Commonwealth Consolidated Acts Commonwealth Consolidated ActsBroadcasting Services Act 1992
1 Subsection 6(1)
Insert:
"analog commercial radio broadcasting service" means a commercial radio broadcasting service that is transmitted using an analog modulation technique.
2 Subsection 6(1)
Insert:
"analog community radio broadcasting service" means a community radio broadcasting service that is transmitted using an analog modulation technique.
3 Subsection 6(1) (definition of broadcasting services bands )
Repeal the definition, substitute:
"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.
4 Subsection 6(1) (definition of commercial radio broadcasting licence )
Repeal the definition, substitute:
"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.
5 Subsection 6(1)
Insert:
"commercial radio broadcasting service" means a commercial broadcasting service that provides radio programs.
6 Subsection 6(1) ( paragraph ( a) of the definition of commercial television broadcasting licence )
Omit "and", substitute "or".
7 Subsection 6(1) (definition of community broadcasting licence )
Repeal the definition, substitute:
"community broadcasting licence" means:
(a) a community radio broadcasting licence; or
(b) a community television broadcasting licence.
8 Subsection 6(1)
Insert:
"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.
9 Subsection 6(1)
Insert:
"community radio broadcasting service" means a community broadcasting service that provides radio programs.
10 Subsection 6(1)
Insert:
"community television broadcasting licence" means a licence under Part 6 or 6A to provide a community broadcasting service that provides television programs.
11 Subsection 6(1)
Insert:
"designated community radio broadcasting licence" has the meaning given by section 8AA.
12 Subsection 6(1)
Insert:
"digital commercial radio broadcasting service" means a commercial radio broadcasting service that is transmitted using a digital modulation technique.
13 Subsection 6(1)
Insert:
"digital community radio broadcasting service" means a community radio broadcasting service that is transmitted using a digital modulation technique.
14 Subsection 6(1)
Insert:
"digital national radio broadcasting service" means a national radio broadcasting service that is transmitted using a digital modulation technique.
15 Subsection 6(1)
Insert:
"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.
16 Subsection 6(1)
Insert:
"digital radio moratorium period" for a licence area has the meaning given by subsection 35C(3).
17 Subsection 6(1)
Insert:
"digital radio multiplex transmitter licence" has the same meaning as in the Radiocommunications Act 1992 .
18 Subsection 6(1)
Insert:
"digital radio start-up day" for a licence area has the meaning given by section 8AC.
19 Subsection 6(1)
Insert:
"foundation digital radio multiplex transmitter licence" has the same meaning as in the Radiocommunications Act 1992 .
20 Subsection 6(1) (at the end of the definition of licence area )
Add:
Note: See also section 8AD, which deals with deemed radio broadcasting licence areas.
21 Subsection 6(1)
Insert:
"multiplex capacity" has the same meaning as in Division 4B of Part 3.3 of the Radiocommunications Act 1992.
22 Subsection 6(1)
Insert:
"national radio broadcasting service" means a national broadcasting service that provides radio programs.
23 Subsection 6(1)
Insert:
"radio program" has a meaning affected by section 8AB.
24 Subsection 6(1)
Insert:
"restricted datacasting licence" means a datacasting licence allocated as a result of an application for a restricted datacasting licence.
25 Subsection 6(1)
Insert:
"restricted datacasting service" means a datacasting service provided under, and in accordance with the conditions of, a restricted datacasting licence.
26 After section 8A
Insert:
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 January 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 Internet site.
(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 Internet site, 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; or
(f) Tasmania.
"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).
27 At the end of section 18
Add:
(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.
28 Subsection 25(1)
Omit "section 31", substitute "subsection 31(1)".
29 Subsection 25(1)
After "broadcasting services", insert "or restricted datacasting services, or both,".
30 At the end of subsection 25(2)
Add "prepared under subsection ( 1)".
31 After subsection 25(2)
Insert:
(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).
32 At the end of section 25
Add:
(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.
33 Subsection 26(1)
Omit "is to prepare in writing", substitute "must, by legislative instrument, prepare".
34 After subsection 26(1)
Insert:
(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.
35 Subsection 26(2)
Omit "notice in writing", substitute "legislative instrument".
36 After section 26B
Insert:
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.
37 Before section 36
Insert:
(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.
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 Internet site.
38 After section 36
Insert:
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).
39 Before section 42
Insert:
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).
40 Before section 44
Insert:
43D Special licence conditions relating to digital radio commercial broadcasting services
Scope
(1) This section applies to a commercial radio broadcasting licence (the first licence ) if:
(a) the first licence authorises the licensee to provide one or more digital commercial radio broadcasting services; and
(b) the first licence was not allocated under subsection 40(1).
Transmission by multiplex transmitter
(2) The first licence is subject to the condition that the licensee must not provide a digital commercial radio broadcasting service under the first licence unless:
(a) the service is transmitted using a multiplex transmitter; and
(b) the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.
Use of more than one - ninth of multiplex capacity
(3) If there is only one digital radio multiplex transmitter licence for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than one - ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:
(a) the first licence; or
(b) another commercial radio broadcasting licence that has the same licence area as the first licence.
(4) If there are 2 or more digital radio multiplex transmitter licences for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:
(a) the first licence; or
(b) another commercial radio broadcasting licence that has the same licence area as the first licence.
(5) For the purposes of subsection ( 4), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:
Shared content test
(6) For the purposes of subsections ( 3) and (4), a digital commercial radio broadcasting service passes the shared content test at a particular time in relation to an analog commercial radio broadcasting service if:
(a) the program content of at least 50% of the total number of hours of programs broadcast by the first - mentioned service during daytime/evening hours during the 6 - month period ending at that time;
were the same as:
(b) the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6 - month period ending at that time.
(7) For the purposes of subsection ( 6), ignore the following:
(a) advertising or sponsorship material (whether or not of a commercial kind);
(b) a promotion for a radio program or a radio broadcasting service;
(c) any digital program enhancement content in relation to a radio program;
(d) community information material or community promotional material;
(e) a news break or weather bulletin;
(f) any other similar material.
Definitions
(8) In this section:
"category 1 digital radio multiplex transmitter licence" has the same meaning as in the Radiocommunications Act 1992 .
"category 2 digital radio multiplex transmitter licence" has the same meaning as in the Radiocommunications Act 1992 .
"daytime/evening hours" means the hours:
(a) beginning at 6 am each day; and
(b) ending at midnight on the same day.
"digital radio multiplex transmitter licence" means:
(a) a category 1 digital radio multiplex transmitter licence; or
(b) a category 2 digital radio multiplex transmitter licence.
41 At the end of Division 2 of Part 5
Add:
Subdivision C -- Commercial radio broadcasting licences and restricted datacasting licences
(1) This section applies in relation to a commercial radio broadcasting licence if the licence was in force immediately before the digital radio start - up day for the licence area.
(2) During the digital radio moratorium period for the licence area, a person must not be in a position to exercise control of:
(a) the commercial radio broadcasting licence; and
(b) a restricted datacasting licence.
42 After subsection 62(2)
Insert:
Notification by restricted datacasting licensee
(2A) Each restricted datacasting licensee must, within 3 months after the end of each financial year that ends during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, give to the ACMA in writing:
(a) details of the persons who, to the knowledge of the restricted datacasting licensee, were in a position to exercise control of the restricted datacasting licence at the end of that financial year; and
(b) the name of each person who was a director of the restricted datacasting licensee at the end of that financial year.
(2B) The details are to be provided in a form approved in writing by the ACMA.
Note: The heading to subsection 62(1) is altered by adding at the end " --general ".
