Federal Register of Legislation - Australian Government

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Broadcasting Services Act 1992

Authoritative Version
  • - C2010C00506
  • In force - Superseded Version
  • View Series
Act No. 110 of 1992 as amended, taking into account amendments up to Act No. 103 of 2010
An Act relating to broadcasting services, datacasting services, online services and content services, and for related purposes
Administered by: Broadband, Communications and the Digital Economy
General Comments: This compilation is affected by a retrospective amendment, please see Statute Law Revision Act 2011 [Act No. 5 of 2011], for details.
Registered 21 Jul 2010
Start Date 30 Jun 2010
End Date 31 Dec 2010
Table of contents.

Broadcasting Services Act 1992

Act No. 110 of 1992 as amended

This compilation was prepared on 20 July 2010
taking into account amendments up to Act No. 103 of 2010

Volume 1 includes:     Table of Contents
                                    Sections 1 – 218
                                    Schedules 1 and 2

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Volume 2 includes:     Table of Contents
                                    Schedules 4 – 7
                                    Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Notes 2 and 3
                                    Table A

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

 

 

 


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement [see Note 1].............................................................. 1

3............ Objects of this Act.............................................................................. 1

4............ Regulatory policy................................................................................ 3

5............ Role of the ACMA............................................................................. 5

6............ Interpretation....................................................................................... 5

7............ Interpretation—meaning of control................................................... 18

8............ Interpretation—shareholding interests, voting interests, dividend interests and winding‑up interests      18

8A......... Captioning taken to be part of program............................................. 19

8AA...... Designated community radio broadcasting licence............................ 20

8AB...... Digital program enhancement content taken to be a radio program... 20

8AC...... Digital radio start‑up day................................................................... 21

8AD...... Deemed radio broadcasting licence areas.......................................... 23

8AE....... Final digital television switch‑over day............................................. 24

8B......... Remote Indigenous community......................................................... 24

9............ Act to bind the Crown....................................................................... 25

10.......... Extension of Act to the external Territories....................................... 25

10A....... Application of the Criminal Code..................................................... 25

Part 2—Categories of broadcasting services                                                       26

11.......... Categories of broadcasting services.................................................. 26

11A....... Dual categorisation of international broadcasting services................ 26

12.......... Method of regulating particular services........................................... 26

13.......... National broadcasting services.......................................................... 27

14.......... Commercial broadcasting services.................................................... 28

15.......... Community broadcasting services..................................................... 28

16.......... Subscription broadcasting services................................................... 29

17.......... Subscription narrowcasting services................................................. 29

18.......... Open narrowcasting services............................................................ 29

18A....... International broadcasting services.................................................... 30

19.......... ACMA may determine additional criteria or clarify existing criteria. 31

20.......... Determinations and clarifications to be disallowable by the Parliament 32

21.......... Requests to ACMA to decide which category a broadcasting service falls into       32

22.......... Matters to be considered by ACMA................................................. 34

Part 3—Planning of the broadcasting services bands                                   35

23.......... Planning criteria................................................................................ 35

24.......... ACMA to determine priorities.......................................................... 35

25.......... Preparation of frequency allotment plans.......................................... 36

26.......... Preparation of licence area plans....................................................... 37

26A....... Licence area plans—multi‑channelled commercial television broadcasting services 37

26B....... Licence area plans—multi‑channelled national television broadcasting services       38

26C....... Licence area plans not required to deal with certain digital radio broadcasting services            39

26D....... Licence area plans—how digital radio broadcasting services may be dealt with       40

27.......... Processes to be public....................................................................... 40

29.......... Designation of licence areas.............................................................. 41

30.......... ACMA may determine population figures........................................ 41

31.......... Minister may reserve capacity for national broadcasters or community broadcasters               41

32.......... Reservations to be disallowable by the Parliament............................ 42

33.......... Development of technical planning guidelines.................................. 42

34.......... Alternative uses of broadcasting services bands............................... 42

35.......... Notification of decisions under this Part........................................... 44

Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences      45

Division 1—Allocation of licences                                                                        45

35A....... Reviews about the allocation of new commercial television broadcasting licences   45

35B....... Allocation of new commercial television broadcasting licences........ 46

35C....... Digital radio moratorium................................................................... 47

35D....... Exception to the digital radio moratorium—failure to provide a digital commercial radio broadcasting service        47

36.......... ACMA to determine system for allocating licences.......................... 48

36A....... Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services         49

37.......... When licences must not be allocated................................................. 50

38.......... ACMA to advertise for applications for certain licences................... 51

38A....... Additional commercial television licences in single markets............. 51

38B....... Additional commercial television licences in 2‑station markets......... 53

38C....... Commercial television broadcasting licences—services provided with the use of a satellite     59

39.......... Additional commercial radio licences in single markets.................... 66

40.......... Allocation of other licences............................................................... 69

41.......... When persons are regarded as suitable.............................................. 71

Division 2—Services authorised by licences                                                   73

41A....... Services authorised by commercial television broadcasting licences before 1 January 2009    73

41B....... Services authorised by commercial television broadcasting licences during so much of the simulcast period etc. as occurs on or after 1 January 2009................................................................ 74

41C....... Services authorised by commercial television broadcasting licences after the end of the simulcast period etc.         79

41CA.... Services authorised by commercial television broadcasting licences allocated under section 38C            80

41D....... Services authorised by commercial radio broadcasting licences........ 84

Division 3—Licence conditions                                                                              87

42.......... Conditions of commercial broadcasting licences............................... 87

43.......... ACMA may impose additional conditions........................................ 87

43A....... Material of local significance—regional aggregated commercial television broadcasting licences            88

43AA.... Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees       89

43AB.... Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees....................................................................... 92

43AC.... Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees 93

43AD.... Compensation for acquisition of property......................................... 95

43B....... Local presence—regional commercial radio broadcasting licences.... 95

43C....... Local content—regional commercial radio broadcasting licences...... 96

43D....... Special licence conditions relating to digital radio commercial broadcasting services               99

44.......... Matters to which conditions may relate........................................... 101

Division 4—General provisions                                                                          103

45.......... Duration of licences........................................................................ 103

46.......... Applications for renewal................................................................. 103

47.......... ACMA to renew licences unless it is aware of special circumstances 103

48.......... Transfer of commercial broadcasting licences................................. 104

49.......... Surrender of commercial broadcasting licences............................... 104

Part 5—Control of commercial broadcasting licences and datacasting transmitter licences       105

Division 1—Preliminary                                                                                          105

50A....... This Part does not apply in relation to licences allocated under section 38C or subsection 40(1)             105

50.......... Interpretation—knowledge of company.......................................... 105

51.......... Means of dealing with overlapping licence areas............................ 105

51A....... This Part does not apply to certain channel B datacasting transmitter licences          105

52.......... Changes in licence area populations not to put persons in breach of this Part          106

52A....... Newspapers—additional constitutional basis.................................. 106

Division 2—Limitation on control                                                                     107

Subdivision A—Commercial broadcasting licences                                     107

53.......... Limitation on control of commercial television broadcasting licences 107

54.......... Limitation on control of commercial radio broadcasting licences.... 107

Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences      107

54A....... Limitation on control of commercial television broadcasting licences and datacasting transmitter licences               107

Subdivision C—Commercial radio broadcasting licences and restricted datacasting licences 108

54B....... Limitation on control of commercial radio broadcasting licences and restricted datacasting licences during the digital radio moratorium period........................................................................... 108

Division 3—Limitation on directorships                                                         109

Subdivision A—Television and radio                                                               109

55.......... Limitation on numbers of directorships—television........................ 109

56.......... Limitation on numbers of directorships—radio............................... 110

Subdivision B—Television and datacasting                                                    110

56A....... Limitation on directorships—television and datacasting.................. 110

Division 5—Newspapers associated with licence areas                          111

59.......... Newspapers associated with commercial television or radio broadcasting licence areas           111

Division 5A—Media diversity                                                                              113

Subdivision A—Introduction                                                                               113

61AA.... Definitions...................................................................................... 113

61AB.... Unacceptable media diversity situation............................................ 115

61AC.... Points.............................................................................................. 115

61AD.... Statutory control rules..................................................................... 118

61AE..... Shared content test.......................................................................... 118

61AEA.. Unacceptable 3‑way control situation.............................................. 119

61AF..... Overlapping licence areas................................................................ 119

Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc.                                                                               119

61AG.... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence........................................................................................................ 119

61AH.... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty........................................................................................................ 120

61AJ..... Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc.    121

61AK.... Extension of time for compliance with prior approval notice.......... 122

61AL..... Breach of prior approval notice—offence....................................... 123

61AM... Breach of prior approval notice—civil penalty................................ 124

Subdivision BA—Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence etc.                                                                               124

61AMA Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—offence  124

61AMB. Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—civil penalty........................................................................................................ 125

61AMC. Prior approval of transactions that result in an unacceptable 3‑way control situation coming into existence etc.      125

61AMD Extension of time for compliance with prior approval notice.......... 127

61AME. Breach of prior approval notice—offence....................................... 128

61AMF. Breach of prior approval notice—civil penalty................................ 128

Subdivision C—Remedial directions                                                                 128

61AN.... Remedial directions—unacceptable media diversity situation.......... 128

61ANA. Remedial directions—unacceptable 3‑way control situation............ 131

61AP..... Extension of time for compliance with remedial direction............... 133

61AQ.... Breach of remedial direction—offence............................................ 134

61AR.... Breach of remedial direction—civil penalty..................................... 134

Subdivision D—Enforceable undertakings                                                     135

61AS..... Acceptance of undertakings............................................................ 135

61AT..... Enforcement of undertakings.......................................................... 135

Subdivision E—Register of Controlled Media Groups                                136

61AU.... Register of Controlled Media Groups............................................. 136

61AV.... How a media group is to be entered in the Register........................ 136

61AW... Explanatory notes may be included in the Register......................... 137

61AX.... Continuity of media group.............................................................. 137

61AY.... Initial registration of media groups.................................................. 137

61AZ..... Registration of newly‑formed media group..................................... 138

61AZA.. De‑registration of media group that has ceased to exist................... 141

61AZB.. Registration of change of controller of registered media group....... 142

61AZC.. Registration of change of composition of media group................... 142

61AZCAACMA must deal with notifications in order of receipt.................. 143

61AZD.. Conditional transactions.................................................................. 143

61AZE.. Review and confirmation of entries and alterations etc.................... 145

61AZF.. Reconsideration of decisions........................................................... 147

61AZG.. Corrections of clerical errors or obvious defects............................. 149

61AZH.. Regulations..................................................................................... 149

Division 5B—Disclosure of cross‑media relationships                            150

61BA.... Definitions...................................................................................... 150

61BB..... Disclosure of cross‑media relationship by commercial television broadcasting licensee          150

61BC..... Choice of disclosure method—commercial radio broadcasting licensee 152

61BD.... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—business affairs disclosure method........................................................................................................ 153

61BE..... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—regular disclosure method     154

61BF..... Disclosure of cross‑media relationship by publisher of newspaper 155

61BG.... Exception—political communication............................................... 157

61BH.... Matter or material about the business affairs of a broadcasting licensee or newspaper publisher             157

Division 5C—Local news and information requirements for regional commercial radio broadcasting licensees                                                                                                 160

Subdivision A—Introduction                                                                               160

61CA.... Definitions...................................................................................... 160

61CB..... Trigger event................................................................................... 162

61CC..... What is local?.................................................................................. 163

Subdivision B—Minimum service standards for local news and information               163

61CD.... Licensee must meet minimum service standards for local news and information     163

61CE..... Minimum service standards for local news and information........... 164

Subdivision C—Local content plans                                                                  166

61CF..... Licensee must submit draft local content plan to the ACMA.......... 166

61CG.... Content of draft or approved local content plan............................... 167

61CH.... Approval of draft local content plan................................................ 167

61CJ...... Register of approved local content plans......................................... 168

61CK..... Approved local content plan must be varied if minimum service standards are imposed or increased      168

61CL..... Approved local content plan may be varied by the licensee............. 169

61CM.... Approval of draft variation.............................................................. 169

61CN.... ACMA may review approved local content plan............................ 170

61CP..... Compliance with approved local content plan................................. 170

61CPA.. Licensee must submit annual compliance report.............................. 170

61CQ.... Minister may direct the ACMA about the exercise of its powers.... 171

Subdivision D—Other local content requirements                                        171

61CR..... Minister may direct the ACMA to conduct an investigation about other local content requirements        171

61CS..... Minister may direct the ACMA to impose licence conditions relating to local content             172

61CT..... Regular reviews of local content requirements................................ 172

Division 6—Notification provisions                                                                  174

62.......... Requirement to notify control and directorships.............................. 174

63.......... Requirement to notify changes in control........................................ 175

64.......... Person who obtains control of a licence or newspaper must notify the ACMA       177

65.......... Requirement to notify control and directorships as at 1 February 2007 178

65A....... Strict liability offences..................................................................... 180

65B....... Designated infringement notice provisions..................................... 180

Division 7—Approval of temporary breaches                                            181

66.......... Offence for breaches without approval........................................... 181

67.......... Applications for prior approval of temporary breaches................... 182

68.......... Extension of time for compliance with notice.................................. 183

69.......... Breach of notice under section 67 to constitute an offence.............. 184

Division 8—Action by the ACMA                                                                      185

70.......... Notices by the ACMA.................................................................... 185

71.......... Extension of time for compliance with notice.................................. 186

72.......... Breach of notice under section 70 to constitute an offence.............. 187

Division 9—Special provision for small markets                                       188

73.......... Additional licence under section 38A not to result in breach of ownership limits    188

73A....... Additional licence allocated under section 38B not to result in breach of control rules             188

Division 10—Prior opinions by the ACMA                                                  189

74.......... Requests to ACMA to give an opinion on whether a person is in a position to control a licence, a newspaper or a company.......................................................................................... 189

Division 11—Miscellaneous                                                                                   191

75.......... Register of matters under this Part.................................................. 191

76.......... Continuing offences........................................................................ 191

77.......... Part has effect notwithstanding Trade Practices Act........................ 191

78.......... Part not to invalidate appointments.................................................. 192

Part 6—Community broadcasting licences                                                        193

79.......... Interpretation................................................................................... 193

79A....... Application...................................................................................... 193

80.......... ACMA to advertise for applications for BSB community broadcasting licences     193

81.......... When licences must not be allocated............................................... 194

82.......... Other community broadcasting licences.......................................... 194

83.......... When persons are regarded as suitable............................................ 194

84.......... Allocation of community broadcasting licences.............................. 195

84A....... Designated community radio broadcasting licences to provide analog or digital services         196

85.......... ACMA not required to allocate community broadcasting licence to any applicant   197

85A....... Services authorised by designated community radio broadcasting licences              197

86.......... Conditions of community broadcasting licences............................. 199

87.......... ACMA may impose additional conditions on community broadcasting licences     199

87A....... Additional conditions on CTV licences........................................... 200

87B....... Special licence condition relating to digital community radio broadcasting services 202

88.......... Matters to which conditions may relate........................................... 202

89.......... Duration of community broadcasting licences................................. 203

90.......... Applications for renewal of community broadcasting licences........ 203

91.......... ACMA may renew community broadcasting licences.................... 204

91A....... Transfer of community broadcasting licences................................. 205

92.......... Surrender of community broadcasting licences............................... 207

Part 6A—Temporary community broadcasting licences                           208

92A....... Interpretation................................................................................... 208

92B....... Temporary community broadcasting licences.................................. 208

92C....... Applicants for temporary community broadcasting licences........... 208

92D....... When applicants and licensees are regarded as suitable................... 209

92E........ Criteria for deciding whether to allocate a licence............................ 210

92F........ Licences to accord with alternative planning procedures................. 211

92G....... Licence area, timing conditions and licence period.......................... 211

92H....... Conditions of temporary community broadcasting licences............ 211

92J........ ACMA may vary conditions or periods, or impose new conditions 211

92K....... Duration of temporary community broadcasting licences................ 212

92L........ Surrender of temporary community broadcasting licences.............. 213

Part 7—Subscription television broadcasting services                                214

Division 1—Allocation of subscription television broadcasting licences               214

95.......... When subscription television broadcasting licence must not be allocated 214

