pointed out a bigger problem for users, stating that  “the departments’ 2022 consumer survey  found TVs were the easiest devices for navigating to Free to Air services, and that notably the main reason respondents gave for their difficulty in accessing these services was problems within the Free to Air apps themselves with signing in, passwords and creating accounts – It is not that these users couldn’t locate these services on the TV in the first place.”

As an industry, those manufacturers such as Samsung, LG, Hisense, TCL and others are submitting that they would need two years to implement any changes due to the sheer number of different operating systems involved.

Ms Soud also talked about a future where TV Home Screens wouldn’t be about apps, but instead about Programs.  This is similar to how Foxtel’s new Hubbl device operates – showing programs as tiles on the Home Screen instead of requiring a user launches into particular apps to begin searching.

This style of interface would be called a Smart UI (User Interface) or “Adaptive UI” which would mean one owners Home Screen is vastly different to another because what they see is based purely on what they have watched before.  The Consumer Electronics Suppliers Association argue this is an important reason why the proposed legislation must be changed to suit a future TV, not just the TVs that are being sold or have already been sold here in Australia.

You see the real problem is the Government appears to be legislating for the current and older style of Smart TV interface. The one where what we saw on the “home” screen were apps. Remember this:

Once TVs got a bit smarter, those Apps would show additional content either alongside or around them – like things we might like or have just started watching:

On a 2023 model TV, like this one from Hisense, you still see the apps, as well as a huge range of content options:

In this scenario, the Government is seeking for the TV to show the 9, 7, 10, ABC and SBS apps on the left hand side of that app row.

Likewise on this Google and Amazon Fire TV example:

So, if the legislation passes, TVs and Content devices will need to show those Free to Air apps right there in that app row.

Problematically though, I think that row of apps is going to disappear from future TV and device interfaces.

We can already see that on the new Hubbl device – it would have been handy if the Senate had let Patrick Delany demonstrate his company’s new device. You see on Hubbl, from what I’ve seen – there are no apps. Just content.

Instead, you see things you’re continuing, or things that are trending, even things that are on now for Live TV.

That top row of continue, if you move LEFT on that with the cursor you do see the app logos for apps you recently used, but it’s not a traditional app carosel as the legislation might intend.

The Consumer Electronics Suppliers Association made it clear that there was a new bright future of Adaptive User Interfaces coming, basically using AI and Algorithms to show users content and suggestions based on viewing history.

Have you ever Opened Netflix on someone else’s account – it looks vastly different to your own, because it’s personalised.

A future TV might be just like that, and show just what it thinks after it learns about you.

Now I think that the commercial deals that allow some things to get certain placement in certain ways should be more transparent, but that’s a topic for another day.

What I think the Government should legislate is that TV and Set top box companies are required to deal with our Free to Air networks to ensure their content is as accessible as it once was in a broadcast antenna based world.

Sounds ridiculous, but the simple concept is that it should be easy for people to find and watch free ad-supported content as it ever was over the last 50 years. There shouldn’t be road blocks or app blocks in place of that.

Personally, I think that should involve these “Brand Channel Lineups” like Samsung TV Plus, LG Content and Vidaa TV to include our Free to Air networks. It won’t happen easily because the big brands want to clip the ticket on the advertising that happens on those channels – kinda crazy given they never got a revenue split from Live TV, despite that being the fundamental reason people used to buy TVs?

A rising tide lifts all boats, put the Free-to-air channels in your Digital IP TV EPG and people will go from The Block, to the AFL Live, to Mythbusters TV a wholly online channel on Samsung TV plus that I just love. It really feels, and seems quite logical to me.

But it appears everyone wants to make a buck of us watching TV.

Time to go back to thinking about the consumer, the viewer and removing the complexity of these home screens and users interfaces away from commercial deals and back to the content people turn the TV on to watch.

The power of one brand over another can be their ability to find, suggest and navigate me with ease to the things I would want to watch.

But show me the stuff that’s free – show me that as readily as you would the things I might need a subscription to. Oh, and when you’re getting a kickback or commission from me signing up to something like a streaming service, shouldn’t that be disclosed in the same way that affiliate deals need to be disclosed online?

A lot needs to change, but we need Prominence of Free Content, particularly Free Australian content – so the government is on the right path – can we just make sure the path they are on is the same or parallel path to the people designing the TV interfaces of the future, or it will all have been for nothing.