43 Paragraph 62(5)(a)
After "(1)", insert ", (2A)".
44 After subsection 63(2)
Insert:
Notification by restricted datacasting licensee
(2A) If, during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, a restricted datacasting licensee becomes aware that:
(a) a person who was not in a position to exercise control of the restricted datacasting licence has become in a position to exercise control of the restricted datacasting licence; or
(b) a person who was in a position to control the restricted datacasting licence has ceased to be in that position;
the restricted datacasting licensee must, within 5 days after becoming so aware, notify the ACMA in writing of that event.
(2B) The details are to be provided in a form approved in writing by the ACMA.
Note: The heading to subsection 63(1) is altered by adding at the end " --general ".
45 Paragraph 63(5)(a)
After "(1)", insert ", (2A)".
46 After subsection 64(2)
Insert:
Notification by controller of restricted datacasting licence
(2A) If, during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, a person who was not in a position to exercise control of a restricted datacasting licence becomes aware that that person is in a position to exercise control of the restricted datacasting licence, the person must, within 5 days after becoming so aware, notify the ACMA in writing of that position.
(2B) The details are to be provided in a form approved in writing by the ACMA.
Note: The heading to subsection 64(1) is altered by adding at the end " --general ".
47 Paragraph 64(5)(a)
After "(1)", insert ", (2A)".
48 After subsection 82(1)
Insert:
(1A) Licences under subsection ( 1) are to be allocated on the basis of one licence per service.
49 Paragraphs 84(2)(a) and (d)
After "service", insert "or services".
50 After section 84
Insert:
84A Designated community radio broadcasting licences to provide analog or digital services
Licences in force immediately before the commencement of this section
(1) If a designated community 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 community radio broadcasting service.
Licences allocated before the digital radio start - up day for the licence area
(2) If the ACMA allocates a designated community 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 community radio broadcasting service.
Licences allocated on or after digital radio start - up day for the licence area
(3) If the ACMA allocates a designated community 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 community radio broadcasting service; or
(b) a licence to provide digital community radio broadcasting services.
Licence conditions
(4) Subject to subsection ( 5), if a designated community radio broadcasting licence is or was allocated as a licence to provide an analog community radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog community radio broadcasting service under the licence.
(5) If:
(a) a designated community 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 community 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 designated community radio broadcasting licence is allocated as a licence to provide digital community radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital community radio broadcasting services under the licence.
51 After section 85
Insert:
85A Services authorised by designated community radio broadcasting licences
Licences in force immediately before the commencement of this section
(1) If:
(a) a designated community radio broadcasting licence was in force immediately before the commencement of this section; and
(b) the licence authorised the licensee to provide an analog community 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 designated community 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 community 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 designated community 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 community radio broadcasting service in the licence area;
then, 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 community radio broadcasting service;
(d) one or more digital community radio broadcasting services.
Licences allocated on or after digital radio start - up day for the licence area
(4) If:
(a) a designated community 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 community 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 designated community 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 community radio broadcasting services in the licence area;
the licence is taken to authorise the licensee to provide one or more digital community radio broadcasting services in the licence area.
52 After section 87A
Insert:
87B Special licence condition relating to digital community radio broadcasting services
(1) This section applies to a designated community radio broadcasting licence if the licence authorises the licensee to provide one or more digital community radio broadcasting services.
(2) The licence is subject to the condition that the licensee must not provide a digital community radio broadcasting service under the licence unless:
(a) the service is transmitted using a multiplex transmitter; and
(b) the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.
53 At the end of section 123
Add:
(6) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each commercial radio broadcasting service provided by a commercial radio broadcasting licensee.
(7) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each community radio broadcasting service provided by a designated community radio broadcasting licensee.
54 Paragraph 130A(1)(e)
Repeal the paragraph, substitute:
(e) subscription television narrowcasting services provided under a class licence;
(ea) open narrowcasting television services provided under a class licence;
55 Paragraph 130A(1)(f)
After "services", insert "(other than restricted datacasting services)".
Note: The heading to section 130A is altered by adding at the end " --television etc. ".
56 After section 130A
Insert:
130AA Technical standards for digital transmission--radio etc.
(1) The ACMA may, by legislative instrument, determine technical standards that relate to the transmission of any or all of the following services using a digital modulation technique:
(a) commercial radio broadcasting services;
(b) national radio broadcasting services;
(c) community radio broadcasting services;
(d) subscription radio broadcasting services provided under a class licence;
(e) subscription radio narrowcasting services provided under a class licence;
(f) open narrowcasting radio services provided under a class licence;
(g) restricted datacasting services provided under restricted datacasting licences.
Instruments
(2) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection ( 1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Compliance
(3) A national broadcaster must comply with a standard determined under subsection ( 1).
Note 1: For compliance by holders of commercial radio broadcasting licences, see clause 8 of Schedule 2.
Note 2: For compliance by holders of community radio broadcasting licences, see clause 9 of Schedule 2.
Note 3: For compliance by providers of radio broadcasting services provided under a class licence, see clause 11 of Schedule 2.
Note 4: For compliance by holders of restricted datacasting licences, see clause 24A of Schedule 6.
130AB Technical standards relating to the operation of multiplex transmitters
(1) The ACMA may, by legislative instrument, determine technical standards that relate to the operation of multiplex transmitters under digital radio multiplex transmitter licences.
Note: For compliance, see paragraph 109B(1)(o) of the Radiocommunications Act 1992 .
Instruments
(2) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection ( 1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Note: The heading to section 130B is altered by adding at the end " --television etc. ".
57 After section 130B
Insert:
130BA Technical standards for domestic digital reception equipment--radio etc.
(1) The ACMA may, by legislative instrument, determine technical standards that relate to domestic reception equipment that is capable of receiving any or all of the following services transmitted using a digital modulation technique:
(a) commercial radio broadcasting services;
(b) national radio broadcasting services;
(c) community radio broadcasting services;
(d) subscription radio broadcasting services provided under a class licence;
(e) subscription radio narrowcasting services provided under a class licence;
(f) open narrowcasting radio services provided under a class licence;
(g) restricted datacasting services provided under restricted datacasting licences.
Offence
(2) A person commits an offence if:
(a) the person supplies equipment; and
(b) the equipment is domestic reception equipment; and
(c) the equipment is capable of receiving any or all of the following services transmitted using a digital modulation technique:
(i) commercial radio broadcasting services;
(ii) national radio broadcasting services;
(iii) community radio broadcasting services;
(iv) subscription radio broadcasting services provided under a class licence;
(v) subscription radio narrowcasting services provided under a class licence;
(vi) open narrowcasting radio services provided under a class licence;
(vii) restricted datacasting services provided under restricted datacasting licences; and
(d) the equipment does not comply with a standard determined under subsection ( 1).
Penalty: 1,500 penalty units.
Civil penalty
(3) A person must not supply domestic reception equipment if:
(a) the equipment is capable of receiving any or all of the following services transmitted using a digital modulation technique:
(i) commercial radio broadcasting services;
(ii) national radio broadcasting services;
(iii) community radio broadcasting services;
(iv) subscription radio broadcasting services provided under a class licence;
(v) subscription radio narrowcasting services provided under a class licence;
(vi) open narrowcasting radio services provided under a class licence;
(vii) restricted datacasting services provided under restricted datacasting licences; and
(b) the equipment does not comply with a standard determined under subsection ( 1).
(4) Subsection ( 3) is a civil penalty provision.
Instruments
(5) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection ( 1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Reception of subscription radio broadcasting services
(6) For the purposes of this section, it is immaterial whether domestic reception equipment is capable of receiving subscription radio broadcasting services when used:
(a) in isolation; or
(b) in conjunction with any other equipment.