96.......... Allocation of other subscription television broadcasting licences.... 214

97.......... Requests to Australian Competition and Consumer Commission... 215

98.......... Suitability for allocation of licence.................................................. 215

98D....... Compensation................................................................................. 216

Division 2—Conditions of subscription television broadcasting licence                218

99.......... Conditions applicable to subscription television broadcasting licence 218

100........ Matters to which conditions may relate........................................... 218

Division 2A—Eligible drama expenditure                                                     220

Subdivision A—Introduction                                                                               220

103A..... Simplified outline............................................................................ 220

103B..... Definitions...................................................................................... 221

103C..... Channel providers........................................................................... 224

103D..... Part‑channel providers.................................................................... 224

103E...... Pass‑through providers................................................................... 225

103F...... Part‑pass‑through providers............................................................ 225

103G..... Supply of channel or package......................................................... 226

103H..... Non‑designated pre‑production expenditure not to be counted unless principal photography has commenced        226

103J...... Cash‑based accounting—when expenditure is incurred.................. 226

103JA... When designated script development expenditure is incurred in relation to an eligible drama program etc.              227

103K..... When expenditure incurred on a new eligible drama program......... 229

103L...... ACMA may make determinations about what constitutes program expenditure      230

103M.... Expenditure to be nominated only once in meeting licence conditions 231

Subdivision B—Channel provider supplies channel                                     232

103N..... 10% minimum eligible drama expenditure—channel provider supplies channel      232

103NA.. Carry‑forward eligible drama expenditure....................................... 234

103P...... Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee        234

103Q..... Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees           236

Subdivision C—Pass‑through provider supplies channel                            238

103R..... 10% minimum eligible drama expenditure—pass‑through provider supplies channel              238

103RA.. Carry‑forward eligible drama expenditure....................................... 240

103S...... Shortfall of eligible drama expenditure—pass‑through provider supplies channel   241

Subdivision D—Licensee supplies all program material                             242

103T...... 10% minimum eligible drama expenditure—licensee supplies all program material 242

103TA... Carry‑forward eligible drama expenditure....................................... 243

Subdivision E—Part‑channel provider supplies package of programs   244

103U..... 10% minimum eligible drama expenditure—part‑channel provider supplies package of programs          244

103UA.. Carry‑forward eligible drama expenditure....................................... 245

103V..... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs exclusively to licensee........................................................................................................ 246

103W.... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs to multiple licensees........................................................................................................ 248

Subdivision F—Part‑pass‑through provider supplies package of programs  250

103X..... 10% minimum eligible drama expenditure—part‑pass‑through provider supplies package of programs 250

103XA.. Carry‑forward eligible drama expenditure....................................... 252

103Y..... Shortfall of eligible drama expenditure—part‑pass‑through provider supplies package of programs       253

Subdivision G—Licensee supplies part of program material                    254

103Z...... 10% minimum eligible drama expenditure—licensee supplies part of program material          254

103ZAA Carry‑forward eligible drama expenditure....................................... 256

Subdivision H—Annual returns                                                                          257

103ZA... Licensee to lodge annual return....................................................... 257

103ZB... Channel provider and part‑channel provider to lodge annual return 257

103ZC... ACMA may inquire into the correctness of an annual return.......... 258

103ZD... Nominations to be attached to annual returns.................................. 258

Subdivision I—Compliance certificates                                                           259

103ZE... ACMA to issue compliance certificate............................................ 259

103ZF... Compliance certificate to be prima facie evidence............................ 262

Subdivision J—Miscellaneous                                                                            262

103ZG... Anti‑avoidance—transactions between persons not at arm’s length 262

103ZH... Expenditure to be expressed in Australian currency........................ 262

103ZJ.... Review before 31 March 2003........................................................ 263

Division 6—Miscellaneous                                                                                     264

113........ Transfer of subscription television broadcasting licence................. 264

114........ Surrender of subscription television broadcasting licence............... 264

115........ Minister may protect the free availability of certain types of programs 264

115A..... Review of anti‑siphoning provisions.............................................. 265

116........ Certain arrangements not to result in control or in persons being associates            266

116A..... Use of additional capacity............................................................... 266

116B..... Application of section 51 of the Trade Practices Act....................... 267

Part 8—Subscription broadcasting and narrowcasting class licences 268

117........ Determination of class licences....................................................... 268

118........ Conditions of class licences............................................................ 268

119........ Matters to which conditions may relate........................................... 268

120........ Variation of class licences............................................................... 269

121........ Class licences and variations to be disallowable by the Parliament. 269

Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.   270

121A..... Simplified outline............................................................................ 270

121B..... Definitions...................................................................................... 270

121C..... Identical program items................................................................... 271

121D..... Continuity of program items........................................................... 271

121E...... ACMA permission is required to provide certain television services in regional areas            272

Part 8B—International broadcasting licences                                                  273

Division 1—Introduction                                                                                        273

121F...... Simplified outline............................................................................ 273

121FAA Definitions...................................................................................... 274

Division 2—Allocation of international broadcasting licences           275

121FA... Application for international broadcasting licence........................... 275

121FB... Corporate status and suitability....................................................... 275

121FC... Unsuitable applicant........................................................................ 277

121FD... Australia’s national interest............................................................. 278

121FE... Allocation of licence........................................................................ 279

Division 3—Obligations of international broadcasting licensees      280

121FF... Conditions of international broadcasting licences............................ 280

Division 4—Remedies                                                                                               281

121FG... Prohibition on providing an international broadcasting service without a licence     281

121FH... Remedial directions—unlicensed international broadcasting services 281

121FHA Breach of remedial direction—offence............................................ 281

121FHB Breach of remedial direction—civil penalty provision..................... 282

121FJ.... Offence for breach of conditions of international broadcasting licence 282

121FJA. Civil penalty provision relating to breach of conditions of international broadcasting licences 283

121FJB. Remedial directions—licence conditions......................................... 283

121FJC. Breach of remedial direction—offence............................................ 283

121FJD. Breach of remedial direction—civil penalty provision..................... 284

121FK... Cancellation of licence if service does not commence within 2 years 284

121FL... Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest........................................................................................................ 285

Division 4A—Nominated broadcaster declarations                                 287

121FLA Object of this Division.................................................................... 287

121FLB. Applications for nominated broadcaster declarations...................... 287

121FLC. Making a nominated broadcaster declaration................................... 287

121FLD Effect of nominated broadcaster declaration.................................... 289

121FLE. Conditions of nominated broadcaster declarations.......................... 290

121FLF. Offence for breach of conditions of nominated broadcaster declaration 290

121FLG Revocation of nominated broadcaster declaration............................ 290

121FLH Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company     292

121FLJ.. Register of nominated broadcaster declarations............................... 294

Division 5—ACMA to assist the Minister for Foreign Affairs           295

121FM.. Report about compliance with international broadcasting guidelines 295

121FN... Records of broadcasts..................................................................... 295

Division 6—Miscellaneous                                                                                     296

121FP... International broadcasting guidelines.............................................. 296

121FQ... Surrender of international broadcasting licences............................. 296

121FR... Complaints about international broadcasting services..................... 296

121FS... Statements about decisions of the Minister for Foreign Affairs...... 296

Part 9—Program standards                                                                                        298

122........ Program standards for children’s programs and Australian content 298

123........ Development of codes of practice................................................... 299

123A..... Review by the ACMA.................................................................... 303

123B..... Review by the ACMA—application of code of practice to section 38C licences     303

124........ ACMA to maintain Register of codes of practice............................ 304

125........ ACMA may determine program standards where codes of practice fail or where no code of practice developed    304

126........ Consultation on standards............................................................... 305

127........ Notification of determination or variation or revocation of standards 305

128........ Standards and codes to be amendable by the Parliament................. 305

129........ Limitation of ACMA’s power in relation to standards.................... 306

130........ Application of the Trade Practices Act............................................ 306

Part 9A—Technical standards                                                                                   307

130A..... Technical standards for digital transmission—television etc........... 307

130AA.. Technical standards for digital transmission—radio etc.................. 309

130AB.. Technical standards relating to the operation of multiplex transmitters 310

130AC.. Technical standards for digital transmission of television services provided with the use of a satellite    310

130B..... Technical standards for domestic digital reception equipment—television etc.         311

130BA.. Technical standards for domestic digital reception equipment—radio etc.                313

130BB... Technical standards for domestic digital reception equipment—television services provided with the use of a satellite........................................................................................................ 315

Part 9B—Industry codes and industry standards                                         319

Division 1—Simplified outline                                                                              319

130C..... Simplified outline............................................................................ 319

Division 2—Interpretation                                                                                     320

130D..... Industry codes................................................................................. 320

130E...... Industry standards........................................................................... 320

130F...... Industry activities............................................................................ 320

130G..... Sections of the industry................................................................... 322

130H..... Participants in a section of the industry........................................... 322

Division 3—General principles relating to industry codes and industry standards        323

130J...... Statement of regulatory policy......................................................... 323

130K..... Examples of matters that may be dealt with by industry codes and industry standards            323

130L...... Industry codes and industry standards not to deal with certain matters 323

Division 4—Industry codes                                                                                    325

130M.... Registration of industry codes......................................................... 325

130N..... ACMA may request codes.............................................................. 326

130P...... Publication of notice where no body or association represents a section of the industry          327

130Q..... Replacement of industry codes........................................................ 327

Division 5—Industry standards                                                                          328

130R..... ACMA may determine an industry standard if a request for an industry code is not complied with        328

130S...... ACMA may determine industry standard where no industry body or association formed       329

130T...... ACMA may determine industry standards—total failure of industry codes             329

130U..... ACMA may determine industry standards—partial failure of industry codes          331

130V..... Compliance with industry standards............................................... 332

130W.... Formal warnings—breach of industry standards............................ 333

130X..... Variation of industry standards....................................................... 333

130Y..... Revocation of industry standards.................................................... 333

130Z...... Public consultation on industry standards....................................... 333

Division 6—Register of industry codes and industry standards        335

130ZA... ACMA to maintain Register of industry codes and industry standards 335

Part 9C—Access to commercial television broadcasting services provided with the use of a satellite   336

130ZBA Simplified outline............................................................................ 336

130ZB... Objectives of conditional access scheme......................................... 336

130ZC... Registration of conditional access scheme developed by representative body or association    340

130ZCAAACMA may invite representative body or association to
develop a revised conditional access scheme
................................... 341

130ZCABACMA may request development of replacement conditional
access scheme
................................................................................. 342

130ZCA Registration of conditional access scheme formulated by the ACMA 343

130ZD... Replacement of conditional access scheme...................................... 345

130ZE... ACMA to maintain register of conditional access schemes............. 346

130ZF... ACMA may direct a scheme administrator to issue a reception certificate etc.         346

130ZFA Adequate reception.......................................................................... 349

130ZG... Applicable terrestrial digital commercial television broadcasting services                349

Part 10—Remedies for breaches of licensing provisions                           351

Division 1—Offences for providing unlicensed services                        351

131........ Prohibition on providing a commercial television broadcasting service without a licence        351

132........ Prohibition on providing a subscription television broadcasting service without a licence       351

133........ Prohibition on providing a commercial radio broadcasting service without a licence               351

134........ Prohibition on providing a community television broadcasting service without a licence         351

135........ Prohibition on providing a community radio broadcasting service without a licence                352

136........ Continuing offences........................................................................ 352

Division 1A—Civil penalty provisions relating to unlicensed services   353

136A..... Prohibition on providing a commercial television broadcasting service without a licence        353

136B..... Prohibition on providing a subscription television broadcasting service without a licence       353

136C..... Prohibition on providing a commercial radio broadcasting service without a licence               353

136D..... Prohibition on providing a community television broadcasting service without a licence         353

136E...... Prohibition on providing a community radio broadcasting service without a licence                354

136F...... Continuing breaches........................................................................ 354

Division 2—Action by ACMA where a person provides a service without a licence     355

137........ Remedial directions—unlicensed services....................................... 355

138........ Breach of remedial direction—offences.......................................... 355

138A..... Breach of remedial direction—civil penalty provision..................... 356

Division 3—Action in relation to breaches by licensees                         357

139........ Offence for breach of conditions of licences and class licences...... 357

140........ Continuing offences........................................................................ 359

140A..... Civil penalty provisions relating to breach of conditions of licences and class licences            359

141........ Remedial directions—licence conditions, class licences and codes of practice         360

142........ Breach of remedial direction—offences.......................................... 362

142A..... Breach of remedial direction—civil penalty provision..................... 363

143........ Suspension and cancellation............................................................ 364

Division 4—Action in relation to class licences                                          366

144........ Application to Federal Court........................................................... 366

Part 10A—Anti‑hoarding rules                                                                                 367

Division 1—Introduction                                                                                        367

146A..... Simplified outline............................................................................ 367

146B..... Definitions...................................................................................... 368

146C..... Designated events and designated series of events.......................... 369

146CA.. When event or series is eligible for delayed televising in the Central‑Western time zones        370

146D..... Program suppliers........................................................................... 371

Division 2—Commercial television broadcasting licensees                  373

146E...... Anti‑hoarding rule—licensees......................................................... 373

146F...... Anti‑hoarding rule—program suppliers.......................................... 374

146G..... What constitutes an offer to transfer rights to televise live events... 375

146H..... Offers to transfer rights to televise live events................................ 376

146J...... Contracts to acquire rights to televise live events must authorise the transfer of the rights       377

146K..... Simultaneous events in a series....................................................... 378

146KA.. Delayed televising in the Central‑Western time zones..................... 379

Division 3—National broadcasters                                                                   381

146L...... Anti‑hoarding rule........................................................................... 381

146M.... What constitutes an offer to transfer rights to televise live events... 382

146N..... Offers to transfer rights to televise live events................................ 382

146P...... Contracts to acquire rights to televise live events must authorise the transfer of the rights       383

146Q..... Simultaneous events in a series....................................................... 383

146R..... Delayed televising in the Central‑Western time zones..................... 384

Division 4—Review of anti‑hoarding provisions                                       387

146S...... Review of anti‑hoarding provisions................................................ 387

Part 11—Complaints to the ACMA                                                                       388

Division 1—Complaints relating to action under licences and class licences      388

147........ Complaints relating to offences or breach of licence conditions...... 388

148........ Complaints under codes of practice................................................. 388

149........ Investigation of complaints by the ACMA..................................... 388

Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS                                                                                 390

150........ Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS           390

151........ Investigation of complaints relating to the ABC or SBS by the ACMA  390

152........ Action by ACMA where complaint justified.................................. 390

153........ ACMA may report to Minister on results of recommendation........ 391

Part 13—Information gathering by the ACMA                                             392

Division 1—Introduction                                                                                        392

168........ Obtaining of information by the ACMA......................................... 392

169........ Decision‑making by the ACMA not limited to matters discovered by investigation or hearing               392

Division 2—Investigations                                                                                     393

170........ Investigations by the ACMA.......................................................... 393

171........ Minister may direct ACMA to conduct an investigation................. 393

172........ ACMA may call for written submissions from the public.............. 393

173........ Notice requiring appearance for examination.................................. 394

174........ Examination on oath or affirmation................................................. 394

175........ Examination to take place in private................................................ 394

176........ Record to be made of examination.................................................. 394

177........ Production of documents for inspection.......................................... 395

178........ Report on investigation................................................................... 395

179........ Publication of report........................................................................ 395

180........ Person adversely affected by report to be given opportunity to comment 395

Division 3—Hearings                                                                                                397

182........ Power to hold hearings................................................................... 397

183........ Minister may direct ACMA to hold a hearing................................. 397

184........ Procedure for conduct of hearings.................................................. 397

185........ ACMA may direct holding of conference....................................... 397

186........ Hearings to be informal, quick and economical............................... 398

187........ Hearings to be in public except in exceptional cases....................... 398

188........ Public notice of hearings................................................................. 398

189........ Confidential material not to be published........................................ 398

190........ Directions as to private hearings..................................................... 399

191........ Constitution of ACMA for conduct of hearings............................. 399

192........ Presiding member........................................................................... 399

193........ Reconstitution of hearing panel....................................................... 399

194........ Exercise of powers in relation to conduct of hearing....................... 399

195........ Summons to give evidence or produce documents.......................... 400

