An Act about management of the radiofrequency spectrum, and other matters
Chapter 1—Preliminary
Part 1.1—Formal matters
1 Short title
This Act may be cited as the Radiocommunications Act 1992.
2 Commencement
This Act commences on 1 July 1993.
Part 1.2—Object of this Act
3 Object
The object of this Act is to promote the long‑term public interest derived from the use of the spectrum by providing for the management of the spectrum in a manner that:
(a) facilitates the efficient planning, allocation and use of the spectrum; and
(b) facilitates the use of the spectrum for:
(i) commercial purposes; and
(ii) defence purposes, national security purposes and other non‑commercial purposes (including public safety and community purposes); and
(c) supports the communications policy objectives of the Commonwealth Government.
4 Outline of this Act
In order to achieve this object:
(a) Chapter 2 provides for radio frequency planning that involves preparation of:
(i) a spectrum plan and frequency band plans (see Part 2.1); and
(ii) marketing plans (see Part 2.2); and
(b) Chapter 3 provides for licensing radiocommunications under:
(i) spectrum licences (see Part 3.2); and
(ii) apparatus licences (see Part 3.3); and
(iii) class licences (see Part 3.4);
(c) Chapter 3 also provides for registration of licences (see Part 3.5); and
(ca) Chapter 3 also provides for the re‑allocation of parts of the spectrum (see Part 3.6); and
(d) Chapter 4 provides for general regulatory requirements aimed at:
(i) providing for equipment rules and other technical regulation (see Part 4.1); and
(ii) regulating various acts relating to radio emissions, particularly those involving interference with radiocommunications (see Part 4.2); and
(iii) settling interference disputes (see Part 4.3); and
(iv) providing for restricted use zones (see Part 4.4); and
(e) Chapter 5 provides for various other matters dealing with the administration and enforcement of this Act.
Part 1.3—Interpretative provisions
5 Definitions
In this Act, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
ACCC means the Australian Competition and Consumer Commission.
accreditation means an accreditation given under section 263.
accreditation rules means rules made under section 266.
ACMA means the Australian Communications and Media Authority.
advisory guideline means an advisory guideline made under section 262.
aircraft includes a balloon.
apparatus licence means an apparatus licence issued under Part 3.3.
apparatus licence tax means a tax imposed under the Radiocommunications (Receiver Licence Tax) Act 1983 or the Radiocommunications (Transmitter Licence Tax) Act 1983.
Australia, when used in a geographical sense, includes the external Territories.
Australian aircraft means an aircraft that is in Australian control or is registered, or required to be registered, under regulations made under the Civil Aviation Act 1988.
Australian space object means a space object that the ACMA, by legislative instrument, determines to be an Australian space object for the purposes of this Act.
Australian vessel means a vessel that is in Australian control or:
(a) not being an air‑cushion vehicle—is an Australian boat within the meaning of the Fisheries Management Act 1991; or
(b) being an air‑cushion vehicle—would be an Australian boat within the meaning of that Act if it were a boat within the meaning of that Act.
authorised defence supplier has the meaning given by section 10B.
authority, in relation to the Commonwealth, a State or a Territory, means:
(a) a Department; or
(b) a body (whether incorporated or unincorporated) established for a public purpose by or under the law of the Commonwealth, the State or the Territory, as the case may be; or
(c) any other body corporate in which:
(i) the Commonwealth, the State or the Territory, as the case may be; or
(ii) a body corporate referred to in paragraph (b);
has a controlling interest.
broadcasting services bands licence has the same meaning as in the Broadcasting Services Act 1992.
broadcasting station means a transmitter that is operating for the purposes of:
(a) a broadcasting services bands licence; or
(b) the provision of a national broadcasting service within the meaning of the Broadcasting Services Act 1992.
BSA control rules means:
(a) sections 54A and 56A of the Broadcasting Services Act 1992; and
(b) clause 41 of Schedule 6 to the Broadcasting Services Act 1992.
BSA coverage area means coverage area within the meaning of Schedule 4 to the Broadcasting Services Act 1992.
BSA datacasting licence means a datacasting licence under Schedule 6 to the Broadcasting Services Act 1992.
BSA exempt re‑transmission service means a service that, under subsection 212(1) of the Broadcasting Services Act 1992, is exempt from the regulatory regime established by that Act.
BSA licence area means licence area within the meaning of the Broadcasting Services Act 1992.
BSA television licence area plan means a television licence area plan within the meaning of the Broadcasting Services Act 1992.
category 1 digital radio multiplex transmitter licence means a transmitter licence for one or more multiplex transmitters that are for use for transmitting either or both of the following services in a designated BSA radio area:
(a) one or more digital commercial radio broadcasting services;
(b) one or more digital community radio broadcasting services.
category 2 digital radio multiplex transmitter licence means a transmitter licence for one or more multiplex transmitters that are for use for transmitting any or all of the following services in a designated BSA radio area:
(a) one or more digital commercial radio broadcasting services;
(b) one or more digital community radio broadcasting services;
(c) one or more digital national radio broadcasting services.
category 3 digital radio multiplex transmitter licence means a transmitter licence for one or more multiplex transmitters that are for use for transmitting one or more digital national radio broadcasting services in a designated BSA radio area.
certificate means:
(i) a certificate of proficiency; or
(ii) a compliance certificate; or
(iii) a frequency assignment certificate referred to in subsection 100(4A); or
(iv) any other kind of certificate that may be issued under this Act.
certificate of proficiency means a certificate of proficiency issued under section 121.
change, in relation to information in the Register, means any one or more of the following:
(a) the addition of matter to the information;
(b) the alteration of matter included in the information;
(c) the deletion of matter from the information.
class licence means a class licence issued under Part 3.4.
commercial broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
commercial radio broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
Commonwealth officer means:
(a) a Minister; or
(b) a person who, whether on a full‑time or a part‑time basis, and whether in a permanent capacity or otherwise:
(i) is in the service or employment of the Commonwealth, the Administration of a Territory or an authority of the Commonwealth; or
(ii) holds or performs the duties of any office or position established by or under a law of the Commonwealth or a Territory; or
(c) a member of the Defence Force; or
(d) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); or
(e) a member of the police force of a Territory.
community broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
conciliator has the meaning given by section 202.
conciliator’s report means a report by a conciliator under section 208.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
core condition means a condition included in a spectrum licence under section 66.
datacasting service has the same meaning as in the Broadcasting Services Act 1992.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
Department means:
(a) in relation to the Commonwealth—an Agency within the meaning of the Public Service Act 1999; or
(b) in relation to a State or Territory—a body that, in relation to that State or Territory, is a body of such a kind.
designated BSA radio area means:
(a) the BSA licence area of a commercial radio broadcasting licence; or
(b) the BSA licence area of a community radio broadcasting licence, where that BSA licence area is the same as the BSA licence area of a commercial radio broadcasting licence.
Note: See also section 8AD of the Broadcasting Services Act 1992, which deals with deemed radio broadcasting licence areas.
designated community radio broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
designated datacasting service has the same meaning as in Schedule 6 to the Broadcasting Services Act 1992.
designated forfeiture officer has the meaning given by section 283.
designated radiocommunications receiver has the meaning given by section 7A.
designated teletext service has the same meaning as in Schedule 6 to the Broadcasting Services Act 1992.
device means an item of equipment.
digital commercial radio broadcasting licence means a commercial radio broadcasting licence that authorises the provision of one or more digital commercial radio broadcasting services.
digital commercial radio broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
digital community radio broadcasting licence means a designated community radio broadcasting licence that authorises the provision of one or more digital community radio broadcasting services.
digital community radio broadcasting representative company, in relation to a designated BSA radio area, has the meaning given by section 9C.
digital community radio broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
digital national radio broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
digital radio channel plan means a plan under section 44A.
digital radio multiplex transmitter licence means:
(a) a category 1 digital radio multiplex transmitter licence; or
(b) a category 2 digital radio multiplex transmitter licence; or
(c) a category 3 digital radio multiplex transmitter licence.
digital radio start‑up day has the same meaning as in the Broadcasting Services Act 1992.
direct allocation has the meaning given by section 60A.
disputed conduct means conduct (including any act and any refusal or omission to act) of a kind referred to in paragraph 205(1)(a).
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
environment means the physical environment.
equipment means:
(a) a radiocommunications transmitter; or
(b) a radiocommunications receiver; or
(c) anything designed or intended for radio emission; or
(d) anything, irrespective of its use or function or the purpose of its design, that is capable of radio emission; or
(e) anything that has a use or function that is capable of being interfered with by radio emission.
equipment rules means rules made under section 156.
Federal Court means the Federal Court of Australia.
foreign aircraft means an aircraft that is not an Australian aircraft.
foreign space object means a space object that is not an Australian space object.
foreign vessel means a vessel that is not an Australian vessel.
forfeiture notice means a notice under section 274.
foundation category 1 digital radio multiplex transmitter licence has the meaning given by section 98C.
foundation category 2 digital radio multiplex transmitter licence has the meaning given by section 98D.
foundation digital radio multiplex transmitter licence means:
(a) a foundation category 1 digital radio multiplex transmitter licence; or
(b) a foundation category 2 digital radio multiplex transmitter licence.
frequency band means any contiguous range of radio frequencies.
frequency band plan means a plan prepared under section 32.
HDTV digital mode has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
import means import into Australia.
in Australian control means in the control or possession of one or more of any of the following:
(a) the Commonwealth (including an arm of the Defence Force) or a State or Territory;
(b) an authority of the Commonwealth;
(c) an authority of a State;
(d) an authority of a Territory.
incumbent digital commercial radio broadcasting licensee has the meaning given by subsection 9D(1).
incumbent digital community radio broadcasting licensee has the meaning given by subsection 9D(2).
inspector has the meaning given in section 284.
interference means:
(a) in relation to radiocommunications—interference to, or with, radiocommunications that is attributable, whether wholly or partly and whether directly or indirectly, to an emission of electromagnetic energy by equipment; or
(b) in relation to the uses or functions of equipment—interference to, or with, those uses or functions that is attributable, whether wholly or partly and whether directly or indirectly, to an emission of electromagnetic energy by equipment.
interim ban has the meaning given by section 167.
interim tax means tax imposed by the Commercial Broadcasting (Tax) Act 2017.
international broadcasting licence means an international broadcasting licence under the Broadcasting Services Act 1992.
international broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
label includes:
(a) a statement; and
(b) a QR code, or a similar thing, if the relevant link is to information on a website.
legislative rules means rules made under section 313B.
licence means a spectrum licence, an apparatus licence or a class licence.
licensee means:
(a) in relation to a spectrum licence—the person specified in the licence as the licensee, whether the licence was originally issued to that person or subsequently assigned to him or her; or
(b) in relation to an apparatus licence—the person who holds the licence;
and, in Part 2 of the Schedule, includes the person from whom the spectrum licence in question, or the part of the spectrum licence in question, was resumed.
marketing plan means a plan prepared under section 39 or 39A.
member, in relation to the Australian Federal Police, includes a special member of the Australian Federal Police.
member of a civilian component of a visiting force has the meaning given by subsection 5(3) of the Defence (Visiting Forces) Act 1963.
member of a visiting force has the meaning given by subsection 5(2) of the Defence (Visiting Forces) Act 1963.
member of the crew, in relation to an vessel, aircraft or space object, includes the person in charge of the vessel, aircraft or space object.
Ministerial policy statement has the meaning given by section 28B.
national broadcaster has the same meaning as in the Broadcasting Services Act 1992.
national broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
national emergency declaration has the same meaning as in the National Emergency Declaration Act 2020.
NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service, but does not include a digital radio multiplex transmitter licence.
newspaper means a newspaper that is in the English language and is published on at least 4 days in each week, but does not include a publication if less than 50% of its circulation is by way of sale.
non‑foundation digital radio multiplex transmitter licence means:
(a) a category 1 digital radio multiplex transmitter licence; or
(b) a category 2 digital radio multiplex transmitter licence;
that is not a foundation digital radio multiplex transmitter licence.
offer to supply includes:
(a) make available for supply; and
(b) expose for supply; and
(c) display for supply; and
(d) advertise for supply.
open narrowcasting television service has the same meaning as in the Broadcasting Services Act 1992.
operate:
(a) when used in relation to:
(i) a radiocommunications transmitter; or
(ii) a radiocommunications receiver; or
(iii) a radiocommunications device; or
(iv) a transmitter that is a radiocommunications transmitter; or
(v) equipment that is a radiocommunications transmitter; or
(vi) equipment that is a radiocommunications receiver;
means operate for the purposes of, or in connection with, radiocommunications; or
(b) when used in relation to a transmitter that is not a radiocommunications transmitter—means operate (within the ordinary meaning of that expression); or
(c) when used in relation to equipment that is neither a radiocommunications transmitter nor a radiocommunications receiver—means operate (within the ordinary meaning of that expression).
part, in relation to a spectrum licence, means:
(a) a specified portion of the frequencies at which operation of radiocommunications devices is authorised under the licence; or
(b) a specified portion of the area within which operation of radiocommunications devices is so authorised; or
(c) a specified portion of the frequencies at which operation of radiocommunications devices is so authorised in a specified portion of the area within which operation of radiocommunications devices is so authorised.
period of emergency means a period declared to be a period of emergency under subsection 219(1).
Note: If a national emergency declaration is in force, the period for which the declaration is in force is taken to be a period of emergency for the purposes of this Act (see section 221A).
permanent ban has the meaning given by section 172.
permit means a permit issued by the ACMA under the equipment rules.
pre‑acquisition declaration means a declaration published in the Gazette under clause 1 of Part 1 of the Schedule.
protected symbol has the meaning given by section 166.
provisional international broadcasting certificate means a provisional international broadcasting certificate issued under section 131AF.
public interest statement:
(a) for a spectrum licence—has the meaning given by section 65A; or
(b) for an apparatus licence—has the meaning given by section 103A.
public or community service has the meaning given in section 10.
qualified company means a company that:
(a) is formed in Australia; and
(b) has a share capital.
qualified operator means a person who holds a certificate of proficiency.
radiocommunication has the meaning given in section 6.
radiocommunications device has the meaning given in subsection 7(1).
radiocommunications receiver has the meaning given in subsection 7(3).
radiocommunications transmitter has the meaning given in subsection 7(2).
radio emission has the meaning given in subsection 8(1).
re‑allocation deadline, in relation to a spectrum re‑allocation declaration, has the meaning given by section 153B.
re‑allocation period, in relation to a spectrum re‑allocation declaration, has the meaning given by section 153B.
recall notice means a notice issued under subsection 183(1), (2), (3) or (4).
receiver licence means an apparatus licence of the kind referred to in subsection 97(3).
reception, in relation to radio emission, includes interception.
Register means the Register of Radiocommunications Licences established under section 143.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
renewal application period:
(a) for a spectrum licence—has the meaning given by section 65A; or
(b) for an apparatus licence—has the meaning given by section 103A.
renewal application period statement:
(a) for a spectrum licence—has the meaning given by section 65A; or
(b) for an apparatus licence—has the meaning given by section 103A.
renewal decision‑making period, for a spectrum licence, has the meaning given by section 65A.
renewal decision‑making period statement, for a spectrum licence, has the meaning given by section 65A.
renewal statement:
(a) for a spectrum licence—has the meaning given by section 65A; or
(b) for an apparatus licence—has the meaning given by section 103A.
restrictive order means an order made under subsection 222(1).
resumption notice means a notice published in the Gazette under clause 3 of Part 1 of the Schedule.
SDTV digital mode has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
space object means an object (whether artificial or natural) that is beyond, has been beyond or is intended to go beyond the major portion of the Earth’s atmosphere, or any part of such an object, even if the part is intended to go only some of the way towards leaving the major portion of the Earth’s atmosphere.
Note: Under section 10A, the ACMA may determine that a particular object is not a space object for the purposes of this Act.
spectrum means the range of frequencies within which radiocommunications are capable of being made.
spectrum access charge means a spectrum access charge fixed under section 294.
spectrum licence means a spectrum licence issued under Part 3.2.
spectrum licence tax means a tax imposed under the Radiocommunications (Spectrum Licence Tax) Act 1997.
spectrum management functions, in relation to the ACMA, has the same meaning as in the Australian Communications and Media Authority Act 2005.
spectrum management powers, in relation to the ACMA, means the powers conferred on the ACMA by or under:
(a) this Act; or
(b) the Radiocommunications (Receiver Licence Tax) Act 1983; or
(c) the Radiocommunications (Spectrum Licence Tax) Act 1997; or
(d) the Radiocommunications Taxes Collection Act 1983; or
(e) the Radiocommunications (Transmitter Licence Tax) Act 1983; or
(f) Part 14AA of the Broadcasting Services Act 1992; or
(g) section 12 of the Australian Communications and Media Authority Act 2005, to the extent that the powers relate to the performance of the ACMA’s spectrum management functions.
spectrum plan means:
(a) in relation to a time before the first plan prepared under section 30 comes into effect—the last plan prepared under section 18 of the Radiocommunications Act 1983; and
(b) in relation to a time after the first plan prepared under section 30 comes into effect—a plan prepared under section 30.
spectrum re‑allocation declaration means a declaration under section 153B.
State officer means a person who, whether on a full‑time basis or a part‑time basis, and whether in a permanent capacity or otherwise:
(a) is in the service or employment of a State or an authority of a State; or
(b) holds or performs the duties of any office or position established by or under a law of a State;
and includes a member of the police force of a State.
subscription television broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
supply includes supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase.
television program includes so much of a television program as consists only of sounds or images.
temporary community broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
this Act includes the regulations.
transmitter has the meaning given in subsection 8(2).
transmitter access warrant means a warrant issued under section 284KB.
transmitter licence means an apparatus licence of the kind referred to in subsection 97(2).
vessel means a vessel or boat of any description, and includes:
(a) an air‑cushion vehicle; and
(b) any floating structure.
6 Definition of radiocommunication
(1) For the purposes of this Act, radiocommunication is:
(a) radio emission; or
(b) reception of radio emission;
for the purpose of communicating information between persons and persons, persons and things or things and things.
(2) The reference in subsection (1) to communicating information includes communicating information between a part of a thing and:
(a) another part of the same thing; or
(b) the same part of that thing;
(as, for example, in the operation of radar equipment).
Note: Division 3 of Part 1.4 has the effect of extending the concept of radiocommunication in certain circumstances.
7 Definitions of radiocommunications device, radiocommunications transmitter and radiocommunications receiver
(1) For the purposes of this Act, a radiocommunications device is:
(a) a radiocommunications transmitter other than a radiocommunications transmitter of a kind specified in a written determination made by the ACMA for the purposes of this paragraph; or
(b) a radiocommunications receiver of a kind specified in a written determination made by the ACMA for the purposes of this paragraph.
(2) For the purposes of this Act, a radiocommunications transmitter is:
(a) a transmitter designed or intended for use for the purpose of radiocommunication; or
(b) anything (other than a line within the meaning of the Telecommunications Act 1997) designed or intended to be ancillary to, or associated with, such a transmitter for the purposes of that use; or
(c) anything (whether artificial or natural) that is designed or intended for use for the purpose of radiocommunication by means of the reflection of radio emissions and that the ACMA determines in writing to be a radiocommunications transmitter for the purposes of this Act.
(3) For the purposes of this Act, a radiocommunications receiver is:
(a) anything designed or intended for use for the purposes of radiocommunication by means of the reception of radio emission; or
(b) anything (other than a line within the meaning of the Telecommunications Act 1997) designed or intended to be ancillary to, or associated with, such a thing for the purposes of that use; or
(c) anything (whether artificial or natural) that is designed or intended for use for the purpose of radiocommunication by means of the reflection of radio emissions and that the ACMA determines in writing to be a radiocommunications receiver for the purposes of this Act.
(4) This Act does not preclude the same thing from being both a radiocommunications receiver and a radiocommunications transmitter, or any other kind of transmitter, for the purposes of this Act.
(5) A determination by the ACMA under this section is a legislative instrument.
7A Designated radiocommunications receiver
For the purposes of this Act, if the operation of a radiocommunications receiver is not authorised by a class licence, the radiocommunications receiver is a designated radiocommunications receiver.
8 Definitions of radio emission and transmitter
(1) For the purposes of this Act, a radio emission is any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide, whether or not any person intended the emission to occur.
(2) For the purposes of this Act, a transmitter is:
(a) anything designed or intended for radio emission; or
(b) any other thing, irrespective of its use or function or the purpose of its design, that is capable of radio emission.
9 Application of labels
For the purposes of this Act, a label is taken to be applied to a thing if:
(a) the label is affixed to the thing; or
(b) the label is woven in, impressed on, worked into or annexed to the thing; or
(c) the label is affixed to a container, covering, package, case, box or other thing in or with which the first‑mentioned thing is, or is to be, supplied; or
(d) the label is woven in, impressed on, worked into or annexed to a container, covering, package, case, box or other thing in or with which the first‑mentioned thing is, or is to be, supplied; or
(e) the label is affixed to, or incorporated in, an instruction or other document that accompanies the first‑mentioned thing.
9B Digital mode
For the purposes of this Act, a service is transmitted in digital mode if the service is transmitted using a digital modulation technique.
9C Digital community radio broadcasting representative company
(1) For the purposes of this Act, a company is the digital community radio broadcasting representative company for a particular designated BSA radio area if:
(a) the company is a qualified company; and
(b) the incumbent digital community radio broadcasting licensees for the designated BSA radio area have given the ACMA a joint written notice electing that this paragraph apply to the company; and
(c) before the company was formed, the promoters of the company invited each incumbent digital community radio broadcasting licensee for the area to subscribe for shares in the company on the basis that:
(i) the incumbent digital community radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and
(ii) no other persons would be entitled to subscribe for shares in the company; and
(d) the invitations referred to in paragraph (c) were published on the ACMA’s website; and
(da) the invitations referred to in paragraph (c) were open for whichever of the following periods is applicable:
(i) a period of at least 60 days;
(ii) if all the invitees responded to the invitations within the period mentioned in subparagraph (i)—the period that began at the start of the period mentioned in subparagraph (i) and ended on the last occasion on which the promoters received such a response; and
(e) there was no discrimination between subscribers for shares in the company in relation to the consideration payable for the issue of the shares concerned; and
(f) the total amount of money payable as consideration for the issue of the shares in the company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph (c) are published, would be required for the viable operation of the company; and
(g) none of the recipients of an invitation referred to in paragraph (c) were subject to duress as to whether the invitation should be accepted; and
(h) the company has a constitution; and
(i) the company’s constitution provides that a person is not eligible to hold a share in the company unless the person is a digital community radio broadcasting licensee whose BSA licence area is the same as the designated BSA radio area; and
(j) the company’s constitution provides that, if:
(i) a digital community radio broadcasting licence is allocated to a person under the Broadcasting Services Act 1992 after the commencement of this section; and
(ii) the BSA licence area of the digital community radio broadcasting licence is the same as the designated BSA radio area;
the company must:
(iii) within 30 days after the allocation of the digital community radio broadcasting licence, offer to issue shares in the company to the holder of the digital community radio broadcasting licence, where the number of shares offered equals the number of shares already held by a particular digital community radio broadcasting licensee; and
(iv) keep the offer open for at least 90 days; and
(v) ensure that, if the offer is accepted, the amount of money payable as consideration for the issue of the shares is not substantially in excess of the amount that was payable by an incumbent digital community radio broadcasting licensee who subscribed for shares in the company in response to an invitation referred to in paragraph (c); and
(k) the company’s constitution provides that the purposes of the company are:
(i) holding shares in one or more companies that hold, have applied for, or propose to apply for, category 1 digital radio multiplex transmitter licences, or category 2 digital radio multiplex transmitter licences, for the designated BSA radio area; and
(ii) exercising the powers conferred by this Act on a digital community radio broadcasting representative company; and
(iii) carrying out activities incidental to the purposes mentioned in subparagraphs (i) and (ii); and
(l) the company complies with such other conditions (if any) as are specified in the regulations.
Note: See also section 8AD of the Broadcasting Services Act 1992, which deals with deemed radio broadcasting licence areas.
(2) For the purposes of the application of paragraph (1)(i) and subparagraph (1)(j)(iii) before the digital radio start‑up day for the designated BSA radio area, digital community radio broadcasting licensee includes an incumbent digital community radio broadcasting licensee.
(3) An election under paragraph (1)(b) given in relation to a particular designated BSA radio area has no effect if an election under that paragraph has been previously given in relation to that area.
(4) An election under paragraph (1)(b) is irrevocable.
(5) The promoters of a company may request the ACMA to publish on its website the invitations referred to in paragraph (1)(c).
(6) The ACMA must comply with a request under subsection (5) if the ACMA is satisfied that the request was made in good faith.
9D Incumbent digital radio broadcasting licensees
Incumbent digital commercial radio broadcasting licensee
(1) For the purposes of this Act, if:
(a) the licensee of a commercial radio broadcasting licence held the licence at the commencement of this section; and
(b) the licence was not allocated under subsection 40(1) of the Broadcasting Services Act 1992;
the licensee is an incumbent digital commercial radio broadcasting licensee.
Incumbent digital community radio broadcasting licensee
(2) For the purposes of this Act, if the licensee of a designated community radio broadcasting licence held the licence at the commencement of this section, the licensee is an incumbent digital community radio broadcasting licensee.
10 Public or community services
(1) For the purposes of this Act, a public or community service is a service provided by a body or organisation of a kind specified by the Minister, by written instrument, to be bodies or organisations for the purposes of this section.
(2) Each such body or organisation must either be:
(a) an authority of the Commonwealth, a State or a Territory; or
(b) a body or organisation that:
(i) is not carried on for the purpose of profit or gain to its members; and
(ii) applies its profits (if any) or other income in achieving its objects; and
(iii) does not provide for making any distribution, whether in money, property or otherwise, to its members.
(3) The instrument is a legislative instrument.
10A ACMA determinations about space objects
Despite the definition of space object in section 5, the ACMA may, by legislative instrument, make a determination that a particular object is not a space object for the purposes of this Act.
Note: Under subsection 33(3A) of the Acts Interpretation Act 1901, objects may be specified by reference to a particular class or classes of objects.
10B Authorised defence supplier
(1) For the purposes of this Act, authorised defence supplier means a person who:
(a) is a party to a written agreement for the supply of goods or services to the Defence Force or the Defence Department; and
(b) is approved in writing by a member of the Defence Force or an officer of the Defence Department.
(2) An approval under paragraph (1)(b) is not a legislative instrument.
11 References to offences against this Act etc.
(1) A reference in this Act to an offence against this Act or to an offence against a provision of this Act includes a reference to an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or that provision, as the case requires.
(2) A reference in this Act to a conviction of an offence includes a reference to:
(a) making an order under section 19B of the Crimes Act 1914 in relation to the offence; or
(b) payment of the amount stated in an infringement notice given under Part 5 of the Regulatory Powers Act, so far as it applies to the provision mentioned in subsection 270(1) of this Act that creates the offence.
Part 1.4—Application of this Act
12 Outline of this Part
(1) This Part is about the scope of this Act’s operation, and the situations in which that operation is extended or restricted.
(2) Division 1 applies this Act to the Crown.
(3) Division 2 describes how questions of location affect the application of this Act.