Exemptions
(7) The ACMA may, by legislative instrument, exempt specified domestic reception equipment from subsections ( 2) and (3).
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
Definition
(8) In this section:
"supply" has the same meaning as in the Trade Practices Act 1974 .
58 After paragraph 130F(1)(e)
Insert:
(ea) providing a commercial radio broadcasting service;
(eb) providing a national radio broadcasting service;
(ec) providing a community radio broadcasting service;
(ed) subscription radio broadcasting services provided under a class licence;
(ee) subscription radio narrowcasting services provided under a class licence;
(ef) open narrowcasting radio services provided under a class licence;
59 At the end of paragraph 130F(1)(f)
Add "(other than a restricted datacasting licence)".
60 After paragraph 130F(1)(f)
Insert:
(fa) providing a restricted datacasting service under a restricted datacasting licence;
61 After subparagraph 130F(1)(g)(v)
Insert:
(va) commercial radio broadcasting services;
(vb) national radio broadcasting services;
(vc) community radio broadcasting services;
(vd) subscription radio broadcasting services provided under a class licence;
(ve) subscription radio narrowcasting services provided under a class licence;
(vf) open narrowcasting radio services provided under a class licence;
62 At the end of subsection 130F(1)
Add:
; (i) operating a multiplex transmitter under a digital radio multiplex transmitter licence.
63 Subsection 130F(2)
After "services", insert ", or subscription radio broadcasting services,".
64 At the end of section 130L
Add:
; or (g) a code of practice notified to the ACMA under subsection 8(1) of the Australian Broadcasting Corporation Act 1983 ; or
(h) a code of practice notified to the ACMA under subsection 10(1) of the Special Broadcasting Service Act 1991 .
65 Section 204 (before table item dealing with section 38A)
Insert:
To make a d etermination under subsection 35D(2) in relation to a commercial radio broadcasting licence | S ection 35D | The licensee |
66 Paragraph 212(3)(aa)
After "transmitted by", insert "any of".
67 Paragraph 212(3)(aa)
Omit "service", substitute "services".
68 Paragraph 212(3)(b)
After "licensee", insert "(other than a designated community radio broadcasting licensee)".
69 After paragraph 212(3)(b)
Insert:
(ba) a re - transmission by a designated community radio broadcasting licensee of the programs transmitted by any of the licensee's community radio broadcasting services; or
70 After section 215
Insert:
(1) Before 1 January 2011, the Minister must cause to be conducted a review of the following matters:
(a) the relative merits of using various terrestrial and satellite technologies capable of transmitting :
(i) digital radio broadcasting services; and
(ii) restricted datacasting services;
in regional licence areas;
(b) the development of those technologies (whether or not in Australia);
(c) the availability and price (whether or not in Australia) of:
(i) transmission equipment associated with those technologies; and
(ii) domestic reception equipment associated with those technologies;
(d) whether any laws of the Commonwealth should be amended in order to facilitate the transmission of:
(i) digital radio broadcasting services; and
(ii) restricted datacasting services;
in regional licence areas using those technologies.
(2) In conducting a review of the matter mentioned in paragraph ( 1)(a), regard must be had to:
(a) the geographic coverage that would result from the use of those technologies to transmit :
(i) digital radio broadcasting services; and
(ii) restricted datacasting services;
in regional licence areas; and
(b) the characteristics of:
(i) digital radio broadcasting services; and
(ii) restricted datacasting services;
that would be likely to result from the use of those technologies to transmit those services in regional licence areas.
(3) Subsection ( 2) does not limit subsection ( 1).
Report
(4) The Minister must cause to be prepared a report of a review under subsection ( 1).
(5) The Minister must cause copies of a report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.
Definitions
(6) In this section:
"digital radio broadcasting service" means:
(a) a digital commercial radio broadcasting service; or
(b) a digital community radio broadcasting service; or
(c) a digital national radio broadcasting service.
"regional licence area" has the same meaning as in section 8AC.
(1) Before 1 January 2014, the Minister must cause to be conducted a review of the following matters:
(a) the development of various terrestrial and satellite technologies capable of transmitting :
(i) digital radio broadcasting services; and
(ii) restricted datacasting services;
in Australia;
(b) the implementation of those technologies in foreign countries;
(c) the operation of this Act in so far as it deals with the licensing and regulation of:
(i) digital radio broadcasting services; and
(ii) restricted datacasting services.
(2) The Minister must cause to be prepared a report of a review under subsection ( 1).
(3) The Minister must cause copies of a report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.
(4) In this section:
"digital radio broadcasting service" means:
(a) a digital commercial radio broadcasting service; or
(b) a digital community radio broadcasting service; or
(c) a digital national radio broadcasting service.
71 Subclause 1(1) of Schedule 1
After "transmitter licences,", insert "restricted datacasting licences,".
72 Paragraph 2(1)(b) of Schedule 1
After "transmitter licence", insert "or a restricted datacasting licence".
73 After paragraph 2(1)(ba) of Schedule 1
Insert:
(bb) in the case of a restricted datacasting licence:
(i) the person is the licensee; or
(ii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of the selection or provision of a significant proportion of the datacasting content provided by the licensee; or
(iii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of a significant proportion of the operations of the licensee in providing restricted datacasting services under the licence; or
74 After subclause 2(2A) of Schedule 1
Insert:
(2B) Paragraph ( 1)(bb) does not apply to the provision of datacasting content by a person to a licensee under an agreement for the supply of datacasting content to the licensee if:
(a) the conditions of the agreement relate only to the datacasting content so supplied or its promotion; and
(b) the content so supplied is a minority of the datacasting content provided by the licensee.
75 Paragraph 4(2)(b) of Schedule 1
After "transmitter licensee", insert "or a restricted datacasting licensee".
76 After paragraph 4(2)(ba) of Schedule 1
Insert:
(bb) in the case of a restricted datacasting licensee--controls the selection or provision of any of the datacasting content to be provided by the licensee; or
77 Subclause 4(4) of Schedule 1 (after paragraph ( bb) of the definition of media company )
Insert:
(bc) a company that holds a restricted datacasting licence; or
78 Paragraphs 2(2)(b) and (c) of Schedule 2
Omit "the service", substitute "a service".
79 Paragraph 2(2)(c) of Schedule 2
Omit "the services", substitute "the service or services".
80 At the end of subclause 7(1) of Schedule 2
Add:
; (q) the licensee will not use the part of the radiofrequency spectrum covered by paragraph ( b) of the definition of broadcasting services bands in subsection 6(1) to provide a commercial television broadcasting service under the licence.
81 After paragraph 8(1)(b) of Schedule 2
Insert:
(ba) if the licensee provides a digital commercial radio broadcasting service under the licence--the licensee will comply with any standards under section 130AA (which deals with technical standards for digital transmission);
(bb) the licensee will comply with subsection 130V(1) (which deals with industry standards);
82 Paragraph 8(1)(f) of Schedule 2
Repeal the paragraph, substitute:
(f) if:
(i) the licence is a broadcasting services bands licence; and
(ii) the licence authorises the licensee to provide an analog commercial radio broadcasting service;
the licensee will keep in force a licence under the Radiocommunications Act 1992 that authorises the operation by the licensee of the radiocommunications devices used to provide that service;
83 Paragraph 8(1)(g) of Schedule 2
After "service", insert "or services".
84 Paragraph 8(1)(h) of Schedule 2
Omit "broadcasting services", substitute "at least one broadcasting service".