196........ Written submissions may be made to hearing................................. 400

197........ Evidence and submissions to be taken into account by ACMA...... 400

198........ Representation at hearings............................................................... 400

199........ Reports on hearings........................................................................ 401

Division 4—General                                                                                                  402

200........ Protection of members and persons giving evidence....................... 402

201........ Protection of panel conducting hearing........................................... 402

202........ Non‑compliance with requirement to give evidence........................ 402

203........ Proceedings for defamation not to lie.............................................. 404

Part 14—Appeals to the Administrative Appeals Tribunal                     405

204........ Appeals to the Administrative Appeals Tribunal............................. 405

205........ Notification of decisions to include notification of reasons and appeal rights           411

Part 14A—Accounts and payment of licence fees                                         412

205A..... Definitions...................................................................................... 412

205B..... Broadcasting licensees to keep accounts......................................... 412

205BA.. Datacasting transmitter licensees to keep accounts.......................... 414

205C..... Payment of licence fees................................................................... 415

205D..... Penalty for unpaid licence fees........................................................ 415

Part 14B—Civil penalties                                                                                              419

Division 1—Ancillary contravention of civil penalty provision         419

205E...... Ancillary contravention of civil penalty provision........................... 419

Division 2—Civil penalty orders                                                                        420

205EA... Simplified outline............................................................................ 420

205F...... Civil penalty orders......................................................................... 420

205G..... Who may apply for a civil penalty order......................................... 421

205H..... 2 or more proceedings may be heard together................................. 422

205J...... Time limit for application for an order............................................. 422

205K..... Civil evidence and procedure rules for civil penalty orders............. 422

205L...... Civil proceedings after criminal proceedings................................... 422

205M.... Criminal proceedings during civil proceedings............................... 422

205N..... Criminal proceedings after civil proceedings................................... 422

205P...... Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings              423

205PAA Mistake of fact................................................................................ 423

Part 14C—Injunctions                                                                                                    425

205PA... Simplified outline............................................................................ 425

205Q..... Injunctions...................................................................................... 425

205R..... Interim injunctions.......................................................................... 425

205S...... Discharge etc. of injunctions........................................................... 426

205T...... Certain limits on granting injunctions not to apply.......................... 426

205U..... Other powers of the Federal Court unaffected................................ 426

Part 14D—Enforceable undertakings                                                                   427

205V..... Simplified outline............................................................................ 427

205W.... Acceptance of undertakings............................................................ 427

205X..... Enforcement of undertakings.......................................................... 428

Part 14E—Infringement notices                                                                               429

205XAASimplified outline............................................................................ 429

205XA.. Formal warning............................................................................... 429

205Y..... When an infringement notice can be given...................................... 429

205Z...... Matters to be included in an infringement notice............................. 430

205ZA... Amount of penalty.......................................................................... 430

205ZB... Withdrawal of an infringement notice............................................. 430

205ZC... What happens if the penalty is paid................................................. 431

205ZD... Effect of this Part on criminal proceedings...................................... 431

205ZE... Appointment of authorised infringement notice officer................... 432

205ZF... Regulations..................................................................................... 432

Part 15—Miscellaneous                                                                                                  433

206........ Broadcasting or datacasting taken to be publication in permanent form 433

207........ Amounts of fees.............................................................................. 433

209........ Prosecutions.................................................................................... 433

210........ Publication of opinions................................................................... 433

211........ Service of notices............................................................................ 434

211AA.. Time when a television program is broadcast—certain terrestrial licence areas        434

211A..... Time when a television program is broadcast—South Eastern Australia TV3 and Northern Australia TV3 licence areas........................................................................................................ 435

212........ Special provisions for re‑transmission of programs........................ 437

212A..... Self‑help providers.......................................................................... 439

212B..... Declared self‑help providers and excluded providers...................... 440

213........ Penalties for continuing offences.................................................... 441

214........ Procedure relating to continuing offences....................................... 441

215........ Guidelines relating to ACMA’s enforcement powers etc................ 442

215A..... Review—technologies for the transmission of digital radio broadcasting services and restricted datacasting services in regional licence areas etc................................................................. 443

215B..... Review—development and regulation of digital radio broadcasting services and restricted datacasting services     444

216........ Ministerial consultative and advisory bodies................................... 445

216A..... Schedule 4 (digital television broadcasting).................................... 445

216B..... Schedule 5 (online services)............................................................ 445

216C..... Schedule 6 (datacasting services).................................................... 445

216D..... Schedule 7 (content services).......................................................... 446

217........ Regulations..................................................................................... 446

218........ Channel sharing.............................................................................. 446

Schedule 1—Control and ownership of company interests                     447

Part 1—Introduction                                                                                                        447

1............ Control—general............................................................................. 447

Part 2—When person is in a position to exercise control                           449

2............ When person is in a position to exercise control............................. 449

3............ When person is in a position to exercise control of a newspaper.... 452

4............ Special provisions for authorised lenders........................................ 453

Part 3—Deemed control                                                                                                 457

5............ Explanation of examples................................................................. 457

6............ The 15% rule................................................................................... 457

7............ Application of method through chain of companies........................ 457

Part 4—Tracing of ownership                                                                                   458

8............ Tracing of ownership...................................................................... 458

Schedule 2—Standard conditions                                                                            460

Part 1—Interpretation                                                                                                    460

1............ Definitions...................................................................................... 460

2............ Interpretation—certain things do not amount to broadcasting of advertisements      463

Part 2—Special conditions                                                                                            464

3............ Broadcasting of political or controversial material........................... 464

3A......... Broadcasting of election advertisements.......................................... 464

4............ Identification of certain political matter............................................ 465

5............ Records of matter broadcast............................................................ 466

6............ Advertisements relating to medicines.............................................. 467

Part 3—Commercial television broadcasting licences                                  469

Division 1—General                                                                                                  469

7............ Conditions of commercial television broadcasting licences............. 469

Division 2—Licences allocated under section 38C                                   476

7A......... Common conditions........................................................................ 476

7B......... Conditions about the provision of core/primary commercial television broadcasting services  476

7C......... Conditions about the provision of non‑core/primary commercial television broadcasting services          479

7D......... Condition about the provision of local news services..................... 483

7E.......... Exemption—provision of new commercial television broadcasting services not technically feasible       484

7F.......... Exemption—commercial television broadcasting services with the same program content      484

7G......... Delay in commencement of new commercial television broadcasting services         486

7H......... Start dates for licence areas............................................................. 487

7J.......... Program content.............................................................................. 488

7K......... SDTV multi‑channelled commercial television broadcasting service 489

7L.......... Definitions...................................................................................... 489

Part 4—Commercial radio broadcasting licences                                          491

8............ Standard conditions of commercial radio broadcasting licences...... 491

Part 5—Community broadcasting licences                                                        495

9............ Conditions applicable to services provided under community broadcasting licences                495

Part 6—Subscription television broadcasting licences                                 499

10.......... Conditions applicable to subscription television broadcasting licences 499

Part 7—Services provided under class licences                                               502

11.......... Conditions applicable to broadcasting services provided under class licences          502


An Act relating to broadcasting services, datacasting services, online services and content services, and for related purposes

  

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Broadcasting Services Act 1992.

2  Commencement [see Note 1]

             (1)  Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.

             (2)  The remaining provisions of this Act commence on a day to be fixed by Proclamation.

             (3)  If those provisions do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.

3  Objects of this Act

             (1)  The objects of this Act are:

                     (a)  to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and

                    (aa)  to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and

                     (b)  to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and

                   (ba)  to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs; and

                     (c)  to encourage diversity in control of the more influential broadcasting services; and

                     (e)  to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and

                    (ea)  to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and

                      (f)  to promote the provision of high quality and innovative programming by providers of broadcasting services; and

                    (fa)  to promote the provision of high quality and innovative content by providers of datacasting services; and

                     (g)  to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and

                     (h)  to encourage providers of broadcasting services to respect community standards in the provision of program material; and

                   (ha)  to ensure designated content/hosting service providers respect community standards in relation to content; and

                      (i)  to encourage the provision of means for addressing complaints about broadcasting services; and

                      (j)  to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them; and

                    (ja)  to ensure that international broadcasting services are not provided contrary to Australia’s national interest; and

                     (k)  to provide a means for addressing complaints about certain internet content; and

                      (l)  to restrict access to certain internet content that is likely to cause offence to a reasonable adult; and

                    (m)  to protect children from exposure to internet content that is unsuitable for children; and

                     (n)  to ensure the maintenance and, where possible, the development of diversity, including public, community and indigenous broadcasting, in the Australian broadcasting system in the transition to digital broadcasting.

             (2)  In this section:

designated content/hosting service provider has the same meaning as in Schedule 7.

internet content has the same meaning as in Schedule 5.

4  Regulatory policy

             (1)  The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services, datacasting services and internet services according to the degree of influence that different types of broadcasting services, datacasting services and internet services are able to exert in shaping community views in Australia.

             (2)  The Parliament also intends that broadcasting services and datacasting services in Australia be regulated in a manner that, in the opinion of the ACMA:

                     (a)  enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services and datacasting services; and

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

                              (i)  the development of broadcasting technologies and datacasting technologies, and their application; and

                             (ii)  the provision of services made practicable by those technologies to the Australian community.

             (3)  The Parliament also intends that internet carriage services supplied to end‑users in Australia, be regulated in a manner that:

                     (a)  enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on internet service providers; and

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

                              (i)  the development of internet technologies and their application; and

                             (ii)  the provision of services made practicable by those technologies to the Australian community; and

                            (iii)  the supply of internet carriage services at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community.

       (3AA)  The Parliament also intends that designated content/hosting services be regulated in a manner that:

                     (a)  enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on the providers of those services; and

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

                              (i)  the development of communications technologies and their application; and

                             (ii)  the provision of services made practicable by those technologies to the Australian community.

          (3A)  This section does not apply to Part 8B (which deals with international broadcasting services).

             (4)  In this section:

designated content/hosting service has the same meaning as in Schedule 7.

internet carriage service has the same meaning as in Schedule 5.

internet content has the same meaning as in Schedule 5.

internet service provider has the same meaning as in Schedule 5.

5  Role of the ACMA

             (1)  In order to achieve the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4, the Parliament:

                     (a)  charges the ACMA with responsibility for monitoring the broadcasting industry, the datacasting industry, the internet industry and the commercial content service industry; and

                     (b)  confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will:

                              (i)  produce regulatory arrangements that are stable and predictable; and

                             (ii)  deal effectively with breaches of the rules established by this Act.

             (2)  Where it is necessary for the ACMA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ACMA use its powers, or a combination of its powers, in a manner that, in the opinion of the ACMA, is commensurate with the seriousness of the breach concerned.

             (3)  This section does not, by implication, limit the functions and powers of:

                     (b)  the Australian Competition and Consumer Commission; or

                     (c)  any other body or person who has regulatory responsibilities in relation to the internet industry.

             (4)  In this section:

commercial content service has the same meaning as in Schedule 7.

6  Interpretation

             (1)  In this Act, unless the contrary intention appears:

ACMA means the Australian Communications and Media Authority.

amount paid on shares, in relation to a company, includes an amount treated by the company as having been so paid.

analog commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using an analog modulation technique.

analog community radio broadcasting service means a community radio broadcasting service that is transmitted using an analog modulation technique.

anti‑siphoning event means an event, or an event of a kind, that is specified in a notice under subsection 115(1). For this purpose, disregard subsections 115(1AA) and (1B).

associate, in relation to a person in relation to control of a licence or a newspaper, or control of a company in relation to a licence or a newspaper, means:

                     (a)  the person’s spouse or a parent, child, brother or sister of the person; or

                     (b)  a partner of the person or, if a partner of the person is a natural person, a spouse or a child of a partner of the person; or

                     (c)  if the person or another person who is an associate of the person under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or

                     (d)  a person (whether a company or not) who:

                              (i)  acts, or is accustomed to act; or

                             (ii)  under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

                            in accordance with the directions, instructions or wishes of, or in concert with, the first‑mentioned person or of the first‑mentioned person and another person who is an associate of the first‑mentioned person under another paragraph; or

                     (e)  if the person is a company—another company if:

                              (i)  the other company is a related body corporate of the person for the purposes of the Corporations Act 1990; or

                             (ii)  the person, or the person and another person who is an associate of the person under another paragraph, are in a position to exercise control of the other company;

but persons are not associates if the ACMA is satisfied that they do not act together in any relevant dealings relating to that company, licence or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper.

Note 1:       Licence is given an extended meaning by this subsection.

Note 2:       See also subsection (3).

associate member means an associate member of the ACMA.

authorised infringement notice officer means:

                     (a)  the Chair of the ACMA; or

                     (b)  a member of the staff of the ACMA appointed under section 205ZE.

broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:

                     (a)  a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or

                     (b)  a service that makes programs available on demand on a point‑to‑point basis, including a dial‑up service; or

                     (c)  a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.

broadcasting services bands means:

                     (a)  that part of the radiofrequency spectrum that:

                              (i)  is designated under subsection 31(1) of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and

                             (ii)  is referred by the Minister under that subsection to the ACMA for planning; and

                     (b)  that part of the radiofrequency spectrum that:

                              (i)  is designated under subsection 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services and restricted datacasting services; and

                             (ii)  is referred by the Minister under that subsection to the ACMA for planning.

broadcasting services bands licence means a commercial television broadcasting licence, a commercial radio broadcasting licence or a community broadcasting licence that uses the broadcasting services bands as a means of delivering broadcasting services.

business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

census count means a census count of the Australian population published by the Australian Statistician.

CER Trade in Services Protocol:

                     (a)  means the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement (being that Protocol as in force from time to time); and

                     (b)  includes an instrument under that Protocol (being that instrument as in force from time to time).

Chair means the Chair of the ACMA.

channel B datacasting transmitter licence has the same meaning as in the Radiocommunications Act 1992, and includes an authorisation under section 114 of that Act by the licensee of such a licence.

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

civil penalty order means an order under subsection 205F(1).

civil penalty provision means a provision declared by this Act to be a civil penalty provision.

class licence means a class licence determined by the ACMA under section 117.

commercial broadcasting service has the meaning given by section 14.

commercial radio broadcasting licence means a licence under Part 4 to provide:

                     (a)  in the case of a licence allocated under subsection 40(1)—a commercial radio broadcasting service; or

                     (b)  in any other case—the commercial radio broadcasting service or services that, under section 41D, are authorised by the licence.

commercial radio broadcasting service means a commercial broadcasting service that provides radio programs.

commercial television broadcasting licence means a licence under Part 4 to provide:

                    (aa)  in the case of a licence allocated under section 38C—the commercial television broadcasting services that, under section 41CA, are authorised by the licence; or

                     (a)  in the case of a licence allocated under subsection 40(1)—a commercial television broadcasting service; or

                     (b)  in any other case—the commercial television broadcasting services that, under section 41B or 41C, are authorised by the licence.

commercial television broadcasting service means a commercial broadcasting service that provides television programs.

community broadcasting licence means:

                     (a)  a community radio broadcasting licence; or

                     (b)  a community television broadcasting licence.

community broadcasting service has the meaning given by section 15.

community radio broadcasting licence means:

                     (a)  a licence under Part 6 to provide:

                              (i)  in the case of a licence allocated under subsection 82(1)—a community radio broadcasting service; or

                             (ii)  in the case of a designated community radio broadcasting licence—the community radio broadcasting service or services that, under section 85A, are authorised by the licence; or

                            (iii)  in any other case—a community radio broadcasting service; or

                     (b)  a licence under Part 6A to provide a community radio broadcasting service.

community radio broadcasting service means a community broadcasting service that provides radio programs.

community television broadcasting licence means a licence under Part 6 or 6A to provide a community broadcasting service that provides television programs.

company interests, in relation to a person who has a shareholding interest, a voting interest, a dividend interest or a winding‑up interest in a company, means the percentage of that interest or, if the person has 2 or more of those interests, whichever of those interests has the greater or greatest percentage.

conditional access scheme means a scheme that sets out rules relating to access to services provided under a commercial television broadcasting licence allocated under section 38C.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

core commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the meaning given by whichever of paragraph 41A(1)(b) or (2)(a) is applicable.