(4) Division 3 brings certain activities within the concept of radiocommunication for the purposes of this Act.
(5) Division 4 is about the situations and activities that are exempt from the operation of this Act.
Division 1—General
13 Crown to be bound
(1) Subject to subsection (2), this Act binds the Crown in all its capacities.
(2) Nothing in this Act renders the Crown liable to be prosecuted for an offence.
Division 2—Provisions relating to location and similar matters
14 Operation of this Division
This Division has effect subject to Division 4.
15 Application to external Territories
This Act extends to all the external Territories.
16 Application outside Australia
(1) Except so far as the contrary intention appears, this Act applies outside Australia (whether or not in a foreign country), but only in relation to:
(a) Australian citizens ordinarily resident in Australia, in respect of radio emissions intended to be received in Australia, other than:
(i) radio emissions made by a genuine member of the crew of a foreign vessel, foreign aircraft or foreign space object in the course of his or her duties as such a member; or
(ii) radio emissions made from a foreign country by a person in the performance of a duty imposed by the law of that country; and
(b) members of the crew of Australian aircraft, Australian vessels and Australian space objects; and
(c) Australian aircraft, Australian space objects and Australian vessels; and
(ca) foreign space objects, in the circumstances specified in a determination by the ACMA; and
(d) anything to which this Act extends because of section 17 or 17A.
(2) For the purposes of paragraph (1)(a), a radio emission that is intended to be retransmitted to Australia is taken to be intended to be received in Australia.
(3) Section 195 applies without limitation outside Australia (whether or not in a foreign country).
(4) A determination under paragraph (1)(ca) is a legislative instrument.
17 Offshore areas
(1) Subject to subsection (2), this Act applies in relation to the offshore areas in respect of the States and Territories as if references in this Act to Australia, when used in a geographical sense, included references to the offshore areas in respect of the States and Territories.
(2) The extended application given to this Act by subsection (1) extends only in relation to:
(a) acts, matters and things directly or indirectly connected with exploration of, or exploitation of the resources of, the continental shelf of Australia or of an external Territory; and
(b) acts done by or in relation to, and matters, circumstances and things affecting, or any person who is in offshore area for a reason directly or indirectly connected with such exploration or exploitation.
(3) In this section:
offshore area, in relation to a State or Territory, has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
17A Greater Sunrise special regime area, Greater Sunrise pipeline international offshore area and Bayu‑Undan pipeline international offshore area
(1) Subject to subsection (2), this Act applies in relation to the Greater Sunrise special regime area, the Greater Sunrise pipeline international offshore area and the Bayu‑Undan pipeline international offshore area as if references in this Act to Australia, when used in a geographical sense, included references to the Greater Sunrise special regime area, the Greater Sunrise pipeline international offshore area and the Bayu‑Undan pipeline international offshore area.
(2) The extended application given to this Act by subsection (1) extends only in relation to:
(a) acts, matters and things directly or indirectly connected with:
(i) Petroleum Activities (within the meaning of the Timor Sea Maritime Boundaries Treaty) relating to the Greater Sunrise Fields (within the meaning of that treaty); or
(ii) construction, operation, maintenance or decommissioning of a pipeline in the Greater Sunrise pipeline international offshore area; or
(iii) operation, maintenance or decommissioning of the Bayu‑Undan Pipeline (within the meaning of that treaty); and
(b) acts done by or in relation to, and matters, circumstances and things affecting, any person who is:
(i) in the Greater Sunrise special regime area for a reason directly or indirectly connected with such Petroleum Activities; or
(ii) in the Greater Sunrise pipeline international offshore area for a reason directly or indirectly connected with the construction, operation, maintenance or decommissioning of a pipeline in the area; or
(iii) in the Bayu‑Undan pipeline international offshore area for a reason directly or indirectly connected with the operation, maintenance or decommissioning of the Bayu‑Undan Pipeline.
(3) In this section:
Bayu‑Undan pipeline international offshore area has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
Greater Sunrise pipeline international offshore area has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
Greater Sunrise special regime area has the same meaning as in the Seas and Submerged Lands Act 1973.
Timor Sea Maritime Boundaries Treaty means the Treaty between Australia and the Democratic Republic of Timor‑Leste Establishing their Maritime Boundaries in the Timor Sea done at New York on 6 March 2018, as in force from time to time.
Note: The Timor Sea Maritime Boundaries Treaty could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
18 Application to the atmosphere etc.
Except so far as the contrary intention appears, references in this Act to Australia, a foreign country, a place or any waters include references to the space (including the atmosphere and outer space) above.
Division 3—Provisions extending the concept of radiocommunication
19 Operation of this Division
(1) This Division:
(a) only applies in relation to anything to which this Act extends under Division 2; and
(b) has effect subject to Division 4.
(2) Subsections 20(1) and (2) and sections 21 and 22 each have effect without prejudice to the effect that this Act has apart from that subsection or section.
20 Radio transmissions for the purpose of measurement
(1) This Act applies in relation to:
(a) a measurement transmission made in the course of, or in relation to:
(i) trade and commerce between Australia and places outside Australia; or
(ii) trade and commerce among the States; or
(iii) trade and commerce within a Territory, between a State and a Territory or between 2 Territories; or
(iv) any trading activity of a trading corporation, or any other activity of the corporation carried on for the purpose of its trading activities; or
(v) any other activity carried on by a trading corporation; or
(vi) any financial activity of a financial corporation, or any other activity of the corporation carried on for the purpose of its financial activities; or
(vii) any other activity carried on by a financial corporation; or
(viii) the operation of lighthouses, lightships, beacons or buoys; or
(ix) the making of astronomical or meteorological observations; or
(b) a measurement transmission made by or on behalf of the Commonwealth, an authority or instrumentality of the Commonwealth, a foreign corporation or a body corporate incorporated in a Territory; or
(c) a measurement transmission made in a Territory or a place outside Australia; or
(d) any other measurement transmission;
in the same way as it applies in relation to radiocommunication.
Note: Section 6 sets out the general meaning of radiocommunication.
(2) This Act applies in relation to:
(a) a measurement transmitter used in the course of, or in relation to:
(i) trade and commerce between Australia and places outside Australia; or
(ii) trade and commerce among the States; or
(iii) trade and commerce within a Territory, between a State and a Territory or between 2 Territories; or
(iv) any trading activity of a trading corporation, or any other activity of the corporation carried on for the purpose of its trading activities; or
(v) any other activity carried on by a trading corporation; or
(vi) any financial activity of a financial corporation, or any other activity of the corporation carried on for the purpose of its financial activities; or
(vii) any other activity carried on by a financial corporation; or
(viii) the operation of lighthouses, lightships, beacons or buoys; or
(ix) the making of astronomical or meteorological observations; or
(b) a measurement transmitter used by or on behalf of the Commonwealth, an authority or instrumentality of the Commonwealth, a foreign corporation or a body corporate incorporated in a Territory; or
(c) a measurement transmitter in a Territory or a place outside Australia; or
(d) any other measurement transmitter;
in the same way as it applies in relation to a radiocommunications transmitter.
Note: Subsection 7(2) sets out the general meaning of radiocommunications transmitter.
(3) This section does not apply with respect to:
(a) State banking that does not extend beyond the limits of the State concerned; or
(b) State insurance that does not so extend.
(4) In this section:
financial corporation means a financial corporation to which paragraph 51(xx) of the Constitution applies, and includes a body corporate formed within the limits of Australia that carries on as its sole or principal business the business of:
(a) banking within the meaning of paragraph 51(xiii) of the Constitution; or
(b) insurance within the meaning of paragraph 51(xiv) of the Constitution.
foreign corporation means a foreign corporation to which paragraph 51(xx) of the Constitution applies.
measurement transmission means radio emission for purposes connected with making a measurement by means of the propagation or other qualities of radio emission.
measurement transmitter means a transmitter designed or intended for measurement transmission.
trading corporation means a trading corporation to which paragraph 51(xx) of the Constitution applies.
21 Astronomical and meteorological observations
This Act applies to a radio emission in connection with making astronomical or meteorological observations in the same way as it applies to a radiocommunication.
22 Lighthouses etc.
This Act applies to a radio emission in connection with the operation of lighthouses, lightships, beacons and buoys in the same way as it applies to a radiocommunication.
Division 4—Matters to which this Act does not apply
23 Foreign space objects, vessels and aircraft
(1) This Act does not apply to foreign space objects, except in accordance with a determination by the ACMA under paragraph 16(1)(ca).
(2) This Act does not apply to transmitters or radiocommunications receivers on board a foreign vessel that is travelling, or is in transit, (whether in or outside Australia) on a voyage:
(a) from a point outside Australia to a port in Australia; or
(b) from a port in Australia to a point outside Australia; or
(c) from a point outside Australia to another point outside Australia.
(3) This Act does not apply to transmitters or radiocommunications receivers on board a foreign aircraft that is travelling, or is in transit, (whether in or outside Australia) on a voyage:
(a) from a point outside Australia to an airport in Australia; or
(b) from an airport in Australia to a point outside Australia; or
(c) from a point outside Australia to another point outside Australia.
(4) Subsections (2) and (3) apply subject to the provisions of any agreement, treaty or convention between Australia and any other countries that makes provision in relation to radio emission.
(5) However, nothing in this section limits section 195 or Part 5.5.
24 Defence research and intelligence
(1) This Act does not apply to anything done or omitted to be done by a member of the Defence Force, or by an officer of the Defence Department, in the performance of the member’s or officer’s functions or duties as such a member or officer, to the extent that those functions or duties are for a purpose that relates to:
(a) research for purposes connected with defence; or
(b) intelligence.
(1A) This Act does not apply to anything done or omitted to be done by a member of a visiting force, or by a member of a civilian component of a visiting force, in the performance of the member’s functions or duties in relation to the defence, security or international relations of:
(a) Australia; or
(b) a foreign country whose military is acting in co‑operation with the Defence Force;
to the extent that those functions or duties:
(c) relate to an activity that is approved in writing by a member of the Defence Force or an officer of the Defence Department; and
(d) are for a purpose that relates to:
(i) research for purposes connected with defence; or
(ii) intelligence.
(1B) This Act does not apply to anything done or omitted to be done by an approved defence supplier in the performance of the supplier’s functions or duties in relation to the supply of goods or services to the Defence Force or the Defence Department, to the extent that those functions or duties are for a purpose that relates to:
(a) research for purposes connected with defence; or
(b) intelligence.
(2) This Act does not apply in relation to anything done or omitted to be done by or on behalf of:
(a) the Australian Secret Intelligence Service; or
(b) the Australian Security Intelligence Organisation; or
(c) the Australian Signals Directorate.
(3) An approval under paragraph (1A)(c) is not a legislative instrument.
25 Special defence undertakings
This Act does not apply to anything done or omitted to be done by a person performing a function or duty in relation to the operation of a facility that is:
(a) jointly operated by the Commonwealth and a foreign country; and
(b) a special defence undertaking for the purposes of the Defence (Special Undertakings) Act 1952.
26 Additional exemption for defence matters
(1) Subject to subsection (2), Parts 3.1, 4.1 and 4.2 do not apply to anything done or omitted to be done by a member of the Defence Force, or by an officer of the Defence Department, if:
(a) the act or omission takes place in the performance of one of his or her functions or duties as such a member or officer; and
(b) the function or duty concerned is, under the regulations, taken for the purposes of this subsection to be a function or duty that relates to:
(i) military command and control; or
(ii) intelligence; or
(iii) weapons systems; or
(iv) safety; or
(v) security.
(1A) Subject to subsection (3), Parts 3.1, 4.1 and 4.2 do not apply to anything done or omitted to be done by a member of a visiting force, or a member of a civilian component of a visiting force, if:
(a) the act or omission takes place in the performance of one of the member’s functions or duties in relation to the defence, security or international relations of:
(i) Australia; or
(ii) a foreign country whose military is acting in co‑operation with the Defence Force; and
(b) the act or omission relates to an activity that is approved in writing by a member of the Defence Force or an officer of the Defence Department; and
(c) the function or duty concerned is, under the regulations, taken for the purposes of this subsection to be a function or duty that relates to:
(i) military command and control; or
(ii) intelligence; or
(iii) weapons systems; or
(iv) safety; or
(v) security.
(1B) Subject to subsection (4), Parts 3.1, 4.1 and 4.2 do not apply to anything done or omitted to be done by an authorised defence supplier if:
(a) the act or omission takes place in the in the performance of one of the supplier’s functions or duties in relation to the supply of goods or services to the Defence Force or the Defence Department; and
(b) the function or duty concerned is, under the regulations, taken for the purposes of this subsection to be a function or duty that relates to:
(i) military command and control; or
(ii) intelligence; or
(iii) weapons systems; or
(iv) safety; or
(v) security.
(2) The regulations may provide for the application, in specified circumstances, of all or any of Parts 3.1, 4.1 or 4.2, or any of the provisions of those Parts, to a member of the Defence Force, or to an officer of the Defence Department, in the performance of one of his or her functions or duties as mentioned in subsection (1).
(3) The regulations may provide for the application, in specified circumstances, of all or any of Parts 3.1, 4.1 or 4.2, or any of the provisions of those Parts, to a member of a visiting force, or a member of a civilian component of a visiting force, in the performance of one of the member’s functions or duties as mentioned in subsection (1A).
(4) The regulations may provide for the application, in specified circumstances, of all or any of Parts 3.1, 4.1 or 4.2, or any of the provisions of those Parts, to an authorised defence supplier in the performance of one of the supplier’s functions or duties as mentioned in subsection (1B).
(5) An approval under paragraph (1A)(b) is not a legislative instrument.
27 Exemption for defence, law enforcement and emergency personnel
(1) This section applies to a person performing a function or duty in relation to:
(a) the defence, security or international relations of:
(i) Australia; or
(ii) a foreign country whose naval, military or air force is acting in co‑operation with the Defence Force of Australia; or
(b) the Australian Federal Police or the police force of a State or Territory; or
(baa) the performance of the functions of the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006); or
(ba) one of the following bodies or offices:
(i) the Independent Commission Against Corruption of New South Wales;
(ii) the Corruption and Crime Commission of Western Australia;
(iii) the Independent Commissioner Against Corruption of South Australia; or
(bb) one of the following bodies:
(i) the New South Wales Crime Commission;
(ii) the Crime and Corruption Commission of Queensland; or
(bc) the Australian Crime Commission; or
(bd) the Law Enforcement Conduct Commission of New South Wales; or
(be) a body that:
(i) performs functions related to the investigation, prevention or prosecution of serious crime, or of corruption (whether or not the body also performs other functions); and
(ii) is covered by a written determination made by the ACMA for the purposes of this paragraph; or
(c) a fire‑fighting, civil defence or rescue organisation; or
(d) an ambulance service; or
(e) the Royal Flying Doctor Service; or
(f) any other organisation whose sole or principal purpose involves securing the safety of persons during an emergency.
(2) The ACMA may determine in writing that acts or omissions by members of a class of persons to whom this section applies are exempt from either or both of the following:
(a) all or any of Parts 3.1, 4.1 and 4.2;
(b) specified provisions of those Parts.
The exemption may be expressed to apply generally or in specified circumstances.
(2A) A determination under subsection (2) may confer a power to make a decision of an administrative character on a person or the ACMA.
(3) A determination under paragraph (1)(be) or subsection (2) is a legislative instrument.
(4) For the purposes of subparagraph (1)(be)(i), serious crime is conduct that, if engaged in within, or in connection with, Australia, would constitute an offence against the law of the Commonwealth, a State or a Territory punishable by imprisonment for a period exceeding 12 months.
28 Use of devices by the ACMA
Parts 3.1, 4.1 and 4.2 do not apply to anything done by the ACMA in connection with the use of a device in performing its functions or exercising its powers under this Act.
Part 1.5—Ministerial policy statements
28A Simplified outline of this Part
• In performing its spectrum management functions, and exercising its spectrum management powers, the ACMA must have regard to any relevant Ministerial policy statements.
28B Ministerial policy statements
(1) The Minister may, by notifiable instrument, specify a policy of the Commonwealth Government that is to apply in relation to:
(a) the performance of any of the ACMA’s spectrum management functions; or
(b) the exercise of any of the ACMA’s spectrum management powers.
(2) An instrument under subsection (1) is to be known as a Ministerial policy statement.
28C The ACMA must have regard to Ministerial policy statements
(1) In performing its spectrum management functions, and exercising its spectrum management powers, the ACMA must have regard to any relevant Ministerial policy statements.
(2) A contravention of subsection (1) does not affect the validity of:
(a) an instrument made by the ACMA; or
(b) anything else done by the ACMA;
in the performance of its functions or the exercise of its powers.
Part 1.6—The ACMA’s work program
28D Simplified outline of this Part
• At least once each financial year, the ACMA must determine a work program in relation to its spectrum management functions and its spectrum management powers.
• Before determining a work program, the ACMA must:
(a) consult the Minister; and
(b) undertake any other consultation that is appropriate and reasonably practicable.
28E The ACMA’s work program
(1) At least once each financial year, the ACMA must determine a work program in relation to its spectrum management functions and its spectrum management powers.
(2) A work program must be for a period of not less than 5 financial years.
(3) If the ACMA has a work program (the original work program), the ACMA may determine a work program (the new work program) that is expressed to replace the original work program. If the ACMA does so, the original work program is taken to be revoked when the new work program comes into force.
(4) The ACMA must publish a work program on the ACMA’s website.
(5) A work program is not a legislative instrument.
28F Consultation
(1) Before determining a work program, the ACMA must:
(a) consult the Minister; and
(b) undertake any other consultation that is:
(i) considered by the ACMA to be appropriate to undertake; and
(ii) reasonably practicable to undertake.
(2) A contravention of subsection (1) does not affect the validity of the work program.
Chapter 2—Radio frequency planning
29 Outline of this Chapter
(1) This Chapter provides for the preparation of plans that will govern the allocation of the spectrum under the licensing systems provided for in Chapter 3.
(2) Part 2.1 is about preparing:
(a) a spectrum plan that covers so much of the spectrum as is relevant to regulation of radiocommunications under this Act; and
(b) frequency band plans that cover particular parts of the spectrum in more detail.
(3) Part 2.2 is about the additional plans necessary to enable selected parts of the spectrum to be allocated under the spectrum licensing system, namely:
(b) marketing plans that govern allocation under spectrum licences of so much of the parts of the spectrum in question as have not been allocated under apparatus licences; and
(c) marketing plans that govern allocation under spectrum licences of parts of the spectrum that are subject to re‑allocation.
(4) Part 2.3 is about preparing digital radio channel plans relating to digital radio multiplex transmitter licences.
Part 2.1—Spectrum plans and frequency band plans
30 Spectrum plans
(1) The ACMA may, by legislative instrument, prepare a spectrum plan.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) A spectrum plan must:
(a) divide into such number of frequency bands as the ACMA thinks appropriate so much of the spectrum as the ACMA thinks necessary for the purpose of regulating radiocommunications under this Act; and
(b) designate one or more bands to be used primarily for the general purposes of defence; and
(c) specify the general purpose or purposes for which each other band may be used.
(2A) A spectrum plan may confer a power to make a decision of an administrative character on the ACMA.
(3) In this section:
used includes:
(a) reserved for future use; and
(b) reserved for the prevention or control of interference to radiocommunications.
31 Planning of broadcasting services bands
(1) The Minister may, after consulting the ACMA, and in accordance with the spectrum plan, by written instrument:
(a) designate a part of the spectrum as being primarily for broadcasting purposes; and
(b) refer it to the ACMA for planning under Part 3 of the Broadcasting Services Act 1992.
(1AA) The Minister may, by written instrument, vary a subsection (1) designation so as to enlarge or reduce the part of the spectrum covered by the designation.
(1A) The Minister may, after consulting the ACMA, and in accordance with the spectrum plan, by written instrument:
(a) designate a part of the spectrum as being partly for the purpose of digital radio broadcasting services; and
(b) refer that part of the spectrum to the ACMA for planning under Part 3 of the Broadcasting Services Act 1992.
(1B) Subsection (1A) does not limit subsection (1).
(1BA) The Minister may, by written instrument, vary a subsection (1A) designation so as to enlarge or reduce the part of the spectrum covered by the designation.
(1C) The Minister may, by written instrument, determine that a designation under subsection (1A) ceases to be in force at a specified time.
(1D) The Minister may, by written instrument, determine that a designation under subsection (1A) has effect only in relation to one or more specified areas of Australia.
(2) If a subsection (1) or (1A) designation is in force in relation to a particular part of the spectrum, the ACMA may make a written determination that licences, or specified kinds of licences, can be issued in specified circumstances in relation to that part of the spectrum, or in relation to a specified part or parts of that part of the spectrum.
(3) In making or varying a subsection (2) determination, the ACMA must:
(a) promote the objects, and have regard to the matters, described in section 23 of the Broadcasting Services Act 1992; and
(b) promote the object of this Act, to the extent this is not inconsistent with paragraph (a).
This subsection has effect subject to subsection (4).
(4) A subsection (2) determination (including as varied) must not be inconsistent with the spectrum plan.
(5) Subject to subsections (3) and (4), the ACMA may, by written instrument, vary a subsection (2) determination.
(6) The ACMA may, by written instrument, revoke a subsection (2) determination.
(7) An instrument under subsection (1), (1AA), (1A), (1BA), (1C), (1D), (5) or (6) is not a legislative instrument.
(8) A determination under subsection (2) is not a legislative instrument.
32 Frequency band plans
(1) The ACMA may, by legislative instrument, prepare frequency band plans, each relating to one or more frequency bands.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(3) A frequency band plan must not be inconsistent with the spectrum plan.
(4) A frequency band plan:
(a) must make provision in relation to the purpose or purposes for which the band or bands may be used; and
(b) without limiting paragraph (a), may provide for:
(i) the one or more purposes for which any part of a band (including any particular frequency or frequency channel) may be used; and
(ii) parts of the spectrum to be reserved for provision of public or community services.
(5) A frequency band plan:
(a) may be of general application or may be limited as provided in the plan; and
(b) without limiting paragraph (a), may apply:
(i) with respect to a specified area; and
(ii) with respect to a specified period.
(5A) A frequency band plan may confer a power to make a decision of an administrative character on the ACMA.
(6) In this section:
used includes:
(a) reserved for future use; and
(b) reserved for the prevention or control of interference to radiocommunications.
33 Publication etc. of plans
(1) Before preparing a spectrum plan or a frequency band plan, the ACMA must, by notice published on the ACMA’s website:
(a) state that a draft of the plan is available for public comment; and
(b) set out the draft plan; and
(c) invite interested parties to make representations about the draft plan on or before the day specified in the notice.
(2) The day specified under paragraph (1)(c) must be at least one month later than the day on which the notice is published.
(3) A person may, not later than the day specified under paragraph (1)(c), make representations to the ACMA about the draft plan.
(4) The ACMA:
(a) must give due consideration to any representations so made; and
(b) may, having considered the representations, alter the draft plan.
(5) The requirements of this section do not apply to the draft plan as altered under paragraph (4)(b).
(6) This section does not apply to the preparation of a plan if the ACMA is satisfied that the preparation of the plan is a matter of urgency.
Part 2.2—Marketing plans
37 Preparation or variation of frequency band plans
The ACMA may, before preparing a marketing plan under this Part, prepare a frequency band plan under section 32, or vary a frequency band plan in accordance with subsection 33(3) of the Acts Interpretation Act 1901, in order to assist it in preparing the marketing plan.
39 Marketing plans—unencumbered spectrum
(1) The ACMA may, by legislative instrument, prepare a marketing plan for issuing spectrum licences that authorise the operation of radiocommunications devices:
(a) at the frequencies specified in the plan; and
(b) within the area or areas specified in the plan.
(2) If an apparatus licence authorises the operation of radiocommunications devices:
(a) at one or more frequencies; and
(b) within one or more areas;
the ACMA must not make a marketing plan that applies to the issue of spectrum licences that authorise the operation of radiocommunications devices:
(c) at those frequencies; and
(d) within those areas;
unless the marketing plan provides that one or more spectrum licences are to be allocated by direct allocation to the holder of the apparatus licence.
(3) The marketing plan need not require spectrum licences issued in accordance with it to apply to the whole of the area or areas to which the plan applies.
(4) Without limiting the matters that the marketing plan may contain, it may indicate:
(a) the procedures to be followed for issuing spectrum licences in accordance with the plan; and
(b) the timetable for issuing spectrum licences in accordance with the plan; and
(c) how the spectrum dealt with under the plan is to be apportioned amongst the spectrum licences to be issued; and
(d) how much of the spectrum dealt with under the plan is to be reserved for public or community services; and
(e) the conditions, or types of conditions, that may be included in spectrum licences to be issued.
(5) In indicating the procedures to be followed for issuing spectrum licences, the plan may, for example, indicate whether the licences are to be allocated:
(a) by auction; or
(b) by tender; or
(c) by allocation for a pre‑determined price or a negotiated price; or
(d) by direct allocation; or
(e) by a combination of any or all of the following:
(i) auction;
(ii) tender;
(iii) allocation for a pre‑determined price or a negotiated price;
(iv) direct allocation.
(6) The marketing plan must not be inconsistent with:
(a) the spectrum plan; or
(b) a frequency band plan that relates, wholly or partly, to the part of the spectrum to which the marketing plan relates.
(7) A marketing plan must not relate wholly or partly to a part of the spectrum referred to the ACMA under subsection 31(1) or (1A), unless the part, or each of the parts, of the spectrum to which the plan relates is covered by a determination under subsection 31(2).
39A Marketing plans—re‑allocation of spectrum
(1) This section applies if a spectrum re‑allocation declaration states that a part or parts of the spectrum should be re‑allocated:
(a) by issuing spectrum licences; or
(b) by a combination of:
(i) issuing spectrum licences; and
(ii) issuing apparatus licences.
(2) The ACMA must, by legislative instrument, prepare a marketing plan for issuing spectrum licences that authorise the operation of radiocommunications devices:
(a) at frequencies within that part, or those parts, of the spectrum; and
(b) within the area or areas specified in the declaration with respect to that part or those parts.
(3) The marketing plan is to apply to spectrum licences with respect to that part or those parts that might be issued as mentioned in section 153L.
(4) The marketing plan need not require spectrum licences issued in accordance with it to apply to the whole of the area or areas to which the declaration applies.
(5) The marketing plan may indicate:
(a) the procedures to be followed for issuing spectrum licences in accordance with the plan; and
(b) the timetable for issuing spectrum licences in accordance with the plan; and
(c) how the spectrum dealt with under the plan is to be apportioned among the spectrum licences to be issued; and
(d) how much of the spectrum dealt with under the plan is to be reserved for public or community services; and
(e) the conditions, or types of conditions, that may be included in spectrum licences to be issued.
(6) Subsection (5) does not, by implication, limit the matters that the marketing plan may indicate.
(7) In indicating the procedures to be followed for issuing spectrum licences, the plan may, for example, indicate whether the licences are to be allocated:
(a) by auction; or
(b) by tender; or
(c) by allocation for a pre‑determined price or a negotiated price; or
(d) by direct allocation; or
(e) by a combination of any or all of the following:
(i) auction;
(ii) tender;
(iii) allocation for a pre‑determined price or a negotiated price;
(iv) direct allocation.