85 At the end of subclause 8(1) of Schedule 2
Add:
; (j) the licensee will not use the part of the radiofrequency spectrum covered by paragraph ( b) of the definition of broadcasting services bands in subsection 6(1) to provide a commercial radio broadcasting service under the licence unless the service is a digital commercial radio broadcasting service.
86 Paragraph 8(2)(a) of Schedule 2
After "a service", insert "or services".
87 Paragraph 8(2)(a) of Schedule 2
After "another service", insert "or services".
88 Subparagraph 8(3)(d)(i) of Schedule 2
After "service", insert "or services".
89 After paragraph 9(1)(ca) of Schedule 2
Insert:
(caa) if the licensee provides a digital community radio broadcasting service under the licence--the licensee will comply with any standards under section 130AA (which deals with technical standards for digital transmission);
90 Paragraph 9(1)(f) of Schedule 2
After "service", insert "or services".
91 Paragraph 9(1)(h) of Schedule 2
Omit "broadcasting services", substitute "at least one broadcasting service".
92 At the end of subclause 9(1) of Schedule 2
Add:
; (j) the licensee will not use the part of the radiofrequency spectrum covered by paragraph ( b) of the definition of broadcasting services bands in subsection 6(1) to provide a community broadcasting service under the licence unless the service is a digital community radio broadcasting service.
93 Subparagraph 9(2)(c)(i) of Schedule 2
After "service", insert "or services".
94 Paragraphs 9(2)(d) and (e) of Schedule 2
After "service", insert "or services".
95 After subclause 9(2) of Schedule 2
Insert:
(2AA) Paragraph ( 2)(e) does not prevent a designated community radio broadcasting licensee from holding shares in a digital community radio broadcasting representative company (within the meaning of the Radiocommunications Act 1992 ).
96 Subparagraph 9(2A)(d)(i) of Schedule 2
After "service", insert "or services".
97 Subclause 9(3) of Schedule 2
After "announcements", insert "on a particular community broadcasting service".
98 Paragraphs 9(3)(a) and (b) of Schedule 2
After "of broadcasting", insert "on that service".
99 At the end of subclause 10(1) of Schedule 2
Add:
; (j) the licensee will not use the part of the radiofrequency spectrum covered by paragraph ( b) of the definition of broadcasting services bands in subsection 6(1) to provide a subscription television broadcasting service under the licence.
100 After paragraph 11(1)(ba) of Schedule 2
Insert:
(baa) in the case of a person who provides:
(i) a subscription radio broadcasting service; or
(ii) a subscription radio narrowcasting service; or
(iii) an open narrowcasting radio service;
transmitted using a digital modulation technique--the licensee will comply with standards under section 130AA (which deals with technical standards for digital transmission);
101 Paragraph 11(1)(bb) of Schedule 2
Repeal the paragraph, substitute:
(bb) the licensee will comply with standards under subsection 130V(1) (which deals with industry standards);
102 At the end of subclause 11(1) of Schedule 2
Add:
; (e) the person will not use the part of the radiofrequency spectrum covered by paragraph ( b) of the definition of broadcasting services bands in subsection 6(1) to provide broadcasting services under the licence.
103 Clause 1 of Schedule 6 (simplified outline)
Before "will be allowed", insert "(other than restricted datacasting licensees)".
104 Clause 1 of Schedule 6 (simplified outline)
Before:
• A group that represents datacasting licensees may develop codes of practice.
Insert:
• Restricted datacasting licensees will not be allowed to provide content in a form that is specified in a legislative instrument made by the Minister.
105 At the end of clause 7 of Schedule 6
Add:
(3) An application under subsection ( 1) may be expressed to be an application for a restricted datacasting licence.
106 Paragraph 12(1)(a) of Schedule 6
After "licences", insert "(other than restricted datacasting licences)".
Note: The heading to clause 12 is altered by adding at the end " that are not restricted datacasting licences ".
107 At the end of Part 2 of Schedule 6
Add:
12A ACMA to maintain Register of restricted datacasting licences
(1) The ACMA is to maintain a Register in which the ACMA includes particulars of restricted datacasting licences.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Internet.
108 Paragraph 24(1)(ca) of Schedule 6
Before "the licensee", insert "if the licence is not a restricted datacasting licence--".
109 At the end of subclause 24(1) of Schedule 6
Add:
; (i) if the licence is not a restricted datacasting licence--the licensee will not use the part of the radiofrequency spectrum covered by paragraph ( b) of the definition of broadcasting services bands in subsection 6(1) to provide a datacasting service under the licence.
110 After clause 24 of Schedule 6
Insert:
24A Special conditions for restricted datacasting licences
Each restricted datacasting licence is subject to the following conditions:
(a) the datacasting content provided under the licence will be transmitted using a digital modulation technique;
(b) if a form of datacasting content is specified in a legislative instrument made by the Minister--the licensee will not provide datacasting content in that form;
(c) the licensee will comply with any standards under section 130AA (which deals with technical standards for digital transmission).
111 After subclause 52(1) of Schedule 6
Insert:
(1A) A person commits an offence if:
(a) the person is a restricted datacasting licensee; and
(b) the person engages in conduct; and
(c) the person's conduct breaches a condition of the licence set out in clause 24A.
Penalty: 2,000 penalty units.
112 Subclause 52(2) of Schedule 6
After " subclause ( 1)", insert "or (1A)".
113 After subclause 52A(1) of Schedule 6
Insert:
(1A) A restricted datacasting licensee must not breach a condition of the licence set out in clause 24A.
114 Subclause 52A(2) of Schedule 6
Repeal the subclause, substitute:
(2) Subclauses ( 1) and (1A) are civil penalty provisions.
115 Subclause 52A(3) of Schedule 6
After " subclause ( 1)", insert "or (1A)".
116 After subclause 54(2) of Schedule 6
Insert:
(2A) If a restricted datacasting licence is suspended because of a breach of a condition set out in clause 24A, the ACMA may take such action, by way of suspending one or more restricted datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, restricted datacasting service is not provided by the licensee or the related body corporate, as the case may be, during the period of suspension.
117 After subclause 54(3) of Schedule 6
(3A) If a restricted datacasting licence is cancelled because of a breach of a condition set out in clause 24A, the ACMA may take such action, by way of cancelling one or more restricted datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, restricted datacasting service is not provided by the licensee or the related body corporate, as the case may be, at a time after the cancellation.
118 Subclause 54(4) of Schedule 6
Omit "or (3)", substitute ", (2A), (3) or (3A)".
119 Section 5
Insert:
"BSA licence area" means licence area within the meaning of the Broadcasting Services Act 1992 .
120 Section 5
Insert:
"category 1 digital radio multiplex transmitter licence" means a transmitter licence for one or more multiplex transmitters that are for use for transmitting any or all of the following services in a designated BSA radio area:
(a) one or more digital commercial radio broadcasting services;
(b) one or more digital community radio broadcasting services;
(c) one or more restricted datacasting services.
121 Section 5
Insert:
"category 2 digital radio multiplex transmitter licence" means a transmitter licence for one or more multiplex transmitters that are for use for transmitting any or all of the following services in a designated BSA radio area:
(a) one or more digital commercial radio broadcasting services;
(b) one or more digital community radio broadcasting services;
(c) one or more digital national radio broadcasting services;
(d) one or more restricted datacasting services.
122 Section 5
Insert:
"category 3 digital radio multiplex transmitter licence" means a transmitter licence for one or more multiplex transmitters that are for use for transmitting either or both of the following services in a designated BSA radio area:
(a) one or more digital national radio broadcasting services;
(b) one or more restricted datacasting services, where each relevant restricted datacasting licence is held by a national broadcaster.