Note:          There is no core commercial television broadcasting service in relation to a licence allocated on or after 1 January 2009. This is because core commercial television broadcasting services are certain services authorised by licences allocated before 1 January 2009.

core/primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, means:

                     (a)  if a core commercial television broadcasting service is provided under the licence—that service; or

                     (b)  if a primary commercial television broadcasting service (within the meaning of Schedule 4) is provided under the licence—that service.

CTV licence means a community broadcasting licence under Part 6 to provide a service that provides television programs but is not targeted, to a significant extent, to one or more remote Indigenous communities.

datacasting licence means a licence under Schedule 6 to provide a datacasting service.

datacasting service means a service that delivers content:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

                     (c)  whether in the form of speech, music or other sounds; or

                     (d)  whether in the form of visual images (animated or otherwise); or

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms;

to persons having equipment appropriate for receiving that content, where the delivery of the service uses the broadcasting services bands.

datacasting transmitter licence has the same meaning as in the Radiocommunications Act 1992, and includes an authorisation under section 114 of that Act by the licensee of such a licence.

designated community radio broadcasting licence has the meaning given by section 8AA.

designated infringement notice provision means a provision declared by this Act to be a designated infringement notice provision.

digital commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using a digital modulation technique.

digital community radio broadcasting service means a community radio broadcasting service that is transmitted using a digital modulation technique.

digital national radio broadcasting service means a national radio broadcasting service that is transmitted using a digital modulation technique.

digital program enhancement content, in relation to a radio program, means content:

                     (a)  in the form of text; or

                     (b)  in the form of still visual images; or

                     (c)  if a form is specified in a legislative instrument made by the Minister—in that form; or

                     (d)  in any combination of the above forms;

where:

                     (e)  the content is transmitted using a digital modulation technique; and

                      (f)  both the content and the radio program are intended to be received by the same reception equipment; and

                     (g)  if:

                              (i)  the reception equipment is capable of receiving both the content and the radio program; and

                             (ii)  the reception equipment is set to receive the radio program;

                            the reception equipment will also receive the content.

digital radio moratorium period for a licence area has the meaning given by subsection 35C(3).

digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

digital radio start‑up day for a licence area has the meaning given by section 8AC.

domestic digital television receiver has the same meaning as in the Radiocommunications Act 1992.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Federal Court means the Federal Court of Australia.

final digital television switch‑over day has the meaning given by section 8AE.

foundation digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

infringement notice means an infringement notice under section 205Y.

international broadcasting guidelines means guidelines in force under section 121FP.

international broadcasting licence means a licence to provide an international broadcasting service.

international broadcasting service has the meaning given by section 18A.

legislature of a Territory means:

                     (a)  the Legislative Assembly for the Australian Capital Territory; or

                     (b)  the Legislative Assembly of the Northern Territory; or

                     (c)  such other Territory legislative bodies as are prescribed.

licence means:

                     (a)  in the definition of associate, section 7, Part 5 and Schedule 1:

                              (i)  a licence allocated by the ACMA under this Act (other than a class licence); or

                             (ii)  a datacasting transmitter licence; and

                     (b)  in any other provision of this Act—a licence allocated by the ACMA under this Act (other than a class licence).

licence area means:

                     (a)  an area designated by the ACMA under section 29, 40 or 92G; or

                     (b)  an area specified in column 1 of the table in subsection 38C(1).

Note 1:       See also section 8AD, which deals with deemed radio broadcasting licence areas.

Note 2:       See also section 8 of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992, which deals with deemed licence areas.

licence area population, in relation to a licence area, means the population of the licence area determined under section 30.

line has the same meaning as in the Telecommunications Act 1997.

MDS system means a system for transmitting radiocommunications on a frequency or frequencies within:

                     (a)  the frequency band from 2076 Megahertz up to and including 2111 Megahertz; or

                     (b)  the frequency band from 2300 Megahertz up to and including 2400 Megahertz.

member means a member of the ACMA.

Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.

multiplex capacity has the same meaning as in Division 4B of Part 3.3 of the Radiocommunications Act 1992.

national broadcaster means the provider of a national broadcasting service referred to in paragraph 13(1)(a) or (b).

national broadcasting service has the meaning given by section 13.

national radio broadcasting service means a national broadcasting service that provides radio programs.

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.

offence against this Act includes an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.

open narrowcasting radio service means an open narrowcasting service that provides radio programs.

open narrowcasting service has the meaning given by section 18.

open narrowcasting television service means an open narrowcasting service that provides television programs.

overlap area, in relation to a licence area part of which is within another licence area, means the area of overlap between the 2 licence areas.

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

Parliament means:

                     (a)  the Parliament of the Commonwealth; or

                     (b)  a State Parliament; or

                     (c)  the legislature of a Territory.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

political party means an organisation whose objects or activities include the promotion of the election of candidates endorsed by it to a Parliament.

population of Australia means the Australian population determined by the ACMA under section 30.

program, in relation to a broadcasting service, means:

                     (a)  matter the primary purpose of which is to entertain, to educate or to inform an audience; or

                     (b)  advertising or sponsorship matter, whether or not of a commercial kind.

program standards means standards determined by the ACMA relating to the content or delivery of programs.

radio program has a meaning affected by section 8AB.

reception certificate means a reception certificate issued under a conditional access scheme registered under Part 9C.

registered code of practice means a code of practice registered under:

                     (a)  section 123; or

                     (b)  clause 62 of Schedule 5; or

                     (c)  clause 28 of Schedule 6; or

                     (d)  clause 85 of Schedule 7.

remote Indigenous community has the meaning given by section 8B.

restricted datacasting licence means a datacasting licence allocated as a result of an application for a restricted datacasting licence.

restricted datacasting service means a datacasting service provided under, and in accordance with the conditions of, a restricted datacasting licence.

satellite subscription television broadcasting licence means a licence under Part 7 to provide a subscription television broadcasting service with the use of a subscription television satellite.

scheme administrator has the meaning given by subsection 130ZB(8).

shares, in relation to a company, means shares in, or stock forming part of, the capital of the company.

spouse of a person includes a de facto partner of the person within the meaning of the Acts Interpretation Act 1901.

subscription broadcasting service has the meaning given by section 16.

subscription fee includes any form of consideration.

subscription narrowcasting service has the meaning given by section 17.

subscription radio broadcasting service means a subscription broadcasting service that provides radio programs.

subscription radio narrowcasting service means a subscription narrowcasting service that provides radio programs.

subscription television broadcasting licence means a licence under Part 7 to provide one or more subscription television broadcasting services.

subscription television broadcasting service means a subscription broadcasting service that provides television programs.

subscription television narrowcasting service means a subscription narrowcasting service that provides television programs.

subscription television satellite means a satellite that was, at any time before 1 July 1997, operated under the general telecommunications licence that was granted to AUSSAT Pty Ltd and notified on 26 November 1991 in Gazette No. S323.

telecommunications carrier means a carrier (within the meaning of the Telecommunications Act 1997).

temporary community broadcasting licence means a community broadcasting licence that:

                     (a)  is a broadcasting services bands licence; and

                     (b)  is allocated under Part 6A.

transaction includes:

                     (a)  arrangements under which a person becomes a director of a company; and

                     (b)  the acquisition of things by gift or inheritance.

             (2)  A determination under paragraph (c) of the definition of broadcasting service in subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (3)  For the purposes of paragraph (a) of the definition of associate in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.

7  Interpretation—meaning of control

                   Schedule 1 sets out mechanisms that are to be used in:

                     (a)  deciding whether a person is in a position to exercise control of a licence, a company or a newspaper for the purposes of this Act; and

                     (b)  tracing company interests of persons.

Note:          Licence is given an extended meaning by subsection 6(1).

8  Interpretation—shareholding interests, voting interests, dividend interests and winding‑up interests

             (1)  For the purposes of this Act:

                     (a)  a person has a shareholding interest in a company if the person is beneficially entitled to, or to an interest in, shares in the company, whether or not any part of the legal ownership of the shares is vested in the person; and

                     (b)  the percentage of the interest is the value of the shares, or of the interest in the shares, as the case may be, on the basis that the value of the shares is equal to the amount paid on the shares, expressed as a percentage of the total of all amounts paid on shares in the company.

             (2)  For the purposes of this Act:

                     (a)  a person has a voting interest in a company if the person is in a position to exercise control of votes cast on a poll at a meeting of the company; and

                     (b)  the percentage of the interest is the greatest percentage of the number of votes, expressed as a percentage of the total number of votes that could be cast on any issue at a meeting of the company, the casting of which the person is in a position to control.

             (3)  For the purposes of this Act:

                     (a)  a person has a dividend interest in a company if:

                              (i)  the person is, or would become if a dividend were declared, beneficially entitled to be paid or credited a dividend by the company; or

                             (ii)  under the memorandum and articles of association of the company, a share of any profits of the company is to be, or may be, paid or credited to the person otherwise than as dividends on shares; and

                     (b)  the percentage of the interest is:

                              (i)  if subparagraph (a)(i) applies—the amount of the dividend to which the person is beneficially entitled or will become beneficially entitled expressed as a percentage of the total of all dividends to which members of the company become entitled at that time; or

                             (ii)  if subparagraph (a)(ii) applies—the amount of the maximum share of any profits of the company that could be paid or credited to the person at a particular time expressed as a percentage of the total of all shares of profits that could be paid or credited to all members of the company at that time.

             (4)  For the purposes of this Act:

                     (a)  a person has a winding‑up interest in a company if the person would be entitled to a share of the property of the company that could be distributed among members of the company if property of the company were distributed among members, whether as a result of a winding‑up or otherwise; and

                     (b)  the percentage of the interest is the percentage that the value of that part of the property of the company to which the person would be so entitled bears to the total value of the property of the company.

             (5)  A person may have a voting interest, a dividend interest or a winding‑up interest in a company even if the person does not have a beneficial entitlement to, or to an interest in, shares in the company.

8A  Captioning taken to be part of program

             (1)  For the purposes of this Act, if a television program is captioned for the deaf and hearing impaired, the captioning is taken to be part of the program.

             (2)  Subsection (1) is enacted for the avoidance of doubt.

8AA  Designated community radio broadcasting licence

             (1)  For the purposes of this Act, a community radio broadcasting licence is a designated community radio broadcasting licence if:

                     (a)  the community radio broadcasting licence was allocated under Part 6 (other than under subsection 82(1)); and

                     (b)  the licence area of the community radio broadcasting licence is the same as the licence area of a commercial radio broadcasting licence; and

                     (c)  the community radio broadcasting service or services provided under the community radio broadcasting licence satisfy such conditions (if any) as are set out in a legislative instrument made by the ACMA.

Note:          See also section 8AD, which deals with deemed radio broadcasting licence areas.

             (2)  The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by paragraph (1)(c).

             (3)  The ACMA must comply with a direction under subsection (2).

8AB  Digital program enhancement content taken to be a radio program

Commercial radio broadcasting services

             (1)  For the purposes of this Act and any other law of the Commonwealth, if a commercial radio broadcasting licensee provides:

                     (a)  a digital commercial radio broadcasting service; and

                     (b)  digital program enhancement content in relation to a radio program delivered by that service;

the digital program enhancement content is taken to be a radio program delivered by that service.

Community radio broadcasting services

             (2)  For the purposes of this Act and any other law of the Commonwealth, if a designated community radio broadcasting licensee provides:

                     (a)  a digital community radio broadcasting service; and

                     (b)  digital program enhancement content in relation to a radio program delivered by that service;

the digital program enhancement content is taken to be a radio program delivered by that service.

National radio broadcasting services

             (3)  For the purposes of this Act and any other law of the Commonwealth, if a national broadcaster provides:

                     (a)  a digital national radio broadcasting service; and

                     (b)  digital program enhancement content in relation to a radio program delivered by that service;

the digital program enhancement content is taken to be a radio program delivered by that service.

8AC  Digital radio start‑up day

             (1)  If the ACMA is satisfied that:

                     (a)  the ACMA has taken sufficient action under:

                              (i)  Part 3 of this Act; and

                             (ii)  Part 2.3 of the Radiocommunications Act 1992;

                            to facilitate the provision of the following services in a licence area:

                            (iii)  digital commercial radio broadcasting services;

                            (iv)  digital community radio broadcasting services;

                             (v)  digital national radio broadcasting services; and

                     (b)  one or more foundation digital radio multiplex transmitter licences have been issued for the licence area; and

                     (c)  the multiplex capacity, or the combined multiplex capacities, of those licences are sufficient to fulfil the standard access entitlements that are likely to come into existence under subsection 118NQ(2) of the Radiocommunications Act 1992 in its application to the licence area; and

                     (d)  an access undertaking under Division 4B of Part 3.3 of the Radiocommunications Act 1992 is in force for the licence or licences referred to in paragraph (b);

the ACMA may, by writing, declare a specified day to be the digital radio start‑up day for the licence area.

             (2)  A day specified in a declaration under subsection (1) must not be earlier than the day on which the declaration is made.

             (3)  The ACMA must ensure that:

                     (a)  the digital radio start‑up day for a metropolitan licence area is not later than 1 July 2009; and

                     (b)  the digital radio start‑up day for a regional licence area is the day specified for the regional licence area in a legislative instrument made by the Minister.

             (4)  A copy of a declaration under subsection (1) must be made available on the ACMA’s website.

             (5)  A declaration under subsection (1) is not a legislative instrument.

ACMA to give notice of intention to make a declaration

             (6)  Before making a declaration under subsection (1), the ACMA must, by notice published on the ACMA’s website, give at least 30 days’ written notice of its intention to make the declaration.

             (7)  A notice under subsection (6) is not a legislative instrument.

Definitions

             (8)  In this section:

licence area means:

                     (a)  the licence area of a commercial radio broadcasting licence; or

                     (b)  the licence area of a community radio broadcasting licence, where that licence area is the same as the licence area of a commercial radio broadcasting licence.

metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:

                     (a)  New South Wales; or

                     (b)  Victoria; or

                     (c)  Queensland; or

                     (d)  Western Australia; or

                     (e)  South Australia.

regional licence area means a licence area that is not a metropolitan licence area.

Note:          See also section 8AD, which deals with deemed radio broadcasting licence areas.

8AD  Deemed radio broadcasting licence areas

Western Suburbs Sydney RA1

             (1)  For the purposes of:

                     (a)  section 8AC of this Act; and

                     (b)  the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

                     (c)  the application of:

                              (i)  any other provision of this Act; or

                             (ii)  any other provision of the Radiocommunications Act 1992; or

                            (iii)  any other law of the Commonwealth;

                            to digital commercial radio broadcasting services;

the licence area known as Western Suburbs Sydney RA1 is taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Sydney.

Hobart RA2 and Hobart RA4

             (2)  For the purposes of:

                     (a)  sections 8AA and 8AC of this Act; and

                     (b)  the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

                     (c)  paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and

                     (d)  the application of:

                              (i)  any other provision of this Act; or

                             (ii)  any other provision of the Radiocommunications Act 1992; or

                            (iii)  any other law of the Commonwealth;

                            to digital community radio broadcasting services;

the licence areas known as Hobart RA2 and Hobart RA4 are taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Hobart.

Other licence areas

             (3)  The ACMA may, by legislative instrument, determine that, for the purposes of:

                     (a)  sections 8AA and 8AC of this Act; and

                     (b)  the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

                     (c)  paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and

                     (d)  the application of:

                              (i)  any other provision of this Act; or

                             (ii)  any other provision of the Radiocommunications Act 1992; or

                            (iii)  any other law of the Commonwealth;

                            to digital community radio broadcasting services;

a specified licence area of a community radio broadcasting licence is taken to be the same as a specified licence area of a commercial radio broadcasting licence.

             (4)  The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection (3).

             (5)  The ACMA must comply with a direction under subsection (4).

8AE  Final digital television switch‑over day

             (1)  For the purposes of this Act, the final digital television switch‑over day is the last switch‑over day.

             (2)  For the purposes of subsection (1), the last day of a simulcast period is a switch‑over day.

             (3)  In this section:

simulcast period has the same meaning as in Schedule 4.