(8) The marketing plan must not be inconsistent with:
(a) the spectrum plan; or
(b) a frequency band plan that relates, wholly or partly, to the part or parts of the spectrum to which the marketing plan relates.
41 Delays in preparing marketing plans
(1) If the ACMA thinks that preparation of a marketing plan may be unduly delayed because of difficulties in preparing the plan so far as it relates to some of the frequencies within the part of the spectrum in respect of which the plan is to be prepared, the ACMA may:
(a) decide that, in order not to delay the preparation of a plan in relation to frequencies for which the difficulties do not apply, the task of preparing the plan should be divided into one of preparing more than one plan; and
(b) prepare those plans at different times.
(2) Each of the plans so prepared is taken to have been prepared under section 39 or 39A, as the case requires, and this Part applies to the preparation of each plan accordingly.
42 Variation of marketing plans
(1) The ACMA may, at any time, by legislative instrument, vary a marketing plan.
(2) This Part applies in relation to a variation of a marketing plan in the same way that it applies in relation to the preparation of the plan.
44 Expressions of interest in spectrum licences
This Part does not prevent the ACMA, prior to preparing a marketing plan, from seeking from members of the public, in any way the ACMA thinks appropriate, expressions of interest in being issued with spectrum licences in accordance with such a plan.
Part 2.3—Digital radio channel plans
44A Preparation of digital radio channel plans
(1) Before issuing the first digital radio multiplex transmitter licence for a designated BSA radio area, the ACMA must, by legislative instrument, prepare a plan that:
(a) allots a frequency channel or channels in relation to the designated BSA radio area for use by digital radio multiplex transmitter licensees, where each allotted frequency channel has a bandwidth of at least 1.536 MHz; and
(b) reserves a frequency channel of at least 1.536 MHz bandwidth for a category 3 digital radio multiplex transmitter licence for the designated BSA radio area to be issued in accordance with subsection 102E(2); and
(c) determines which of the following types of licences, or which combination of the following types of licences, are to be issued for the designated BSA radio area:
(i) category 1 digital radio multiplex transmitter licence;
(ii) category 2 digital radio multiplex transmitter licence; and
(d) if a particular type of licence mentioned in paragraph (c) is to be issued for the designated BSA radio area—determines whether:
(i) a single licence of that type is to be issued for the designated BSA radio area; or
(ii) 2 or more licences of that type are to be issued for the designated BSA radio area; and
(e) determines technical specifications of multiplex transmitters operated under digital radio multiplex transmitter licences for the designated BSA radio area.
(2) The plan must be consistent with:
(a) the spectrum plan; and
(b) any relevant frequency band plans; and
(d) any relevant licence area plans prepared under section 26 of the Broadcasting Services Act 1992.
(3) A plan under subsection (1) is to be known as the digital radio channel plan for the designated BSA radio area.
(4) A copy of a digital radio channel plan is to be made available on the ACMA’s website.
(4A) A digital radio channel plan may confer a power to make a decision of an administrative character on the ACMA.
Variation of digital radio plans
(6) The ACMA may, by legislative instrument, vary a digital radio channel plan.
ACMA must have regard to authorised digital radio broadcasting services
(8) In preparing a plan under subsection (1) or varying a plan under subsection (6), the ACMA must have regard to:
(a) the digital commercial radio broadcasting services that are, or will be, authorised by commercial radio broadcasting licences for the designated BSA radio area; and
(b) the digital community radio broadcasting services that are, or will be, authorised by community radio broadcasting licences for the designated BSA radio area; and
(c) the digital national radio broadcasting services that are, or will be, provided by national broadcasters in the designated BSA radio area.
(9) Subsection (8) does not limit the matters to which the ACMA may have regard.
Technical specifications not to discriminate between digital radio multiplex transmitter licensees
(11) The ACMA must, as far as practicable, ensure that a digital radio channel plan for a particular designated BSA radio area does not discriminate between digital radio multiplex transmitter licensees in relation to the technical specifications of multiplex transmitters.
Chapter 3—Licensing of radiocommunications
45 Outline of this Chapter
(1) This Chapter provides for the 3 systems of licences that apply to radiocommunications and for registration of licences.
(2) Part 3.1 prohibits unlicensed radiocommunications, except in emergency situations, and allows for civil proceedings to be taken in some circumstances.
(3) Part 3.2 provides for spectrum licences, under which licensees may use parts of the spectrum.
(4) Part 3.3 provides for apparatus licences, under which licensees may operate the radiocommunications devices to which the licences relate.
(5) Part 3.4 provides for class licences, under which any person may operate radiocommunications devices that come within the terms of the licences.
(6) Part 3.5 provides for registration of these licences in a Register of Radiocommunications Licences.
(6A) Part 3.6 provides for parts of the spectrum to be declared to be subject to re‑allocation.
(7) The following diagram shows how this Chapter applies to a particular operation of a radiocommunications device.
Part 3.1—Unlicensed radiocommunications
Division 1—Offences and civil penalties
46 Unlicensed operation of radiocommunications devices
Offence
(1) Subject to section 49, a person must not operate a radiocommunications device otherwise than as authorised by:
(a) a spectrum licence; or
(b) an apparatus licence; or
(c) a class licence.
Penalty:
(a) if the radiocommunications device is a radiocommunications transmitter:
(i) if the offender is an individual—imprisonment for 2 years; or
(ii) otherwise—1,500 penalty units; or
(b) if the radiocommunications device is not a radiocommunications transmitter—20 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Civil penalty
(3) Subject to section 49, a person must not operate a radiocommunications device otherwise than as authorised by:
(a) a spectrum licence; or
(b) an apparatus licence; or
(c) a class licence.
Civil penalty:
(a) if the radiocommunications device is a radiocommunications transmitter—300 penalty units; or
(b) if the radiocommunications device is not a radiocommunications transmitter—20 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
47 Unlawful possession of radiocommunications devices
Offence
(1) Subject to section 49, a person must not have a radiocommunications device in his or her possession for the purpose of operating the device otherwise than as authorised by:
(a) a spectrum licence; or
(b) an apparatus licence; or
(c) a class licence.
Penalty:
(a) if the radiocommunications device is a radiocommunications transmitter:
(i) if the offender is an individual—imprisonment for 2 years; or
(ii) otherwise—1,500 penalty units; or
(b) if the radiocommunications device is not a radiocommunications transmitter—20 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Civil penalty
(3) Subject to section 49, a person must not have a radiocommunications device in the person’s possession for the purpose of operating the device otherwise than as authorised by:
(a) a spectrum licence; or
(b) an apparatus licence; or
(c) a class licence.
Civil penalty:
(a) if the radiocommunications device is a radiocommunications transmitter—300 penalty units; or
(b) if the radiocommunications device is not a radiocommunications transmitter—20 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
48 Additional provisions about possession of radiocommunications devices
(1) For the purposes of section 47, if:
(a) at a particular time, a person has a radiocommunications device in the person’s possession, otherwise than for the purpose of supplying the radiocommunications device to another person; and
(b) the radiocommunications device can be operated;
it must be presumed that the person has the radiocommunications device in the person’s possession for the purpose of operating the radiocommunications device, unless the person adduces or points to evidence that suggests a reasonable possibility that, at that time, the person did not have the radiocommunications device in the person’s possession for the purpose of operating the radiocommunications device.
(2) For the purposes of subsection (1), it is immaterial whether the radiocommunications device can be operated:
(a) immediately; or
(b) after taking one or more steps (for example, the connection of the radiocommunications device to a power supply).
(3) A reference in this Division to a person having a radiocommunications device in his or her possession includes a reference to the person having it under control in any place whatever, whether for the use or benefit of that person or another person, and although another person has the actual possession or custody of it.
49 Emergency operation etc. of radiocommunications devices
(1) A person does not contravene section 46 or 47 by operating a radiocommunications device, or having a radiocommunications device in his or her possession, in the reasonable belief that the operation or possession was necessary for the purpose of:
(a) securing the safety of a vessel, aircraft or space object that was in danger; or
(b) dealing with an emergency involving a serious threat to the environment; or
(c) dealing with an emergency involving risk of death of, or injury to, persons; or
(d) dealing with an emergency involving risk of substantial loss of, or substantial damage to, property; or
(e) if a national emergency declaration is in force—dealing with the emergency to which the declaration relates.
(2) In proceedings for an offence against subsection 46(1) or 47(1), the burden of proving any of the matters referred to in subsection (1) lies on the defendant.
(2A) In proceedings for a civil penalty order for a contravention of subsection 46(3) or 47(3), the burden of proving any of the matters referred to in subsection (1) of this section lies on the defendant.
(3) Nothing in this section limits the scope of the expression “reasonable excuse” in section 46 or 47.
Division 2—Civil proceedings
50 Civil proceedings
(1) If a person (the defendant):
(a) operates a radiocommunications device in a way that is not in accordance with any licence; and
(b) that operation causes interference to radiocommunications carried on by another person (the plaintiff) under a spectrum licence;
the plaintiff may apply to the Federal Court for relief.
(2) The court may grant all or any of the following forms of relief:
(a) an injunction restraining the defendant from causing such interference, from causing interference of a similar kind or from causing or permitting others to cause interference of the same or a similar kind;
(b) an order directing the defendant to do a specified act for the purpose of:
(i) placing the plaintiff as nearly as practicable in the position in which he or she would have been but for the interference; or
(ii) otherwise mitigating detriment to the plaintiff arising out of the interference;
(c) damages against the defendant in respect of loss suffered by the plaintiff as a result of the interference, including loss of any benefit that the plaintiff might reasonably have been expected to obtain but for the interference;
(d) such other relief as the court thinks just.
Part 3.2—Spectrum licences
51 Outline of this Part
(1) This Part is about spectrum licences, under which licensees are authorised to use parts of the spectrum.
(2) Division 1 is about issuing spectrum licences, in particular:
(b) issuing spectrum licences under marketing plans (Subdivision B); and
(c) what spectrum licences will contain (Subdivision C); and
(d) how section 50 and related provisions of the Competition and Consumer Act 2010 apply to the issue of spectrum licences (Subdivision D).
(3) Division 2 is about varying spectrum licences.
(4) Division 3 is about suspending and cancelling spectrum licences.
(5) Division 3A is about renewing spectrum licences.
(5A) Division 4 is about issuing further spectrum licences (otherwise than by way of renewal).
(6) Division 5 is about trading spectrum licences.
(7) Division 6 enables the ACMA to resume spectrum licences:
(a) by agreement with the licensee (Subdivision A); or
(b) by the compulsory process set out in the Schedule (Subdivision B).
Division 1—Issuing spectrum licences
Subdivision B—Issuing spectrum licences
60 Procedures for allocating spectrum licences
(1) The ACMA must determine, in writing, the procedures to be applied in allocating spectrum licences under this Subdivision:
(a) by auction; or
(b) by tender; or
(c) by allocation for a pre‑determined price or a negotiated price; or
(d) by direct allocation; or
(e) by a combination of any or all of the following:
(i) auction;
(ii) tender;
(iii) allocation for a pre‑determined price or a negotiated price;
(iv) direct allocation.
(2) The procedures, so far as they deal with allocation by auction may, for example, deal with any of the following matters:
(a) the types of auction;
(b) advertising of auctions;
(c) entry fees for prospective bidders;
(ca) eligibility requirements (if any) for participation in auctions;
(cb) credits (if any) for prospective bidders;
(d) reserve prices (if any);
(e) deposits (if any) payable by successful bidders;
(f) methods of payment for licences.
(3) The procedures, so far as they deal with allocation by tender may, for example, deal with any of the following matters:
(a) the types of tender;
(b) advertising of tenders;
(c) entry fees for prospective tenderers;
(ca) eligibility requirements (if any) for submission of a tender;
(cb) credits (if any) for prospective tenderers;
(d) reserve prices (if any);
(e) the method for resolving which of 2 or more equal tenders is to be successful;
(f) deposits (if any) payable by successful tenderers;
(g) methods of payment for licences.
(4) The procedures, so far as they deal with allocation for a pre‑determined or negotiated price may, for example, deal with any of the following matters:
(a) the way in which prices are to be determined or negotiated;
(b) advertising of proposed allocations;
(ba) eligibility requirements (if any) for prospective licensees;
(bb) credits (if any) for prospective licensees;
(c) methods of payment for licences.
(5) Procedures determined under subsection (1) may:
(a) impose limits on the aggregate of the parts of the spectrum that:
(i) under transmitter licences; and
(ii) under existing spectrum licences; and
(iii) as a result of the allocation of spectrum licences under this Subdivision;
may be used by:
(iv) any one person; or
(v) a specified person; or
(b) impose limits on the aggregate of the parts of the spectrum that:
(i) under transmitter licences; and
(ii) under existing spectrum licences; and
(iii) as a result of the allocation of spectrum licences under this Subdivision;
may, in total, be used by the members of a specified group of persons.
Note: Persons or groups may be specified by name, by inclusion in a specified class or in any other way.
(6) A limit imposed as mentioned in subsection (5) may be expressed to apply in relation to any or all of the following:
(a) a specified part of the spectrum;
(b) a specified area;
(c) a specified population reach.
For example, procedures might specify an aggregate limit of 15 MHz per person in the band between 1200 MHz and 1300 MHz (inclusive) for a particular area. This subsection does not, by implication, limit subsection (5).
(6A) Procedures that impose limits as mentioned in subsection (5) may impose limits of nil in relation to specified persons or to the members of specified groups of persons.
(7) Procedures determined under subsection (1) may require the ACMA to give specified information to the ACCC.
(7A) Procedures determined under subsection (1), so far as they relate to direct allocation of spectrum licences, may provide for the ACMA to have regard to a frequency assignment certificate issued by a person who holds an accreditation of a kind specified in the legislative rules, stating that the operation of a device under such a licence:
(a) on a specified frequency or frequencies, or on a specified frequency channel; and
(b) at a specified constancy; and
(c) at a specified location; and
(d) subject to specified technical conditions;
will satisfy any conditions that are required to be satisfied, in relation to the issue of such a certificate, under a determination made under section 266A.
(8) Subsections (5), (6), (6A), (7) and (7A) do not, by implication, limit subsection (1).
(10) The Minister may give written directions to the ACMA in relation to the exercise of the power to determine procedures imposing a limit as mentioned in subsection (5).
(11) A direction under subsection (10) must be published in the Gazette.
(12) The ACMA must exercise its powers under subsection (1) in a manner consistent with any directions given by the Minister under subsection (10).
(13) Subsection (10) does not, by implication, limit the Minister’s power to give directions otherwise than under that subsection.
(13A) Before determining procedures under subsection (1), the ACMA must consult the ACCC about whether the procedures should impose limits as mentioned in subsection (5) and, if so, the nature of those limits.
(14) Before determining procedures under subsection (1), the ACMA must consult the ACCC about whether the procedures should include a requirement mentioned in subsection (7) and, if so, the nature of the requirement.
(14A) Procedures determined under subsection (1) may confer a power to make a decision of an administrative character on a person or the ACMA.
(15) This section has effect subject to section 577J of the Telecommunications Act 1997.
(16) A determination under subsection (1) is a legislative instrument.
60A Direct allocation of spectrum licences
For the purposes of this Act, direct allocation of a spectrum licence means the allocation of the licence to:
(a) a person specified in procedures determined under section 60; or
(b) a person ascertained in accordance with procedures determined under section 60.
60B Restriction on allocation of spectrum licences
If a spectrum licence authorises the operation of radiocommunications devices:
(a) at one or more frequencies; and
(b) within one or more areas;
the ACMA must not allocate another spectrum licence if the other spectrum licence authorises the operation of radiocommunications devices:
(c) at those frequencies; and
(d) within those areas.
61 Preparation of draft spectrum licences
(1) After a marketing plan has been prepared, the ACMA may prepare drafts of spectrum licences that are to be allocated in accordance with the marketing plan.
(2) Drafts of spectrum licences so prepared need not be complete, but each must contain a draft of its core conditions.
62 Issue of spectrum licences
(1) The ACMA may allocate such a spectrum licence in accordance with the procedures determined under section 60 but not otherwise.
(2) The ACMA must issue the spectrum licence to the person to whom it is allocated if the person:
(a) pays to the ACMA the spectrum access charge for issuing the licence; or
(b) reaches an agreement with the ACMA for the payment of that spectrum access charge.
Note: Spectrum access charges are determined under Part 5.7.
(3) If the issue of the licence is covered by section 153L (which deals with re‑allocation of spectrum), the ACMA may defer the issue of the licence until the relevant frequencies become available as a result of the expiry, surrender or cancellation of one or more apparatus licences that, under section 153D, are affected by the spectrum re‑allocation declaration concerned.
(4) This section has effect subject to section 577J of the Telecommunications Act 1997.
63 Compliance with marketing plans
(1) The ACMA must ensure that, in issuing a spectrum licence under this Subdivision, the ACMA has complied with any requirements relating to:
(a) issuing the licence; or
(b) the procedures to be followed prior to its issue;
that are imposed by the relevant marketing plan.
(2) Failure to comply with this section does not affect the validity of a spectrum licence.
Subdivision C—Contents of spectrum licences
64 Authorisation to use part of the spectrum
(1) A spectrum licence authorises:
(a) the person specified in the licence as the licensee; and
(b) subject to section 68, any person authorised by that person;
to operate a radiocommunications device in accordance with the licence.
(2) Operation of a radiocommunications device is not authorised by the spectrum licence if it is not in accordance with the conditions of the licence.
65 Duration of spectrum licences
(1) A spectrum licence comes into force on the day on which it is issued or on such later day as is specified in the licence for the purpose.
(2) Subject to Division 3, a spectrum licence remains in force for the period specified in the licence.
(3) The licence may specify any period up to 20 years.
65A Renewal statements etc.
Renewal statement
(1) A spectrum licence issued after the commencement of this section must include:
(a) a statement to the effect that the licence cannot be renewed; or
(b) a statement to the effect that the licence may be renewed at the discretion of the ACMA; or
(c) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist.
Note: For transitional exceptions, see subsection (21).
(2) A statement mentioned in paragraph (1)(a), (b) or (c) is to be known as a renewal statement.
(3) Circumstances specified under paragraph (1)(c) may be an act or omission by the ACMA.
(4) Subsection (3) does not limit paragraph (1)(c).
(5) The ACMA may, by legislative instrument, determine that each spectrum licence included in a specified class of spectrum licences is taken to include one of the following statements:
(a) a statement to the effect that the licence cannot be renewed;
(b) a statement to the effect that the licence may be renewed at the discretion of the ACMA;
(c) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist.
Note: For transitional exceptions, see subsections (21) and (22).
(6) A statement mentioned in paragraph (5)(a), (b) or (c) is to be known as a renewal statement.
(7) Circumstances specified under paragraph (5)(c) may be an act or omission by the ACMA.
(8) Subsection (7) does not limit paragraph (5)(c).
(9) A determination under subsection (5) does not apply to a spectrum licence if a renewal statement is included in the licence under subsection (1).
Renewal application period
(10) If a spectrum licence includes:
(a) a statement to the effect that the licence may be renewed at the discretion of the ACMA; or
(b) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist;
the licence must also include a statement to the effect that a specified period is the renewal application period for the licence.
(11) A statement mentioned in subsection (10) is to be known as a renewal application period statement.
(12) The ACMA may, by legislative instrument, determine that each spectrum licence included in a specified class of spectrum licences is taken to include a statement to the effect that a period ascertained in accordance with the determination is the renewal application period for the licence.
(13) A renewal application period for a spectrum licence must:
(a) begin at a time when the licence is in force; and
(b) end before the licence is due to expire.
(14) A determination under subsection (12) does not apply to a spectrum licence if a renewal application period statement is included in the licence under subsection (10).
Renewal decision‑making period
(15) A spectrum licence may include a statement to the effect that a specified period is the renewal decision‑making period for the licence.
(16) A statement mentioned in subsection (15) is to be known as a renewal decision‑making period statement.
Public interest statement
(17) If a spectrum licence includes:
(a) a statement to the effect that the licence may be renewed at the discretion of the ACMA; or
(b) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist;
the licence may also include a statement to the effect that the ACMA will not renew the licence unless the ACMA is satisfied that it is in the public interest to do so.
(18) A statement mentioned in subsection (17) is to be known as a public interest statement.
(19) The ACMA may, by legislative instrument, determine that each spectrum licence included in a specified class of spectrum licences is taken to include a statement to the effect that the ACMA will not renew the licence unless the ACMA is satisfied that it is in the public interest to do so.
Note: For transitional exceptions, see subsections (21) and (22).
(20) A statement mentioned in subsection (19) is to be known as a public interest statement.
Transitional—exceptions
(21) Subsections (1), (5) and (19) do not apply to a spectrum licence if:
(a) both:
(i) a marketing plan was applicable to the issue of the licence; and
(ii) the marketing plan was prepared before the commencement of this section; or
(b) the licence was issued as the result of an offer under repealed section 56.
(22) Subsections (5) and (19) do not apply to a spectrum licence if the licence was issued under repealed section 82.
66 Core conditions of spectrum licences
(1) A spectrum licence must include the following core conditions:
(a) a condition specifying the part or parts of the spectrum in which operation of radiocommunications devices is authorised under the licence;
(b) a condition specifying the maximum permitted level of radio emission, in parts of the spectrum outside such a part, that may be caused by operation of radiocommunications devices under the licence;
(c) a condition specifying the area within which operation of radiocommunications devices is authorised under the licence;
(d) a condition specifying the maximum permitted level of radio emission, outside that area, that may be caused by operation of radiocommunications devices under the licence.
(2) The area specified in the condition referred to in paragraph (1)(c) may be the whole of Australia.
(3) A spectrum licence may also include a core condition specifying the periods during which operation of radiocommunications devices is authorised under the licence.
(4) Without limiting subsection (3), the periods specified may include times during each day or times during particular days of each week.
(5) If the issue of the licence is covered by section 153L (which deals with re‑allocation of spectrum), a condition mentioned in paragraph (1)(a) of this section may provide for the progressive authorisation of the operation of radiocommunications devices under the licence. The progressivity is to be based on the times when a particular part or parts of the spectrum become available as a result of the expiry, surrender or cancellation of one or more apparatus licences that, under section 153D, are affected by the spectrum re‑allocation declaration concerned.
(6) Subsection (5) does not, by implication, limit subsection (1).
67 Conditions about payment of charges
A spectrum licence must include a condition that the licensee meet all obligations (if any) of the licensee to pay:
(a) charges fixed by determinations made under section 60 of the Australian Communications and Media Authority Act 2005; and
(b) spectrum access charges fixed by determinations made under section 294; and
(c) amounts of spectrum licence tax.
68 Conditions about third party use
(1) Except as provided by this section, the licensee of a spectrum licence may authorise other persons to operate radiocommunications devices under the licence.
(2) A spectrum licence:
(a) must include a condition that any operation of a radiocommunications device under the licence by a person other than the licensee must comply with any rules made under subsection (3); and
(b) must include a condition that the licensee must notify any persons whom he or she authorises to operate radiocommunications devices under the licence of their obligations under this Act, in particular:
(i) the registration requirements under Part 3.5 for operation of radiocommunications devices under the licence; and
(ii) any rules made under subsection (3).
(3) The ACMA may, by legislative instrument, make rules about the operation of radiocommunications devices under spectrum licences by persons other than licensees, including rules about the way in which licensees may authorise those persons to operate radiocommunications devices under spectrum licences.
(5) This section has effect subject to section 577K of the Telecommunications Act 1997.
68A Authorisation under spectrum licence taken to be an acquisition of an asset and conduct
(1) For the purposes of the provisions of the Competition and Consumer Act 2010 mentioned in subsection (2), the authorisation under subsection 68(1) of this Act of a person to operate radiocommunications devices under a spectrum licence is taken to be:
(a) an acquisition by the person of an asset of another person; and
(b) conduct engaged in by the person.
(2) The provisions of the Competition and Consumer Act 2010 are:
(a) section 50 and subsections 81(1) and (1A); and
(b) the remaining provisions of that Act, to the extent that those provisions relate to section 50 of that Act.
69 Conditions about registration of radiocommunications transmitters
(1) A spectrum licence must include a condition that radiocommunications transmitters not be operated under the licence unless the requirements of the ACMA under Part 3.5 for registration of the transmitter under that Part have been met.
(2) The condition may exempt radiocommunications transmitters of particular kinds from meeting those requirements.
69A Conditions about residency etc.
(1) A spectrum licence must include a condition that, at all times when the licensee derives income, profits or gains from operating radiocommunications devices under the licence or from authorising others to do so, either:
(a) the licensee is to be an Australian resident (see subsection (3)); or
(b) the income, profits or gains are to be attributable to a permanent establishment (see subsection (3)) in Australia through which the licensee carries on business.
(2) A spectrum licence must include a condition that, at all times when a person (the authorised person) authorised under section 68 in relation to the licence derives income, profits or gains from operating radiocommunications devices under the licence, either:
(a) the authorised person is to be an Australian resident; or
(b) the income, profits or gains are to be attributable to a permanent establishment in Australia through which the authorised person carries on business.
(3) In this section:
Australian resident has the same meaning as in the Income Tax Assessment Act 1997.
permanent establishment has the same meaning as in:
(a) if the licensee or authorised person (as appropriate) is a resident of a country or other jurisdiction with which Australia has an agreement, within the meaning of the International Tax Agreements Act 1953—that agreement; or
(b) in any other case—the Income Tax Assessment Act 1997.
71 Other conditions of spectrum licences
(1) The ACMA may include such other conditions in a spectrum licence as it thinks fit.
(2) The ACMA’s power under this section is not limited by sections 67 to 69A.
(3) A condition included in a spectrum licence under subsection (1) may confer a power to make a decision of an administrative character on the ACMA.
(4) A condition included in a spectrum licence under subsection (1) may confer a power to make a decision of an administrative character on a person who holds a specified kind of accreditation.
(5) The legislative rules may authorise a person who holds a specified kind of accreditation to charge fees in relation to the exercise by the person of a power conferred by a condition included in a spectrum licence under subsection (1). A fee must not be such as to amount to taxation.
Subdivision D—Rules about section 50 and related provisions of the Competition and Consumer Act
71A Issue of spectrum licence taken to be an acquisition of an asset and conduct
(1) For the purposes of the provisions of the Competition and Consumer Act 2010 mentioned in subsection (2), the issue of a spectrum licence to a person is taken to be:
(a) an acquisition by the person of an asset of another person; and
(b) conduct engaged in by the person.
(2) The provisions of the Competition and Consumer Act 2010 are:
(a) section 50 and subsection 81(1); and
(b) the remaining provisions of that Act, to the extent that those provisions relate to section 50 of that Act.
(3) Subsection (1) does not apply to the issue of a spectrum licence under section 77C.
Division 2—Varying spectrum licences
72 Variation with agreement
(1) Subject to subsection (2), the ACMA may, with the written agreement of the licensee of a spectrum licence, vary the licence by:
(a) including one or more further conditions; or
(b) revoking or varying any conditions of the licence.
(2) The conditions as varied must still comply with the requirements of Subdivision C of Division 1.