123 Section 5 (after paragraph ( a) of the definition of datacasting transmitter licence )
Insert:
(aa) a digital radio multiplex transmitter licence; or
124 Section 5
Insert:
"designated BSA radio area" means:
(a) the BSA licence area of a commercial radio broadcasting licence; or
(b) the BSA licence area of a community radio broadcasting licence, where that BSA licence area is the same as the BSA licence area of a commercial radio broadcasting licence.
Note: See also section 8AD of the Broadcasting Services Act 1992 , which deals with deemed radio broadcasting licence areas.
125 Section 5
Insert:
"designated community radio broadcasting licence" has the same meaning as in the Broadcasting Services Act 1992 .
126 Section 5
Insert:
"digital commercial radio broadcasting licence" means a commercial radio broadcasting licence that authorises the provision of one or more digital commercial radio broadcasting services.
127 Section 5
Insert:
"digital commercial radio broadcasting service" has the same meaning as in the Broadcasting Services Act 1992 .
128 Section 5
Insert:
"digital community" radio broadcasting licence means a designated community radio broadcasting licence that authorises the provision of one or more digital community radio broadcasting services.
129 Section 5
Insert:
"digital community radio broadcasting representative company" , in relation to a designated BSA radio area, has the meaning given by section 9C.
130 Section 5
Insert:
"digital community radio broadcasting service" has the same meaning as in the Broadcasting Services Act 1992 .
131 Section 5
Insert:
"digital national radio broadcasting service" has the same meaning as in the Broadcasting Services Act 1992 .
132 Section 5
Insert:
"digital radio channel plan" means a plan under section 44A.
133 Section 5
Insert:
"digital radio moratorium period" has the same meaning as in the Broadcasting Services Act 1992 .
134 Section 5
Insert:
"digital radio multiplex transmitter licence" means:
(a) a category 1 digital radio multiplex transmitter licence; or
(b) a category 2 digital radio multiplex transmitter licence; or
(c) a category 3 digital radio multiplex transmitter licence.
135 Section 5
Insert:
"digital radio start-up day" has the same meaning as in the Broadcasting Services Act 1992 .
136 Section 5
Insert:
"foundation category 1 digital radio multiplex transmitter licence" has the meaning given by section 98C.
137 Section 5
Insert:
"foundation category 2 digital radio multiplex transmitter licence" has the meaning given by section 98D.
138 Section 5
Insert:
"foundation digital radio multiplex transmitter licence" means:
(a) a foundation category 1 digital radio multiplex transmitter licence; or
(b) a foundation category 2 digital radio multiplex transmitter licence.
139 Section 5
Insert:
"incumbent digital commercial radio broadcasting licensee" has the meaning given by subsection 9D(1).
140 Section 5
Insert:
"incumbent digital community radio broadcasting licensee" has the meaning given by subsection 9D(2).
141 Section 5
Insert:
"national broadcasting service" has the same meaning as in the Broadcasting Services Act 1992 .
142 Section 5 (definition of NBS transmitter licence )
Omit "within the meaning of the Broadcasting Services Act 1992 ", substitute ", but does not include a digital radio multiplex transmitter licence".
143 Section 5
Insert:
"non-foundation digital radio multiplex transmitter licence" means a digital radio multiplex transmitter licence that is not a foundation digital radio multiplex transmitter licence.
144 Section 5
Insert:
"restricted datacasting licence" has the same meaning as in the Broadcasting Services Act 1992 .
145 Section 5
Insert:
"restricted datacasting service" has the same meaning as in the Broadcasting Services Act 1992 .
146 After section 9B
Insert:
9C Digital community radio broadcasting representative company
(1) For the purposes of this Act, a company is the digital community radio broadcasting representative company for a particular designated BSA radio area if:
(a) the company is a qualified company; and
(b) the incumbent digital community radio broadcasting licensees for the designated BSA radio area have given the ACMA a joint written notice electing that this paragraph apply to the company; and
(c) before the company was formed, the promoters of the company invited each incumbent digital community radio broadcasting licensee for the area to subscribe for shares in the company on the basis that:
(i) the incumbent digital community radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and
(ii) no other persons would be entitled to subscribe for shares in the company; and
(d) the invitations referred to in paragraph ( c) were:
(i) published on the ACMA's Internet site; and
(ii) open for a period of at least 90 days beginning on or after the commencement of this section; and
(e) there was no discrimination between subscribers for shares in the company in relation to the consideration payable for the issue of the shares concerned; and
(f) the total amount of money payable as consideration for the issue of the shares in the company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph ( c) are published, would be required for the viable operation of the company; and
(g) none of the recipients of an invitation referred to in paragraph ( c) were subject to duress as to whether the invitation should be accepted; and
(h) the company has a constitution; and
(i) the company's constitution provides that a person is not eligible to hold a share in the company unless the person is a digital community radio broadcasting licensee whose BSA licence area is the same as the designated BSA radio area; and
(j) the company's constitution provides that, if:
(i) a digital community radio broadcasting licence is allocated to a person under the Broadcasting Services Act 1992 after the commencement of this section; and
(ii) the BSA licence area of the digital community radio broadcasting licence is the same as the designated BSA radio area;
the company must:
(iii) within 30 days after the allocation of the digital community radio broadcasting licence, offer to issue shares in the company to the holder of the digital community radio broadcasting licence, where the number of shares offered equals the number of shares already held by a particular digital community radio broadcasting licensee; and
(iv) keep the offer open for at least 90 days; and
(v) ensure that, if the offer is accepted, the amount of money payable as consideration for the issue of the shares is not substantially in excess of the amount that was payable by an incumbent digital community radio broadcasting licensee who subscribed for shares in the company in response to an invitation referred to in paragraph ( c); and
(k) the company's constitution provides that the purposes of the company are:
(i) holding shares in one or more companies that hold, have applied for, or propose to apply for, category 1 digital radio multiplex transmitter licences, or category 2 digital radio multiplex transmitter licences, for the designated BSA radio area; and
(ii) exercising the powers conferred by this Act on a digital community radio broadcasting representative company; and
(iii) carrying out activities incidental to the purposes mentioned in subparagraphs ( i) and (ii); and
(l) the company complies with such other conditions (if any) as are specified in the regulations.
Note: See also section 8AD of the Broadcasting Services Act 1992 , which deals with deemed radio broadcasting licence areas.
(2) For the purposes of the application of paragraph ( 1)(i) and subparagraph ( 1)(j)(iii) before the digital radio start - up day for the designated BSA radio area, digital community radio broadcasting licensee includes an incumbent digital community radio broadcasting licensee.
(3) An election under paragraph ( 1)(b) given in relation to a particular designated BSA radio area has no effect if an election under that paragraph has been previously given in relation to that area.
(4) An election under paragraph ( 1)(b) is irrevocable.
(5) The promoters of a company may request the ACMA to publish on its Internet site the invitations referred to in paragraph ( 1)(c).
(6) The ACMA must comply with a request under subsection ( 5) if the ACMA is satisfied that the request was made in good faith.
9D Incumbent digital radio broadcasting licensees
Incumbent digital commercial radio broadcasting licensee
(1) For the purposes of this Act, if:
(a) the licensee of a commercial radio broadcasting licence held the licence at the commencement of this section; and
(b) the licence was not allocated under subsection 40(1) of the Broadcasting Services Act 1992 ;
the licensee is an incumbent digital commercial radio broadcasting licensee .
Incumbent digital community radio broadcasting licensee
(2) For the purposes of this Act, if the licensee of a designated community radio broadcasting licence held the licence at the commencement of this section, the licensee is an incumbent digital community radio broadcasting licensee .