8B  Remote Indigenous community

             (1)  An Indigenous community is a remote Indigenous community for the purposes of this Act if the ACMA so determines in writing.

             (2)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

9  Act to bind the Crown

                   This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory, but nothing in this Act renders the Crown liable to be prosecuted for an offence.

10  Extension of Act to the external Territories

                   This Act extends to all the external Territories.

10A  Application of the Criminal Code

             (1)  Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Schedule 5 to this Act.


 

Part 2Categories of broadcasting services

  

11  Categories of broadcasting services

                   The following categories of broadcasting services are broadcasting services to which this Act relates:

                     (a)  national broadcasting services;

                     (b)  commercial broadcasting services;

                     (c)  community broadcasting services;

                     (d)  subscription broadcasting services;

                     (e)  subscription narrowcasting services;

                      (f)  open narrowcasting services;

                    (fa)  international broadcasting services.

11A  Dual categorisation of international broadcasting services

                   An international broadcasting service may also fall into another category of broadcasting services.

12  Method of regulating particular services

             (1)  Commercial broadcasting services, community broadcasting services, subscription television broadcasting services and international broadcasting services require individual licences.

             (2)  Other broadcasting services (other than national broadcasting services) are to be provided under the relevant class licence.

Dual categorisation of international broadcasting services

             (3)  An international broadcasting service that also falls into the category of commercial broadcasting services requires both:

                     (a)  an international broadcasting licence; and

                     (b)  either:

                              (i)  a commercial radio broadcasting licence; or

                             (ii)  a commercial television broadcasting licence.

             (4)  An international broadcasting service that also falls into the category of community broadcasting services requires both:

                     (a)  an international broadcasting licence; and

                     (b)  a community broadcasting licence.

             (5)  An international broadcasting service that also falls into the category of subscription television broadcasting services requires both:

                     (a)  an international broadcasting licence; and

                     (b)  a subscription television broadcasting licence.

             (6)  Both of the following rules apply to an international broadcasting service that also falls into a category of broadcasting services covered by subsection (2):

                     (a)  the service requires an international broadcasting licence;

                     (b)  the service is to be provided under the relevant class licence.

13  National broadcasting services

             (1)  National broadcasting services are:

                     (a)  broadcasting services provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or

                     (b)  broadcasting services provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or

                     (c)  broadcasting services provided under the Parliamentary Proceedings Broadcasting Act 1946.

             (2)  National broadcasting services do not include subscription broadcasting services or subscription or open narrowcasting services provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

             (3)  Subsection (2) does not apply to services specified by the Minister by notice in the Gazette.

             (4)  A specification under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.

14  Commercial broadcasting services

             (1)  Commercial broadcasting services are broadcasting services:

                     (a)  that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and

                     (b)  that provide programs that:

                              (i)  are able to be received by commonly available equipment; and

                             (ii)  are made available free to the general public; and

                     (c)  that are usually funded by advertising revenue; and

                     (d)  that are operated for profit or as part of a profit‑making enterprise; and

                     (e)  that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.

             (2)  For the purposes of the application of subsection (1) to a broadcasting service provided under a licence allocated under section 38C, assume that there is no conditional access system that relates to the broadcasting service.

15  Community broadcasting services

                   Community broadcasting services are broadcasting services that:

                     (a)  are provided for community purposes; and

                     (b)  are not operated for profit or as part of a profit‑making enterprise; and

                     (c)  that provide programs that:

                              (i)  are able to be received by commonly available equipment; and

                             (ii)  are made available free to the general public; and

                     (d)  comply with any determinations or clarifications under section 19 in relation to community broadcasting services.

16  Subscription broadcasting services

                   Subscription broadcasting services are broadcasting services that:

                     (a)  provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and

                     (b)  are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and

                     (c)  comply with any determinations or clarifications under section 19 in relation to subscription broadcasting services.

17  Subscription narrowcasting services

                   Subscription narrowcasting services are broadcasting services:

                     (a)  whose reception is limited:

                              (i)  by being targeted to special interest groups; or

                             (ii)  by being intended only for limited locations, for example, arenas or business premises; or

                            (iii)  by being provided during a limited period or to cover a special event; or

                            (iv)  because they provide programs of limited appeal; or

                             (v)  for some other reason; and

                     (b)  that are made available only on payment of subscription fees (whether periodical or otherwise); and

                     (c)  that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.

18  Open narrowcasting services

             (1)  Open narrowcasting services are broadcasting services:

                     (a)  whose reception is limited:

                              (i)  by being targeted to special interest groups; or

                             (ii)  by being intended only for limited locations, for example, arenas or business premises; or

                            (iii)  by being provided during a limited period or to cover a special event; or

                            (iv)  because they provide programs of limited appeal; or

                             (v)  for some other reason; and

                     (b)  that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.

          (1A)  A HDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

       (1AA)  A SDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

          (1B)  A HDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

             (2)  A SDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

             (3)  A digital commercial radio broadcasting service is not an open narrowcasting service.

             (4)  A digital community radio broadcasting service is not an open narrowcasting service.

             (5)  A digital national radio broadcasting service is not an open narrowcasting service.

18A  International broadcasting services

             (1)  International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:

                     (a)  the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and

                     (b)  the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.

             (2)  A broadcasting service is not an international broadcasting service if the broadcasting service is:

                     (a)  provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or

                     (b)  provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or

                     (c)  an exempt broadcasting service (as defined by subsection (3)).

             (3)  For the purposes of this section, a broadcasting service is an exempt broadcasting service if:

                     (a)  the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and

                     (b)  all relevant programming decisions are made outside Australia; and

                     (c)  the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re‑transmitted to a satellite; and

                     (d)  the satellite is a means of delivering the service (whether alone or in combination with any other means).

             (4)  The references in this section to localities do not, by implication, affect the application of paragraph 21(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.

             (5)  In this section:

Australia includes the external Territories.

radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.

19  ACMA may determine additional criteria or clarify existing criteria

             (1)  The ACMA may, by notice in the Gazette:

                     (a)  determine additional criteria to those specified in sections 14 to 18A; or

                     (b)  clarify the criteria specified in sections 14 to 18A;

for the purpose of distinguishing between categories of broadcasting services.

             (2)  Different criteria or clarifications may be determined or made for radio services and television services.

             (3)  The Minister may give specific directions to the ACMA as to the making of determinations and clarifications, and the ACMA must observe those directions.

20  Determinations and clarifications to be disallowable by the Parliament

                   Determinations and clarifications under section 19 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

21  Requests to ACMA to decide which category a broadcasting service falls into

             (1)  A person who is providing, or who proposes to provide, a broadcasting service may apply to the ACMA for an opinion as to which category, or categories, of broadcasting services the service falls into.

             (2)  An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to which category, or categories, of broadcasting services the service falls into.

             (3)  If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must, as soon as practicable after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into.

             (5)  If the ACMA has given an opinion under this section to the provider of a broadcasting service, neither the ACMA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ACMA in relation to the application for the opinion:

                     (a)  take any action against the provider of the service during the period of 5 years commencing on the day on which the opinion is given on the basis that the service falls into a different category, or different categories, of broadcasting services than that advised in the opinion; or

                     (b)  unless the ACMA has made a determination or clarification under section 19 after that opinion was given that places the broadcasting service in a different category or different categories—take any action against the provider of the service after the end of that period on the basis that the service falls into a different category, or different categories, of broadcasting services.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into, the ACMA is taken to have given an opinion at the end of that period that accords with the applicant’s opinion.

             (7)  The ACMA may charge a fee for providing an opinion under this section.

             (8)  The ACMA must not give an opinion under this section that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

             (9)  A person must not, in an application under this section, state an opinion that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

22  Matters to be considered by ACMA

                   In making determinations or clarifications under section 19 in relation to broadcasting services, and in giving opinions under section 21 in relation to broadcasting services, the ACMA is to have regard to:

                     (a)  the geographic coverage of those services; and

                     (b)  the number of persons who receive or are able to receive those services; and

                     (c)  the accessibility of those services, including:

                              (i)  whether those services are encrypted; and

                             (ii)  whether their availability is otherwise restricted, whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and

                            (iii)  whether their comprehensibility is otherwise restricted; and

                     (d)  the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and

                     (e)  the nature of the audience to which those services are targeted; and

                      (f)  the nature of the programs being provided by those services, including:

                              (i)  the level of interest in the subject matter of those programs; and

                             (ii)  whether those programs are directed at a specialised audience; and

                            (iii)  the social and cultural impact of those programs; and

                     (g)  such other matters as the ACMA thinks fit.


 

Part 3Planning of the broadcasting services bands

  

23  Planning criteria

                   In performing functions under this Part, the ACMA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:

                     (a)  demographics; and

                     (b)  social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and

                     (c)  the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and

                     (d)  developments in technology; and

                     (e)  technical restraints relating to the delivery or reception of broadcasting services; and

                      (f)  the demand for radiofrequency spectrum for services other than broadcasting services; and

                     (g)  such other matters as the ACMA considers relevant.

24  ACMA to determine priorities

             (1)  Before preparing frequency allotment plans or licence area plans, the ACMA must, by notice in writing, determine priorities, as between particular areas of Australia and as between different parts of the broadcasting services bands, for the preparation of those plans.

             (2)  The ACMA may, by notice in writing, vary priorities.

25  Preparation of frequency allotment plans

             (1)  Where the Minister has, under subsection 31(1) of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA must prepare in writing a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide broadcasting services or restricted datacasting services, or both, using that part of the radiofrequency spectrum.

             (2)  The ACMA may, by notice in writing, vary a frequency allotment plan prepared under subsection (1).

          (2A)  If the Minister has, under subsection 31(1A) of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA must, by legislative instrument, prepare a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide the following services using that part of the radiofrequency spectrum:

                     (a)  digital commercial radio broadcasting services;

                     (b)  digital community radio broadcasting services;

                     (c)  digital national radio broadcasting services;

                     (d)  restricted datacasting services.

          (2B)  The ACMA may, by legislative instrument, vary a frequency allotment plan prepared under subsection (2A).

             (3)  In preparing or varying a frequency allotment plan, the ACMA must comply with any directions, whether of a general or specific nature, given to the ACMA in writing by the Minister.

             (4)  Sections 23, 24 and 27 do not apply in relation to the preparation or variation of a frequency allotment plan to the extent to which the frequency allotment plan or the variation, as the case may be, relates to any of the following services:

                     (a)  digital commercial radio broadcasting services;

                     (b)  digital community radio broadcasting services;

                     (c)  digital national radio broadcasting services;

                     (d)  restricted datacasting services.

26  Preparation of licence area plans

             (1)  The ACMA must, by legislative instrument, prepare licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands, and those plans must be consistent with the relevant frequency allotment plan.

          (1A)  To the extent to which a licence area plan deals with:

                     (a)  digital commercial radio broadcasting services; or

                     (b)  digital community radio broadcasting services; or

                     (c)  digital national radio broadcasting services;

the licence area plan is not required to determine the technical specifications of those services.

             (2)  The ACMA may, by legislative instrument, vary a licence area plan.

             (3)  If:

                     (a)  a review is conducted under section 35A; and

                     (b)  after the completion of the report of the review, the Minister is satisfied that a licence area plan should be varied in accordance with the recommendations in the report;

the Minister may give the ACMA a written direction requiring the ACMA to vary the licence area plan as specified in the direction.

             (4)  Subsection (3) does not limit subsection (2).

             (5)  The ACMA must comply with a direction under subsection (3).

             (6)  Sections 23 and 27 do not apply in relation to anything done by the ACMA in compliance with a direction under subsection (3).

26A  Licence area plans—multi‑channelled commercial television broadcasting services

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

                     (b)  the licence authorises the licensee to provide a HDTV multi‑channelled commercial television broadcasting service in the licence area;

the relevant licence area plan is not required to deal with the HDTV multi‑channelled commercial television broadcasting service.

          (1A)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

                     (b)  the licence authorises the licensee to provide a SDTV multi‑channelled commercial television broadcasting service in the licence area;

the relevant licence area plan is not required to deal with the SDTV multi‑channelled commercial television broadcasting service.

             (2)  Subsections (1) and (1A) cease to have effect at the end of the simulcast period, or the simulcast‑equivalent period, for the licence area concerned.

             (3)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

26B  Licence area plans—multi‑channelled national television broadcasting services

             (1)  Licence area plans are not required to deal with SDTV multi‑channelled national television broadcasting services.

          (1A)  Licence area plans are not required to deal with HDTV multi‑channelled national television broadcasting services.

             (2)  Subsections (1) and (1A) cease to have effect at the end of the simulcast period, or the simulcast‑equivalent period, for the coverage area concerned.

             (3)  In this section:

HDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

26C  Licence area plans not required to deal with certain digital radio broadcasting services

Commercial radio broadcasting services

             (1)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

             (2)  If:

                     (a)  the ACMA allocates a digital commercial radio broadcasting licence in accordance with subsection 35D(3); and

                     (b)  the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

Community radio broadcasting services

             (3)  If:

                     (a)  a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence; and

                     (b)  the licence authorises the licensee to provide digital community radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

26D  Licence area plans—how digital radio broadcasting services may be dealt with

             (1)  This section applies if a licence area plan deals with:

                     (a)  digital commercial radio broadcasting services; or

                     (b)  digital community radio broadcasting services; or

                     (c)  digital national radio broadcasting services.

             (2)  The licence area plan is not required to identify:

                     (a)  individual digital commercial radio broadcasting services; or

                     (b)  individual digital community radio broadcasting services; or

                     (c)  individual digital national radio broadcasting services.

             (3)  It is sufficient if the licence area plan deals collectively with:

                     (a)  the digital commercial radio broadcasting services; and

                     (b)  the digital community radio broadcasting services; and

                     (c)  the digital national radio broadcasting services;

that, from time to time, are, or are to be, transmitted under the digital radio multiplex transmitter licence or licences issued, or to be issued, in relation to the area concerned.

27  Processes to be public

             (1)  In performing its functions under sections 24, 25 and 26, the ACMA must make provision for wide public consultation.

             (2)  The ACMA is to keep a record of, and make available for public inspection, all advice received by the ACMA, and all assumptions made by the ACMA, in performing its functions under sections 24, 25 and 26.

29  Designation of licence areas

             (1)  Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in section 26 as the licence area of the licence.

             (2)  If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.

             (3)  This section does not apply to a licence allocated under section 38C.

30  ACMA may determine population figures

             (1)  The ACMA may, by notice in writing, determine the licence area population of a licence area.

             (2)  The ACMA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.

             (3)  In making a determination, the ACMA is to have regard to the most recently published census count prepared by the Australian Statistician.

             (4)  The ACMA is to make a new determination of the licence area population of a licence area if the licence area is changed.

             (5)  The ACMA is to specify, in a determination of the licence area population of a licence area:

                     (a)  the percentage of the population of Australia constituted by that licence area population; and

                     (b)  the percentage of that licence area population that is attributable to an overlap area.

31  Minister may reserve capacity for national broadcasters or community broadcasters

             (1)  The Minister may notify the ACMA in writing that capacity in the broadcasting services bands is to be reserved for a specified number of:

                     (a)  national broadcasting services; or

                     (b)  community broadcasting services (other than services provided by temporary community broadcasting licensees);

but such a notice must not affect the provision of services in accordance with a licence already allocated by the ACMA under this Act or in accordance with a class licence.

             (2)  The ACMA must not, except in accordance with section 34, allocate a licence or determine a class licence that would allow the provision of broadcasting services (other than services provided by national broadcasters or community broadcasting licensees) which would make use of reserved capacity in the broadcasting services bands.

32  Reservations to be disallowable by the Parliament

                   A notice under section 31 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

33  Development of technical planning guidelines

                   The ACMA is to develop in writing guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery.

34  Alternative uses of broadcasting services bands

             (1)  If:

                     (a)  the ACMA has advertised under section 38 for applications for the allocation of one or more commercial television broadcasting licences or commercial radio broadcasting licences that are broadcasting services bands licences and that licence is not allocated or not all of those licences are allocated; or

                     (b)  broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or

                     (c)  broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purpose for which it was reserved; or

                     (d)  broadcasting services bands spectrum is available but the ACMA has not commenced or completed planning and allocation processes in relation to that spectrum;

the ACMA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ACMA:

                     (e)  for the temporary transmission or the re‑transmission of programs; or

                    (ea)  to temporary community broadcasting licensees; or

                      (f)  to providers of subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; or

                    (fa)  for the transmission of datacasting services on a temporary basis; or

                     (g)  for other purposes.