(3) Subject to subsections (4), (5) and (6), the ACMA may, with the written agreement of the licensee of a spectrum licence, vary the licence by:
(a) varying the renewal statement included in the licence; or
(b) omitting the renewal statement included in the licence and substituting another renewal statement; or
(c) varying the renewal application period statement included in the licence; or
(d) omitting the public interest statement included in the licence; or
(e) omitting the renewal decision‑making period statement included in the licence; or
(f) varying the renewal decision‑making period statement included in the licence.
(4) If the renewal statement is varied, the statement as varied must comply with the requirements of section 65A.
(5) If another renewal statement is substituted, the substituted renewal statement must comply with the requirements of section 65A.
(6) If the renewal application period statement is varied, the statement as varied must comply with the requirements of section 65A.
73 Variation without agreement
(1) Subject to subsection (2), the ACMA may, by written notice given to the licensee of a spectrum licence, vary the licence by:
(a) including one or more further conditions; or
(b) revoking or varying any conditions of the licence, other than core conditions.
(2) The conditions as varied must still comply with the requirements of Subdivision C of Division 1.
Note: Variations of spectrum licences under this section are reviewable under Part 5.6.
(3) Subject to subsections (4), (5) and (6), if a spectrum licence includes a renewal statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist, the ACMA may, by written notice given to the licensee of the licence, vary the licence by:
(a) varying the circumstances specified in the renewal statement included in the licence; or
(b) omitting the renewal statement included in the licence and substituting another renewal statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist.
(4) The ACMA must not vary the licence under subsection (3) unless the ACMA is satisfied that exceptional circumstances exist that warrant the variation of the licence.
(5) If the renewal statement is varied, the statement as varied must comply with the requirements of section 65A.
(6) If another renewal statement is substituted, the substituted renewal statement must comply with the requirements of section 65A.
73A Conditions included in a spectrum licence—decision‑making powers
(1) A condition included in a spectrum licence under subsection 72(1) or 73(1) may confer a power to make a decision of an administrative character on the ACMA.
(2) A condition included in a spectrum licence under subsection 72(1) or 73(1) may confer a power to make a decision of an administrative character on a person who holds a specified kind of accreditation.
(3) The legislative rules may authorise a person who holds a specified kind of accreditation to charge fees in relation to the exercise by the person of a power conferred by a condition included in a spectrum licence under subsection 72(1) or 73(1). A fee must not be such as to amount to taxation.
Division 3—Suspending and cancelling spectrum licences
74 Application of this Division
This Division applies to a spectrum licence if the ACMA is satisfied that the licensee, or a person authorised by the licensee to operate a radiocommunications device under the licence, has:
(a) contravened a condition of the licence, or in any other way contravened this Act; or
(b) operated a radiocommunications device under the licence, or purportedly under the licence:
(i) in contravention of any other law (whether written or unwritten) of the Commonwealth, a State or a Territory; or
(ii) in the course of contravening such a law.
75 Suspending spectrum licences
(1) The ACMA may, by written notice given to the licensee, suspend the spectrum licence.
Note: Suspensions of spectrum licences are reviewable under Part 5.6.
(2) The notice must give the reasons for suspending the licence.
(3) The ACMA may, at any time, by written notice given to the licensee, revoke the suspension of the licence.
76 Period of suspension
(1) Subject to subsection (2), the suspension of the spectrum licence, unless it is sooner revoked, ceases:
(a) if, within 28 days after the suspension, proceedings for an offence against this Act are instituted against the licensee, or against a person authorised by the licensee to operate a radiocommunications device under the licence, and he or she is convicted of the offence—on the expiration of 14 days after the date of the conviction; or
(b) if such proceedings are instituted within 28 days after the suspension and he or she is not convicted of the offence—on the completion of the proceedings; or
(c) in any other case—on the expiration of 28 days after the suspension.
(2) If:
(a) the notice of suspension specifies a day as the day on which the suspension of the spectrum licence ceases; and
(b) that day occurs before the day fixed under subsection (1);
the suspension of the licence, unless it is sooner revoked, ceases on the day so specified.
(3) In subsection (1):
proceedings does not include proceedings by way of appeal or review.
77 Cancelling spectrum licences
(1) The ACMA may, by written notice given to the licensee, cancel the spectrum licence.
Note: Cancellations of spectrum licences are reviewable under Part 5.6.
(2) The notice must give the reasons for cancelling the licence.
Division 3A—Renewal of spectrum licences
77A Applications for renewal of spectrum licences
(1) A licensee of a spectrum licence may apply to the ACMA for the licence to be renewed.
(2) If there is a renewal application period for the licence, the application must be made within the renewal application period.
(3) If there is no renewal application period for the licence, the application must be made within the 2‑year period ending when the licence is due to expire.
(4) The application must:
(a) be made in a manner approved, in writing, by the ACMA; and
(b) be in a form approved, in writing, by the ACMA; and
(c) be accompanied by such information (if any) as is specified in an instrument under subsection (6); and
(d) be accompanied by such documents (if any) as are specified in an instrument under subsection (7).
(5) The ACMA may approve different forms for different applications.
(6) The ACMA may, by legislative instrument, specify information for the purposes of paragraph (4)(c).
(7) The ACMA may, by legislative instrument, specify documents for the purposes of paragraph (4)(d).
(8) An instrument under paragraph (4)(a) is a notifiable instrument.
(9) An approved form of application may provide for verification by statutory declaration of statements in applications.
Deemed applications
(10) If:
(a) the ACMA gives a person a notice that is expressed to be a licence renewal notice; and
(b) the notice relates to one or more spectrum licences held by the person; and
(c) in response to the notice, the person:
(i) pays to the ACMA (on behalf of the Commonwealth) the amount specified in the notice as the amount due; and
(ii) does so on or before the day specified in the notice as the payment due date;
then:
(d) if the notice relates to a single spectrum licence—the person is taken to have made an application under subsection (1) for the licence to be renewed; and
(e) if the notice relates to 2 or more spectrum licences—the person is taken to have made separate applications under subsection (1) for each of those licences to be renewed; and
(f) subsection (4) does not apply to that application or those applications, as the case requires.
77B Further information
(1) If an application is made for the renewal of a spectrum licence, the ACMA may, by written notice given to the applicant, require the applicant to give the ACMA, within the period specified in the notice, further information in connection with the application.
(2) If the applicant breaches the requirement, the ACMA may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
77C Renewal of spectrum licences
(1) When an application is made for the renewal of a spectrum licence, the ACMA may, without following the procedures determined under section 60, renew the licence by issuing to the applicant a new spectrum licence.
(2) Subsection (1) does not imply that the ACMA must renew the licence without the applicant:
(a) paying to the ACMA the spectrum access charge for issuing the new spectrum licence; or
(b) reaching an agreement with the ACMA for payment of that spectrum access charge.
(3) The ACMA must not renew the licence if the licence included a renewal statement to the effect that the licence cannot be renewed.
(4) If the licence included a renewal statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist, the ACMA must not renew the licence unless the ACMA is satisfied that the specified circumstances exist.
(5) The ACMA must not renew the licence by issuing a new spectrum licence that specifies a period for the purposes of subsection 65(2) that is 10 years or longer unless the ACMA is satisfied that it is in the public interest to do so.
(6) If the licence included a public interest statement, the ACMA must not renew the licence unless the ACMA is satisfied that it is in the public interest to do so.
(7) In deciding whether to renew the licence, the ACMA must have regard to:
(a) all matters that it considers relevant; and
(b) without limiting paragraph (a), the effect on radiocommunications of the proposed operation of the radiocommunications devices that would be authorised under the new spectrum licence.
(8) In deciding whether to renew the licence, the ACMA may have regard to the following matters:
(a) whether the applicant has an outstanding liability to pay an amount of:
(i) apparatus licence tax; or
(ii) spectrum licence tax; or
(iii) spectrum access charge; or
(iv) interim tax;
(b) whether the applicant has contravened a condition of the licence;
(c) whether the following conditions are satisfied:
(i) a person authorised by the applicant under section 68 in relation to the licence has contravened a condition of the licence;
(ii) the applicant was aware, or ought reasonably to have been aware, of the contravention;
(iii) the applicant failed to take reasonable steps to prevent the contravention;
(d) whether the applicant held another licence that was cancelled during the previous 2 years (otherwise than under section 87, 128B, 153H or 307).
(9) The new spectrum licence comes into force, or is taken to have come into force, immediately after the expiration of the licence that it replaces.
(10) The conditions of the new spectrum licence need not be the same as those of the licence that it replaces.
77D Notice of refusal to renew spectrum licence etc.
(1) If the ACMA:
(a) refuses to renew a spectrum licence; or
(b) renews a spectrum licence but not on the same conditions;
the ACMA must give the licensee a written notice stating that fact.
Note: Refusals to renew spectrum licences, and changes to licence conditions on renewal, are reviewable under Part 5.6.
(2) The notice under subsection (1) must state that:
(a) the licensee may request a statement of reasons for the decision; and
(b) a request must be made within 28 days of receipt of the notice.
(3) A person receiving a notice under subsection (1) may request a statement of reasons for the decision within 28 days of receiving the notice.
(4) If the ACMA receives a request in accordance with subsection (3), it must give the person a statement of reasons within 28 days of receipt of the request.
77E Application of other provisions
Subdivisions C and D of Division 1 apply to a spectrum licence issued under this Division in the same way that those Subdivisions apply to spectrum licences issued under Division 1.
Division 4—Issuing further spectrum licences (otherwise than by way of renewal)
78 Notice of spectrum licences that are about to expire
The ACMA must, from time to time, publish on its website a notice that:
(a) states where information may be obtained about:
(i) the spectrum licences that will expire during a period specified in the notice; and
(ii) the parts of the spectrum to which they relate; and
(b) invites expressions of interest from persons who wish to have issued to them spectrum licences relating to those parts of the spectrum.
79 Preparation of draft further spectrum licences
(1) The ACMA may, at any time prior to a spectrum licence expiring, prepare:
(a) a draft of a new spectrum licence that would wholly or partly replace that licence; or
(b) drafts of 2 or more new spectrum licences that, taken together, would wholly or partly replace that licence.
(2) The conditions included in a draft licence need not be the same conditions as those included in the licence that is to be replaced.
80 Procedures for re‑allocating spectrum licences
(1) The procedures determined under section 60 apply, so far as they are capable of applying, to re‑allocating spectrum licences under this Division in the same way that they apply to allocating spectrum licences under Subdivision B of Division 1.
(2) To avoid doubt, subsection (1) of this section does not prevent or limit the variation, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, of procedures determined under section 60 of this Act.
81 Issue of further spectrum licences
(1) The ACMA may re‑allocate a spectrum licence in accordance with the procedures determined under section 60 (as they apply because of section 80), but not otherwise.
(2) The ACMA must issue the spectrum licence to the person to whom it is re‑allocated if the person:
(a) pays to the ACMA the spectrum access charge for issuing the licence; or
(b) reaches an agreement with the ACMA for payment of that spectrum access charge.
83 General rules about newly‑issued spectrum licences apply to re‑issued spectrum licences
Subdivisions C and D of Division 1 apply to spectrum licences re‑issued under this Division in the same way that those Subdivisions apply to spectrum licences issued under Division 1.
84 Commencement of re‑issued spectrum licences
A spectrum licence re‑issued under this Division comes into force on the day specified in the licence, not being a day occurring earlier than the expiry of the spectrum licence it replaces.
Division 5—Trading spectrum licences
85 Trading spectrum licences
(1) Subject to subsection (2) and section 86 of this Act and section 577L of the Telecommunications Act 1997, the licensee of a spectrum licence may assign, or otherwise deal with, the whole or any part of the licence.
(2) An assignment must comply with any rules made under section 88.
86 Registration of assignments etc.
(1) The parties to an assignment under section 85 of the whole, or any part of, a licence that involves:
(a) a change in the licensee; or
(b) the issue of a spectrum licence; or
(c) the variation of the conditions of a spectrum licence; or
(d) the cancellation of one or more existing spectrum licences;
must give to the ACMA such information about the assignment as the ACMA requires (if any) for the purpose of amending the Register to take account of the assignment.
(2) The assignment covered by subsection (1) cannot take effect before the Register is amended under Part 3.5 to take it into account.
87 Variation etc. of spectrum licences to take assignments into account
(1) The ACMA may do one or more of the following if it is satisfied it is necessary or convenient to do so in order to give effect to an assignment under section 85:
(a) vary a spectrum licence by specifying in it as the licensee a different person from the person currently specified;
(b) vary the conditions of a spectrum licence by:
(i) including one or more further conditions; or
(ii) revoking or varying any conditions;
(c) issue one or more new spectrum licences;
(d) cancel one or more existing spectrum licences.
(2) A licence as varied, or a new licence issued, under subsection (1) must comply with the requirements of Subdivision C of Division 1.
(3) Subdivision D of Division 1 applies to the issue of a new licence under subsection (1) of this section.
Note: Variations and cancellations under this section are reviewable under Part 5.6.
88 Rules about assignments etc.
(1) The ACMA may, by legislative instrument, determine rules:
(a) for assignments of spectrum licences; and
(b) setting out the circumstances in which spectrum licences are to be varied, issued or cancelled under section 87.
(2) The rules may, for example, restrict assignments of spectrum licences that were issued for the provision of public or community services.
(3) The rules may confer a power to make a decision of an administrative character on the ACMA.
Division 6—Resuming spectrum licences
Subdivision A—Resuming spectrum licences by agreement
89 ACMA may resume spectrum licences by agreement
(1) The ACMA may resume a spectrum licence, or a part of a spectrum licence, under an agreement entered into with the licensee.
(2) Without limiting the matters that may be included in the agreement, if a part of the licence is to be resumed, the agreement must specify variations to the conditions included in the remaining part of the licence that will be made to give effect to the agreement.
90 Effect of resumption
(1) If the whole of the licence is resumed, it ceases to have effect:
(a) at the end of the day specified for that purpose in the agreement; or
(b) if such a day is not specified—at the end of the day on which the agreement is entered into.
(2) If a part of the licence is resumed:
(a) that part of the licence ceases to have effect at the end of the day on which the ACMA makes the necessary changes to the information in the Register under section 146 to take the resumption into account; and
(b) the ACMA must vary, in a way that gives effect to the variations specified in the agreement, the conditions included in the remaining part of the licence.
Subdivision B—Resuming spectrum licences by compulsory process
91 ACMA may resume spectrum licences compulsorily
(1) Subject to subsection (2), the ACMA may resume a spectrum licence, or a part of a spectrum licence.
(2) The ACMA must not resume the licence unless:
(a) the Minister has given his or her written approval for the resumption; and
(b) the ACMA has followed the resumption procedures set out in Part 1 of the Schedule.
92 Effect of resumption
(1) If the whole of the licence is resumed, it ceases to have effect:
(a) on the day specified for that purpose in the notice of resumption; or
(b) if such a day is not specified—at the end of the day on which the notice is given.
(2) If a part of the licence is resumed:
(a) that part of the licence ceases to have effect at the end of the day on which the ACMA makes the necessary changes to the information in the Register under section 146 to take the resumption into account; and
(b) the ACMA must vary, in the way that in its opinion best gives effect to the resumption, the conditions included in the remaining part of the licence.
Note: Variations under this section are reviewable under Part 5.6.
93 Payment of compensation
(1) Part 2 of the Schedule sets out the procedures to be followed for determining the compensation payable for:
(a) resuming the licence or the part of the licence; or
(b) publishing a pre‑acquisition declaration that is revoked before resumption of the licence, or the part of the licence, takes place.
(2) If an amount of compensation is determined under those procedures to be payable to a person, the Commonwealth must pay that amount to that person, together with the amount of interest payable under section 94.
94 Interest payable on resumption etc.
(1) Interest is payable on the amount of compensation in respect of the period:
(a) starting:
(i) if the licence or the part of the licence is resumed—on the day the resumption took place; or
(ii) if the pre‑acquisition declaration was revoked before the resumption took place—on the day the pre‑acquisition declaration was served on the licensee; and
(b) finishing at the end of the day on which the compensation is paid.
(2) Interest is payable at the rate specified in, or ascertained in accordance with, the regulations.
95 Reaching agreements during the compulsory process
(1) This Subdivision does not prevent the ACMA entering into an agreement under section 89 under which a spectrum licence or a part of a spectrum licence is resumed even though the ACMA was, until the agreement was entered into, in the process of resuming the licence, or the part of the licence, under section 91.
(2) On entering into the agreement, the ACMA must stop the process of resuming the licence, or the part of the licence, under this Subdivision.
Part 3.3—Apparatus licences
96 Outline of this Part
(1) This Part is about apparatus licences, under which licensees are authorised to operate the radiocommunications devices to which the licences relate.
(2) Division 1 is about the kinds of apparatus licences that may be issued.
(3) Division 2 is about issuing apparatus licences.
(4) Division 3 is about the conditions to which apparatus licences are subject.
(5) Division 4 is about licensees authorising third parties to operate radiocommunications devices under apparatus licences.
(6) Division 5 is about requirements to have qualified operators to operate radiocommunications devices under some apparatus licences.
(7) Division 6 is about suspending and cancelling apparatus licences.
(8) Division 7 is about renewing apparatus licences.
96A Policy in relation to certain community broadcasting services and open narrowcasting television services
(1) It is the intention of the Parliament that:
(a) until 30 June 2024, access to the broadcasting services bands be available to provide the following services in a prescribed area:
(i) community broadcasting services provided under a CTV licence;
(ii) community broadcasting services that provide television programs under a licence under Part 6A of the Broadcasting Services Act 1992;
(iii) open narrowcasting television services provided for community or educational non‑profit purposes that are transmitted from one or more radiocommunications transmitters, the operation of which is authorised under an apparatus licence issued under section 100; but
(b) on and after 30 June 2024, all such services should be delivered using online platforms.
(2) The Minister may, by legislative instrument, prescribe an area for the purposes of paragraph (c) of the definition of prescribed area in subsection (3).
(3) In this section:
broadcasting services bands has the same meaning as in the Broadcasting Services Act 1992.
CTV licence has the same meaning as in the Broadcasting Services Act 1992.
prescribed area means:
(a) Adelaide; or
(b) Melbourne; or
(c) an area prescribed in an instrument under subsection (2).
96B Licences of certain kinds must not be granted to new holders after 30 June 2021
(1) This section applies to a person if, on 30 June 2021, the person did not hold one or more of the following licences:
(a) a CTV licence;
(b) a licence under Part 6A of the Broadcasting Services Act 1992 to provide a community broadcasting service that provides television programs;
(c) an apparatus licence issued under section 100 that:
(i) authorises the operation of one or more radiocommunications transmitters; and
(ii) includes a condition that the licence may only be used to provide a transmission in standard definition digital mode of an open narrowcasting television service for community and educational non‑profit purposes.
(2) Despite anything else in this Act or the Broadcasting Services Act 1992, the person is not eligible to hold a licence of that kind after that day.
Division 1—Kinds of apparatus licences
97 Transmitter licences and receiver licences
(1) The ACMA may issue:
(a) transmitter licences; and
(b) receiver licences.
(2) A transmitter licence authorises:
(a) the person specified in the licence as the licensee; and
(b) subject to Division 4, any person authorised by that person under section 114;
to operate:
(c) specified radiocommunications transmitters; or
(d) radiocommunications transmitters of a specified kind; or
(e) if neither paragraph (c) nor (d) applies—radiocommunications transmitters of any kind.
(3) A receiver licence authorises:
(a) the person specified in the licence as the licensee; and
(b) subject to Division 4, any person authorised by that person under section 114;
to operate:
(c) specified radiocommunications receivers; or
(d) radiocommunications receivers of a specified kind; or
(e) if neither paragraph (c) nor (d) applies—radiocommunications receivers of any kind.
(4) Operation of a radiocommunications device is not authorised by the relevant apparatus licence if it is not in accordance with the conditions of the licence.
98 Types of transmitter licences and receiver licences
(1) The ACMA may, by legislative instrument, determine the types of transmitter licences and the types of receiver licences that it may issue.
(2) Subsection (1) does not prevent the ACMA from issuing an apparatus licence that is not a transmitter licence or receiver licence of a type so determined.
(2A) For the purposes of this Act, the type of an apparatus licence is to be ascertained solely by reference to a determination.
98C Foundation category 1 digital radio multiplex transmitter licence
(1) Subject to this section, the ACMA may, by writing, declare that a specified category 1 digital radio multiplex transmitter licence proposed to be issued is a foundation category 1 digital radio multiplex transmitter licence for the purposes of this Act.
(2) If such a category 1 digital radio multiplex transmitter licence is issued, the licence is a foundation category 1 digital radio multiplex transmitter licence for the purposes of this Act.
(3) A declaration under subsection (1) is not a legislative instrument.
(4) A copy of a declaration under subsection (1) is to be made available on the ACMA’s website.
98D Foundation category 2 digital radio multiplex transmitter licence
(1) Subject to this section, the ACMA may, by writing, declare that a specified category 2 digital radio multiplex transmitter licence proposed to be issued is a foundation category 2 digital radio multiplex transmitter licence for the purposes of this Act.
(2) If such a category 2 digital radio multiplex transmitter licence is issued, the licence is a foundation category 2 digital radio multiplex transmitter licence for the purposes of this Act.
(3) A declaration under subsection (1) is not a legislative instrument.
(4) A copy of a declaration under subsection (1) is to be made available on the ACMA’s website.
98E Limit on declaration of foundation digital radio multiplex transmitter licences
(1) In exercising its powers under subsection 98C(1) or 98D(1) in relation to a particular designated BSA radio area, the ACMA must ensure that the total multiplex capacities under foundation digital radio multiplex transmitter licences for the designated BSA radio area is not more than sufficient to fulfil the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ(2) in its application to the designated BSA radio area.
(2) For the purposes of subsection (1), if the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ(2) in its application to the designated BSA radio area is not a multiple of 7, round up that number to the next higher number that is a multiple of 7.
(3) Subsection (1) does not prevent the ACMA from making a declaration under subsection 98C(1) in relation to a category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area if the ACMA proposes to cancel a foundation category 1 digital radio multiplex transmitter licence that has been previously issued for that area.
(4) Subsection (1) does not prevent the ACMA from making a declaration under subsection 98D(1) in relation to a category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area if the ACMA proposes to cancel a foundation category 2 digital radio multiplex transmitter licence that has been previously issued for that area.
(5) In this section:
multiplex capacity has the same meaning as in Division 4B.
Division 2—Issuing apparatus licences
99 Applications for apparatus licences
(1) A person may apply to the ACMA for an apparatus licence.
(1A) The application must be made in a manner approved, in writing, by the ACMA.
(2) The application must be in a form approved, in writing, by the ACMA.
(3) The ACMA may approve different forms for different applications.
(4) An instrument under subsection (1A) is a notifiable instrument.
100 Issuing apparatus licences
(1) Subject to sections 102, 102C, 102D, 102E and 102F, upon such application being made, the ACMA may issue to the applicant an apparatus licence.
(1A) The ACMA must not issue a temporary community transmitter licence except under section 101A. For the purposes of this subsection, a temporary community transmitter licence is an apparatus licence that authorises operation of one or more radiocommunications transmitters for transmitting a community broadcasting service in accordance with a temporary community broadcasting licence.
(2) The ACMA must not issue an apparatus licence authorising operation of a radiocommunications transmitter within a part of the spectrum designated under subsection 31(1) or (1A) unless:
(a) the issue of the licence is in accordance with a decision of the ACMA under subsection 34(1) or (3) of the Broadcasting Services Act 1992; or
(b) the issue of the licence is in accordance with a determination under subsection 31(2) of this Act; or
(c) the licence is a digital radio multiplex transmitter licence.
(3) Subsection (2) does not prevent the ACMA from issuing an apparatus licence authorising operation of a radiocommunications transmitter for transmitting a broadcasting service if:
(a) the licence authorises operation of the transmitter only within a part of the spectrum that constitutes capacity reserved under paragraph 31(1)(a) of the Broadcasting Services Act 1992; and
(b) the broadcasting service in question is a broadcasting service of a kind for which the capacity has been so reserved.
(3A) An NBS transmitter licence cannot be issued to any person other than:
(a) the Australian Broadcasting Corporation; or
(b) the Special Broadcasting Service Corporation; or
(c) the Commonwealth.
(3AA) Subsection (2) does not prevent the ACMA from issuing an NBS transmitter licence that authorises the operation of one or more transmitters for transmitting one or more national broadcasting services that are covered by a licence area plan in force under section 26 of the Broadcasting Services Act 1992.
(3B) The ACMA must not issue a transmitter licence authorising operation of a radiocommunications transmitter for transmitting an international broadcasting service unless there is in force an international broadcasting licence that authorises the provision of that service.
(3BA) The ACMA must not issue a transmitter licence authorising operation of a radiocommunications transmitter for transmitting or re‑transmitting a commercial broadcasting service if:
(a) the ACMA has reasonable grounds to believe that the application for the licence is part of a scheme:
(i) entered into; or
(ii) being carried out; or
(iii) that has been carried out;
for the sole or dominant purpose of avoiding the application of any provision of the Commercial Broadcasting (Tax) Act 2017 (other than section 14 of that Act); and
(b) the applicant has not satisfied the ACMA that the application for the licence is not part of such a scheme.
(3BB) For the purposes of subsection (3BA), scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
(3C) If:
(a) a provisional international broadcasting certificate is in force in relation to an application for a transmitter licence; and
(b) the application for the licence is made by the holder of the certificate; and
(c) the conditions set out in the certificate are satisfied;
the ACMA must not refuse to issue the transmitter licence unless the ACMA is satisfied that there are exceptional circumstances that warrant the refusal.
(4) In deciding whether to issue an apparatus licence, the ACMA must have regard to:
(a) all matters that it considers relevant; and
(b) without limiting paragraph (a), the effect on radiocommunications of the proposed operation of the radiocommunications devices that would be authorised under the licence.
(4A) The ACMA, in deciding whether to issue an apparatus licence, may have regard to a frequency assignment certificate issued by a person who holds an accreditation of a kind specified in the legislative rules, stating that the operation of a device under the licence:
(a) on a specified frequency or frequencies, or on a specified frequency channel; and
(b) at a specified constancy; and
(c) at a specified location; and
(d) subject to specified technical conditions;
will satisfy any conditions that are required to be satisfied, in relation to the issue of such a certificate, under a determination made under section 266A.
(4B) The legislative rules may authorise a person who holds a kind of accreditation mentioned in subsection (4A) to charge fees in relation to the issue of frequency assignment certificates under subsection (4A). A fee must not be such as to amount to taxation.
(4C) In deciding whether to issue an apparatus licence, the ACMA may also have regard to the aggregate of the parts of the spectrum that, under transmitter licences or spectrum licences, may be used by the applicant.
(5) In deciding whether to issue an apparatus licence, the ACMA may also have regard to whether, in the 2 years before the application, the applicant has been the holder of an apparatus licence that has been cancelled otherwise than under section 153H.