147 At the end of section 29
Add:
(4) Part 2.3 is about preparing digital radio channel plans relating to digital radio multiplex transmitter licences.
148 Paragraph 31(1)(a)
After " broadcasting purposes ", insert "or restricted datacasting services, or both,".
149 After subsection 31(1)
Insert:
(1A) The Minister may, after consulting the ACMA, and in accordance with the spectrum plan, by written instrument:
(a) designate a part of the spectrum as being partly for the purpose of:
(i) digital radio broadcasting services; and
(ii) restricted datacasting services; and
(b) refer that part of the spectrum to the ACMA for planning under Part 3 of the Broadcasting Services Act 1992 .
(1B) Subsection ( 1A) does not limit subsection ( 1).
(1C) The Minister may, by written instrument, determine that a designation under subsection ( 1A) ceases to be in force at a specified time.
(1D) The Minister may, by written instrument, determine that a designation under subsection ( 1A) has effect only in relation to one or more specified areas of Australia.
150 Subsection 31(2)
After "(1)", insert "or (1A)".
151 At the end of section 31
Add:
(7) An instrument under subsection ( 1), (1A), (1C), (1D), (5) or (6) is not a legislative instrument.
(8) A determination under subsection ( 2) is not a legislative instrument.
152 Paragraph 32(2)(a)
After "31(1)", insert "or (1A)".
153 Subsection 36(5)
After "31(1)", insert "or (1A)".
154 At the end of Chapter 2
Add:
Part 2.3 -- Digital radio channel plans
44A Preparation of digital radio channel plans
(1) Before issuing the first digital radio multiplex transmitter licence for a designated BSA radio area, the ACMA must, by legislative instrument, prepare a plan that:
(a) allots a frequency channel or channels in relation to the designated BSA radio area for use by digital radio multiplex transmitter licensees, where each allotted frequency channel has a bandwidth of at least 1.536 MHz; and
(b) reserves a frequency channel of at least 1.536 MHz bandwidth for a category 3 digital radio multiplex transmitter licence for the designated BSA radio area to be issued in accordance with subsection 102E(2) ; and
(c) determines which of the following types of licences, or which combination of the following types of licences, are to be issued for the designated BSA radio area:
(i) category 1 digital radio multiplex transmitter licence;
(ii) category 2 digital radio multiplex transmitter licence; and
(d) if a particular type of licence mentioned in paragraph (c) is to be issued for the designated BSA radio area--determines whether:
(i) a single licence of that type is to be issued for the designated BSA radio area; or
(ii) 2 or more licences of that type are to be issued for the designated BSA radio area; and
(e) determines technical specifications of multiplex transmitters operated under digital radio multiplex transmitter licences for the designated BSA radio area.
(2) The plan must be consistent with:
(a) the spectrum plan; and
(b) any relevant frequency band plans; and
(c) any relevant frequency allotment plans prepared under section 25 of the Broadcasting Services Act 1992 ; and
(d) any relevant licence area plans prepared under section 26 of the Broadcasting Services Act 1992 ; and
(e) any relevant digital channel plans (within the meaning of clause 7A of Schedule 4 to the Broadcasting Services Act 1992 ) made under the commercial television conversion scheme; and
(f) any relevant digital channel plans (within the meaning of clause 22A of Schedule 4 to the Broadcasting Services Act 1992 ) made under the national television conversion scheme.
(3) A plan under subsection ( 1) is to be known as the digital radio channel plan for the designated BSA radio area.
(4) A copy of a digital radio channel plan is to be made available on the ACMA's Internet site.
Consultation
(5) Before preparing a plan under subsection ( 1), the ACMA must:
(a) publish a draft of the plan on the ACMA's Internet site; and
(b) invite members of the public to make submissions to the ACMA about the draft plan within a specified period of at least 30 days; and
(c) consider any submissions the ACMA receives from members of the public within that period.
Variation of digital radio plans
(6) The ACMA may, by legislative instrument, vary a digital radio channel plan.
(7) Before varying a digital radio channel plan under subsection ( 6), the ACMA must:
(a) publish a draft of the variation on the ACMA's Internet site; and
(b) invite members of the public to make submissions to the ACMA about the variation within a specified period of at least 30 days; and
(c) consider any submissions the ACMA receives from members of the public within that period.
ACMA must have regard to authorised digital radio broadcasting services
(8) In preparing a plan under subsection ( 1) or varying a plan under subsection ( 6), the ACMA must have regard to:
(a) the digital commercial radio broadcasting services that are, or will be, authorised by commercial radio broadcasting licences for the designated BSA radio area; and
(b) the digital community radio broadcasting services that are, or will be, authorised by community radio broadcasting licences for the designated BSA radio area; and
(c) the digital national radio broadcasting services that are, or will be, provided by national broadcasters in the designated BSA radio area.
(9) Subsection ( 8) does not limit the matters to which the ACMA may have regard.
Frequency channels to be in the same frequency band
(10) The ACMA must, as far as practicable, ensure that all the frequency channels allotted or reserved by a digital radio channel plan for a particular designated BSA radio area are in the same frequency band.
Technical specifications not to discriminate between digital radio multiplex transmitter licensees
(11) The ACMA must, as far as practicable, ensure that a digital radio channel plan for a particular designated BSA radio area does not discriminate between digital radio multiplex transmitter licensees in relation to the technical specifications of multiplex transmitters.
Definitions
(12) In this section:
"commercial television conversion scheme" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
"national television conversion scheme" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
155 At the end of Division 1 of Part 3.3
Add:
98C Foundation category 1 digital radio multiplex transmitter licence
(1) Subject to this section, the ACMA may, by writing, declare that a specified category 1 digital radio multiplex transmitter licence proposed to be issued is a foundation category 1 digital radio multiplex transmitter licence for the purposes of this Act.
(2) If such a category 1 digital radio multiplex transmitter licence is issued, the licence is a foundation category 1 digital radio multiplex transmitter licence for the purposes of this Act.
(3) A declaration under subsection ( 1) is not a legislative instrument.
(4) A copy of a declaration under subsection ( 1) is to be made available on the ACMA's Internet site.
98D Foundation category 2 digital radio multiplex transmitter licence
(1) Subject to this section, the ACMA may, by writing, declare that a specified category 2 digital radio multiplex transmitter licence proposed to be issued is a foundation category 2 digital radio multiplex transmitter licence for the purposes of this Act.
(2) If such a category 2 digital radio multiplex transmitter licence is issued, the licence is a foundation category 2 digital radio multiplex transmitter licence for the purposes of this Act.
(3) A declaration under subsection ( 1) is not a legislative instrument.
(4) A copy of a declaration under subsection ( 1) is to be made available on the ACMA's Internet site.
98E Limit on declaration of foundation digital radio multiplex transmitter licences
(1) In exercising its powers under subsection 98C(1) or 98D(1) in relation to a particular designated BSA radio area, the ACMA must ensure that the total multiplex capacities under foundation digital radio multiplex transmitter licences for the designated BSA radio area is not more than sufficient to fulfil the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ (2) in its application to the designated BSA radio area.
(2) For the purposes of subsection ( 1), if the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ (2) in its application to the designated BSA radio area is not a multiple of 7, round up that number to the next higher number that is a multiple of 7.
(3) Subsection ( 1) does not prevent the ACMA from making a declaration under subsection 98C(1) in relation to a category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area if the ACMA proposes to cancel a foundation category 1 digital radio multiplex transmitter licence that has been previously issued for that area.
(4) Subsection ( 1) does not prevent the ACMA from making a declaration under subsection 98D(1) in relation to a category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area if the ACMA proposes to cancel a foundation category 2 digital radio multiplex transmitter licence that has been previously issued for that area.