             (2)  In making a determination under subsection (1), the ACMA is to have regard to:

                     (a)  the possible future demand for the use of that part of the radiofrequency spectrum; and

                     (b)  such other matters as the ACMA considers relevant.

             (3)  The ACMA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.

             (4)  In making a determination under subsection (3), the ACMA is to have regard to:

                     (a)  the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and

                     (b)  such other matters as the ACMA considers relevant.

          (4A)  Each part determined under subsection (3) must be 7 MHz. However, this rule does not prevent a particular part from being determined even if it adjoins:

                     (a)  another part that is also specified in the determination; or

                     (b)  2 other parts that are also specified in the determination.

             (5)  For the purposes of the application of this section to the availability of the spectrum before 1 January 2007, a datacasting service is a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.

             (6)  For the purposes of the application of this section to the availability of the spectrum on or after 1 January 2007, a datacasting service is:

                     (a)  a datacasting service provided under, and in accordance with the conditions of, a datacasting licence; or

                     (b)  a datacasting service provided under any other licence allocated by the ACMA under this Act; or

                     (c)  a datacasting service provided in accordance with a class licence.

35  Notification of decisions under this Part

                   If the ACMA makes an instrument under this Part, the ACMA must publish in the Gazette a notice stating:

                     (a)  that the instrument has been made; and

                     (b)  the places where copies of the instrument can be purchased.


 

Part 4Commercial television broadcasting licences and commercial radio broadcasting licences

Division 1Allocation of licences

35A  Reviews about the allocation of new commercial television broadcasting licences

Initial review

             (1)  Before 1 January 2012, the Minister must cause to be conducted a review of:

                     (a)  whether one or more commercial television broadcasting licences that are broadcasting services bands licences should be allocated under section 36 for a particular area or areas of Australia; and

                     (b)  if so, what variations (if any) should be made to any licence area plans in force under section 26.

Subsequent reviews

             (2)  The Minister may cause to be conducted a review of:

                     (a)  whether one or more commercial television broadcasting licences that are broadcasting services bands licences should be allocated under section 36 for a particular area or areas of Australia; and

                     (b)  if so, what variations (if any) should be made to any licence area plans in force under section 26.

             (3)  Subsection (2) does not authorise the conduct of a review before the completion of the report of a review conducted under subsection (1).

Conduct of a review

             (4)  The following matters must be taken into account in conducting a review under subsection (1) or (2):

                     (a)  the objects of this Act;

                     (b)  the matters referred to in paragraphs 23(a) to (f) in so far as they are relevant;

                     (c)  the availability of radiofrequency spectrum;

                     (d)  any other relevant matters.

             (5)  A review under subsection (1) or (2) must be conducted in a manner that provides for wide public consultation.

             (6)  The ACMA must make available such information as is reasonably necessary for the conduct of a review under subsection (1) or (2).

Report of a review

             (7)  The Minister must cause to be prepared a report of a review under subsection (1) or (2).

             (8)  The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.

35B  Allocation of new commercial television broadcasting licences

             (1)  If:

                     (a)  a review is conducted under section 35A; and

                     (b)  after the completion of the report of the review, the Minister is satisfied that a commercial television broadcasting licence should be allocated under section 36 for a particular area of Australia;

the Minister may, within 3 years after the completion of the report of the review, give the ACMA a written direction requiring the ACMA to allocate the licence under section 36 within a specified period.

             (2)  The ACMA must comply with a direction under subsection (1).

             (3)  The ACMA must not allocate a licence under section 36 unless the ACMA is directed to do so under subsection (1) of this section.

             (4)  If:

                     (a)  a direction is given under subsection (1); and

                     (b)  as a result, the ACMA allocates a commercial television broadcasting licence under section 36;

the licence is subject to the condition that the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4).

35C  Digital radio moratorium

             (1)  During the digital radio moratorium period for a licence area, the ACMA must not allocate, under subsection 36(1), a commercial radio broadcasting licence to provide digital commercial radio broadcasting services in the licence area.

             (2)  Subsection (1) has effect subject to section 35D.

             (3)  For the purposes of this Act, the digital radio moratorium period for a licence area is the 6‑year period beginning at the start of the digital radio start‑up day for the licence area.

35D  Exception to the digital radio moratorium—failure to provide a digital commercial radio broadcasting service

Scope

             (1)  This section applies to a commercial radio broadcasting licence if:

                     (a)  the licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorises the licensee to provide any digital commercial radio broadcasting services in the licence area; and

                     (c)  at a particular time (the relevant time) during the digital radio moratorium period for the licence area, the ACMA is satisfied that the licensee is not providing at least one digital commercial radio broadcasting service under the licence in the licence area.

Licence ceases to authorise the provision of digital commercial radio broadcasting services etc.

             (2)  As soon as practicable after the relevant time, the ACMA must, by written notice given to the licensee, determine that:

                     (a)  the licence ceases to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area; and

                     (b)  the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service; and

                     (c)  despite subsection 36A(5), the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.

ACMA must allocate a new commercial radio broadcasting licence for the licence area

             (3)  As soon as practicable after a notice under subsection (2) is given to a licensee of a commercial radio broadcasting licence (the first licence), the ACMA must:

                     (a)  allocate, under subsection 36(1), a single commercial radio broadcasting licence for the licence area of the first licence; and

                     (b)  allocate the licence as a licence to provide digital commercial radio broadcasting services in that licence area.

ACMA may specify circumstances in which a licensee is taken to be providing a digital commercial radio broadcasting service

             (4)  The ACMA may, by legislative instrument, specify circumstances in which a commercial radio broadcasting licensee is taken, for the purposes of paragraph (1)(c), to be providing a digital commercial radio broadcasting service under the licence in the licence area.

             (5)  A copy of an instrument under subsection (4) must be made available on the ACMA’s website.

36  ACMA to determine system for allocating licences

             (1)  The ACMA is to determine in writing a price‑based system for allocating:

                     (a)  commercial television broadcasting licences that are broadcasting services bands licences; and

                     (b)  commercial radio broadcasting licences that are broadcasting services bands licences.

             (2)  The Minister may give specific directions to the ACMA for the purpose of a determination.

             (3)  Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

             (4)  If a commercial television broadcasting licence or a commercial radio broadcasting licence referred to in subsection (1) is allocated, the ACMA must, unless the allocation system adopted was public, publish in the Gazette the name of the successful applicant and the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

36A  Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services

Licences in force immediately before the commencement of this section

             (1)  If a commercial radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service.

Licences allocated before the digital radio start‑up day for the licence area

             (2)  If the ACMA allocates a commercial radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog commercial radio broadcasting service.

Licences allocated on or after digital radio start‑up day for the licence area

             (3)  If the ACMA allocates a commercial radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:

                     (a)  a licence to provide an analog commercial radio broadcasting service; or

                     (b)  a licence to provide digital commercial radio broadcasting services.

Licence conditions

             (4)  Subject to subsection (5), if a commercial radio broadcasting licence is or was allocated as a licence to provide an analog commercial radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.

             (5)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.

             (6)  If a commercial radio broadcasting licence is allocated as a licence to provide digital commercial radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital commercial radio broadcasting services under the licence.

Section 35D

             (7)  This section has effect subject to section 35D.

Subsection 40(1) licences

             (8)  This section does not apply to a commercial radio broadcasting licence that is or was allocated under subsection 40(1).

37  When licences must not be allocated

             (1)  A licence is not to be allocated to an applicant if:

                     (a)  the applicant is not a company that is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or

                     (b)  the ACMA decides that subsection 41(2) applies to the applicant.

             (2)  Paragraph (1)(b) does not require the ACMA to consider the application of section 41 in relation to an applicant before allocating a licence to the applicant.

38  ACMA to advertise for applications for certain licences

             (1)  Where the ACMA is going to allocate one or more commercial television broadcasting licences or commercial radio broadcasting licences referred to in subsection 36(1), the ACMA is to advertise, in a manner determined by the ACMA, for applications for licences of that kind, and is to include in the advertisements:

                     (a)  the date before which applications must be received by the ACMA; and

                     (b)  a statement specifying how details of:

                              (i)  the system determined under section 36; and

                             (ii)  the conditions that are to apply to the licence; and

                            (iii)  the licence area of the licence, the licence area population of the licence and any areas of overlap with other licence areas;

                            can be obtained.

             (2)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined in writing by the ACMA.

38A  Additional commercial television licences in single markets

Circumstances in which existing licensee may apply for additional licence

             (1)  If:

                     (a)  a particular licence area is the licence area of only one commercial television broadcasting licence (the parent licence) that is in force; and

                    (aa)  the parent licence is not a licence allocated under section 38C; and

                     (b)  additional commercial television broadcasting licences can be allocated for the licence area;

the existing licensee may apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

ACMA must grant additional licence

             (2)  As soon as practicable, the ACMA must allocate an additional commercial television broadcasting licence to the existing licensee for the licence area, so long as:

                     (a)  all of the following conditions are satisfied:

                              (i)  no licence for the licence area previously allocated under this section to the existing licensee has been cancelled because of a breach of the condition set out in paragraph 7(1)(i) of Schedule 2;

                             (ii)  no licence for the licence area previously held by the existing licensee has been cancelled because of a breach of the condition set out in subsection (9);

                            (iii)  no licence for the licence area previously held by the existing licensee has been surrendered; or

                     (b)  both:

                              (i)  paragraph (a) does not apply; and

                             (ii)  the ACMA is satisfied that there are exceptional circumstances.

Amalgamation of licence areas in some cases

             (7)  If:

                     (a)  more than 30% of the licence area population of a licence area is attributable to an overlap area; or

                     (b)  a licence area is entirely within another licence area;

this section applies as if the 2 licence areas were one.

Fee for additional licence

             (8)  On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

             (9)  On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide at least one service under each of those licences for at least 2 years after the date of allocation of the additional licence.

Restrictions on transfer of licences

           (10)  During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (11)  This section has effect subject to section 37.

38B  Additional commercial television licences in 2‑station markets

             (1)  If:

                     (a)  a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences) that are in force; and

                     (c)  an additional commercial television broadcasting licence can be allocated for the licence area; and

                    (ca)  the ACMA, by notice published in the Gazette, invites:

                              (i)  the existing licensees to give the ACMA a joint written notice under paragraph (d); and

                             (ii)  each existing licensee to give the ACMA a written notice under paragraph (e);

                            during the period specified in the notice;

then, within the period specified in the paragraph (ca) notice:

                     (d)  the existing licensees may give the ACMA a joint written notice stating that:

                              (i)  a company specified in the notice (the joint‑venture company) will apply for an additional commercial television broadcasting licence for the licence area; and

                             (ii)  the joint‑venture company is jointly owned by the existing licensees; and

                            (iii)  the joint‑venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or

                     (e)  each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.

          (1A)  A notice under paragraph (1)(ca) is not a legislative instrument.

Application by joint‑venture company

             (2)  If a notice is given under paragraph (1)(d), the joint‑venture company may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Separate applications by existing licensees

             (3)  If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Allocation of additional licence to joint‑venture company

             (5)  As soon as practicable after receiving an application under subsection (2), the ACMA must allocate an additional commercial television broadcasting licence to the joint‑venture company for the licence area, so long as the ACMA is satisfied that the joint‑venture company is jointly owned by the existing licensees.

Allocation of additional licence to existing licensee

             (6)  If the ACMA has received applications from both of the existing licensees under subsection (3), the ACMA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price‑based system determined under subsection (10).

             (7)  If:

                     (a)  each existing licensee gives a notice under paragraph (1)(e); and

                     (b)  by the end of the 12‑month period beginning at the time when the notice is given:

                              (i)  the ACMA has received an application from only one existing licensee (the first licensee) under subsection (3); and

                             (ii)  the ACMA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after the end of that 12‑month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

             (8)  If:

                     (a)  each existing licensee gives a notice under paragraph (1)(e); and

                     (b)  before the end of the 12‑month period beginning at the time when the notice is given, the ACMA receives:

                              (i)  an application from one existing licensee (the first licensee) under subsection (3); and

                             (ii)  a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

             (9)  If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ACMA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.

Price‑based system for allocating licences where separate applications have been received

           (10)  The ACMA may determine in writing a price‑based system for allocating commercial television broadcasting licences under subsection (6).

           (11)  The Minister may give specific directions to the ACMA for the purpose of a determination.

           (12)  Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

           (13)  If a commercial television broadcasting licence is allocated under subsection (6), the ACMA must, unless the allocation system adopted was public, publish in the Gazette:

                     (a)  the name of the successful applicant; and

                     (b)  the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

Amalgamation of licence areas in some cases

           (14)  The ACMA may, by writing, determine that, if:

                     (a)  more than 30% of the licence area population of a specified licence area is attributable to a specified overlap area; or

                     (b)  a specified licence area is entirely within another specified licence area;

this section applies as if the 2 licence areas were one.

        (14A)  If a determination is made under subsection (14) for 2 licence areas that are remote licence areas (within the meaning of Schedule 4) because of paragraph (14)(b), this section applies as if the single licence area referred to in subsection (14) were the licence area that is entirely within the other licence area.

           (15)  A determination under subsection (14) has effect accordingly.

           (16)  A determination under subsection (14) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Fee for additional licence

           (17)  On allocation of the additional licence under subsection (5), (7), (8) or (9), the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

           (18)  Each additional licence allocated under this section is subject to the following conditions:

                     (a)  the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4); and

                     (b)  if the licence was allocated before the commencement of section 38C and the licence area for the licence is wholly outside a remote licence area (within the meaning of Schedule 4)—the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) by whichever is the earlier of the following times:

                              (i)  the time that is notified in writing to the licensee by the ACMA;

                             (ii)  the start of 1 January 2004; and

                     (c)  if the licence was allocated before the commencement of section 38C and the licence area for the licence is not of the kind mentioned in paragraph (b)—the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) within 1 year of being allocated the licence or within such longer period as is notified in writing by the ACMA.

           (19)  Paragraphs 7(1)(i), 7(1)(l) and 7(1)(m) of Schedule 2 do not apply to an additional licence allocated under this section before the commencement of section 38C.

        (19A)  Paragraphs 7(1)(l) and (m) of Schedule 2 do not apply to an additional licence allocated under this section after the commencement of section 38C.

           (20)  On the allocation of an additional licence under subsection (5), it becomes a condition of:

                     (a)  the additional licence; and

                     (b)  each parent licence;

that the licensee concerned will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.

           (21)  On the allocation of an additional licence under subsection (6), (7), (8) or (9), it becomes a condition of:

                     (a)  the additional licence; and

                     (b)  the parent licence concerned;

that the licensee will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.

        (21A)  The condition specified in subsection (21B) applies if:

                     (a)  a commercial television broadcasting licence is allocated to a joint‑venture company under subsection (5); and

                     (b)  the licence is transferred to another company (the transferee company); and

                     (c)  an election is in force under subclause 6(7B) of Schedule 4 in relation to any or all of the commercial television broadcasting services provided under the licences referred to in subsection (1) as the parent licences.

        (21B)  The licence held by the transferee company is subject to the condition that the transferee company will continue to transmit at least one commercial television broadcasting service provided under a parent licence in relation to which that election is in force.

Restrictions on transfer of licences

           (22)  During the period of 2 years after the date of allocation of an additional licence under subsection (5), any attempt by any person to transfer the additional licence is of no effect.

           (23)  During the period of 2 years after the date of allocation of an additional licence under subsection (6), (7), (8) or (9), any attempt by any person to transfer either:

                     (a)  the additional licence; or

                     (b)  the parent licence concerned;

is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (24)  This section has effect subject to section 37.

Jointly owned company

           (25)  For the purposes of this section, a company (the first company) is jointly owned by 2 other companies if, and only if, each share in the first company is beneficially owned by either or both of those other companies.