(5A) In deciding whether to issue a transmitter licence authorising operation of a radiocommunications transmitter:
(a) within a part of the spectrum designated under subsection 31(1) or (1A); and
(b) at a particular location (the relevant location);
for transmitting or re‑transmitting a commercial broadcasting service, the ACMA must also have regard to:
(c) whether:
(i) the commercial television broadcasting licensee; or
(ii) the commercial radio broadcasting licensee;
who provides the commercial broadcasting service has previously held a transmitter licence authorising operation of a radiocommunications transmitter for transmitting or re‑transmitting the commercial broadcasting service at a location that is the same as, or substantially similar to, the relevant location; and
(d) whether there is a commercial arrangement between:
(i) the applicant for the transmitter licence; and
(ii) the commercial television broadcasting licensee or the commercial radio broadcasting licensee who provides the commercial broadcasting service;
in relation to:
(iii) the application; or
(iv) the transmission of the commercial broadcasting service at a location that is the same as, or substantially similar to, the relevant location.
(6) Without limiting subsection (4), in deciding whether to issue a transmitter licence, the ACMA must have regard to the following additional matters:
(a) if a licence that the ACMA may issue as a result of the application would be a licence in respect of which persons operating the transmitters are required under section 119 to be qualified operators in relation to the licence—whether:
(i) the applicant; or
(ii) each person specified by the applicant as a person whom the applicant proposes to authorise under the licence to operate the transmitters;
is a qualified operator in relation to such a licence;
(b) whether the ACMA is satisfied that the proposed operation of the transmitters is not reasonably likely to cause:
(i) death of, or injury to, persons; or
(ii) loss of, or damage to, property.
(7) If the ACMA refuses to issue the licence, it must give the applicant a written notice of the refusal, together with a statement of its reasons.
Note: Refusals to issue apparatus licences are reviewable under Part 5.6.
(8) Nothing in this Act prevents 2 or more apparatus licences (whether transmitter licences or receiver licences or both) from being contained in the same instrument.
100AA NBS transmitter licences—authorised channels
(1) If:
(a) an NBS transmitter licence is issued under section 100; and
(b) the licence authorises the operation of one or more radiocommunications transmitters for transmitting one or more national television broadcasting services in digital mode in a BSA coverage area;
the licence authorises the operation of the transmitter or transmitters concerned for transmitting those services in that area using the channel or channels allotted to the national broadcaster concerned under the BSA television licence area plan for that BSA television licence area.
(2) In this section:
BSA television licence area means a BSA licence area for a commercial television broadcasting licence.
national television broadcasting service means a national broadcasting service that provides television programs.
NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.
100A NBS transmitter licences—authorisation of datacasting services
(1) If:
(a) an NBS transmitter licence is or was issued under section 100; and
(b) the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels;
the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting designated datacasting services in digital mode using those channels.
(1B) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a designated datacasting service in digital mode using those channels has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.
(2) In this section:
national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.
100C NBS transmitter licences—authorisation of radio broadcasting services
(1) If:
(a) an NBS transmitter licence is or was issued to a particular national broadcaster; and
(b) the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels;
the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting national radio broadcasting services in digital mode using those channels.
(2) In this section:
national broadcaster has the same meaning as in the Broadcasting Services Act 1992.
national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
national radio broadcasting service means a national broadcasting service that provides radio programs.
national television broadcasting service means a national broadcasting service that provides television programs.
NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.
100D NBS transmitter licences—authorisation of SDTV multi‑channelled national television broadcasting services
(1) If:
(a) an NBS transmitter licence is or was issued to a particular national broadcaster; and
(b) the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels; and
(c) the national broadcaster provides, or proposes to provide, one or more SDTV multi‑channelled national television broadcasting services;
the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting the SDTV multi‑channelled national television broadcasting services in digital mode using those channels.
(2) In this section:
national broadcaster has the same meaning as in the Broadcasting Services Act 1992.
national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
national television broadcasting service means a national broadcasting service that provides television programs.
NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.
SDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
100E NBS transmitter licences—authorisation of HDTV multi‑channelled national television broadcasting services
(1) If:
(a) an NBS transmitter licence is or was issued to a national broadcaster; and
(b) the NBS transmitter licence authorises the operation of one or more specified radiocommunications transmitters for transmitting one or more national television broadcasting services in digital mode using one or more channels; and
(c) the national broadcaster provides, or proposes to provide, one or more HDTV multi‑channelled national television broadcasting services;
the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting HDTV multi‑channelled national television broadcasting services using those channels.
(2) In this section:
HDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
national broadcaster has the same meaning as in the Broadcasting Services Act 1992.
national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
national television broadcasting service means a national broadcasting service that provides television programs.
NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.
101 Testing of radiocommunications devices
(1) If the ACMA thinks it necessary for the purposes of paragraph 100(4)(b), the ACMA may, by written notice given to the applicant for a transmitter licence or a receiver licence, request the applicant to:
(a) submit to the ACMA the radiocommunications device specified in the notice, at a time and place specified in the notice, for testing; or
(b) permit the ACMA, or a recognised testing authority, to test the radiocommunications device so specified.
(2) A radiocommunications device submitted under paragraph (1)(a) for testing must be returned to the applicant within a reasonable time.
101A Transmitter licences for temporary community broadcasting
(1) If the ACMA allocates a temporary community broadcasting licence (the related licence) to a person, then the ACMA may issue to the person, upon application by the person under section 99, a transmitter licence that authorises operation of one or more specified radiocommunications transmitters for transmitting the community broadcasting service in accordance with the related licence.
(2) Subsections 100(4) to (8) apply for the purposes of this section.
102 Transmitter licences for certain broadcasting services
(1) Subject to subsections (2AA) and (2AB), if a broadcasting services bands licence (the related licence) is allocated to a person under Part 4 or 6 of the Broadcasting Services Act 1992, the ACMA must issue to the person a transmitter licence that authorises operation of one or more specified radiocommunications transmitters for transmitting the broadcasting service or services concerned in accordance with the related licence.
(2) If the related licence is transferred, that transmitter licence is taken to be issued to the person to whom the related licence is transferred.
(2AA) Subsection (1) does not apply if:
(a) the related licence is a commercial radio broadcasting licence allocated on or after the digital radio start‑up day for the BSA licence area; and
(b) the related licence is subject to a condition that the related licensee may only provide digital commercial radio broadcasting services under the related licence.
(2AB) Subsection (1) does not apply if:
(a) the related licence is a designated community radio broadcasting licence allocated on or after the digital radio start‑up day for the BSA licence area; and
(b) the related licence is subject to a condition that the related licensee may only provide digital community radio broadcasting services under the related licence.
(2AC) If:
(a) the related licence is a commercial radio broadcasting licence allocated before the digital radio start‑up day for the BSA licence area; and
(b) under the Broadcasting Services Act 1992, the related licence authorises the related licensee to provide digital commercial radio broadcasting services;
then, after the digital radio start‑up day for the BSA licence area, the transmitter licence does not authorise the operation of a radiocommunications transmitter for transmitting those services.
(2AD) If:
(a) the related licence is a designated community radio broadcasting licence allocated before the digital radio start‑up day for the BSA licence area; and
(b) under the Broadcasting Services Act 1992, the related licence authorises the related licensee to provide digital community radio broadcasting services;
then, after the digital radio start‑up day for the BSA licence area, the transmitter licence does not authorise the operation of a radiocommunications transmitter for transmitting those services.
(3) If:
(a) a transmitter licence is or was issued under this section; and
(b) the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting the broadcasting service or services concerned in digital mode using one or more channels;
the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting designated datacasting services in digital mode using those channels.
(5) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a designated datacasting service in digital mode using those channels has no effect unless:
(a) the licensee holds a BSA datacasting licence authorising the provision of that service; or
(b) the service is a designated teletext service.
102AD Transmitter licences—authorised channels
(1) If:
(a) a transmitter licence is issued under section 102 in relation to a broadcasting services bands licence (the related licence); and
(b) the transmitter licence is held by the licensee of the related licence; and
(c) the transmitter licence authorises the operation of one or more radiocommunications transmitters for transmitting one or more commercial television broadcasting services in accordance with the related licence;
the transmitter licence authorises the operation of the transmitter or transmitters concerned for transmitting:
(d) one or more HDTV multi‑channelled commercial television broadcasting services; and
(e) one or more SDTV multi‑channelled commercial television broadcasting services;
in accordance with the related licence, using the channel or channels allotted to the licensee of the related licence under the BSA television licence area plan.
(2) In this section:
commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
commercial television broadcasting service means a commercial broadcasting service that provides television programs.
HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
102C Category 1 digital radio multiplex transmitter licences
(1) The ACMA must not issue a category 1 digital radio multiplex transmitter licence to a person unless the person is a qualified company.
(2) The ACMA must not issue a foundation category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106 unless:
(a) the licensee is an eligible joint venture company; and
(b) the application for the licence is accompanied by the fee determined by the ACMA by legislative instrument.
(3) The ACMA must not issue a foundation category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area in accordance with a price‑based allocation system determined under section 106 unless:
(a) the ACMA has, by notice published on its website at least 120 days before the issue of the licence, invited applications from eligible joint venture companies for the issue of the licence otherwise than in accordance with a price‑based allocation system determined under section 106; and
(b) either:
(i) no applications were received from eligible joint venture companies after the publication of the notice; or
(ii) one or more applications were received from eligible joint venture companies after the publication of the notice, but the ACMA refused, under section 100, to issue the licence to any of the applicants.
(4) The ACMA must not issue a category 1 digital radio multiplex transmitter licence (other than a foundation category 1 digital radio multiplex transmitter licence) for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106.
Eligible joint venture company
(5) For the purposes of the application of this section to a particular designated BSA radio area, a company is an eligible joint venture company if:
(a) before the company was formed, the promoters of the company initially invited:
(i) each incumbent digital commercial radio broadcasting licensee for the designated BSA radio area; and
(ii) if there is a digital community radio broadcasting representative company for the designated BSA radio area—the digital community radio broadcasting representative company;
to subscribe for shares in the first‑mentioned company on the basis that:
(iii) the incumbent digital commercial radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and
(iv) the only persons entitled to subscribe for shares in the first‑mentioned company are the incumbent digital commercial radio broadcasting licensees and the digital community radio broadcasting representative company; and
(v) assuming that the invitation were to be accepted by each invitee—the incumbent digital commercial radio broadcasting licensees would, in aggregate, hold seven‑ninths of the shares in the first‑mentioned company; and
(vi) assuming that the invitation were to be accepted by each invitee—the digital community radio broadcasting representative company would hold two‑ninths of the shares in the first‑mentioned company; and
(b) in a case where not all of the invitations referred to in paragraph (a) were accepted—before the company was formed, the promoters of the first‑mentioned company invited each person who had accepted an invitation referred to in paragraph (a) to subscribe for the remaining shares in the first‑mentioned company; and
(c) the invitations referred to in paragraph (a) were published on the ACMA’s website; and
(ca) the invitations referred to in paragraph (a) were open for whichever of the following periods is applicable:
(i) a period of at least 80 days;
(ii) if all the invitees responded to the invitations within the period mentioned in subparagraph (i)—the period that began at the start of the period mentioned in subparagraph (i) and ended on the last occasion on which the promoters received such a response; and
(d) there was no discrimination between subscribers for shares in the first‑mentioned company in relation to the consideration payable for the issue of the shares concerned; and
(e) the total amount of money payable as consideration for the issue of the shares in the first‑mentioned company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph (a) are published, would be required for the commercially viable operation of the first‑mentioned company if it were assumed that a foundation category 1 digital radio multiplex transmitter licence had been issued to the first‑mentioned company at that time; and
(f) none of the recipients of an invitation referred to in paragraph (a) or (b) were subject to duress as to whether the invitation should be accepted.
(6) The promoters of a company may request the ACMA to publish on its website the invitations referred to in paragraph (5)(a).
(7) The ACMA must comply with a request under subsection (6) if the ACMA is satisfied that the request was made in good faith.
Copies of responses to invitations to subscribe for shares
(7A) If:
(a) an application is made for a foundation category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area; and
(b) the applicant is an eligible joint venture company;
the ACMA may, by written notice given to the applicant, require the applicant to:
(c) give the ACMA a copy of each of the responses to the invitations referred to in paragraph (5)(a), so far as that paragraph applies to the promoters of the applicant; and
(d) do so within the period specified in the notice.
(7B) If the applicant breaches the requirement set out in the subsection (7A) notice, the ACMA may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
(7C) If:
(a) an application is made for a foundation category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area; and
(b) the application includes a statement to the effect that a particular company is a digital community radio broadcasting representative company for the area;
then:
(c) the ACMA may, by written notice given to the company, require the company to:
(i) give the ACMA a copy of each of the responses to the invitations referred to in paragraph 9C(1)(c), so far as that paragraph applies to the promoters of the company; and
(ii) do so within the period specified in the notice; and
(d) if the ACMA gives a notice to the company—the ACMA must give a copy of the notice to the applicant.
(7D) If the company breaches the requirement set out in the subsection (7C) notice, the ACMA may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
Fee
(8) A fee determined under paragraph (2)(b) must not be such as to amount to taxation.
102D Category 2 digital radio multiplex transmitter licences
(1) The ACMA must not issue a category 2 digital radio multiplex transmitter licence to a person unless the person is a qualified company.
(2) The ACMA must not issue a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106 unless:
(a) the licensee is an eligible joint venture company; and
(b) the application for the licence is accompanied by the fee determined by the ACMA by legislative instrument.
(3) The ACMA must not issue a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area in accordance with a price‑based allocation system determined under section 106 unless:
(a) the ACMA has, by notice published on its website at least 120 days before the issue of the licence, invited applications from eligible joint venture companies for the issue of the licence otherwise than in accordance with a price‑based allocation system determined under section 106; and
(b) either:
(i) no applications were received from eligible joint venture companies after the publication of the notice; or
(ii) one or more applications were received from eligible joint venture companies after the publication of the notice, but the ACMA refused, under section 100, to issue the licence to any of the applicants.
(4) The ACMA must not issue a category 2 digital radio multiplex transmitter licence (other than a foundation category 2 digital radio multiplex transmitter licence) for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106.
Eligible joint venture company
(5) For the purposes of the application of this section to a particular designated BSA radio area, a company is an eligible joint venture company if:
(a) before the company was formed, the promoters of the company initially invited:
(i) each incumbent digital commercial radio broadcasting licensee for the designated BSA radio area; and
(ii) if there is a digital community radio broadcasting representative company for the designated BSA radio area—the digital community radio broadcasting representative company; and
(iii) each national broadcaster;
to subscribe for shares in the first‑mentioned company on the basis that:
(iv) the incumbent digital commercial radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and
(v) the only persons entitled to subscribe for shares in the first‑mentioned company are the incumbent digital commercial radio broadcasting licensees, the digital community radio broadcasting representative company and the national broadcasters; and
(vi) assuming that the invitation were to be accepted by each invitee—the incumbent digital commercial radio broadcasting licensees would, in aggregate, hold five‑ninths of the shares in the first‑mentioned company; and
(vii) assuming that the invitation were to be accepted by each invitee—the digital community radio broadcasting representative company would hold two‑ninths of the shares in the first‑mentioned company; and
(viii) assuming that the invitation were to be accepted by each invitee—each national broadcaster would hold one‑ninth of the shares in the first‑mentioned company; and
(b) in a case where not all of the invitations referred to in paragraph (a) were accepted—before the company was formed, the promoters of the first‑mentioned company invited each person who had accepted an invitation referred to in paragraph (a) to subscribe for the remaining shares in the first‑mentioned company; and
(c) the invitations referred to in paragraph (a) were published on the ACMA’s website; and
(ca) the invitations referred to in paragraph (a) were open for whichever of the following periods is applicable:
(i) a period of at least 80 days;
(ii) if all the invitees responded to the invitations within the period mentioned in subparagraph (i)—the period that began at the start of the period mentioned in subparagraph (i) and ended on the last occasion on which the promoters received such a response; and
(d) there was no discrimination between subscribers for shares in the first‑mentioned company in relation to the consideration payable for the issue of the shares concerned; and
(e) the total amount of money payable as consideration for the issue of the shares in the first‑mentioned company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph (a) are published, would be required for the commercially viable operation of the first‑mentioned company if it were assumed that a foundation category 2 digital radio multiplex transmitter licence had been issued to the first‑mentioned company at that time; and
(f) none of the recipients of an invitation referred to in paragraph (a) or (b) were subject to duress as to whether the invitation should be accepted.
(6) The promoters of a company may request the ACMA to publish on its website the invitations referred to in paragraph (5)(a).
(7) The ACMA must comply with a request under subsection (6) if the ACMA is satisfied that the request was made in good faith.
Copies of responses to invitations to subscribe for shares
(7A) If:
(a) an application is made for a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area; and
(b) the applicant is an eligible joint venture company;
the ACMA may, by written notice given to the applicant, require the applicant to:
(c) give the ACMA a copy of each of the responses to the invitations referred to in paragraph (5)(a), so far as that paragraph applies to the promoters of the applicant; and
(d) do so within the period specified in the notice.
(7B) If the applicant breaches the requirement set out in the subsection (7A) notice, the ACMA may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
(7C) If:
(a) an application is made for a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area; and
(b) the application includes a statement to the effect that a particular company is a digital community radio broadcasting representative company for the area;
then:
(c) the ACMA may, by written notice given to the company, require the company to:
(i) give the ACMA a copy of each of the responses to the invitations referred to in paragraph 9C(1)(c), so far as that paragraph applies to the promoters of the company; and
(ii) do so within the period specified in the notice; and
(d) if the ACMA gives a notice to the company—the ACMA must give a copy of the notice to the applicant.
(7D) If the company breaches the requirement set out in the subsection (7C) notice, the ACMA may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
National broadcasters
(8) A national broadcaster may hold shares in a company that:
(a) is the holder of a category 2 digital radio multiplex transmitter licence; or
(b) is an applicant for the issue of a category 2 digital radio multiplex transmitter licence; or
(c) proposes to apply for the issue of a category 2 digital radio multiplex transmitter licence.
Fee
(9) A fee determined under paragraph (2)(b) must not be such as to amount to taxation.
102E Category 3 digital radio multiplex transmitter licences
Holder of a category 3 digital radio multiplex licence
(1) The ACMA must not issue a category 3 digital radio multiplex transmitter licence to a person unless the person is a qualified company, and:
(a) both:
(i) each national broadcaster beneficially owns shares in the company; and
(ii) there are no other beneficial owners of shares in the company; or
(b) both:
(i) a single national broadcaster beneficially owns all the shares in the company; and
(ii) the other national broadcaster has consented to that beneficial ownership.
Obligation to issue a category 3 digital radio multiplex licence
(2) If:
(a) a digital radio channel plan is in force for a designated BSA radio area; and
(b) a qualified company applies under section 99 for a category 3 digital radio multiplex transmitter licence for the designated BSA radio area; and
(c) the requirements of paragraph (1)(a) or (b) of this section are satisfied in relation to the qualified company;
the ACMA must, under section 100, issue the category 3 digital radio multiplex transmitter licence to the company unless there is already a category 3 digital radio multiplex transmitter licence for the designated BSA radio area.
National broadcaster may hold shares in the holder of a category 3 digital radio multiplex licence etc.
(3) A national broadcaster may hold shares in a company that:
(a) is the holder of a category 3 digital radio multiplex transmitter licence; or
(b) is an applicant for the issue of a category 3 digital radio multiplex transmitter licence; or
(c) proposes to apply for the issue of a category 3 digital radio multiplex transmitter licence.
102F Limit on issue of non‑foundation digital radio multiplex transmitter licences
(1) Before issuing a non‑foundation digital radio multiplex transmitter licence for a particular designated BSA radio area, the ACMA must ensure that:
(a) one or more foundation digital radio multiplex transmitter licences are in force for the designated BSA radio area; and
(b) the total multiplex capacities under those foundation digital radio multiplex transmitter licences is sufficient to fulfil the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ(2) in its application to the designated BSA radio area.
(2) For the purposes of subsection (1), if the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ(2) in its application to the designated BSA radio area is not a multiple of 7, round up that number to the next higher number that is a multiple of 7.
102G Limits on use of the spectrum
(1) The ACMA may, by legislative instrument:
(a) impose limits on the aggregate of the parts of the spectrum that:
(i) under spectrum licences; and
(ii) under existing transmitter licences; and
(iii) as a result of the allocation or issue of transmitter licences;
may be used by:
(iv) any one person; or
(v) a specified person; or
(b) impose limits on the aggregate of the parts of the spectrum that:
(i) under spectrum licences; and
(ii) under existing transmitter licences; and
(iii) as a result of the allocation or issue of transmitter licences;
may, in total, be used by the members of a specified group of persons.
Note: Persons or groups may be specified by name, by inclusion in a specified class or in any other way.
(2) A limit imposed as mentioned in subsection (1) may be expressed to apply in relation to any or all of the following:
(a) a specified part of the spectrum;
(b) a specified area;
(c) a specified population reach.
For example, a limit might specify an aggregate limit of 15 MHz per person in the band between 1800 MHz and 1900 MHz (inclusive) for a particular area. This subsection does not, by implication, limit subsection (1).
(3) An instrument that imposes limits as mentioned in subsection (1) may impose limits of nil in relation to specified persons or to the members of specified groups of persons.
(4) The Minister may, by notifiable instrument, give written directions to the ACMA in relation to the exercise of the power conferred by subsection (1).
(5) The ACMA must exercise its power under subsection (1) in a manner consistent with any directions given by the Minister under subsection (4).
(6) Before making an instrument under subsection (1), the ACMA must consult the ACCC about whether the instrument should impose limits and, if so, the nature of the limits.
(7) This section does not apply to:
(a) an apparatus licence issued under section 101A or 102; or
(b) a digital radio multiplex transmitter licence.
103 Duration of apparatus licences
(1) An apparatus licence comes into force on the day on which it is issued or on such later day as is specified in the licence for the purpose.
(2) Subject to subsection (2A) and Division 6, an apparatus licence (other than an apparatus licence issued under section 101A or 102 or a digital radio multiplex transmitter licence) remains in force for the period specified in the licence.
(2A) An apparatus licence issued under section 100 with the licence number 1171866 does not have effect after 30 June 2024.
(3) The licence may specify any period not exceeding 20 years.
(4) A transmitter licence issued under section 101A:
(a) subject to paragraph (b), continues in force while the related licence referred to in that section remains in force; and
(b) does not have effect while the related licence referred to in that section is suspended.
(4A) A transmitter licence issued under subsection 102(1):
(a) subject to paragraphs (b) and (c), continues in force while the related licence referred to in that subsection remains in force; and
(b) does not have effect while the related licence referred to in that subsection is suspended; and
(c) if the related licence is a CTV licence within the meaning of the Broadcasting Services Act 1992—does not have effect after 30 June 2024.
(4B) A determination under subparagraph (4A)(c)(ii) is a legislative instrument.
(6) Subject to Division 6, a digital radio multiplex transmitter licence remains in force for 15 years.
103A Renewal statements etc.
Renewal statement
(1) An apparatus licence issued after the commencement of this section may include:
(a) a statement to the effect that the licence cannot be renewed; or
(b) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist.
(2) A statement mentioned in paragraph (1)(a) or (b) is to be known as a renewal statement.
(3) Circumstances specified under paragraph (1)(b) may be an act or omission by the ACMA.
(4) Subsection (3) does not limit paragraph (1)(b).
(5) The ACMA may, by legislative instrument, determine that each apparatus licence included in a specified class of apparatus licences is taken to include one of the following statements:
(a) a statement to the effect that the licence cannot be renewed;
(b) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist.
(6) A statement mentioned in paragraph (5)(a) or (b) is to be known as a renewal statement.
(7) Circumstances specified under paragraph (5)(b) may be an act or omission by the ACMA.
(8) Subsection (7) does not limit paragraph (5)(b).
(9) A determination under subsection (5) does not apply to an apparatus licence if a renewal statement is included in the licence under subsection (1).
Renewal application period
(10) If an apparatus licence includes a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist, the licence must also include a statement to the effect that a specified period is the renewal application period for the licence.
(11) A statement mentioned in subsection (10) is to be known as a renewal application period statement.
(12) The ACMA may, by legislative instrument, determine that each apparatus licence included in a specified class of apparatus licences is taken to include a statement to the effect that a period ascertained in accordance with the determination is the renewal application period for the licence.
(13) A renewal application period for an apparatus licence must:
(a) begin at a time when the licence is in force; and
(b) end not later than 60 days after the licence is due to expire.
(14) A determination under subsection (12) does not apply to an apparatus licence if a renewal application period statement is included in the licence under subsection (10).
Public interest statement
(15) If an apparatus licence includes a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist, the licence may also include a statement to the effect that the ACMA will not renew the licence unless the ACMA is satisfied that it is in the public interest to do so.
(16) A statement mentioned in subsection (15) is to be known as a public interest statement.
(17) The ACMA may, by legislative instrument, determine that each apparatus licence included in a specified class of apparatus licences is taken to include a statement to the effect that the ACMA will not renew the licence unless the ACMA is satisfied that it is in the public interest to do so.
(18) A statement mentioned in subsection (17) is to be known as a public interest statement.
Exceptions
(19) This section does not apply to:
(a) a transmitter licence issued under section 101A or 102; or
(b) a digital radio multiplex transmitter licence.
(20) Subsections (5) and (17) do not apply to a licence issued before the commencement of this section.
103B Variation of renewal statements etc. with agreement
(1) Subject to subsections (2), (3) and (4), the ACMA may, with the written agreement of the licensee of an apparatus licence, vary the licence by:
(a) varying the renewal statement included in the licence; or
(b) omitting the renewal statement included in the licence and substituting another renewal statement; or
(c) omitting the renewal statement included in the licence; or
(d) including a renewal statement in the licence; or
(e) varying the renewal application period statement included in the licence; or
(f) including a renewal application period statement in the licence; or
(g) omitting the public interest statement included in the licence.
(2) If the renewal statement is varied, the statement as varied must comply with the requirements of section 103A.
(3) If another renewal statement is substituted, the substituted renewal statement must comply with the requirements of section 103A.
(4) If a renewal statement is included in the licence, the statement must comply with the requirements of section 103A.
(5) If the renewal application period statement is varied, the statement as varied must comply with the requirements of section 103A.
(6) If a renewal application period statement is included in the licence, the statement must comply with the requirements of section 103A.
103C Variation of renewal statements etc. without agreement
(1) Subject to subsections (2), (3) and (4), the ACMA may, by written notice given to the licensee of an apparatus licence, vary the licence by:
(a) varying the renewal statement included in the licence; or
(b) omitting the renewal statement included in the licence and substituting another renewal statement; or
(c) omitting the renewal statement included in the licence; or
(d) including a renewal statement in the licence; or
(e) varying the renewal application period statement included in the licence; or
(f) including a renewal application period statement in the licence; or
(g) omitting the public interest statement included in the licence.
(2) If the renewal statement is varied, the statement as varied must comply with the requirements of section 103A.
(3) If another renewal statement is substituted, the substituted renewal statement must comply with the requirements of section 103A.
(4) If a renewal statement is included in the licence, the statement must comply with the requirements of section 103A.
(5) If the renewal application period statement is varied, the statement as varied must comply with the requirements of section 103A.
(6) If a renewal application period statement is included in the licence, the statement must comply with the requirements of section 103A.
104 Compliance with plans
(1) Subject to subsections (2) and (3), the ACMA may issue an apparatus licence that is inconsistent with the spectrum plan or any relevant frequency band plan only if:
(a) the apparatus licence is granted for purposes which relate to an event of international, national or regional significance; or
(b) the issue of the apparatus licence is otherwise in the public interest; or
(c) the apparatus licence authorises a body covered by any of paragraphs 27(1)(b) to (be) to operate specified radiocommunications devices, or radiocommunications devices of a specified kind, for the purpose of investigations or operations conducted by the body.