(5) In this section:
"multiplex capacity" has the same meaning as in Division 4B.
156 Subsection 100(1)
Omit "and 102B", substitute ", 102B, 102C, 102D, 102E and 102F".
157 Subsection 100(2)
After "31(1)", insert "or (1A)".
158 At the end of subsection 100(2)
Add:
; or (c) the licence is a digital radio multiplex transmitter licence.
159 Subsection 102(1)
Omit "If a", substitute "Subject to subsections ( 2AA) and (2AB), if a".
160 After subsection 102(2)
Insert:
(2AA) Subsection ( 1) does not apply if:
(a) the related licence is a commercial radio broadcasting licence allocated on or after the digital radio start - up day for the BSA licence area; and
(b) the related licence is subject to a condition that the related licensee may only provide digital commercial radio broadcasting services under the related licence.
(2AB) Subsection ( 1) does not apply if:
(a) the related licence is a designated community radio broadcasting licence allocated on or after the digital radio start - up day for the BSA licence area; and
(b) the related licence is subject to a condition that the related licensee may only provide digital community radio broadcasting services under the related licence.
(2AC) If:
(a) the related licence is a commercial radio broadcasting licence allocated before the digital radio start - up day for the BSA licence area; and
(b) under the Broadcasting Services Act 1992 , the related licence authorises the related licensee to provide digital commercial radio broadcasting services;
then, after the digital radio start - up day for the BSA licence area, the transmitter licence does not authorise the operation of a radiocommunications transmitter for transmitting those services.
(2AD) If:
(a) the related licence is a designated community radio broadcasting licence allocated before the digital radio start - up day for the BSA licence area; and
(b) under the Broadcasting Services Act 1992 , the related licence authorises the related licensee to provide digital community radio broadcasting services;
then, after the digital radio start - up day for the BSA licence area, the transmitter licence does not authorise the operation of a radiocommunications transmitter for transmitting those services.
161 After section 102B
Insert:
102C Category 1 digital radio multiplex transmitter licences
(1) The ACMA must not issue a category 1 digital radio multiplex transmitter licence to a person unless the person is a qualified company.
(2) The ACMA must not issue a foundation category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area otherwise than in accordance with a price - based allocation system determined under section 106 unless:
(a) the licensee is an eligible joint venture company; and
(b) the application for the licence is accompanied by the fee determined by the ACMA by legislative instrument.
(3) The ACMA must not issue a foundation category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area in accordance with a price - based allocation system determined under section 106 unless:
(a) the ACMA has, by notice published on its Internet site at least 150 days before the issue of the licence, invited applications from eligible joint venture companies for the issue of the licence otherwise than in accordance with a price - based allocation system determined under section 106; and
(b) either:
(i) no applications were received from eligible joint venture companies after the publication of the notice; or
(ii) one or more applications were received from eligible joint venture companies after the publication of the notice, but the ACMA refused, under section 100, to issue the licence to any of the applicants.
(4) The ACMA must not issue a category 1 digital radio multiplex transmitter licence (other than a foundation category 1 digital radio multiplex transmitter licence) for a particular designated BSA radio area otherwise than in accordance with a price - based allocation system determined under section 106.
Eligible joint venture company
(5) For the purposes of the application of this section to a particular designated BSA radio area, a company is an eligible joint venture company if:
(a) before the company was formed, the promoters of the company initially invited:
(i) each incumbent digital commercial radio broadcasting licensee for the designated BSA radio area; and
(ii) if there is a digital community radio broadcasting representative company for the designated BSA radio area--the digital community radio broadcasting representative company;
to subscribe for shares in the first - mentioned company on the basis that:
(iii) the incumbent digital commercial radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and
(iv) the only persons entitled to subscribe for shares in the first - mentioned company are the incumbent digital commercial radio broadcasting licensees and the digital community radio broadcasting representative company; and
(v) assuming that the invitation w ere to be accepted by each invitee--the incumbent digital commercial radio broadcasting licensees would, in aggregate, hold seven - ninths of the shares in the first - mentioned company; and
(vi) assuming that the invitation were to be accepted by each invitee--the digital community radio broadcasting representative company would hold two - ninths of the shares in the first - mentioned company; and
(b) in a case where not all of the invitations referred to in paragraph (a) were accepted--before the company was formed, the promoters of the first - mentioned company invited each person who had accepted an invitation referred to in paragraph (a) to subscribe for the remaining shares in the first - mentioned company; and
(c) the invitations referred to in paragraph ( a) were:
(i) published on the ACMA's Internet site; and
(ii) open for a period of at least 120 days beginning on or after the commencement of this section; and
(d) there was no discrimination between subscribers for shares in the first - mentioned company in relation to the consideration payable for the issue of the shares concerned; and
(e) the total amount of money payable as consideration for the issue of the shares in the first - mentioned company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph ( a) are published, would be required for the commercially viable operation of the first - mentioned company if it were assumed that a foundation category 1 digital radio multiplex transmitter licence had been issued to the first - mentioned company at that time; and
(f) none of the recipients of an invitation referred to in paragraph ( a) or (b) were subject to duress as to whether the invitation should be accepted.
(6) The promoters of a company may request the ACMA to publish on its Internet site the invitations referred to in paragraph ( 5)(a).
(7) The ACMA must comply with a request under subsection ( 6) if the ACMA is satisfied that the request was made in good faith.
Fee
(8) A fee determined under paragraph ( 2)(b) must not be such as to amount to taxation.
102D Category 2 digital radio multiplex transmitter licences
(1) The ACMA must not issue a category 2 digital radio multiplex transmitter licence to a person unless the person is a qualified company.
(2) The ACMA must not issue a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area otherwise than in accordance with a price - based allocation system determined under section 106 unless:
(a) the licensee is an eligible joint venture company; and
(b) the application for the licence is accompanied by the fee determined by the ACMA by legislative instrument.
(3) The ACMA must not issue a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area in accordance with a price - based allocation system determined under section 106 unless:
(a) the ACMA has, by notice published on its Internet site at least 150 days before the issue of the licence, invited applications from eligible joint venture companies for the issue of the licence otherwise than in accordance with a price - based allocation system determined under section 106; and
(b) either:
(i) no applications were received from eligible joint venture companies after the publication of the notice; or
(ii) one or more applications were received from eligible joint venture companies after the publication of the notice, but the ACMA refused, under section 100, to issue the licence to any of the applicants.
(4) The ACMA must not issue a category 2 digital radio multiplex transmitter licence (other than a foundation category 2 digital radio multiplex transmitter licence) for a particular designated BSA radio area otherwise than in accordance with a price - based allocation system determined under section 106.