38C  Commercial television broadcasting licences—services provided with the use of a satellite

             (1)  The following table has effect:

 

Licence areas and eligible joint venturers

 

Column 1

Column 2

Column 3

Item

Licence area for a commercial television broadcasting licence allocated, or to be allocated, under this section

Description of the licence area

Eligible joint venturers for the licence area

1

South Eastern Australia TV3

The area consisting of New South Wales, Victoria, South Australia, Tasmania, the Australian Capital Territory and the Jervis Bay Territory.

The commercial television broadcasting licensees for the following licence areas:

(a) Remote Central and Eastern Australia TV1;

(b) Remote Central and Eastern Australia TV2;

(c) Mt Isa TV1.

2

Northern Australia TV3

The area consisting of Queensland and the Northern Territory.

The commercial television broadcasting licensees for the following licence areas:

(a) Remote Central and Eastern Australia TV1;

(b) Remote Central and Eastern Australia TV2;

(c) Mt Isa TV1.

3

Western Australia TV3

The area consisting of Western Australia.

The commercial television broadcasting licensees for the following licence areas:

(a) Remote and Regional WA TV1;

(b) Western Zone TV1;

(c) Kalgoorlie TV1;

(d) Geraldton TV1;

(e) South West and Great Southern TV1.

Joint‑venture company

             (2)  Two or more of the eligible joint venturers for a licence area specified in column 1 of the table in subsection (1) may, during whichever of the following periods is applicable:

                     (a)  in the case of the South Eastern Australia TV3 licence area—the 28‑day period beginning at the commencement of this section;

                     (b)  otherwise—the period:

                              (i)  beginning at the commencement of this section; and

                             (ii)  ending 6 months before the start of the earliest applicable terrestrial digital television switch‑over date for the licence area;

give the ACMA a joint written notice stating that:

                     (c)  a company specified in the notice (the joint‑venture company) will apply under subsection (3) for a commercial television broadcasting licence for the licence area; and

                     (d)  the joint‑venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital.

Application by joint‑venture company

             (3)  If a notice is given under subsection (2) in relation to a licence area specified in column 1 of the table in subsection (1), the joint‑venture company must:

                     (a)  apply in writing to the ACMA for a commercial television broadcasting licence for the licence area; and

                     (b)  do so within 28 days after the notice is given.

Allocation of licence to joint‑venture company

             (4)  If the ACMA receives an application under subsection (3) that relates to a licence area, the ACMA must:

                     (a)  allocate a commercial television broadcasting licence to the joint‑venture company for the licence area; and

                     (b)  do so within 28 days after the application is received.

             (5)  Subsection (4) has effect subject to section 37.

Special purpose company

             (6)  If no notice is given under subsection (2) in relation to a licence area specified in column 1 of the table in subsection (1), an eligible joint venturer for the licence area may, within 28 days after the end of whichever of the periods mentioned in paragraphs (2)(a) and (b) is applicable, give the ACMA a written notice stating that:

                     (a)  a company specified in the notice (the special purpose company) will apply under subsection (7) for a commercial television broadcasting licence for the licence area; and

                     (b)  the special purpose company is a wholly‑owned subsidiary of the eligible joint venturer; and

                     (c)  the special purpose company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital.

Application by special purpose company

             (7)  If a notice is given under subsection (6), the special purpose company must:

                     (a)  apply in writing to the ACMA for a commercial television broadcasting licence for the licence area specified in the notice; and

                     (b)  do so within 28 days after the notice is given.

Allocation of licence to special purpose company

             (8)  If only one special purpose company makes an application under subsection (7) in relation to a licence area specified in column 1 of the table in subsection (1), the ACMA must:

                     (a)  allocate a commercial television broadcasting licence to the special purpose company for the licence area; and

                     (b)  do so within 28 days after the application is received.

             (9)  If the ACMA receives applications from 2 or more special purpose companies under subsection (7) in relation to a licence area specified in column 1 of the table in subsection (1), the ACMA must allocate a commercial television broadcasting licence to one of those companies for the licence area in accordance with a price‑based system determined under subsection (11).

           (10)  Subsections (8) and (9) have effect subject to section 37.

Price‑based system for allocating licences where 2 or more applications have been received.

           (11)  The ACMA may, by written instrument, determine a price‑based system for allocating commercial television broadcasting licences under subsection (9).

           (12)  A instrument made under subsection (11) is not a legislative instrument.

           (13)  The Minister may, by legislative instrument, give specific directions to the ACMA in relation to the power conferred by subsection (11). Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

           (14)  If a commercial television broadcasting licence is allocated under subsection (9), the ACMA must, unless the price‑based allocation system adopted was public, publish in the Gazette:

                     (a)  the name of the successful applicant; and

                     (b)  the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

Cancellation of licence—services not provided

           (15)  If:

                     (a)  the licensee of a licence allocated under this section is contravening a licence condition set out in:

                              (i)  clause 7B of Schedule 2; or

                             (ii)  clause 7C of Schedule 2; and

                     (b)  the ACMA is satisfied that the contravention is not due to:

                              (i)  technical circumstances that are beyond the licensee’s control; or

                             (ii)  unforeseen circumstances that are beyond the licensee’s control; or

                            (iii)  circumstances specified in the regulations; and

                     (c)  the ACMA gives the licensee a written notice warning the licensee that, if the contravention continues for 30 days, the licence may be cancelled; and

                     (d)  30 days pass after the notice is given, and the contravention continues;

the ACMA must, by written notice given to the licensee, cancel the licence.

           (16)  The cancellation takes effect:

                     (a)  when the notice of cancellation is given to the licensee; or

                     (b)  if a later time is specified in the notice of cancellation—at that later time.

Allocation of licence after cancellation etc.

           (17)  If:

                     (a)  the ACMA gives a notice under subsection (15) to a licensee, cancelling the licence for a licence area; or

                     (b)  both:

                              (i)  no notice is given under subsection (2) in relation to a licence area; and

                             (ii)  no notice is given under subsection (6) in relation to a licence area; or

                     (c)  a joint‑venture company for a licence area contravenes subsection (3); or

                     (d)  both:

                              (i)  there is only one special purpose company for a licence area; and

                             (ii)  the special purpose company contravenes subsection (7); or

                     (e)  both:

                              (i)  there are 2 or more special purpose companies for a licence area; and

                             (ii)  each of those special purpose companies contravene subsection (7);

the ACMA must, within 45 days after:

                      (f)  if paragraph (a) applies—the giving of the notice; or

                     (g)  if paragraph (b) applies—the the last day on which a notice could have been given under subsection (6) in relation to the licence area; or

                     (h)  if paragraph (c), (d) or (e) applies—the contravention;

advertise, in a manner determined by the ACMA, for applications for a licence to be allocated under subsection (23) for the licence area.

           (18)  Before commencing to advertise under subsection (17), the ACMA must, by legislative instrument, determine the eligibility requirements that must be met by persons applying for a licence in response to such an advertisement.

           (19)  The eligibility requirements determined under subsection (18) must include that the applicant has the capacity to provide the services that the licensee will be required to provide under clauses 7B, 7C and 7D of Schedule 2. This subsection does not limit other eligibility requirements that may be determined under subsection (18).

           (20)  The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers under subsection (18).

           (21)  The ACMA must include in an advertisement under subsection (17):

                     (a)  a description of the matter mentioned in the applicable paragraph of subsection (17); and

                     (b)  the date on or before which applications must be received by the ACMA (the applications closing date); and

                     (c)  a statement specifying how details of:

                              (i)  the licence area for the licence; and

                             (ii)  the eligibility requirements; and

                            (iii)  the conditions that will apply to the licence;

                            may be obtained.

           (22)  The applications closing date must be the 90th day after the day of publication of the first advertisement under subsection (17) that describes the contravention or cancellation concerned.

           (23)  If:

                     (a)  in response to an advertisement under subsection (17), the ACMA receives one or more applications for a licence; and

                     (b)  the applications were received on or before the applications closing date specified in the advertisement; and

                     (c)  the ACMA is satisfied that one or more of the applicants meets the eligibility requirements;

the ACMA must:

                     (d)  allocate the licence to one of the applicants referred to in paragraph (c); and

                     (e)  do so within 90 days after the applications closing date.

           (24)  Subsection (23) has effect subject to section 37.

Restrictions on transfer of licences

           (25)  During the period of 2 years after the date of allocation of a licence under this section, any attempt by any person to transfer the licence is of no effect.

Definitions

           (26)  In this section:

applicable terrestrial digital television switch‑over date has the same meaning as in clause 7H of Schedule 2.

wholly‑owned subsidiary has the same meaning as in the Corporations Act 2001.

39  Additional commercial radio licences in single markets

Conditions for allocation of additional licence

             (1)  If:

                     (a)  a particular licence area is the licence area of only one commercial radio broadcasting licence (the parent licence) that is in force; and

                     (b)  a service is being provided under the parent licence; and

                     (c)  the licence area for the parent licence does not have an excessive overlap area, as determined under subsection (5); and

                     (d)  the licensee requests the ACMA, in writing, to allocate to the licensee, for the same licence area, another commercial radio broadcasting licence that is a broadcasting services bands licence; and

                     (e)  in the opinion of the ACMA, suitable broadcasting services bands spectrum is available for providing another commercial radio broadcasting service in the same licence area;

the ACMA must allocate an additional licence to the applicant for the same licence area as soon as practicable.

Time limit for applications

             (2)  An application under subsection (1) must be made within 60 days after:

                     (a)  the commencement of this section; or

                     (b)  the time when paragraphs (1)(a), (b) and (c) are first satisfied in relation to the parent licence;

whichever is later.

             (3)  If the conditions in paragraphs (1)(a), (b), (c) and (e) are not all satisfied at the time when the application is made, but at a later time they are all satisfied, then the ACMA is under an obligation at that later time to allocate the additional licence (unless the application has been withdrawn).

Matters that ACMA must take into account

             (4)  The matters that the ACMA must take into account in forming an opinion for the purposes of paragraph (1)(e) include the following:

                     (a)  any relevant plan under section 25;

                     (b)  any relevant plan under section 26;

                     (c)  any relevant capacity that has been reserved under section 31.

Excessive overlap area

             (5)  The licence area for the parent licence has an excessive overlap area if:

                     (a)  more than 30% of the licence area population of the licence area of the parent licence is attributable to an area that overlaps with the licence area of another commercial radio broadcasting licence; and

                     (b)  at least one of the following situations exists:

                              (i)  more than 30% of the licence area population of the licence area of that other licence is also attributable to the area that overlaps with the licence area of the parent licence;

                             (ii)  more than one commercial radio broadcasting licence is in force with the same licence area as that other licence.

Technical specifications for additional licence

             (6)  The ACMA must make a determination in writing setting out the technical specifications that apply to the additional licence. The ACMA is not required to make the determination if a plan under section 26 applies to the licence area of the additional licence.

             (7)  For the purposes of this Act and section 109 of the Radiocommunications Act 1992, the technical specifications are taken to have been determined under section 26 of this Act.

Fee for additional licence

             (8)  On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

             (9)  On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide services under those licences for at least 2 years after the date of allocation of the additional licence.

Restrictions on transfer of licences

           (10)  During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (11)  This section has effect subject to section 37.

Section 29 does not apply in some cases

           (12)  If the licence area of the parent licence is not provided for under a licence area plan under section 26, then section 29 does not apply to the allocation of the additional licence.

40  Allocation of other licences

             (1)  Subject to section 28, the ACMA may allocate to a person, on application in writing by the person, a commercial television broadcasting licence or a commercial radio broadcasting licence that is not a licence referred to in subsection 36(1).

          (1A)  Licences under subsection (1) are to be allocated on the basis of one licence per service.

             (2)  Before allocating a licence referred to in subsection (1), the ACMA is to designate a particular area in Australia as the licence area of the licence.

             (3)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined in writing by the ACMA.

             (4)  If the ACMA makes a decision under subsection (1) or (2), the ACMA must publish in the Gazette details of the allocation or the designation of a licence area.

Referral of application to the Minister

             (5)  Before allocating a commercial television broadcasting licence under subsection (1), the ACMA must refer the application to the Minister.

             (6)  If an application for a commercial television broadcasting licence is referred to the Minister under subsection (5), the ACMA must not make a decision about the application until the Minister:

                     (a)  gives a direction under subsection (7) in relation to the application; or

                     (b)  gives a notice under subsection (9) in relation to the application.

             (7)  If:

                     (a)  an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and

                     (b)  the Minister is of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;

the Minister must, by written notice given to the ACMA, direct the ACMA not to allocate the licence to the applicant.

             (8)  The ACMA must comply with a direction under subsection (7).

             (9)  If:

                     (a)  an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and

                     (b)  the Minister is not of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;

the Minister must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of the licence to the applicant.

Minister may request additional information

           (10)  If an application is referred to the Minister under subsection (5), and the Minister considers that additional information is required before the Minister can decide whether to:

                     (a)  give a direction under subsection (7) in relation to the application; or

                     (b)  give a notice under subsection (9) in relation to the application;

the Minister may, by written notice given to the applicant within 30 days after the day on which the application is referred to the Minister, request the applicant to provide that information.

           (11)  If the Minister requests additional information under subsection (10), the Minister must give the ACMA a copy of the request.

Decision to be made within 60 days

           (12)  If the Minister does not, within 60 days after the day on which:

                     (a)  an application is referred to the Minister under subsection (5); or

                     (b)  if the Minister requests additional information under subsection (10)—that additional information is received;

do either of the following:

                     (c)  give a direction under subsection (7) in relation to the application;

                     (d)  give a notice under subsection (9) in relation to the application;

then the Minister is taken to have given a notice under subsection (9) in relation to the application.

Licence condition

           (13)  If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).

41  When persons are regarded as suitable

             (1)  For the purposes of this Part, a company is a suitable licensee or a suitable applicant for a licence if the ACMA has not decided that subsection (2) applies to the company.

             (2)  The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide commercial broadcasting services under a licence would lead to a significant risk of:

                     (a)  an offence against this Act or the regulations being committed; or

                    (aa)  a breach of a civil penalty provision occurring; or

                     (b)  a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

             (3)  In deciding whether such a risk exists, the ACMA is to take into account:

                     (a)  the business record of the company; and

                     (b)  the company’s record in situations requiring trust and candour; and

                     (c)  the business record of each person who is, or would be, if a licence were allocated to the applicant, in a position to control the licence; and

                     (d)  the record in situations requiring trust and candour of each such person; and

                     (e)  whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

                      (f)  whether a civil penalty order has been made against:

                              (i)  the company; or

                             (ii)  a person referred to in paragraph (c) or (d).

             (4)  This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).


 

Division 2Services authorised by licences

41A  Services authorised by commercial television broadcasting licences before 1 January 2009

Licences in force immediately before 1 January 2007

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

                     (b)  the licence authorised the licensee to provide a commercial television broadcasting service (the core commercial television broadcasting service) in the licence area;

the licence is taken to authorise the licensee to provide the following 2 services in the licence area:

                     (c)  the core commercial television broadcasting service;

                     (d)  a HDTV multi‑channelled commercial television broadcasting service;

during the period ending immediately before 1 January 2009.

Licences allocated on or after 1 January 2007

             (2)  If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2007 but before 1 January 2009, the licence authorises the licensee to provide the following 2 services in the licence area:

                     (a)  a commercial television broadcasting service (the core commercial television broadcasting service) transmitted in SDTV digital mode;

                     (b)  a HDTV multi‑channelled commercial television broadcasting service;

during the period ending immediately before 1 January 2009.

Licences allocated under subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV digital mode has the same meaning as in Schedule 4.

41B  Services authorised by commercial television broadcasting licences during so much of the simulcast period etc. as occurs on or after 1 January 2009

Licences in force immediately before 1 January 2009—general

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2009; and

                     (b)  the licence authorised the licensee to provide the following 2 services in the licence area:

                              (i)  the core commercial television broadcasting service;

                             (ii)  a HDTV multi‑channelled commercial television broadcasting service;

the licence is taken to authorise the licensee to provide the following 3 services in the licence area:

                     (c)  the core commercial television broadcasting service;

                     (d)  the HDTV multi‑channelled commercial television broadcasting service;

                     (e)  a SDTV multi‑channelled commercial television broadcasting service;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

          (1A)  Subsection (1) does not apply, after the commencement of section 38C, to:

                     (a)  an eligible parent licence; or

                     (b)  an eligible section 38A licence.