(2) An apparatus licence of a kind mentioned in paragraph (1)(a) or (b) must not be issued for more than 30 days.
(3) An apparatus licence of a kind mentioned in paragraph (1)(a) or (b) must not be renewed under section 130 more than once.
105 Restrictions on issuing apparatus licences
(1) Subject to subsection (3), if a spectrum licence authorises the operation of radiocommunications devices:
(a) at one or more frequencies; and
(b) within one or more areas;
the ACMA must not issue an apparatus licence that authorises the operation of radiocommunications devices:
(c) at those frequencies; and
(d) within those areas.
(2) Subject to subsection (3), if a marketing plan is in force in relation to the issue of a spectrum licence that authorises the operation of radiocommunications devices:
(a) at one or more frequencies; and
(b) within one or more areas;
the ACMA must not issue an apparatus licence that authorises the operation of radiocommunications devices:
(c) at those frequencies; and
(d) within those areas.
(3) The ACMA may issue an apparatus licence mentioned in subsection (1) or (2):
(a) to a body or person covered by any of paragraphs 27(1)(b) to (be) for the purpose of investigations or operations conducted by the body or person; or
(b) if it is satisfied that the special circumstances of the particular case justify the issuing of the licence.
105A Notice of apparatus licences that are about to expire
The ACMA may publish on its website a notice that:
(a) states where information may be obtained about:
(i) the apparatus licences that are included in a specified class and that will expire during a specified period; and
(ii) the parts of the spectrum to which the licences relate; and
(b) invites applications from persons who wish to have issued to them apparatus licences relating to those parts of the spectrum.
106 Price‑based allocation system for certain transmitter licences
(1) The ACMA may determine in writing a price‑based allocation system for allocating and/or issuing specified transmitter licences (other than licences issued under section 101A or NBS transmitter licences).
(2) A system so determined:
(a) may apply generally or in respect of a particular area; and
(b) may apply only in relation to a specified range of frequencies; and
(ba) may provide for eligibility requirements (if any) for prospective licensees; and
(bb) may provide for credits (if any) for prospective licensees; and
(c) may require payment of an application fee, but not a fee that would be such as to amount to taxation.
(3) A system so determined may:
(a) impose limits on the aggregate of the parts of the spectrum that:
(i) under spectrum licences; and
(ii) under existing transmitter licences; and
(iii) as a result of the allocation or issue of transmitter licences;
may be used by:
(iv) any one person; or
(v) a specified person; or
(b) impose limits on the aggregate of the parts of the spectrum that:
(i) under spectrum licences; and
(ii) under existing transmitter licences; and
(iii) as a result of the allocation or issue of transmitter licences;
may, in total, be used by the members of a specified group of persons.
Note: Persons or groups may be specified by name, by inclusion in a specified class or in any other way.
(4) A limit imposed as mentioned in subsection (3) may be expressed to apply in relation to any or all of the following:
(a) a specified part of the spectrum;
(b) a specified area;
(c) a specified population reach.
For example, a system might specify an aggregate limit of 15 MHz per person in the band between 1800 MHz and 1900 MHz (inclusive) for a particular area. This subsection does not, by implication, limit subsection (3).
(4A) A system that imposes limits as mentioned in subsection (3) may impose limits of nil in relation to specified persons or to the members of specified groups of persons.
(5) A system so determined may provide that, if the issue of a licence is covered by section 153M (which deals with re‑allocation of spectrum), the ACMA may defer the issue of the licence until the relevant frequencies become available as a result of the expiry, surrender or cancellation of one or more other apparatus licences that, under section 153D, are affected by the spectrum re‑allocation declaration concerned.
(6) A system so determined may require the ACMA to give specified information to the ACCC.
(7) Subsections (2), (3), (4), (5) and (6) do not, by implication, limit subsection (1).
(9) The Minister may give written directions to the ACMA in relation to the exercise of the power to determine procedures imposing a limit as mentioned in subsection (3).
(10) A direction under subsection (9) must be published in the Gazette.
(11) The ACMA must exercise its powers under subsection (1) in a manner consistent with any directions given by the Minister under subsection (9).
(11A) Before determining a price‑based allocation system under subsection (1), the ACMA must consult the ACCC about whether the system should impose limits as mentioned in subsection (3) and, if so, the nature of those limits.
(12) Before determining a price‑based allocation system under subsection (1), the ACMA must consult the ACCC about whether the procedures should include a requirement mentioned in subsection (6) and, if so, the nature of the requirement.
(12A) A price‑based allocation system determined under subsection (1) may confer a power to make a decision of an administrative character on a person or the ACMA.
(13) If a transmitter licence is issued under a system so determined, the ACMA must publish in the Gazette:
(a) the successful applicant’s name; and
(b) the amount that the applicant agreed to pay to the Commonwealth for issue of the licence.
(14) If:
(a) a transmitter licence of a kind specified for the purposes of subsection (1) would authorise a person to operate a radiocommunications transmitter; and
(b) this Act or any other law requires that a person operating a transmitter:
(i) of that kind; or
(ii) for a purpose for which the transmitter is to be used;
be within a specified class of persons;
the Minister may give the ACMA a written direction requiring the ACMA, in determining a price‑based allocation system, to limit the persons eligible to apply for such a transmitter licence to:
(c) persons within that specified class; or
(d) persons not within, but eligible to be within, that class; or
(e) persons within that class and persons not within, but eligible to be within, that class.
(15) The ACMA must comply with a direction under subsection (14).
(16) A direction under subsection (14) is a legislative instrument.
(17) Subsections (9) and (14) do not, by implication, limit the Minister’s power to give directions otherwise than under those subsections.
(18) A determination under subsection (1) is a legislative instrument.
106A Issue of apparatus licence taken to be an acquisition of an asset and conduct
(1) For the purposes of the provisions of the Competition and Consumer Act 2010 mentioned in subsection (2), the issue of an apparatus licence to a person is taken to be:
(a) an acquisition by the person of an asset of another person; and
(b) conduct engaged in by the person.
(2) The provisions of the Competition and Consumer Act 2010 are:
(a) section 50 and subsection 81(1); and
(b) the remaining provisions of that Act, to the extent that those provisions relate to section 50 of that Act.
(3) Subsection (1) does not apply to a transmitter licence issued under section 102 or to an NBS transmitter licence.
(4) Subsection (1) does not apply to the issue of an apparatus licence if the licence is issued under Division 7 by way of renewal of an existing apparatus licence.
Division 3—Conditions of apparatus licences
107 General conditions
(1) An apparatus licence is subject to the following conditions:
(a) a condition that the licensee, and any person authorised by the licensee to operate a radiocommunications device under the licence, must comply with this Act;
(b) a condition that the licensee inform each person so authorised of the person’s obligations to comply with this Act and the conditions of the licence;
(c) a condition that the licensee meet all obligations (if any) of the licensee to pay:
(i) charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005; and
(ii) amounts of apparatus licence tax; and
(iii) amounts of interim tax;
(d) a condition that any radiocommunications device operated under the licence must comply with all the standards applicable to it under the equipment rules;
(g) such other conditions as are specified in the licence.
(2) Paragraphs (1)(a), (b), (c) and (d) do not limit the kinds of conditions that may be specified under paragraph (1)(g) or imposed under paragraph 111(1)(a).
Note: Inclusion of conditions under paragraph (1)(g) is a reviewable decision under Part 5.6.
(3) This section does not apply to:
(a) transmitter licences issued under section 101A or 102; or
(c) digital radio multiplex transmitter licences.
(5) If the issue of an apparatus licence is covered by section 153M (which deals with re‑allocation of spectrum), a condition of the licence may provide for the progressive authorisation of the operation of the radiocommunications device under the licence. The progressivity is to be based on the times when a particular part or parts of the spectrum become available as a result of the expiry, surrender or cancellation of one or more other apparatus licences that, under section 153D, are affected by the spectrum re‑allocation declaration concerned.
(6) Subsection (5) does not, by implication, limit anything in subsection (1).
108 Additional conditions for transmitter licences
(1) A transmitter licence is subject to the additional conditions set out in subsection (2) relating to the operation of any radiocommunications transmitter under the licence by the licensee, or by any person authorised by the licensee to operate a radiocommunications transmitter under the licence.
(2) The licensee, and any person so authorised:
(a) must not operate, or permit operation of, the transmitter for a purpose that is inconsistent with a purpose of a kind specified in the appropriate frequency band plan (if any) under subsection 32(4); and
(b) must not operate, or permit operation of, the transmitter except in accordance with any conditions specified in the licence that relate to:
(i) containment of interference, or of the likelihood of interference, to radiocommunications; or
(ii) transmission of an identification signal; and
(c) must not operate, or permit operation of, the transmitter except on a frequency or frequencies, or on a frequency channel, and at a constancy, specified in the licence; and
(d) must not operate, or permit operation of, the transmitter:
(i) in a way that would be likely to cause reasonable persons, justifiably in all the circumstances, to be seriously alarmed or seriously affronted; or
(ii) for the purpose of harassing a person; and
(da) must not operate, or permit operation of, the transmitter for transmitting an international broadcasting service unless there is in force an international broadcasting licence authorising the provision of that service; and
(e) if the licence is a licence in respect of which persons operating the transmitter are required under section 119 to be qualified operators in relation to the licence—must not operate the transmitter unless he or she is such a qualified operator; and
(f) must comply with section 187 of the Navigation Act 2012; and
(g) must comply with any direction:
(i) that relates to operation of the transmitter; and
(ii) to which subsection (3) applies.
(3) This subsection applies to a direction that:
(a) is given, in a way not inconsistent with any relevant guidelines under section 112, either orally or in writing; and
(b) is given by:
(i) a member of the Australian Federal Police; or
(ii) a member of the police force of a State or Territory; or
(iii) an officer of the Defence Force; or
(iv) an officer of the Australian Coastal Surveillance Centre; or
(v) an officer who is included in a class of officers specified in the regulations, and who is an officer of an organisation specified in the regulations the sole or principal purpose of which is to deal with natural disasters; and
(c) is reasonably necessary for the purposes of:
(i) securing the safety of a vessel, aircraft or space object that is in danger; or
(ii) dealing with an emergency involving a serious threat to the environment; or
(iii) dealing with an emergency involving risk of death of, or injury to, persons; or
(iv) dealing with an emergency involving risk of substantial loss of, or substantial damage to, property.
(4) This section does not limit the kinds of conditions that may be specified under paragraph 107(1)(f) or (g) or imposed under paragraph 111(1)(a).
(5) This section does not apply to:
(a) transmitter licences issued under section 102; or
(c) digital radio multiplex transmitter licences.
108A Conditions of transmitter licences for temporary community broadcasters
(1) A transmitter licence issued under section 101A is subject to the following conditions:
(a) a condition that the licensee must comply with this Act;
(b) a condition that the licensee meet all obligations (if any) of the licensee to pay:
(i) charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005; and
(ii) amounts of apparatus licence tax;
(c) a condition that the licensee inform each person authorised by the licensee to operate a radiocommunications transmitter under the licence of the person’s obligations to comply with this Act and the conditions of the licence;
(d) a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ACMA under section 33 of the Broadcasting Services Act 1992;
(f) such other conditions as are specified in the licence.
Note: Inclusion of conditions under paragraph (1)(f) is a reviewable decision under Part 5.6.
(2) The conditions of the licence, including any further conditions imposed under paragraph 111(1)(a), must not be inconsistent with the related licence as referred to in section 101A.
109 Conditions of transmitter licences for certain broadcasting services
(1) A transmitter licence issued under section 102 is subject to the following conditions:
(a) a condition that the licensee must comply with this Act;
(b) a condition that the licensee meet all obligations (if any) of the licensee to pay:
(i) charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005; and
(ii) amounts of apparatus licence tax; and
(iii) amounts of interim tax;
(c) a condition that the licensee inform each person authorised by the licensee to operate a radiocommunications transmitter under the licence of the person’s obligations to comply with this Act and the conditions of the licence;
(d) if subsection 26(1) of the Broadcasting Services Act 1992 applies—a condition that the licensee, and any person so authorised, must not operate, or permit operation of, such a transmitter otherwise than in accordance with any relevant technical specifications determined by the ACMA under that subsection;
(da) if a BSA television licence area plan is applicable to the transmission of one or more television broadcasting services under the authority of the licence—a condition that the licensee, and any person so authorised, must not operate, or permit operation of, such a transmitter otherwise than in accordance with any relevant technical specifications determined under the plan;
(e) a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ACMA under section 33 of the Broadcasting Services Act 1992;
(f) such other conditions as are specified in the licence.
(2) The conditions of a licence issued under section 102 , including any further conditions imposed under paragraph 111(1)(a), must not be inconsistent with the related licence as referred to in section 102.
Note: Inclusion of conditions under paragraph (1)(f) is a reviewable decision under Part 5.6.
(3) In this section:
television broadcasting service has the same meaning as in section 26 of the Broadcasting Services Act 1992.
109B Conditions of digital radio multiplex transmitter licences—general
(1) A digital radio multiplex transmitter licence is subject to the following conditions:
(a) a condition that the licensee must comply with this Act;
(b) a condition that the licensee meet all obligations (if any) of the licensee to pay:
(i) charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005; and
(ii) amounts of apparatus licence tax;
(c) a condition that the licensee inform each person authorised by the licensee to operate a multiplex transmitter under the licence of the person’s obligations to comply with this Act and the conditions of the licence;
(d) if the licence is for 2 or more multiplex transmitters—a condition that one of those multiplex transmitters is to be used as the main multiplex transmitter and the others as repeater multiplex transmitters;
(e) a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence except on a frequency channel or channels, and at a constancy, specified in the licence in accordance with the relevant digital radio channel plan;
(f) if the licence is a category 1 digital radio multiplex transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless:
(i) the service is a digital commercial radio broadcasting service, and there is in force a commercial radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or
(ii) the service is a digital community radio broadcasting service, and there is in force a designated community radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned;
(g) if the licence is a category 2 digital radio multiplex transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless:
(i) the service is a digital commercial radio broadcasting service, and there is in force a commercial radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or
(ii) the service is a digital community radio broadcasting service, and there is in force a designated community radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or
(iii) the service is a digital national radio broadcasting service;
(h) if the licence is a category 3 digital radio multiplex transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless the service is a digital national radio broadcasting service;
(i) if the licence is a foundation category 1 digital radio multiplex transmitter licence—a condition that the licensee, or a person so authorised, will:
(i) commence to transmit a service covered by subparagraph (f)(i) or (ii) on the digital radio start‑up day for the designated BSA radio area concerned; and
(ii) transmit a service covered by subparagraph (f)(i) or (ii) at all times after the commencement referred to in subparagraph (i) of this paragraph;
(j) if the licence is a foundation category 2 digital radio multiplex transmitter licence—a condition that the licensee, or a person so authorised, will:
(i) commence to transmit a service covered by subparagraph (g)(i), (ii) or (iii) on the digital radio start‑up day for the designated BSA radio area concerned; and
(ii) transmit a service covered by subparagraph (g)(i), (ii) or (iii) at all times after the commencement referred to in subparagraph (i) of this paragraph;
(k) a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless that service is transmitted using a digital modulation technique;
(l) a condition that the licensee must not carry on any activities other than activities that consist of:
(i) operating a multiplex transmitter under the licence; and
(ii) activities that are related to the operation of the multiplex transmitter;
(m) a condition that the licensee, and any person so authorised, must not operate, or permit operation of, a multiplex transmitter under the licence otherwise than in accordance with any relevant technical specifications determined by the relevant digital radio channel plan;
(n) a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ACMA under section 33 of the Broadcasting Services Act 1992;
(o) a condition that the licensee, and any person so authorised, will comply with any standards under section 130AB of the Broadcasting Services Act 1992 (which deals with technical standards relating to the operation of multiplex transmitters);
(p) a condition that the licensee, or a person so authorised, will comply with subsection 130V(1) of the Broadcasting Services Act 1992 (which deals with industry standards);
(q) a condition that the licensee will, if requested to do so by the ACMA, submit to the ACMA, within a specified period of at least 30 days, an implementation plan that complies with any relevant determinations under subsection (2);
(r) a condition that the licensee, and any person so authorised, must comply with an implementation plan submitted to the ACMA by the licensee;
(s) if the licence is a category 3 digital radio multiplex transmitter licence—such other conditions as are specified in the regulations;
(t) such other conditions as are specified in the licence.
Implementation plans
(2) The ACMA may, by legislative instrument, determine requirements to be complied with by implementation plans.
(3) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection (2).
(4) The ACMA must comply with a direction under subsection (3).
Licences allocated under subsection 40(1) of the Broadcasting Services Act 1992
(5) Subparagraphs (1)(f)(i) and (g)(i) do not apply in relation to a commercial radio broadcasting licence allocated under subsection 40(1) of the Broadcasting Services Act 1992.
Continuity of transmission
(6) The ACMA may, by legislative instrument, specify circumstances in which a digital radio multiplex transmitter licensee, or a person authorised by such a licensee, is taken, for the purposes of subparagraph (1)(i)(ii), to be transmitting a service covered by subparagraph (1)(f)(i) or (ii).
(7) The ACMA may, by legislative instrument, specify circumstances in which a digital radio multiplex transmitter licensee, or a person authorised by such a licensee, is taken, for the purposes of subparagraph (1)(j)(ii), to be transmitting a service covered by subparagraph (1)(g)(i), (ii) or (iii).
(8) A copy of a declaration under subsection (6) or (7) must be made available on the ACMA’s website.
Ministerial directions
(9) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by paragraph (1)(t) to specify conditions in a digital radio multiplex transmitter licence.
(10) The ACMA must comply with a direction under subsection (9).
109C Conditions of category 1 and category 2 digital radio multiplex transmitter licences—access etc.
Compliance with access regime etc.
(1) A category 1 digital radio multiplex transmitter licence and a category 2 digital radio multiplex transmitter licence are subject to the following conditions:
(a) a condition that the licensee, and each person authorised by the licensee to operate a multiplex transmitter under the licence, will comply with any applicable obligations under Division 4B;
(b) a condition that the licensee, and any person so authorised, will comply with an access undertaking in force under Division 4B in relation to the licence;
(c) a condition that the licensee, and any person so authorised, will not give access to multiplex capacity under the licence otherwise than in compliance with:
(i) the standard access obligations (if any) that are applicable to the licence; or
(ii) the excess‑capacity access obligations (if any) that are applicable to the licence; or
(iii) the distributed‑capacity access obligations (if any) that are applicable to the licence.
Proceeds of auctions
(2) If:
(a) a foundation digital radio multiplex transmitter licence was issued otherwise than in accordance with a price‑based allocation system determined under section 106; and
(b) the licensee receives the net proceeds of an auction mentioned in subsection 118NT(6);
the licence is subject to the following conditions:
(c) the licensee will set aside the net proceeds of the auction in a separate account with an ADI (within the meaning of the Banking Act 1959);
(d) the licensee will not apply those net proceeds except for the purpose of:
(i) promoting the digital radio broadcasting platform in Australia; or
(ii) discharging a liability of the licensee to pay a fee or charge in relation to the maintenance or operation of the account; or
(iii) discharging a liability incurred by the licensee in connection with the auction (other than a liability to comply with an obligation under Division 4B).
Definition
(3) In this section:
multiplex capacity has the same meaning as in Division 4B.
109D Conditions of foundation digital radio multiplex transmitter licences
Scope
(1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area if the licence was issued otherwise than in accordance with a price‑based allocation system determined under section 106.
Issue of shares to digital community radio broadcasting representative company
(3) The licence is subject to the condition that, if:
(a) there is a digital community radio broadcasting representative company (the representative company) for the designated BSA radio area; and
(b) the representative company gives the licensee a written request under this paragraph to be issued with shares in the licensee; and
(c) the request is made:
(i) before the digital radio start‑up day for the designated BSA radio area; or
(ii) within 12 months after the digital radio start‑up day for the designated BSA radio area; and
(d) if an invitation was made to the representative company under whichever of paragraph 102C(5)(a) or 102D(5)(a) applied in relation to the formation of the licensee—no shares were issued to the representative company in connection with the invitation;
the licensee must:
(e) by written notice given to the representative company, offer to issue to the representative company a number of shares in the licensee such that, if the offer were accepted, the representative company would hold two‑ninths of the shares in the licensee; and
(f) ensure that the offer is made within 30 days after the licensee receives the request; and
(g) keep the offer open for at least 120 days after the offer is made; and
(h) ensure that the rights and restrictions (if any) attached to the shares the subject of the offer are the same as the rights and restrictions (if any) attached to the shares held by existing shareholders in the licensee; and
(i) ensure that the offer price per share does not exceed the amount worked out using the formula:
where:
number of pre‑offer shares is the number of shares in the licensee (the pre‑offer shares) that were issued before the offer was made.
total price of pre‑offer shares is the total amount paid or payable to the licensee as consideration for the issue of the pre‑offer shares.
(4) The digital community radio broadcasting representative company for the designated BSA radio area is not entitled to make more than one request under subsection (3).
(5) For the purposes of subsection (4), disregard a request if the request does not result in compliance by the licensee with the requirements of subsection (3).
110 Conditions relating to interference
The conditions that may be specified in an apparatus licence under paragraph 107(1)(g), 108A(1)(f), 109(1)(f) or 109B(1)(t) include, for example:
(a) a condition requiring the licensee to place advertisements, in a specified way, asking members of the public to contact the licensee if they believe that operation of a transmitter to which the licence relates is causing interference to other radiocommunications; and
(b) a condition that, if operation of the transmitter is causing interference to other radiocommunications, the licensee must (at the licensee’s own expense) adjust, or fit devices to, receivers in order to eliminate or minimise the interference.
110A Conditions determined by the ACMA
(1) The ACMA may, by legislative instrument, determine that each apparatus licence is taken to include one or more specified conditions.
(2) The ACMA may, by legislative instrument, determine that each apparatus licence included in a specified class of apparatus licences is taken to include one or more specified conditions.
(3) The ACMA’s power under subsection (1) or (2) is not limited by sections 107 to 109D.
(4) Conditions determined under this section are in addition to the conditions in sections 107 to 109D.
(5) A determination under subsection (1) or (2) may confer a power to make a decision of an administrative character on a person or the ACMA.
(6) A determination under subsection (1) or (2) may confer a power to make a decision of an administrative character on a person who holds a specified kind of accreditation.
(7) A determination under subsection (1) or (2) may authorise a person who holds a specified kind of accreditation to charge fees in relation to the exercise by the person of a power conferred by the determination. A fee must not be such as to amount to taxation.
111 Changes to licence conditions
(1) The ACMA may, by notice in writing given to the licensee of an apparatus licence:
(a) impose one or more further conditions to which the licence is subject; or
(b) revoke or vary any condition imposed under paragraph (a); or
(c) revoke or vary any condition specified under paragraph 107(1)(g), 108A(1)(f), 109(1)(f) or 109B(1)(t); or
(d) if the licence is a transmitter licence, other than a licence issued under section 101A or 102—vary a condition of the kind referred to in paragraph 108(2)(a), (b) or (c).
Note: Decisions under this section are reviewable under Part 5.6.
(2) The notice given under subsection (1) must specify that:
(a) the licensee may request a statement of reasons for the change; and
(b) a request must be made within 28 days of receipt of the notice.
(3) A person receiving a notice under subsection (1) may request a statement of reasons for the decision within 28 days of receiving the notice.
(4) If the ACMA receives a request in accordance with subsection (3), the ACMA must give the person a statement of reasons within 28 days of receipt of that request.
Ministerial directions
(6) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of a power conferred by paragraph (1)(a), (b) or (c) to impose, vary or revoke conditions of a digital radio multiplex transmitter licence.
(7) The ACMA must comply with a direction under subsection (6).
111A Licence conditions may confer powers on the ACMA or a person who holds an accreditation
Scope
(1) This section applies to:
(a) a condition specified under paragraph 107(1)(g), 108A(1)(f), 109(1)(f), 109A(1)(k) or 109B(1)(t); or
(b) a condition imposed under paragraph 111(1)(a).
The ACMA
(2) A condition may confer a power to make a decision of an administrative character on the ACMA.
Person who holds an accreditation
(3) A condition may confer a power to make a decision of an administrative character on a person who holds a specified kind of accreditation.
(4) The legislative rules may authorise a person who holds a specified kind of accreditation to charge fees in relation to the exercise by the person of a power conferred by a condition. A fee must not be such as to amount to taxation.
112 Guidelines relating to conditions etc.
(1) The ACMA may, by legislative instrument, make guidelines:
(a) that it is to apply in exercising its powers under sections 107, 108 and 111; or
(b) for the purposes of paragraph 108(3)(a).
(2) In exercising its powers under sections 107, 108 and 111, the ACMA must comply with any relevant guidelines that are in force.
113 Contravention of conditions
(1) If a person:
(a) is the holder of an apparatus licence; or
(b) has been authorised under section 114 in relation to an apparatus licence;
the person must not contravene a condition of the licence.
Civil penalty: 100 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
113A Constitutional safety net—issue of shares to digital community radio broadcasting representative company
(1) If the operation of subsection 109D(3) would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
Division 4—Third party users
114 Licensees may authorise third party users
(1) Subject to subsections (2), (3) and (3AA), a licensee of an apparatus licence may, by written instrument, authorise other persons to operate radiocommunications devices under the licence.
(2) The licensee must not authorise a person if to do so would be inconsistent with determinations of the ACMA under section 115.
(3) The licensee must not authorise a person if:
(a) the person has been issued an apparatus licence that:
(i) was or is of the same type as the licensee’s licence; and
(ii) authorised operation of radiocommunications devices of the same kind as those to which the licensee’s licence relates; and
(b) the person’s licence:
(i) is suspended; or
(ii) has been cancelled within the last 2 years.
(3AA) The licensee must not authorise a person if:
(a) the licence is a digital radio multiplex transmitter licence; and
(b) the person is not a qualified company.
(4) Authorising other persons does not prevent the licensee doing anything in accordance with the licence.
114A Authorisation under apparatus licence taken to be an acquisition of an asset and conduct
(1) For the purposes of the provisions of the Competition and Consumer Act 2010 mentioned in subsection (2), the authorisation under subsection 114(1) of this Act of a person to operate radiocommunications devices under an apparatus licence is taken to be:
(a) an acquisition by the person of an asset of another person; and
(b) conduct engaged in by the person.
(2) The provisions of the Competition and Consumer Act 2010 are:
(a) section 50 and subsections 81(1) and (1A); and
(b) the remaining provisions of that Act, to the extent that those provisions relate to section 50 of that Act.
115 Determinations limiting authorisation of third party users
(1) The ACMA may, by legislative instrument, determine:
(a) categories of apparatus licences in respect of which licensees must not authorise other persons to operate radiocommunications devices; or
(b) classes of persons who must not be so authorised; or
(c) circumstances in which persons must not be so authorised.
(2) A determination under subsection (1) may confer a power to make a decision of an administrative character on the ACMA.
