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Determinations/Communications as made
This determination sets out a method for ascertaining the amount of annual carrier licence charge imposed on each carrier licence that was in force at the beginning of the 2018-2019 financial year.
Administered by: Infrastructure, Transport, Regional Development and Communications
Registered 10 Dec 2019
Tabling HistoryDate
Tabled HR04-Feb-2020
Tabled Senate04-Feb-2020
Date of repeal 30 Jun 2021
Repealed by Self Repealing

EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

 

Telecommunications (Carrier Licence Charges) Act 1997

 

Telecommunications (Annual Carrier Licence Charge) Determination 2019

 

Authority

 

The Telecommunications (Annual Carrier Licence Charge) Determination 2019 (the Determination) is made by the Australian Communications and Media Authority (the ACMA) under subsection 14(1) of the Telecommunications (Carrier Licence Charges) Act 1997 (the Act).

 

Legislative provisions

 

Under section 12 of the Act, an annual charge is imposed on a carrier licence that is in force at the beginning of a financial year (an annual carrier licence charge). 

 

Subsection 14(1) of the Act provides that the amount of an annual carrier licence charge imposed on a carrier licence is the amount ascertained in accordance with a written determination made by the ACMA. 

 

Section 15 of the Act limits the total of charges that may be imposed.  Subsection 15(1) provides that the total of the annual carrier licence charges that are imposed on carrier licences in force at the beginning of a financial year must not exceed the sum of the amounts determined under paragraphs 15(1)(a) to (d).

 

Under subsection 14(1) of the Australian Communications and Media Authority Act 2005, the Minister may give written directions to the ACMA in relation to the performance of its functions and the exercise of its powers.  On 21 April 2017, the Minister for Communications made the Australian Communications and Media Authority (Annual Carrier Licence Charge) Direction 2017 (the 2017 Ministerial Direction) which directed the ACMA to make such determinations as are necessary under subsection 14(1) of the Act to have the effect of imposing an annual carrier licence charge of $0 on each carrier licence that is:

  • in force at the beginning of a relevant financial year; and
  • held by a carrier that was a “non-participating person” for the eligible revenue period immediately preceding that financial year.  

The 2017 Ministerial Direction defines “relevant financial year” as the financial year that begins on 1 July 2017 and each later financial year. The term ‘non-participating person’ has the same meaning as in the Telecommunications (Participating Persons) Determination 2015 (the Participating Person Determination).

A provision-by-provision description of the Determination is set out in the notes at Attachment A.

The Determination is a legislative instrument for the purposes of the Legislation Act 2003 (the LA).

 

Purpose and operation of the instrument

 

The purpose of the Determination is to set out a method for ascertaining the amount of annual carrier licence charge imposed on each carrier licence that was in force at the beginning of the 2018-2019 financial year, in accordance with subsection 14(1) of the Act. (Further information about that method is set out below in the notes on section 8 of the Determination).

 

Consistent with the 2017 Ministerial Direction, the Determination imposes an annual carrier licence charge of $0 on a carrier licence that was in force at the beginning of the 2018-2019 financial year and held by a carrier that was a non-participating person for the eligible revenue period that began on 1 July 2017 and ended on 30 June 2018.

 

Documents incorporated by reference

 

The Participating Persons Determination is incorporated as in force from time to time in accordance with section 10 of the Acts Interpretation Act 1901 and subsection 13(1) of the LA.    

 

The Participating Persons Determination is registered on the Federal Register of Legislation.  The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.

 

Consultation

 

Before the Determination was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.

 

The ACMA consulted with the public and industry stakeholders on the making of this instrument and the instrument in relation to the ACMA’s ACLC component prescribed under paragraphs 15(1)(a), (c) and (ca) of the Act for a four-week period from 22 July 2019, inviting feedback on the proposed changes to the annual carrier licence charge determined under cost recovery arrangements.  The consultation was facilitated through the public release of a consultation paper and a draft cost recovery implementation statement on the ACMA’s website.

 

In response to its consultation, ACMA received two written submissions[1]. The submissions commented on the eligible revenue thresholds in the Participating Persons Determination and on the disclosure of costs in the ACMA’s cost recovery implementation statement. The ACMA took the submissions into account when making the Determination.