Note 1:       For eligible parent licence, see subsection (2E).

Note 2:       For eligible section 38A licence, see subsection (2E).

Licences allocated on or after 1 January 2009

             (2)  If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the licence authorises the licensee to provide the following 3 services in the licence area:

                     (c)  a HDTV multi‑channelled commercial television broadcasting service;

                     (d)  2 SDTV multi‑channelled commercial television broadcasting services;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

          (2A)  Subsection (2) does not apply, after the commencement of section 38C, to:

                     (a)  an eligible parent licence; or

                    (aa)  an eligible section 38A licence; or

                     (b)  an eligible section 38B licence.

Note 1:       For eligible parent licence, see subsection (2E).

Note 1A:    For eligible section 38A licence, see subsection (2E).

Note 2:       For eligible section 38B licence, see subsection (2E).

Eligible parent licences in force immediately before 1 January 2009

          (2B)  If:

                     (a)  an eligible parent licence for a licence area was in force immediately before 1 January 2009; and

                     (b)  the eligible parent licence authorised the licensee to provide the following 3 services in the licence area:

                              (i)  the core commercial television broadcasting service;

                             (ii)  a HDTV multi‑channelled commercial television broadcasting service;

                            (iii)  a SDTV multi‑channelled commercial television broadcasting service;

the eligible parent licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  the core commercial television broadcasting service;

                     (d)  either:

                              (i)  a HDTV multi‑channelled commercial television broadcasting service and a SDTV multi‑channelled commercial television broadcasting service; or

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible parent licence, see subsection (2E).

Eligible parent licences allocated on or after 1 January 2009

          (2C)  If an eligible parent licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the eligible parent licence is taken to authorise the licensee to provide:

                     (c)  the following services in the licence area:

                              (i)  a HDTV multi‑channelled commercial television broadcasting service;

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services; or

                     (d)  3 SDTV multi‑channelled commercial television broadcasting services in the licence area;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible parent licence, see subsection (2E).

Eligible section 38A licences in force immediately before 1 January 2009

       (2CA)  If:

                     (a)  an eligible section 38A licence for a licence area was in force immediately before 1 January 2009; and

                     (b)  the eligible section 38A licence authorised the licensee to provide the following 3 services in the licence area:

                              (i)  the core commercial television broadcasting service;

                             (ii)  a HDTV multi‑channelled commercial television broadcasting service;

                            (iii)  a SDTV multi‑channelled commercial television broadcasting service;

the eligible section 38A licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  the core commercial television broadcasting service;

                     (d)  either:

                              (i)  a HDTV multi‑channelled commercial television broadcasting service and a SDTV multi‑channelled commercial television broadcasting service; or

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible section 38A licence, see subsection (2E).

Eligible section 38A licences allocated on or after 1 January 2009

        (2CB)  If an eligible section 38A licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the eligible section 38A licence is taken to authorise the licensee to provide:

                     (c)  the following services in the licence area:

                              (i)  a HDTV multi‑channelled commercial television broadcasting service;

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services; or

                     (d)  3 SDTV multi‑channelled commercial television broadcasting services in the licence area;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible section 38A licence, see subsection (2E).

Eligible section 38B licences

          (2D)  If an eligible section 38B licence for a licence area is allocated before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the eligible section 38B licence authorises the licensee to provide:

                     (c)  the following services in the licence area:

                              (i)  a HDTV multi‑channelled commercial television broadcasting service;

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services; or

                     (d)  3 SDTV multi‑channelled commercial television broadcasting services in the licence area;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible section 38B licence, see subsection (2E).

Eligible parent licence, eligible section 38A licence and eligible section 38B licence

          (2E)  For the purposes of this section, if:

                     (a)  a person (the original licensee) is or was the licensee of a commercial television broadcasting licence (other than a commercial television broadcasting licence allocated under section 38A or subsection 38B(6), (7), (8) or (9)); and

                     (b)  the original licensee is or was allocated an additional commercial television broadcasting licence under section 38A; and

                     (c)  after the commencement of section 38C, the original licensee is allocated an additional commercial television broadcasting licence under subsection 38B(6), (7), (8) or (9); and

                     (d)  at a particular time, the licences mentioned in paragraphs (a), (b) and (c) are held by the same person (whether or not that person is the original licensee);

then, at that time:

                     (e)  the licence mentioned in paragraph (a) is an eligible parent licence; and

                      (f)  the licence mentioned in paragraph (b) is an eligible section 38A licence; and

                     (g)  the licence mentioned in paragraph (c) is an eligible section 38B licence.

Licences allocated under section 38C or subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

41C  Services authorised by commercial television broadcasting licences after the end of the simulcast period etc.

Licences in force immediately before the end of the simulcast period etc.

             (1)  If a commercial television broadcasting licence for a licence area was in force immediately before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

then, after the end of the applicable period, the licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  one or more HDTV multi‑channelled commercial television broadcasting services;

                     (d)  one or more SDTV multi‑channelled commercial television broadcasting services.

Licences allocated after the end of the simulcast period etc.

             (2)  If a commercial television broadcasting licence for a licence area is allocated after the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the licence authorises the licensee to provide the following services in the licence area:

                     (c)  one or more HDTV multi‑channelled commercial television broadcasting services;

                     (d)  one or more SDTV multi‑channelled commercial television broadcasting services.

Licences allocated under section 38C or subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

41CA  Services authorised by commercial television broadcasting licences allocated under section 38C

Authorised services

             (1)  A licence allocated under section 38C authorises the licensee to provide the following commercial television broadcasting services in the licence area:

                     (a)  if a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a HDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area—a HDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

                     (b)  if:

                              (i)  a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a SDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and

                             (ii)  the service is not the core/primary commercial television broadcasting service provided by the related terrestrial licensee;

                            a SDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

                     (c)  if:

                              (i)  a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a SDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and

                             (ii)  the service is the core/primary commercial television broadcasting service provided by the related terrestrial licensee;

                            a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

                     (d)  if a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a HDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area—a HDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

                     (e)  if:

                              (i)  a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a SDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area; and

                             (ii)  the service is not the core/primary commercial television broadcasting service provided by the metropolitan licensee;

                            a SDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

                      (f)  if:

                              (i)  a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a SDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area; and

                             (ii)  the service is the core/primary commercial television broadcasting service provided by the metropolitan licensee;

                            a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

                     (g)  one or more SDTV multi‑channelled commercial television broadcasting services the program content of which consists wholly or primarily of programs provided, or required to be provided, to the licensee under subsection 43AA(1).

Program content

             (2)  In determining, for the purposes of this section, whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service:

                     (a)  ignore the following:

                              (i)  advertising or sponsorship material (whether or not of a commercial kind);

                             (ii)  a promotion for a television program or a television broadcasting service;

                            (iii)  community information material or community promotional material;

                            (iv)  a weather bulletin;

                             (v)  any other similar material; and

                     (b)  ignore a news program; and

                     (c)  ignore any program the broadcasting of which in any jurisdiction in the licence area could result in the licensee:

                              (i)  committing an offence; or

                             (ii)  becoming liable to a civil penalty; or

                            (iii)  breaching an order or direction of a court; or

                            (iv)  being in contempt of court; and

                     (d)  ignore a program broadcast in circumstances specified in the regulations.

             (3)  In determining, for the purposes of:

                     (a)  paragraph (1)(c); or

                     (b)  paragraph (1)(f);

whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service, assume that a program that provides coverage of an anti‑siphoning event is the same as a program that provides coverage of another anti‑siphoning event.

             (4)  Subsection (3) does not limit subsection (2).

SDTV multi‑channelled commercial television broadcasting service

             (5)  For the purposes of subsection (1), assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.

Definitions

             (6)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:

                     (a)  New South Wales; or

                     (b)  Victoria; or

                     (c)  Queensland; or

                     (d)  Western Australia; or

                     (e)  South Australia;

but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.

related terrestrial licence area:

                     (a)  in relation to a licence allocated under section 38C for the South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or

                     (b)  in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or

                     (c)  in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

41D  Services authorised by commercial radio broadcasting licences

Licences in force immediately before the commencement of this section

             (1)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the commencement of this section; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

then, during the period:

                     (c)  beginning at the start of the day on which this section commences; and

                     (d)  ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences allocated on or after the commencement of this section

             (2)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the commencement of this section but before the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;

then, during the period:

                     (c)  beginning at the start of the day on which the licence is allocated; and

                     (d)  ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences in force immediately before the digital radio start‑up day for the licence area

             (3)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

then, on and after the digital radio start‑up day for the licence area, the licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  the analog commercial radio broadcasting service;

                     (d)  one or more digital commercial radio broadcasting services.

Licences allocated on or after digital radio start‑up day for the licence area

             (4)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

             (5)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide digital commercial radio broadcasting services in the licence area;

the licence is taken to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area.

Section 35D

             (6)  This section has effect subject to section 35D.

Subsection 40(1) licences

             (7)  This section does not apply to a commercial radio broadcasting licence allocated under subsection 40(1).


 

Division 3Licence conditions

42  Conditions of commercial broadcasting licences

             (1)  Each commercial television broadcasting licence is subject to:

                     (a)  the conditions set out in Division 1 of Part 3 of Schedule 2; and

                     (b)  such other conditions as are imposed under section 43.

          (1A)  Each commercial television broadcasting licence allocated under section 38C is also subject to the conditions set out in Division 2 of Part 3 of Schedule 2.

             (2)  Each commercial radio broadcasting licence is subject to:

                     (a)  the conditions set out in Part 4 of Schedule 2; and

                     (b)  such other conditions as are imposed under section 43.

43  ACMA may impose additional conditions

             (1)  The ACMA may, by notice in writing given to a commercial television broadcasting licensee or a commercial radio broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.

             (2)  If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must:

                     (a)  give to the licensee written notice of its intention; and

                     (b)  give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

                     (c)  publish the proposed changes in the Gazette.

             (3)  This section does not allow the ACMA to vary or revoke a condition set out in Part 3 or 4 of Schedule 2.

             (4)  If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.

             (5)  Action taken under subsection (1) must not be inconsistent with:

                     (a)  determinations and clarifications under section 19; or

                     (b)  conditions set out in Part 3 or 4 of Schedule 2.

43A  Material of local significance—regional aggregated commercial television broadcasting licences

             (1)  The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional aggregated commercial television broadcasting licence to broadcast to each local area, during such periods as are specified in the condition, at least a minimum level of material of local significance.

             (2)  For the purposes of subsection (1), a regional aggregated commercial television broadcasting licence is a commercial television broadcasting licence for any of the following licence areas:

                     (a)  Northern New South Wales;

                     (b)  Southern New South Wales;

                     (c)  Regional Victoria;

                     (d)  Eastern Victoria;

                     (e)  Western Victoria;

                      (f)  Regional Queensland;

                     (g)  Tasmania.

             (3)  The condition must define local area and material of local significance for the purposes of the condition. The definition of material of local significance must be broad enough to cover news that relates directly to the local area concerned.

             (4)  To avoid doubt, this section does not:

                     (a)  prevent the condition from setting out different requirements for different types of material; or

                     (b)  prevent the condition from specifying periods that recur (for example, the hours between 7 am and 10 am Monday to Friday); or

                     (c)  prevent the condition from setting out different requirements for different periods; or

                     (d)  create any obligations under subsection 43(2) that would not exist apart from this section.

             (5)  Subsection 43(5) does not apply to the condition.

             (6)  This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

43AA  Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees

             (1)  A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:

                     (a)  the licensee broadcasts a local news program in the licence area; and

                    (aa)  the licensee has not previously broadcast the program in the licence area; and

                     (b)  the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;

the licensee of the regional commercial television broadcasting licence must:

                     (c)  provide the local news program to the licensee of the section 38C licence for broadcast by the section 38C licensee; and

                     (d)  do so:

                              (i)  simultaneously with the broadcast of the program by the licensee of the regional commercial television broadcasting licence; or

                             (ii)  as soon as practicable after the broadcast of the program by the licensee of the regional commercial television broadcasting licence.

             (2)  A program must be provided under subsection (1) by transmitting it in digital mode (within the meaning of Schedule 4).

             (3)  If:

                     (a)  apart from this subsection, a commercial television broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program to the licensee of a commercial television broadcasting licence allocated under section 38C; and

                     (b)  the regional licensee believes, on reasonable grounds, that the broadcasting of a part of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:

                              (i)  committing an offence; or

                             (ii)  becoming liable to a civil penalty; or

                            (iii)  breaching an order or direction of a court; or

                            (iv)  being in contempt of court;

subsection (1) has effect as if the program did not include that part of the program.

          (3A)  If:

                     (a)  apart from this subsection, a commercial television broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program to the licensee of a commercial television broadcasting licence allocated under section 38C; and

                     (b)  the regional licensee believes, on reasonable grounds, that the broadcasting of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:

                              (i)  committing an offence; or

                             (ii)  becoming liable to a civil penalty; or

                            (iii)  breaching an order or direction of a court; or

                            (iv)  being in contempt of court;

subsection (1) does not apply to the program.

          (3B)  A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:

                     (a)  the licensee broadcasts a local news program in the licence area on 2 or more occasions; and

                     (b)  the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;

the licensee of the regional commercial television broadcasting licence will take reasonable steps to ensure that the licensee of the regional commercial television broadcasting licence does not, on more than one occasion, provide the program to the section 38C licensee for broadcast by the section 38C licensee.

             (6)  This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).

             (7)  In this section:

local news program means:

                     (a)  a program that consists solely of local news and/or local weather information; or

                     (b)  a program:

                              (i)  that consists primarily of local news and/or local weather information; and

                             (ii)  the remainder of which consists of other news and/or other weather information;

but does not include:

                     (c)  a short segment, or a headline update, that is broadcast for the sole or primary purpose of promoting another program; or

                     (d)  a short segment, or a headline update, that repeats news content that has previously been broadcast by the licensee concerned.

metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:

                     (a)  New South Wales; or

                     (b)  Victoria; or

                     (c)  Queensland; or

                     (d)  Western Australia; or

                     (e)  South Australia;

but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.

regional licence area means a licence area that is not a metropolitan licence area, but does not include:

                     (a)  the licence area of a commercial television broadcasting licence allocated under section 38C; or

                     (b)  a licence area specified in column 3 of the table in subsection 38C(1).

43AB  Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees

Programs to be provided by metropolitan licensees

             (1)  A commercial television broadcasting licence for a metropolitan licence area is subject to the condition that, if:

                     (a)  the licensee (the metropolitan licensee) broadcasts a program in a metropolitan licence area on either of the following services (a metropolitan service):

                              (i)  a HDTV multi‑channelled commercial television broadcasting service;

                             (ii)  a SDTV multi‑channelled commercial television broadcasting service; and

                     (b)  before the program is broadcast, a section 38C licensee requests the metropolitan licensee to provide the section 38C licensee with the programs broadcast on the metropolitan service;

the metropolitan licensee must:

                     (c)  provide the program to the section 38C licensee for broadcast by the section 38C licensee; and

                     (d)  do so:

                              (i)  simultaneously with the broadcast of that program on the metropolitan service; or

                             (ii)  as soon as practicable after the broadcast of that program on the metropolitan service.

HDTV digital mode or SDTV digital mode

             (2)  A program must be provided under subsection (1) by transmitting it:

                     (a)  if subparagraph (1)(a)(i) applies—in HDTV digital mode (within the meaning of Schedule 4); or

                     (b)  if subparagraph (1)(a)(ii) applies—in SDTV digital mode (within the meaning of Schedule 4).

SDTV multi‑channelled commercial television broadcasting service

             (3)  For the purposes of subsection (1), assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:

                     (a)  New South Wales; or

                     (b)  Victoria; or

                     (c)  Queensland; or

                     (d)  Western Australia; or

                     (e)  South Australia;

but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.

43AC  Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees

Scope

             (1)  This section applies if the licence area of a commercial television broadcasting licence (the remote terrestrial licence) is a related terrestrial licence area of a licence allocated under section 38C.

Programs to be provided by remot