116 Revocation of authorisations
(1) If the ACMA is satisfied that a person authorised under section 114 has contravened a condition of the licence to which the authorisation relates, the ACMA may give the licensee a written notice directing the licensee to revoke the authorisation.
Note: Directions to revoke an authorisation are reviewable under Part 5.6.
(2) The notice must give the reasons for the direction.
(3) As soon as practicable and, in any event, within 7 days after service of the notice, the licensee must revoke the authorisation.
Civil penalty: 30 penalty units.
(4) The licensee must not further authorise the person under section 114 until the direction is:
(a) revoked under subsection 289(1) of this Act or as provided for by subsection 33(3) of the Acts Interpretation Act 1901; or
(b) set aside by a court or the AAT.
Civil penalty: 30 penalty units.
(5) If:
(a) a person has been authorised under section 114 in relation to a particular licence; and
(b) at the time of the authorisation, the person was the licensee of another apparatus licence of the same type that authorised operation of radiocommunications devices of the same kind as those to which the first‑mentioned licence relates; and
(c) the other licence is suspended or cancelled;
the authorisation is taken to have been revoked on the day on which the other licence is suspended or cancelled.
117 Licensees must keep records of authorisations
A licensee of an apparatus licence who authorises a person under section 114 must:
(a) cause a copy of the authorisation to be kept in Australia; and
(b) retain the copy for at least one year after the authorisation ceases to be in force.
Civil penalty: 20 penalty units.
118 Licensees must notify authorised persons of certain matters
(1) As soon as practicable and, in any event, within 7 days after the licensee of an apparatus licence is given:
(a) a notice under section 111 relating to changes in licence conditions; or
(b) a notice under subsection 116(1) requiring an authorisation under section 114 to be revoked; or
(c) a notice under subsection 126(1) suspending the licence; or
(d) a notice under subsection 128(1) or 128B(1) cancelling the licence;
the licensee must notify the effect of the notice to each person who is currently authorised under section 114 in relation to the licence.
Civil penalty: 20 penalty units.
(2) Giving such a notice to the licensee does not render unlawful anything done by a person authorised by the licensee under section 114 before the person is notified under subsection (1) of this section.
Division 4B—Access to digital radio multiplex transmitter licences
Subdivision A—Introduction
118N Simplified outline
The following is a simplified outline of this Division:
• This Division sets out an access regime for digital radio multiplex transmitter licences.
• A digital radio multiplex transmitter licensee is required to comply with access obligations in relation to multiplex capacity under the licence.
• The access obligations facilitate the provision of access to multiplex capacity by content service providers in order that the content service providers can provide content services.
• The terms and conditions on which a digital radio multiplex transmitter licensee is required to comply with the access obligations are as set out in an access undertaking in force in relation to the licence.
118NA Scope
This Division applies in relation to a digital radio multiplex transmitter licence if the licence is:
(a) a category 1 digital radio multiplex transmitter licence; or
(b) a category 2 digital radio multiplex transmitter licence.
118NB Definitions
In this Division:
access undertaking means an undertaking under section 118ND.
content service means:
(a) for the purposes of the application of this Division to a category 1 digital radio multiplex transmitter licence—a service covered by subparagraph 109B(1)(f)(i) or (ii); or
(b) for the purposes of the application of this Division to a category 2 digital radio multiplex transmitter licence—a service covered by subparagraph 109B(1)(g)(i), (ii) or (iii).
content service provider means a company who provides, or proposes to provide, a content service.
distributed‑capacity access entitlement has the meaning given by section 118NU.
distributed‑capacity access obligations has the meaning given by section 118NN.
excess‑capacity access entitlement has the meaning given by section 118NT.
excess‑capacity access obligations has the meaning given by section 118NM.
external auditor means a person authorised under section 118PD to be an external auditor for the purposes of this Division.
multiplex capacity, in relation to a digital radio multiplex transmitter licence, means:
(a) if the licence is for a single multiplex transmitter—so much of the gross transmission capacity of the multiplex transmitter as is available for the transmission of content services; or
(b) if the licence is for a main multiplex transmitter and one or more repeater multiplex transmitters—both:
(i) so much of the gross transmission capacity of the main multiplex transmitter as is available for the transmission of content services; and
(ii) so much of the gross transmission capacity of each of the repeater multiplex transmitters as is available for the transmission of content services.
For the purposes of this definition, in working out so much of the gross transmission capacity of a multiplex transmitter as is available for the transmission of content services, include transmission capacity used to provide error protection for those content services.
Procedural Rules means Procedural Rules made under section 118PO.
standard access entitlement has the meaning given by whichever of section 118NQ, 118NR or 118NS is applicable.
standard access obligations has the meaning given by section 118NL.
118NC National broadcasters
For the purpose of this Division, a national broadcaster is taken to be entitled to provide digital national radio broadcasting services in each designated BSA radio area.
Subdivision B—Access undertakings
118ND Digital radio multiplex transmitter licensees must give the ACCC access undertakings
(1) A digital radio multiplex transmitter licensee must, within 50 days after the issue of the licence, give the ACCC a written undertaking that each of the following persons:
(a) the first holder of the licence;
(b) any person authorised by the first holder of the licence to operate a multiplex transmitter under the licence;
(c) any future holder of the licence;
(d) any person authorised by a future holder of the licence to operate a multiplex transmitter under the licence;
will comply with such terms and conditions as are ascertained in accordance with the undertaking in relation to:
(e) the standard access obligations (if any) that are, or may become, applicable to the licence; and
(f) the excess‑capacity access obligations (if any) that are, or may become, applicable to the licence; and
(g) the distributed‑capacity access obligations (if any) that are, or may become, applicable to the licence.
(2) The undertaking must be in a form approved in writing by the ACCC.
(3) The undertaking must be accompanied by the fee (if any) specified in the Procedural Rules. The amount of the fee must not be such as to amount to taxation.
(4) The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.
118NE Further information about access undertakings
(1) This section applies if a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC.
(2) The ACCC may request the licensee to give the ACCC further information about the access undertaking.
(3) If:
(a) the Procedural Rules make provision for, or in relation to, a time limit for giving the information; and
(b) the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;
the ACCC may, by written notice given to the licensee, reject the access undertaking.
(4) If the Procedural Rules do not make provision for, or in relation to, a time limit for giving the information, the ACCC may refuse to consider the access undertaking until the licensee gives the ACCC the information.
(5) The ACCC may withdraw its request for further information, in whole or in part.
118NF ACCC to accept or reject access undertakings
(1) This section applies if a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC.
Decision to accept or reject access undertaking
(2) After considering the access undertaking, the ACCC must:
(a) accept the access undertaking; or
(b) reject the access undertaking.
(3) Before accepting the access undertaking, the ACCC must:
(a) publish a copy of the access undertaking on the ACCC’s website; and
(b) invite members of the public to make submissions to the ACCC about the access undertaking within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
(4) If the ACCC rejects the access undertaking, the ACCC may give the licensee a written notice advising the licensee that, if the licensee:
(a) makes such alterations to the access undertaking as are specified in the notice; and
(b) gives the altered access undertaking to the ACCC within the time limit allowed by the Procedural Rules;
the ACCC will accept the altered access undertaking.
(5) If the ACCC rejects the access undertaking, the ACCC may, by written notice given to the licensee, determine that an undertaking in the terms specified in the determination is the access undertaking in relation to the licence.
(6) Before giving a notice under subsection (5), the ACCC must:
(a) publish a copy of the notice on the ACCC’s website; and
(b) invite members of the public to make submissions to the ACCC about the notice within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
Notice of decision
(7) If the ACCC accepts the access undertaking, the ACCC must give the licensee a written notice stating that the access undertaking has been accepted.
(8) If the ACCC rejects the access undertaking, the ACCC must give the licensee a written notice:
(a) stating that the access undertaking has been rejected; and
(b) setting out the reasons for the rejection; and
(c) if the ACCC gives a notice under subsection (5)—stating that the notice has been given.
118NG Duration of access undertakings etc.
Duration of access undertaking accepted by ACCC
(1) If:
(a) a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC; and
(b) the ACCC accepts the access undertaking;
the access undertaking:
(c) comes into force at the time of acceptance; and
(d) remains in force while the licence is in force; and
(e) is suspended while the licence is suspended.
Duration of access undertaking determined by ACCC
(2) If, under subsection 118NF(5), the ACCC determines that an undertaking is the access undertaking in relation to a digital radio multiplex transmitter licence, the access undertaking:
(a) comes into force when the determination is made; and
(b) remains in force while the licence is in force; and
(c) is suspended while the licence is suspended.
Transfer of digital radio multiplex transmitter licence
(3) To avoid doubt, if:
(a) an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and
(b) the licence is transferred;
then:
(c) the transfer does not result in the lapse of the access undertaking; and
(d) the transferee, and any person authorised by the transferee to operate a multiplex transmitter under the licence, is bound by the access undertaking.
(4) Subsection (3) does not prevent the variation of an access undertaking.
Renewal of digital radio multiplex transmitter licence
(5) If:
(a) a digital radio multiplex transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, an access undertaking was in force in relation to the original licence;
the access undertaking:
(c) remains in force while the new licence is in force, as if:
(i) it were an access undertaking in relation to the new licence; and
(ii) each reference in the access undertaking to a holder of the original licence were a reference to a holder of the new licence; and
(d) is suspended while the new licence is suspended.
(6) Subsection (5) does not prevent the variation of an access undertaking.
118NH Variation of access undertakings
(1) This section applies if an access undertaking is in force in relation to a digital radio multiplex transmitter licence.
(2) The licensee:
(a) may give the ACCC a variation of the access undertaking; and
(b) must give the ACCC a variation of the access undertaking if required to do so by the ACCC.
Decision to accept or reject variation
(3) After considering the variation, the ACCC must:
(a) accept the variation; or
(b) reject the variation.
(4) Before accepting the variation, the ACCC must:
(a) publish a copy of the variation on the ACCC’s website; and
(b) invite members of the public to make submissions to the ACCC about the variation within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
(5) If the ACCC rejects the variation, the ACCC may give the licensee a written notice advising the licensee that, if the licensee:
(a) makes such alterations to the variation as are specified in the notice; and
(b) gives the altered variation to the ACCC within the time limit allowed by the Procedural Rules;
the ACCC will accept the altered variation.
(6) If the ACCC rejects the variation, the ACCC may, by written notice given to the licensee, vary the access undertaking.
(7) Before giving a notice under subsection (6), the ACCC must:
(a) publish a copy of the notice on the ACCC’s website; and
(b) invite members of the public to make submissions to the ACCC about the notice within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
Notice of decision
(8) If the ACCC accepts the variation, the ACCC must give the licensee a written notice:
(a) stating that the variation has been accepted; and
(b) setting out the terms of the variation.
(9) If the ACCC rejects the variation, the ACCC must give the licensee a written notice:
(a) stating that the variation has been rejected; and
(b) setting out the reasons for the rejection; and
(c) if ACCC gives a notice under subsection (6)—stating that the notice has been given.
Requirement to give variation
(10) The ACCC must not, under paragraph (2)(b), impose a requirement (the current requirement) on the licensee to give the ACCC a variation of the access undertaking unless:
(a) the current requirement is imposed by a written notice given to the licensee on or after 1 January 2015; and
(b) the ACCC is satisfied that the access undertaking would be rejected if it were given to the ACCC when the current requirement is imposed; and
(c) no previous requirement was imposed on the licensee under paragraph (2)(b) during the 5‑year period ending immediately before the current requirement was imposed.
(11) If the licensee does not give the ACCC a variation of the access undertaking when required to do so by the ACCC under paragraph (2)(b), the ACCC may, by written notice given to the licensee, vary the access undertaking.
(12) Before giving a notice under subsection (11), the ACCC must:
(a) publish a copy of the notice on the ACCC’s website; and
(b) invite members of the public to make submissions to the ACCC about the notice within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
118NI Further information about variation of access undertakings
(1) This section applies if:
(a) an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and
(b) the licensee gives the ACCC a variation of the access undertaking.
(2) The ACCC may request the licensee to give the ACCC further information about the variation.
(3) If:
(a) the Procedural Rules make provision for, or in relation to, a time limit for giving the information; and
(b) the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;
the ACCC may, by written notice given to the licensee, reject the variation.
(4) If the Procedural Rules do not make provision for, or in relation to, a time limit for giving the information, the ACCC may refuse to consider the variation until the licensee gives the ACCC the information.
(5) The ACCC may withdraw its request for further information, in whole or in part.
118NJ Decision‑making criteria
Acceptance of access undertaking
(1) The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept access undertakings.
(2) In deciding whether to accept access undertakings, the ACCC must:
(a) apply criteria determined under subsection (1); and
(b) have regard to such other matters (if any) as the ACCC considers relevant.
Acceptance of variation of access undertaking
(3) The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept variations of access undertakings.
(4) In deciding whether to accept variations of access undertakings, the ACCC must:
(a) apply criteria determined under subsection (3); and
(b) have regard to such other matters (if any) as the ACCC considers relevant.
118NK Register of access undertakings
(1) The ACCC is to maintain a Register in which the ACCC includes all access undertakings that are in force.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Subdivision C—Standard access obligations, excess‑capacity access obligations and distributed‑capacity access obligations
118NL Standard access obligations
(1) This section sets out the standard access obligations.
(2) If:
(a) a content service provider has a standard access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the content service provider may use that entitlement for a particular purpose;
the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:
(c) access to that fraction of multiplex capacity for that purpose; and
(d) access to services that facilitate the use of that fraction of multiplex capacity for that purpose.
(3) The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.
118NM Excess‑capacity access obligations
(1) This section sets out the excess‑capacity access obligations.
(2) If:
(a) a content service provider has an excess‑capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the content service provider may use that entitlement for a particular purpose;
the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:
(c) access to that fraction of multiplex capacity for that purpose; and
(d) access to services that facilitate the use of that fraction of multiplex capacity for that purpose.
(3) The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.
118NN Distributed‑capacity access obligations
(1) This section sets out the distributed‑capacity access obligations.
(2) If:
(a) a content service provider has a distributed‑capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the content service provider may use that entitlement for a particular purpose;
the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:
(c) access to that fraction of multiplex capacity for that purpose; and
(d) access to services that facilitate the use of that fraction of multiplex capacity for that purpose.
(3) The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.
118NO Compliance with access obligations
(1) This section applies if a digital radio multiplex transmitter licensee, or a person authorised by the licensee to operate a multiplex transmitter under the licence, is required to comply with:
(a) the standard access obligations (if any) that are applicable to the licence; or
(b) the excess‑capacity access obligations (if any) that are applicable to the licence; or
(c) the distributed‑capacity access obligations (if any) that are applicable to the licence.
(2) The digital radio multiplex transmitter licensee, or the person so authorised, must comply with the obligations on such terms and conditions as are ascertained in accordance with an access undertaking in force in relation to the licence.
118NP Other obligations
The licensee of a digital radio multiplex transmitter licence, and each person authorised by the licensee to operate a multiplex transmitter under the licence, must not discriminate, as between content service providers who have access to multiplex capacity under the licence, in relation to:
(a) the technical and operational quality of the services supplied to the content service providers; and
(b) the technical and operational quality and timing of the fault detection, handling and rectification supplied to the content service providers;
for the purposes of facilitating the use of that multiplex capacity.
118NQ Standard access entitlements of commercial broadcasters
Scope
(1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area.
Standard access entitlements
(2) If:
(a) an incumbent digital commercial radio broadcasting licensee for the designated BSA radio area, by written notice given to the digital radio multiplex transmitter licensee, claims access to one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence; and
(b) the notice is given within 30 days after the issue of the digital radio multiplex transmitter licence;
the incumbent digital commercial radio broadcasting licensee:
(c) is entitled to access to one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence (which entitlement is called a standard access entitlement); and
(d) may only use that standard access entitlement for the purpose of providing, under the digital commercial radio broadcasting licence, one or more digital commercial radio broadcasting services in the designated BSA radio area; and
(e) is not entitled to transfer the digital commercial radio broadcasting licensee’s standard access entitlement.
(3) Subsection (2) has effect subject to subsections (5) and (6).
(4) If the digital radio multiplex transmitter licensee receives a subsection (2) notice, the licensee must, within 7 days after receiving the notice, give a copy of the notice to the ACCC.
(5) An incumbent digital commercial radio broadcasting licensee for the designated BSA radio area must not give a subsection (2) notice to the digital radio multiplex transmitter licensee if:
(a) the incumbent digital radio broadcasting licensee has given another subsection (2) notice to the digital radio multiplex transmitter licensee; or
(b) the incumbent digital commercial radio broadcasting licensee has given a subsection (2) notice to the licensee of another digital radio multiplex transmitter licence for the designated BSA radio area.
(6) If subsection (2) notices would result in demand from incumbent digital commercial radio broadcasting licensees for access to multiplex capacity under the first‑mentioned digital radio multiplex transmitter licence being greater than so much of the multiplex capacity under the first‑mentioned digital radio multiplex transmitter licence as is neither:
(a) reserved under subsection 118NR(2) (which deals with community broadcasters); nor
(b) covered by a standard access entitlement arising under subsection 118NS(2) (which deals with national broadcasters);
the ACCC may, by written notice given to a particular incumbent digital commercial radio broadcasting licensee before the digital radio start‑up day for the designated BSA radio area:
(c) cancel the licensee’s subsection (2) notice; and
(d) determine that this section has effect as if the licensee’s subsection (2) notice had never been given; and
(e) determine that this section has effect as if the licensee had given a notice under subsection (2) in relation to another foundation digital radio multiplex transmitter licence for the designated BSA radio area.
118NR Standard access entitlements of community broadcasters
Scope
(1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area.
Reservation of multiplex capacity
(2) Two‑ninths of multiplex capacity under the digital radio multiplex transmitter licence is reserved for digital community radio broadcasting licensees who are or may be nominated in accordance with subsection (3), (7) or (10).
Standard access entitlements—applicable fraction of multiplex capacity
(3) If:
(a) the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence:
(i) nominates 2 or more digital community radio broadcasting licensees for the purposes of this subsection; and
(ii) for each nominated digital community radio broadcasting licensee, determines an applicable fraction; and
(b) the notice is in force;
each nominated digital community radio broadcasting licensee:
(c) is entitled to access to the digital community radio broadcasting licensee’s applicable fraction of the multiplex capacity reserved under subsection (2) (which entitlement is called a standard access entitlement); and
(d) may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and
(e) is not entitled to transfer the digital community radio broadcasting licensee’s standard access entitlement.
(4) The sum of the applicable fractions determined in a notice under subsection (3) must not be greater than 1.
(5) The applicable fractions determined in a notice under subsection (3) may be the same or different for each nominated digital community radio broadcasting licensee.
(6) A notice given by a digital community radio broadcasting representative company cannot be in force under subsection (3) at the same time as:
(a) another notice given by the company is in force under subsection (3); or
(b) a notice given by the company is in force under subsection (7) or (10).
Standard access entitlements—designated fraction of multiplex capacity
(7) If:
(a) the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence, nominates 2 or more digital community radio broadcasting licensees for the purposes of this subsection; and
(b) the notice is in force;
each nominated digital community radio broadcasting licensee:
(c) is entitled to access to the designated fraction of the multiplex capacity reserved under subsection (2) (which entitlement is called a standard access entitlement); and
(d) may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and
(e) is not entitled to transfer the digital community radio broadcasting licensee’s standard access entitlement.
(8) For the purposes of subsection (7), the designated fraction is as follows:
(9) A notice given by a digital community radio broadcasting representative company cannot be in force under subsection (7) at the same time as:
(a) another notice given by the company is in force under subsection (7); or
(b) a notice given by the company is in force under subsection (3) or (10).
Standard access entitlements—half of multiplex capacity
(10) If:
(a) the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence, nominates a single digital community radio broadcasting licensee for the purposes of this subsection; and
(b) the notice is in force;
the nominated digital community radio broadcasting licensee:
(c) is entitled to access to half of the multiplex capacity reserved under subsection (2) (which entitlement is called a standard access entitlement); and
(d) may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and
(e) is not entitled to transfer the digital community radio broadcasting licensee’s standard access entitlement.
(11) A notice given by a digital community radio broadcasting representative company cannot be in force under subsection (10) at the same time as:
(a) another notice given by the company is in force under subsection (10); or
(b) a notice given by the company is in force under subsection (3) or (7).
Subsequent notices
(12) If:
(a) a digital community radio broadcasting representative company gives a notice (the first notice) under subsection (3); and
(b) the first notice is in force;
the company must not give another notice under subsection (3) or a notice under subsection (7) or (10) unless the other notice under subsection (3) or the notice under subsection (7) or (10), as the case may be:
(c) is accompanied by a notice under subsection (15) revoking the first notice; and
(d) is expressed to take effect immediately after the revocation of the first notice.
(13) If:
(a) a digital community radio broadcasting representative company gives a notice (the first notice) under subsection (7); and
(b) the first notice is in force;
the company must not give another notice under subsection (7) or a notice under subsection (3) or (10) unless the other notice under subsection (7) or the notice under subsection (3) or (10), as the case may be:
(c) is accompanied by a notice under subsection (15) revoking the first notice; and
(d) is expressed to take effect immediately after the revocation of the first notice.
(14) If:
(a) a digital community radio broadcasting representative company gives a notice (the first notice) under subsection (10); and
(b) the first notice is in force;
the company must not give another notice under subsection (10) or a notice under subsection (3) or (7) unless the other notice under subsection (10) or the notice under subsection (3) or (7), as the case may be:
(c) is accompanied by a notice under subsection (15) revoking the first notice; and
(d) is expressed to take effect immediately after the revocation of the first notice.
Revocation of notices
(15) If a notice given by a digital community radio broadcasting representative company under subsection (3), (7) or (10) is in force:
(a) the company may, by written notice given to the licensee of the digital radio multiplex transmitter licence, revoke the notice given under subsection (3), (7) or (10), as the case may be; and
(b) the revocation takes effect at the start of the 30th day after the day on which the notice of revocation is given.
(16) A notice of revocation under subsection (15) has no effect unless the digital community radio broadcasting representative company also gives the licensee of the digital radio multiplex transmitter licence:
(a) if the notice of revocation relates to a notice (the original notice) given under subsection (3)—either:
(i) a fresh notice under subsection (3) that is expressed to take effect immediately after the revocation of the original notice; or
(ii) a notice under subsection (7) or (10) that is expressed to take effect immediately after the revocation of the original notice; and
(b) if the notice of revocation relates to a notice (the original notice) given under subsection (7)—either:
(i) a fresh notice under subsection (7) that is expressed to take effect immediately after the revocation of the original notice; or
(ii) a notice under subsection (3) or (10) that is expressed to take effect immediately after the revocation of the original notice; and
(c) if the notice of revocation relates to a notice (the original notice) given under subsection (10)—either:
(i) a fresh notice under subsection (10) that is expressed to take effect immediately after the revocation of the original notice; or
(ii) a notice under subsection (3) or (7) that is expressed to take effect immediately after the revocation of the original notice.
(17) If:
(a) a digital community radio broadcasting licensee is nominated in a notice under subsection (3), (7) or (10); and
(b) the notice is revoked under subsection (15);
this section does not prevent that digital community radio broadcasting licensee from being nominated in:
(c) in the case of the revocation of a notice given under subsection (3):
(i) a fresh notice under subsection (3); or
(ii) a notice under subsection (7) or (10); and
(d) in the case of the revocation of a notice given under subsection (7):
(i) a fresh notice under subsection (7); or
(ii) a notice under subsection (3) or (10); and
(e) in the case of the revocation of a notice given under subsection (10):
(i) a fresh notice under subsection (10); or
(ii) a notice under subsection (3) or (7).
No variation of notices
(18) A notice under subsection (3), (7) or (10) cannot be varied.
Limit on nomination
(19) The nomination of a digital community radio broadcasting licensee for the purposes of subsection (3), (7) or (10) has no effect if the licensee has already been nominated for the purposes of any of those subsections in the subsection’s application to another digital radio multiplex transmitter licence for the designated BSA radio area.
Transitional
(20) For the purposes of the application of this section before the digital radio start‑up day for the designated BSA radio area, digital community radio broadcasting licensee includes an incumbent digital community radio broadcasting licensee.
118NS Standard access entitlements of national broadcasters
Scope
(1) This section applies to a foundation category 2 digital radio multiplex transmitter licence for a designated BSA radio area.
Standard access entitlements
(2) Each national broadcaster:
(a) is entitled to access to one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence (which entitlement is called a standard access entitlement); and
(b) may only use that standard access entitlement for the purpose of providing one or more digital national radio broadcasting services in the designated BSA radio area; and
(c) may transfer the national broadcaster’s standard access entitlement to the other national broadcaster.
(3) If a standard access entitlement is transferred as mentioned in paragraph (2)(c):
(a) the standard access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the standard access entitlement is a national broadcaster; and
(b) the holder for the time being of the standard access entitlement is entitled to access to one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more digital national radio broadcasting services in the designated BSA radio area.
118NT Excess‑capacity access entitlements etc.
Scope
(1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area if:
(a) on the digital start‑up day for the area, the multiplex capacity available under the digital radio multiplex transmitter licence exceeds the aggregate of:
(i) the fractions of multiplex capacity relating to standard access entitlements that have come into existence under subsections 118NQ(2) and 118NS(2); and
(ii) the fractions of multiplex capacity reserved under subsection 118NR(2); or
(b) at any time after the 12‑month period beginning on the digital start‑up day for the area, the multiplex capacity available under the digital radio multiplex transmitter licence exceeds the aggregate of:
(i) the fractions of multiplex capacity relating to standard access entitlements that have come into existence under subsections 118NQ(2) and 118NS(2); and
(ii) the fractions of multiplex capacity reserved under subsection 118NR(2); and
(iii) the fractions of multiplex capacity relating to any excess‑capacity access entitlements that have previously come into existence under subsections (4) and (7);
and an access undertaking is in force in relation to the licence.
Initial level of demand for access to excess multiplex capacity must be ascertained
(2) If paragraph (1)(a) applies, the digital radio multiplex transmitter licensee must:
(a) within 90 days after the digital radio start‑up day for the designated BSA radio area, ascertain the level of demand for access to that excess multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and
(b) by notice published on the licensee’s website:
(i) give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and
(ii) invite content service providers to express an interest in having access to that excess multiplex capacity.
Subsequent level of demand for access to excess multiplex capacity may be ascertained
(3) If paragraph (1)(b) applies, the following provisions have effect:
(a) the digital radio multiplex transmitter licensee may ascertain the level of demand for access to that excess multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and
(b) if the licensee proposes to ascertain the level of demand as mentioned in paragraph (a)—the digital radio multiplex transmitter licensee must, by notice published on the licensee’s website:
(i) give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and
(ii) invite content service providers to express an interest in having access to that excess multiplex capacity.
Demand falls short of excess multiplex capacity
(4) If the demand from interested content service providers for access to that excess multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, falls short of that excess multiplex capacity—each interested content service provider:
(a) is entitled to access to the fraction of multiplex capacity sought by the interested content service provider (which entitlement is called an excess‑capacity access entitlement); and
(b) may only use that excess‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and
(c) may transfer that excess‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.
(5) The excess‑capacity access entitlement referred to in paragraph (4)(a) commences:
(a) at the end of the 30‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable; or
(b) if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time.