  

 


 

Regulation Impact Statement

 

On 19 February 2014, the Office of Best Practice Regulation provided a standing exemption and advised that a Regulation Impact Statement was not required for an instrument in the nature of the Determination (reference number ID 2014/16581).

Statement of Compatibility with Human Rights

 

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule maker in relation to a legislative instrument to which section 42 (disallowance) of the LA applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument.

 

The statement of compatibility set out in Attachment B has been prepared to meet that requirement.

 


Attachment A

Notes on sections of the Telecommunications (Annual Carrier Licence Charge) Determination 2019

Section 1 - Name of Determination

 

This section provides for the Determination to be cited as the Telecommunications (Annual Carrier Licence Charge) Determination 2019.

 

Section 2 - Commencement

 

This section provides for the Determination to commence on the later of the start of the day after it is registered on the Federal Register of Legislation and the commencement of the Telecommunications (Specification of Costs by the ACMA) Determination 2019. Both events must occur before the Determination commences.

 

The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.

 

Section 3 – Authority

 

This section identifies the provision of the Act that authorises the making of the Determination, namely subsection 14(1) of the Act.

 

Section 4 – Repeal of this Determination

 

This section provides that the Determination is repealed at the end of 30 June 2021.

 

Section 5 - Application

 

This section provides that the Determination applies to carrier licences that were in force at the beginning of the 2018-2019 financial year.

 

Section 6 - Definitions

 

Subsection 6(1) sets out definitions for the key terms used in the Determination.

 

The term eligible revenue period has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act) and the term non-participating person is defined as having the same meaning as in the Participating Persons Determination.  

 

Subsection 6(1) also defines terms relating to the Measuring Broadband Australia (MBA)[2] program.

 

MBA is the Measuring Broadband Australia program that was introduced by the government in April 2017[3]  to monitor and report on the performance of fixed line broadband services delivered over the National Broadband Network (NBN). The MBA commenced on 1 July 2017 and is administered by the ACCC. The costs incurred in administering this program in the 2017-2018 financial year were included in the ACCC’s determination of its costs that are attributable to its telecommunications functions and powers under paragraph 15(1)(b) of the Act and are to be recovered as part of the annual carrier licence charge.

 

NBN fixed line connection is defined as a fixed line broadband service delivered over the NBN fixed line network. The NBN fixed line network is part of the NBN but does not include a fixed wireless network or satellite access network.

 

test segment is defined as a class of a broadband service that is tested in accordance with specified conditions under the MBA. For example, the relevant class of broadband service may be tested using specified access technology or at specified speed tiers.

 

Subsection 6(2) provides that legislative instruments referenced in the Determination are referenced as in force from time to time.

 

Section 7 – Carrier licence charge – exempt carrier licence

 

This section provides that the amount of carrier licence charge imposed on an exempt carrier licence is $0, in accordance with the 2017 Ministerial Direction.

 

Section 8 – Method of ascertaining carrier licence charge – other carrier licences

 

This section sets out the method for ascertaining the amount of carrier licence charge imposed on a carrier licence that is not an exempt carrier licence (a relevant carrier licence).

 

Subsection 8(2) explains that the carrier licence charge imposed on a carrier licence in relation to each carrier named in an item in Schedule 1 (which lists the participating persons for the relevant year) is equal to the sum of the amount ascertained using the two formulas set out in subsections 8(3) and 8(4).

 

Subsection 8(3) sets out how the first amount included in the carrier licence charge is ascertained. This represents the component of the carrier licence charge relating to the costs determined under section 15 of the Act, excluding the costs attributable to the MBA program

 

This amount is ascertained, for a relevant carrier licence, using the following formula:

 

(MCA - OTC) ×

ER

TER

 

Where:

 

MCA (maximum charge amount excluding the MBA amount) is the total sum of the amounts determined under subsection 15(1) of the Act, excluding the portion of the amount determined by the ACCC under paragraph 15(1)(b) of the Act that relates to the MBA.