Demand is greater than excess multiplex capacity
(6) If the demand from interested content service providers for access to that excess multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, is greater than that excess multiplex capacity, the digital radio multiplex transmitter licensee must:
(a) use an open and transparent auction process to determine which content service providers are to have access to which fractions of multiplex capacity for the purpose of providing one or more content services in the designated BSA radio area; and
(b) do so before the end of the 60‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable.
(7) If, as a result of an auction process mentioned in subsection (6), a content service provider is to have access to a particular fraction of multiplex capacity, the content service provider:
(a) is entitled to access to that fraction of multiplex capacity (which entitlement is called an excess‑capacity access entitlement); and
(b) may only use that excess‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and
(c) may transfer that excess‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.
(8) The excess‑capacity access entitlement referred to in paragraph (7)(a) commences:
(a) at the end of the 30‑day period beginning on the day on which the auction process mentioned in subsection (6) is completed; or
(b) if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time.
(9) For the purposes of the application of paragraph (8)(a) to a content service provider, the auction process mentioned in subsection (6) is completed when the content service provider makes the relevant auction payment.
(10) If an excess‑capacity access entitlement is transferred as mentioned in paragraph (4)(c) or (7)(c):
(a) the excess‑capacity access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the excess‑capacity access entitlement is a content service provider who is entitled to provide content services in the designated BSA radio area; and
(b) the holder for the time being of the excess‑capacity access entitlement is entitled to access to the relevant fraction of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more content services in the designated BSA radio area.
(11) This section has effect subject to section 118NV.
118NU Distributed‑capacity access entitlements etc.
Scope
(1) This section applies to a non‑foundation digital radio multiplex transmitter licence for a designated BSA radio area if an access undertaking is in force for the licence.
Initial level of demand for access to multiplex capacity must be ascertained
(2) The following provisions have effect:
(a) the digital radio multiplex transmitter licensee must, before commencing to transmit a content service, ascertain the level of demand for access to multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and
(b) if the licensee proposes to ascertain the level of demand as mentioned in paragraph (a)—the digital radio multiplex transmitter licensee must, by notice published on the licensee’s website:
(i) give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and
(ii) invite content service providers to express an interest in having access to that multiplex capacity.
Subsequent level of demand for access to multiplex capacity may be ascertained
(3) The following provisions have effect:
(a) the digital radio multiplex transmitter licensee may, at any time after commencing to transmit a content service, ascertain the level of demand for access to multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and
(b) if the licensee proposes to ascertain the level of demand as mentioned in paragraph (a)—the digital radio multiplex transmitter licensee must, by notice published on the licensee’s website:
(i) give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and
(ii) invite content service providers to express an interest in having access to that multiplex capacity.
Demand falls short of multiplex capacity
(4) If the demand from interested content service providers for access to multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, falls short of the multiplex capacity—each interested content service provider:
(a) is entitled to access to the fraction of multiplex capacity sought by the interested content service provider (which entitlement is called a distributed‑capacity access entitlement); and
(b) may only use that distributed‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and
(c) may transfer that distributed‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.
(5) The distributed‑capacity access entitlement referred to in paragraph (4)(a) commences:
(a) at the end of the 30‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable; or
(b) if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time.
Demand is greater than multiplex capacity
(6) If the demand from interested content service providers for access to multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, is greater than the multiplex capacity, the digital radio multiplex transmitter licensee must:
(a) use an open and transparent auction process to determine which content service providers are to have access to which fractions of multiplex capacity for the purpose of providing one or more content services in the designated BSA radio area; and
(b) do so before the end of the 60‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable.
(7) If, as a result of an auction process mentioned in subsection (6), a content service provider is to have access to a particular fraction of multiplex capacity, the content service provider:
(a) is entitled to access to that fraction of multiplex capacity (which entitlement is called a distributed‑capacity access entitlement); and
(b) may only use that distributed‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and
(c) may transfer that distributed‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.
(8) The distributed‑capacity access entitlement referred to in paragraph (7)(a) commences:
(a) at the end of the 30‑day period beginning on the day on which the auction process mentioned in subsection (6) is completed; or
(b) if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time.
(9) For the purposes of the application of paragraph (8)(a) to a content service provider, the auction process mentioned in subsection (6) is completed when the content service provider makes the relevant auction payment.
(10) If a distributed‑capacity access entitlement is transferred as mentioned in paragraph (4)(c) or (7)(c):
(a) the distributed‑capacity access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the distributed‑capacity access entitlement is a content service provider who is entitled to provide content services in the designated BSA radio area; and
(b) the holder for the time being of the distributed‑capacity access entitlement is entitled to access to the relevant fraction of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more content services in the designated BSA radio area.
(11) This section has effect subject to section 118NV.
118NV Capacity cap—digital commercial radio broadcasting licensees
(1) If there is only one digital radio multiplex transmitter licence for a designated BSA radio area, a digital commercial radio broadcasting licensee is not entitled to access to more than two‑ninths of multiplex capacity under the digital radio multiplex transmitter licence for the purposes of providing, under the digital commercial radio broadcasting licence, one or more digital commercial digital radio broadcasting services in the designated BSA radio area.
(2) If there are 2 or more digital radio multiplex transmitter licences for a designated BSA radio area, a digital commercial radio broadcasting licensee is not entitled to access to more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purposes of providing, under the digital commercial radio broadcasting licence, one or more digital commercial digital radio broadcasting services in the designated BSA radio area.
(3) For the purposes of subsection (2), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:
118NW Suspension of access entitlements
(1) A standard access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.
(2) An excess‑capacity access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.
(3) A distributed‑capacity access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.
118NX Transfer of digital radio multiplex transmitter licence
Standard access entitlement
(1) To avoid doubt, if:
(a) a content service provider has a standard access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the licence is transferred;
the transfer does not affect the continuity of the standard access entitlement.
(2) Subsection (1) does not prevent:
(a) the transfer of a standard access entitlement under subsection 118NS(2) or (3); or
(b) the revocation of a notice given under subsection 118NR(3), (7) or (10).
Excess‑capacity access entitlement
(3) To avoid doubt, if:
(a) a content service provider has an excess‑capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the licence is transferred;
the transfer does not affect the continuity of the excess‑capacity access entitlement.
(4) Subsection (3) does not prevent the transfer of an excess‑capacity access entitlement.
Distributed‑capacity access entitlement
(5) To avoid doubt, if:
(a) a content service provider has a distributed‑capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the licence is transferred;
the transfer does not affect the continuity of the distributed‑capacity access entitlement.
(6) Subsection (5) does not prevent the transfer of a distributed‑capacity access entitlement.
118NY Renewal of digital radio multiplex transmitter licence
Standard access entitlement
(1) If:
(a) a digital radio multiplex transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, a content service provider held a standard access entitlement in relation to a fraction of multiplex capacity under the licence;
the entitlement remains in existence while the new licence is in force, as if it were a standard access entitlement in relation to the new licence.
(2) Subsection (1) does not prevent:
(a) the transfer of a standard access entitlement under subsection 118NS(2) or (3); or
(b) the revocation of a notice given under subsection 118NR(3), (7) or (10).
Excess‑capacity access entitlement
(3) If:
(a) a digital radio multiplex transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, a content service provider held an excess‑capacity access entitlement in relation to a fraction of multiplex capacity under the licence;
the entitlement remains in existence while the new licence is in force, as if it were an excess‑capacity access entitlement in relation to the new licence.
(4) Subsection (3) does not prevent the transfer of an excess‑capacity access entitlement.
Distributed‑capacity access entitlement
(5) If:
(a) a digital radio multiplex transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, a content service provider held a distributed‑capacity access entitlement in relation to a fraction of multiplex capacity under the licence;
the entitlement remains in existence while the new licence is in force, as if it were a distributed‑capacity access entitlement in relation to the new licence.
(6) Subsection (5) does not prevent the transfer of a distributed‑capacity access entitlement.
Subdivision D—Enforcement
118NZ Judicial enforcement of access obligations etc.
(1) If the Federal Court is satisfied that a digital radio multiplex transmitter licensee, or a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence, has contravened any of the following obligations:
(a) the standard access obligations (if any) that are applicable to the licence;
(b) the excess‑capacity access obligations (if any) that are applicable to the licence;
(c) the distributed‑capacity access obligations (if any) that are applicable to the licence;
(d) the obligations that are applicable to the licence under section 118NP;
the Court may, on the application of:
(e) the ACCC; or
(f) any person whose interests are affected by the contravention;
make all or any of the following orders:
(g) an order directing the licensee or the person so authorised to comply with the obligation;
(h) an order directing the licensee or the person so authorised to compensate any other person who had suffered loss or damage as a result of the contravention;
(i) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under this section.
118P Enforcement of access undertakings
(1) This section applies if an access undertaking is in force in relation to a digital radio multiplex transmitter licence.
(2) If:
(a) the ACCC; or
(b) a person (the affected person) whose interests are affected by the access undertaking;
thinks that another person (the third person) has breached the access undertaking, the ACCC or the affected person may apply to the Federal Court for an order under subsection (3).
(3) If the Federal Court is satisfied that the third person has breached the access undertaking, the Court may make all or any of the following orders:
(a) an order directing the third person to comply with the access undertaking;
(b) an order directing the third person to compensate any other person who has suffered loss or damage as a result of the breach;
(c) any other order that the Court thinks appropriate.
(4) The Federal Court may discharge or vary an order granted under this section.
Subdivision E—External audits
118PA External audits
Scope
(1) This section applies if:
(a) an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and
(b) a person is:
(i) the licensee of the licence; or
(ii) a person authorised by the licensee to operate a multiplex transmitter under the licence; and
(c) the ACCC has reasonable grounds to suspect that the person has breached, is breaching, or is proposing to breach:
(i) the access undertaking; or
(ii) any of the standard access obligations (if any) that are applicable to the licence; or
(iii) any of the excess‑capacity access obligations (if any) that are applicable to the licence; or
(iv) any of the distributed‑capacity access obligations (if any) that are applicable to the licence; or
(v) the obligations that are applicable to the licence under section 118NP.
Requirement
(2) The ACCC may, by written notice given to the person, require the person to:
(a) appoint an external auditor; and
(b) arrange for the external auditor to carry out an external audit of whichever of the following is specified in the notice:
(i) the person’s compliance with the access undertaking; or
(ii) one or more specified aspects of the person’s compliance with the access undertaking; or
(iii) the person’s compliance with the standard access obligations (if any) that are applicable to the licence; or
(iv) one or more specified aspects of the person’s compliance with the standard access obligations (if any) that are applicable to the licence; or
(v) the person’s compliance with the excess‑capacity access obligations (if any) that are applicable to the licence; or
(vi) one or more specified aspects of the person’s compliance with the excess‑capacity access obligations (if any) that are applicable to the licence; or
(vii) the person’s compliance with the distributed‑capacity access obligations (if any) that are applicable to the licence; or
(viii) one or more specified aspects of the person’s compliance with the distributed‑capacity access obligations (if any) that are applicable to the licence; or
(ix) the person’s compliance with the obligations that are applicable to the licence under section 118NP; or
(x) one or more specified aspects of the person’s compliance with the obligations that are applicable to the licence under section 118NP; and
(c) arrange for the external auditor to give the person a written report (the audit report) setting out the results of the audit; and
(d) give the ACCC a copy of the audit report within:
(i) the period specified in the notice; or
(ii) if the ACCC allows a longer period—that longer period.
(3) The notice must specify:
(a) the matters to be covered by the audit; and
(b) the form of the audit report and the kinds of details it is to contain.
(4) The matters that may be specified under paragraph (3)(a) may include any or all of the following:
(a) an assessment of the person’s existing capacity to comply with the access undertaking;
(b) an assessment of what the person will need to do, or continue to do, to comply with the access undertaking;
(c) an assessment of the person’s existing capacity to comply with the standard access obligations (if any) that are applicable to the licence;
(d) an assessment of what the person will need to do, or continue to do, to comply with the standard access obligations (if any) that are applicable to the licence;
(e) an assessment of the person’s existing capacity to comply with the excess‑capacity obligations (if any) that are applicable to the licence;
(f) an assessment of what the person will need to do, or continue to do, to comply with the excess‑capacity obligations (if any) that are applicable to the licence;
(g) an assessment of the person’s existing capacity to comply with the distributed‑capacity obligations (if any) that are applicable to the licence;
(h) an assessment of what the person will need to do, or continue to do, to comply with the distributed‑capacity obligations (if any) that are applicable to the licence;
(i) an assessment of the person’s existing capacity to comply with the obligations that are applicable to the licence under section 118NP;
(j) an assessment of what the person will need to do, or continue to do, to comply with the obligations that are applicable to the licence under section 118NP.
(5) Subsection (4) does not limit paragraph (3)(a).
Compliance
(6) The person must comply with a notice under subsection (2).
118PB Eligibility for appointment
(1) An individual is not eligible to be appointed by a person (the first person) in accordance with a requirement covered by paragraph 118PA(2)(a) if the individual is an officer, employee or agent of:
(a) the first person; or
(b) another person who is in a position to exercise control of the digital radio multiplex transmitter licence concerned; or
(c) a company, where another person is in a position to exercise control of the company and the digital radio multiplex transmitter licence concerned.
Application of control rules
(2) Schedule 1 to the Broadcasting Services Act 1992 applies for the purposes of paragraphs (1)(b) and (c) in a corresponding way to the way in which it applies for the purposes of Part 5 of that Act.
118PC External auditor may have regard to the results of previous audit
In carrying out an external audit in accordance with a notice under section 118PA, an external auditor may, if:
(a) an external audit was completed under that section within the last preceding 2 years; and
(b) the external auditor is satisfied that the previous audit is still relevant;
have regard to the results of the previous audit.
118PD External auditors
(1) The ACCC may, by writing, authorise a specified individual to be an external auditor for the purposes of this Division.
Note 1: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) An authorisation under subsection (1) is not a legislative instrument.
Subdivision F—Review of decisions
118PE Review by Australian Competition Tribunal
(1) A person whose interests are affected by a decision of the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11) may apply in writing to the Australian Competition Tribunal for a review of the decision.
(2) The application must be made within 21 days after the ACCC made the decision.
(3) The Australian Competition Tribunal must review the decision.
118PF Functions and powers of Australian Competition Tribunal
Decision on review
(1) On a review of a decision of the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11), the Australian Competition Tribunal may make a decision:
(a) in any case—affirming the ACCC’s decision; or
(b) in the case of a review of a decision of the ACCC under subsection 118NF(2) to accept an access undertaking—setting aside the ACCC’s decision; or
(c) in the case of a review of a decision of the ACCC under subsection 118NF(2) to reject an access undertaking—both:
(i) setting aside the ACCC’s decision; and
(ii) in substitution for the decision so set aside, to accept the undertaking; or
(d) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—setting aside the ACCC’s decision; or
(e) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—both:
(i) setting aside the ACCC’s decision; and
(ii) in substitution for the decision so set aside, to make a determination under that subsection; or
(f) in the case of a review of a decision of the ACCC under subsection 118NH(3) to accept a variation of an access undertaking—setting aside the ACCC’s decision; or
(g) in the case of a review of a decision of the ACCC under subsection 118NH(3) to reject a variation of an access undertaking—both:
(i) setting aside the ACCC’s decision; and
(ii) in substitution for the decision so set aside, to accept the variation; or
(h) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—setting aside the ACCC’s decision; or
(i) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—both:
(i) setting aside the ACCC’s decision; and
(ii) in substitution for the decision so set aside, to make a determination under that subsection;
and, for the purposes of the review, the Australian Competition Tribunal may perform all the functions and exercise all the powers of the ACCC.
(2) A decision by the Australian Competition Tribunal:
(a) affirming a decision of the ACCC; or
(b) setting aside a decision of the ACCC; or
(c) made in substitution for a decision of the ACCC;
is taken, for the purposes of this Act (other than section 118PE or this section), to be a decision of the ACCC.
Conduct of review
(3) For the purposes of a review by the Australian Competition Tribunal, the member of the Australian Competition Tribunal presiding at the review may require the ACCC to give such information, make such reports and provide such other assistance to the Australian Competition Tribunal as the member specifies.
(4) For the purposes of a review, the Australian Competition Tribunal may have regard only to:
(a) any information given, documents produced or evidence given to the ACCC in connection with the making of the decision to which the review relates; and
(b) any other information that was referred to in the ACCC’s reasons for making the decision to which the review relates.
Australian Competition Tribunal to make decision within 6 months
(5) If:
(a) a person applies to the Australian Competition Tribunal for a review of a decision of the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11); and
(b) the Australian Competition Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review;
the Australian Competition Tribunal is taken to have made, at the end of that 6‑month period, whichever of the following decisions is applicable:
(c) in the case of a review of a decision of the ACCC under subsection 118NF(2) to accept an access undertaking—a decision setting aside the ACCC’s decision;
(d) in the case of a review of a decision of the ACCC under subsection 118NF(2) to reject an access undertaking:
(i) a decision setting aside the ACCC’s decision; and
(ii) in substitution for the decision so set aside, a decision to accept the undertaking;
(e) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—a decision setting aside the ACCC’s decision; or
(f) in the case of a review of a decision of the ACCC under subsection 118NH(3) to accept a variation of an access undertaking—a decision setting aside the ACCC’s decision;
(g) in the case of a review of a decision of the ACCC under subsection 118NH(3) to reject a variation of an access undertaking:
(i) a decision setting aside the ACCC’s decision; and
(ii) in substitution for the decision so set aside, a decision to accept the variation;
(h) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—a decision setting aside the ACCC’s decision.
Extension of decision‑making period
(6) The Australian Competition Tribunal may, by written notice given to the applicant for review, extend or further extend the 6‑month period referred to in subsection (5), so long as:
(a) the extension or further extension is for a period of not more than 3 months; and
(b) the notice includes a statement explaining why the Australian Competition Tribunal has been unable to make a decision on the review within that 6‑month period or that 6‑month period as previously extended, as the case may be.
(7) As soon as practicable after the Australian Competition Tribunal gives a notice under subsection (6), the Australian Competition Tribunal must cause a copy of the notice to be made available on the internet.
Time of acceptance of undertaking
(8) To avoid doubt, if the Australian Competition Tribunal makes a decision to accept an access undertaking, the time of acceptance of the undertaking is the time when the Australian Competition Tribunal made its decision.
Note: Division 2 of Part IX of the Competition and Consumer Act 2010 applies to proceedings before the Australian Competition Tribunal.
118PG Provisions that do not apply in relation to a Australian Competition Tribunal review
Division 1 of Part IX of the Competition and Consumer Act 2010 does not apply in relation to a review by the Australian Competition Tribunal of a decision made by the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11).
118PH Statement of reasons for reviewable decision—specification of documents
(1) If the ACCC:
(a) makes a decision referred to in section 118PE; and
(b) gives a person a written statement setting out the reasons for the decision;
the statement must specify the documents that the ACCC examined in the course of making the decision.
(2) If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 118PF(4)(b), to be referred to in the ACCC’s reasons for making the decision.
Subdivision G—Injunctions
118PI Injunctions
Restraining injunctions
(1) If:
(a) a person is:
(i) a digital radio multiplex transmitter licensee; or
(ii) a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence; and
(b) the person has engaged, is engaging or is proposing to engage, in any conduct in contravention of this Division;
the Federal Court may, on the application of the ACCC, grant an injunction:
(c) restraining the person from engaging in the conduct; and
(d) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
Performance injunctions
(2) If:
(a) a person is:
(i) a digital radio multiplex transmitter licensee; or
(ii) a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence; and
(b) the person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(c) the refusal or failure was, is or would be a contravention of this Division;
the Federal Court may, on the application of the ACCC, grant an injunction requiring the person to do that act or thing.
118PJ Interim injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under section 118PI against a person who is:
(a) a digital radio multiplex transmitter licensee; or
(b) a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence;
the court may, before considering the application, grant an interim injunction restraining the person from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction under section 118PI, as a condition of granting an interim injunction, to give any undertakings as to damages.
118PK Discharge or variation of injunctions
The Federal Court may discharge or vary an injunction granted under this Subdivision.
118PL Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of the Federal Court under this Subdivision to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
Performance injunctions
(2) The power of the Federal Court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
118PM Other powers of the Federal Court unaffected
The powers conferred on the Federal Court under this Subdivision are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
Subdivision H—Miscellaneous
118PN Annual reports
(1) This section applies if an access undertaking in relation to a digital radio multiplex transmitter licence was in force during the whole or a part of a financial year.
(2) The licensee must, within 60 days after the end of the financial year, give the ACCC a report about such matters as:
(a) are specified in the Procedural Rules; and
(b) relate to:
(i) compliance during that financial year with the access undertaking; or
(ii) compliance during that financial year with the standard access obligations (if any) applicable to the licence; or
(iii) compliance during that financial year with the excess‑capacity access obligations (if any) applicable to the licence; or
(iv) compliance during that financial year with the distributed‑capacity access obligations (if any) applicable to the licence; or
(v) compliance during that financial year with the obligations that are applicable to the licence under section 118NP.
118PO Procedural Rules
(1) The ACCC may, by legislative instrument, make rules:
(a) making provision for, or in relation to, the practice and procedure to be followed by the ACCC in performing functions, or exercising powers, under this Division; or
(b) making provision for, or in relation to, all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the ACCC under this Division; or
(c) prescribing matters required or permitted by any other provision of this Division to be prescribed by the Procedural Rules.
(2) Rules under subsection (1) are to be known as Procedural Rules.
(3) The Procedural Rules may make provision for, or in relation to, any or all of the following:
(a) the confidentiality of information or documents given to the ACCC by a person who gave the ACCC an access undertaking or a variation of an access undertaking;
(b) the form and content of access undertakings, variations or other documents given to the ACCC under this Division;
(c) requiring the ACCC to give information to the ACMA about the operation of this Division;
(d) requiring the ACMA to give information to the ACCC that is relevant to the operation of this Division.
(4) The Procedural Rules may make provision for, or in relation to, a matter by empowering the ACCC to make decisions of an administrative character.
(5) The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking if:
(a) the ACCC is satisfied that the access undertaking:
(i) is frivolous; or
(ii) is vexatious; or
(iii) was not given in good faith; or
(b) the ACCC has reason to believe that the access undertaking was given for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Division.
(6) Subsections (3), (4) and (5) do not limit subsection (1).
118PP Constitutional safety net
(1) If the operation of this Division or section 109C would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
Division 4C—Access to broadcasting transmission towers etc. by digital radio multiplex transmitter licensees and authorised persons
Subdivision A—Introduction
118Q Simplified outline
The following is a simplified outline of this Division:
• The owner or operator of a broadcasting transmission tower must provide the following persons with access to the tower:
(a) digital radio multiplex transmitter licensees;
(b) persons authorised by digital radio multiplex transmitter licensees under section 114.
• The owner or operator of a designated associated facility must provide the following persons with access to the facility:
(a) digital radio multiplex transmitter licensees;
(b) persons authorised by digital radio multiplex transmitter licensees under section 114.
• The owner or operator of a broadcasting transmission tower must provide the following persons with access to the site of the tower:
(a) digital radio multiplex transmitter licensees;
(b) persons authorised by digital radio multiplex transmitter licensees under section 114.
118QA Definitions
In this Division:
broadcasting transmission tower has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.
designated associated facility has the meaning given by section 118QB.
designated content service means a service mentioned in paragraph 109B(1)(f), (g) or (h).
facility includes apparatus, equipment, a structure, a line or an electricity cable or wire.
site means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
118QB Designated associated facilities
For the purposes of this Division, a designated associated facility means any of the following facilities:
(a) an antenna;
(b) a combiner;
(c) a feeder system;
(d) a facility of a kind specified in the regulations;
where:
(e) the facility is, or is to be, associated with a radiocommunications transmitter; and
(f) the facility is used, or capable of being used, in connection with the transmission of one or more designated content services.
118QC Extended meaning of access
(1) For the purposes of this Division, giving access to a broadcasting transmission tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.
(2) For the purposes of this Division, giving access to a designated associated facility includes:
(a) replacing the facility with another facility located on the same site and giving access to the replacement facility; or
(b) giving access to a service provided by means of the designated associated facility.
(3) For the purposes of this Division, giving access to a site on which is situated a broadcasting transmission tower includes replacing the tower with another tower located on the site.
Subdivision B—Access to broadcasting transmission towers etc. by digital radio multiplex transmitter licensees
118QD Access to broadcasting transmission towers
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by a person (the access seeker) who is:
(a) a digital radio multiplex transmitter licensee; or
(b) a person authorised by a digital radio multiplex transmitter licensee under section 114;
give the access seeker access to the tower.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subsection (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain either or both of the following:
(i) a multiplex transmitter;
(ii) associated facilities;
used, or for use, wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(3) The owner or operator of a broadcasting transmission tower is not required to comply with subsection (1) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subsection (1) in relation to that tower is not technically feasible.
(4) In determining whether compliance with subsection (1) in relation to a tower is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the tower; and
(ii) making alterations to the tower; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(5) If the ACMA receives a request to make a decision about the issue of a certificate under subsection (3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
118QE Access to designated associated facilities
Scope
(1) This section applies to a designated associated facility if the facility is situated on, at, in or under:
(a) a broadcasting transmission tower; or
(b) the site on which a broadcasting transmission tower is situated.
Access to designated associated facilities
(2) The owner or operator of the designated associated facility must, if requested to do so by a person (the access seeker) who is:
(a) a digital radio multiplex transmitter licensee; or
(b) a person authorised by a digital radio multiplex transmitter licensee under section 114;
give the access seeker access to the facility.
(3) The owner or operator of the designated associated facility is not required to comply with subsection (2) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to use:
(i) the facility; or
(ii) a service provided by means of the facility;
wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(4) The owner or operator of a designated associated facility is not required to comply with subsection (2) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subsection (2) in relation to that facility is not technically feasible.
(5) In determining whether compliance with subsection (2) in relation to a facility is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(6) If the ACMA receives a request to make a decision about the issue of a certificate under subsection (4), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
Exemptions
(7) The regulations may provide for exemptions from subsection (2).
(8) Regulations made for the purposes of subsection (7) may make provision with respect to a matter by conferring on the ACCC a power to make a decision of an administrative character.
118QF Access to sites of broadcasting transmission towers
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by a person (the access seeker) who is:
(a) a digital radio multiplex transmitter licensee; or
(b) a person authorised by a digital radio multiplex transmitter licensee under section 114;
give the access seeker access to a site if:
(c) the tower is situated on the site; and
(d) either:
(i) the site is owned, occupied or controlled by the owner or operator of the tower; or
(ii) the owner or operator of the tower has a right (either conditional or unconditional) to use the site.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subsection (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain either or both of the following:
(i) a multiplex transmitter;
(ii) associated facilities;
used, or for use, wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(3) The owner or operator of a broadcasting transmission tower is not required to comply with subsection (1) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subsection (1) in relation to that tower is not technically feasible.
(4) In determining whether compliance with subsection (1) in relation to a site is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(5) If the ACMA receives a request to make a decision about the issue of a certificate under subsection (3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
118QG Terms and conditions of access
Access to broadcasting transmission towers
(1) The owner or operator of a broadcasting transmission tower must comply with subsec