 

  • OTC (other telecommunication costs) is an amount relating to costs that:

(a)                are part of the proportion of the ACMA’s costs for the 2017-2018 financial year that is attributable to the ACMA’s telecommunications functions and powers; and

(b)               have been recovered from telecommunications charges (other than annual carrier licence charges);

·         ER (eligible revenue), for the holder of the relevant carrier licence, is the eligible revenue of the holder for the 2017-2018 financial year as assessed by the ACMA under subsection 47(1) of the TCPSS Act;

  • TER (total eligible revenue) is the total sum of the eligible revenue of all holders of a relevant carrier licence for the 2017-2018 financial year as assessed by the ACMA under subsection 47(1) of the TCPSS Act.

 

The total amount ascertained for the purpose of subsection 8(3) is calculated by subtracting the other telecommunications costs from the maximum charge amount. The net amount is then allocated to each holder of a relevant carrier licence in the same proportion as that holder’s eligible revenue bears to the total eligible revenue.

 

Subsection 8(4) sets out how the second amount included in the carrier licence is ascertained. This represents the component of the carrier licence charge relating to the costs determined under paragraph 15(1)(b) of the Act that are attributable to the MBA program.

 

This amount is ascertained, for a relevant carrier licence, using the following formula:

 

 

where:

·         APC (annual program costs) is equal to $1 531 854. This is the amount of the costs incurred by the ACCC, during the 2017-2018 financial year, as determined by the ACCC under paragraph 15(1)(b) of the Act, that it advises is attributable to the MBA program (see the explanatory statement to the Determination under paragraph 15(1)(b) No. 1 of 2019).

·         FLC (fixed line connections) for each participating person is the number listed for that participating person in an item in Schedule 2. This number is derived from information provided by the ACCC about the total number of NBN fixed line connections operated in a test segment which are attributable to participating persons during the 2017-2018 financial year The ACCC provided the number of NBN fixed-line connections for the financial year 2017-2018 to the ACMA based on NBN’s quarterly reports.

·         TFLC (total fixed line connections) is equal to 3 657 807. This represents the total number of NBN fixed-line connections operated that are attributable to participating persons during the 2017-2018 financial year.

The charge amount attributable to the MBA program is allocated to each carrier licence by first identifying the broadest test segment that applied during the relevant period, and then identifying the volume of services the participating person was responsible for in the relevant period that met the description of that test segment, expressed as a proportion of the total number of such services for which all monitored service providers who are also participating persons were responsible in the relevant period.

 

In the period relevant to this Determination, the broadest test segment comprised of NBN fixed line services and hence the charge amount is allocated based upon the relevant proportion of the participating person’s NBN fixed line access services to the total number of NBN fixed line access services of all monitored service providers who are also participating persons.

 

Schedule 1

 

Schedule 1 sets out, for each holder of a relevant carrier licence, the holder’s:

  • Name;

·         ACN or ARBN; and

  • eligible revenue for the 2017-2018 financial year as assessed by the ACMA under subsection 47(1) of the TCPSS Act.

 

Schedule 2

 

Schedule 2 sets out, for each holder of a relevant carrier licence, the holder’s:

  • Name;

·         ACN or ARBN; and

·         the number of fixed line connections operated by the monitored service provider in a test segment during the 2017-2018 financial year, as reported by the ACCC, that are attributed to the relevant carrier licence.

 

 

 

 

 

 

 


 

Attachment B


Statement of compatibility with human rights

Prepared by the Australian Communications and Media Authority (ACMA) under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Telecommunications (Annual Carrier Licence Charge) Determination 2019

Overview of the Determination

Under section 12 of the Act, an annual carrier licence charge is imposed. 

 

Subsection 14(1) of the Act provides that the amount of an annual carrier licence charge imposed on a carrier licence is the amount ascertained in accordance with a written determination made by the ACMA. 

 

The Determination is made by the ACMA under subsection 14(1) of the Act.  It sets out the method for ascertaining the amount of annual carrier licence charge imposed on the holder of each carrier licence that was in force at the beginning of the 2018-2019 financial year.

Human rights implications

 

The ACMA has assessed whether the Determination is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the Determination does not engage any of those rights or freedoms. 

Conclusion

The Determination is compatible with human rights as it does not raise any human rights issues.

 



[3] Australian Competition and Consumer Commission (2017), ACCC to monitor Australia's broadband performance, https://www.accc.gov.au/media-release/accc-to-monitor-australias-broadband-performance;
Senator the Hon Mitch Fifield (2017).