Eligible joint venture company
(5) For the purposes of the application of this section to a particular designated BSA radio area, a company is an eligible joint venture company if:
(a) before the company was formed, the promoters of the company initially invited:
(i) each incumbent digital commercial radio broadcasting licensee for the designated BSA radio area; and
(ii) if there is a digital community radio broadcasting representative company for the designated BSA radio area--the digital community radio broadcasting representative company; and
(iii) each national broadcaster;
to subscribe for shares in the first - mentioned company on the basis that:
(iv) the incumbent digital commercial radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and
(v) the only persons entitled to subscribe for shares in the first - mentioned company are the incumbent digital commercial radio broadcasting licensees, the digital community radio broadcasting representative company and the national broadcasters; and
(vi) assuming that the invitation were to be accepted by each invitee--the incumbent digital commercial radio broadcasting licensees would, in aggregate, hold five - ninths of the shares in the first - mentioned company; and
(vii) assuming that the invitation were to be accepted by each invitee--the digital community radio broadcasting representative company would hold two - ninths of the shares in the first - mentioned company; and
(vi i i) assuming that the invitation were to be accepted by each invitee--each national broadcaster would hold one - ninth of the shares in the first - mentioned company; and
(b) in a case where not all of the invitations referred to in paragraph (a) were accepted--before the company was formed, the promoters of the first - mentioned company invited each person who had accepted an invitation referred to in paragraph (a) to subscribe for the remaining shares in the first - mentioned company; and
(c) the invitations referred to in paragraph ( a) were:
(i) published on the ACMA's Internet site; and
(ii) open for a period of at least 120 days beginning on or after the commencement of this section; and
(d) there was no discrimination between subscribers for shares in the first - mentioned company in relation to the consideration payable for the issue of the shares concerned; and
(e) the total amount of money payable as consideration for the issue of the shares in the first - mentioned company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph ( a) are published, would be required for the commercially viable operation of the first - mentioned company if it were assumed that a foundation category 2 digital radio multiplex transmitter licence had been issued to the first - mentioned company at that time; and
(f) none of the recipients of an invitation referred to in paragraph ( a) or (b) were subject to duress as to whether the invitation should be accepted.
(6) The promoters of a company may request the ACMA to publish on its Internet site the invitations referred to in paragraph ( 5)(a).
(7) The ACMA must comply with a request under subsection ( 6) if the ACMA is satisfied that the request was made in good faith.
National broadcasters
(8) A national broadcaster may hold shares in a company that:
(a) is the holder of a category 2 digital radio multiplex transmitter licence; or
(b) is an applicant for the issue of a category 2 digital radio multiplex transmitter licence; or
(c) proposes to apply for the issue of a category 2 digital radio multiplex transmitter licence.
Fee
(9) A fee determined under paragraph ( 2)(b) must not be such as to amount to taxation.
102E Category 3 digital radio multiplex transmitter licences
Holder of a category 3 digital radio multiplex licence
(1) The ACMA must not issue a category 3 digital radio multiplex transmitter licence to a person unless the person is a qualified company, and:
(a) both:
(i) each national broadcaster beneficially owns shares in the company; and
(ii) there are no other beneficial owners of shares in the company; or
(b) both:
(i) a single national broadcaster beneficially owns all the shares in the company; and
(ii) the other national broadcaster has consented to that beneficial ownership.
Obligation to issue a category 3 digital radio multiplex licence
(2) If:
(a) a digital radio channel plan is in force for a designated BSA radio area; and
(b) a qualified company applies under section 99 for a category 3 digital radio multiplex transmitter licence for the designated BSA radio area; and
(c) the requirements of paragraph ( 1)(a) or (b) of this section are satisfied in relation to the qualified company;
the ACMA must, under section 100, issue the category 3 digital radio multiplex transmitter licence to the company unless there is already a category 3 digital radio multiplex transmitter licence for the designated BSA radio area.
National broadcaster may hold shares in the holder of a category 3 digital radio multiplex licence etc.
(3) A national broadcaster may hold shares in a company that:
(a) is the holder of a category 3 digital radio multiplex transmitter licence; or
(b) is an applicant for the issue of a category 3 digital radio multiplex transmitter licence; or
(c) proposes to apply for the issue of a category 3 digital radio multiplex transmitter licence.
102F Limit on issue of non - foundation digital radio multiplex transmitter licences
(1) Before issuing a non - foundation digital radio multiplex transmitter licence for a particular designated BSA radio area, the ACMA must ensure that:
(a) one or more foundation digital radio multiplex transmitter licences are in force for the designated BSA radio area; and
(b) the total multiplex capacities under those foundation digital radio multiplex transmitter licences is sufficient to fulfil the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ (2) in its application to the designated BSA radio area.
(2) For the purposes of subsection ( 1), if the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ (2) in its application to the designated BSA radio area is not a multiple of 7, round up that number to the next higher number that is a multiple of 7.
162 Subsection 103(2)
Omit "or a datacasting transmitter licence", substitute ", a datacasting transmitter licence or a digital radio multiplex transmitter licence".
163 At the end of section 103
Add:
(6) Subject to Division 6, a digital radio multiplex transmitter licence remains in force for 15 years.
164 Subsection 107(3)
Repeal the subsection, substitute:
(3) This section does not apply to:
(a) transmitter licences issued under section 101A, 102 or 102A; or
(b) datacasting transmitter licences; or
(c) digital radio multiplex transmitter licences.
165 Subsection 108(5)
Repeal the subsection, substitute:
(5) This section does not apply to:
(a) transmitter licences issued under section 101A, 102 or 102A; or
(b) datacasting transmitter licences; or
(c) digital radio multiplex transmitter licences.
166 After section 109A
Insert:
109B Conditions of digital radio multiplex transmitter licences--general
(1) A digital radio multiplex transmitter licence is subject to the following conditions:
(a) a condition that the licensee must comply with this Act;
(b) a condition that the licensee meet all obligations (if any) of the licensee to pay:
(i) charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005 ; and
(ii) amounts of apparatus licence tax;
(c) a condition that the licensee inform each person authorised by the licensee to operate a multiplex transmitter under the licence of the person's obligations to comply with this Act and the conditions of the licence;
(d) if the licence is for 2 or more multiplex transmitters--a condition that one of those multiplex transmitters is to be used as the main multiplex transmitter and the others as repeater multiplex transmitters;
(e) a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence except on a frequency channel or channels, and at a constancy, specified in the licence in accordance with the relevant digital radio channel plan;
(f) if the licence is a category 1 digital radio multiplex transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless:
(i) the service is a digital commercial radio broadcasting service, and there is in force a commercial radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or
(ii) the service is a digital community radio broadcasting service, and there is in force a designated community radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or
(iii) the service is a restricted datacasting service, and there is in force a restricted datacasting licence authorising the provision of the service;
(g) if the licence is a category 2 digital radio multiplex transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless:
(i) the service is a digital commercial radio broadcasting service, and there is in force a commercial radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or
(ii) the service is a digital community radio broadcasting service, and there is in force a designated community radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or
(iii) the service is a digital national radio broadcasting service; or
(iv) the service is a restricted datacasting service, and there is in force a restricted datacasting licence authorising the provision of the service;
(h) if the licence is a category 3 digital radio multiplex transmitter licence--a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless:
(i) the service is a digital national radio broadcasting service; or
(ii) the service is a restricted datacasting service, and there is in force a restricted datacasting licence authorising the provision of the service;
(i) if the licence is a foundation category 1 digital radio multiplex transmitter licence--a condition that the licensee, or a person so authorised, will:
(i) commence to transmit a service covered by subparagraph ( f)(i) or (ii) on the digital radio start - up day for the designated BSA radio area concerned; and
(ii) transmit a service covered by subparagraph ( f)(i) or (ii) at all times after the commencement referred to in subparagraph ( i) of this paragraph;
(j) if the licence is a foundation category 2 digital radio multiplex transmitter licence--a condition that the licensee, or a person so authorised, will:
(i) commence to transmit a service covered by subparagraph ( g)(i), (ii) or (iii) on the digital radio start - up day for the designated BSA radio area concerned; and
(ii) transmit a service covered by subparagraph ( g)(i), (ii) or (iii) at all times after the commencement referred to in subparagraph ( i) of this paragraph;
(k) a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless that service is transmitted using a digital modulation technique;
(l) a condition that the licensee must not carry on any activities other than activities that consist of:
(i) operating a multiplex transmitter under the licence; and
(ii) activities that are related to the operation of the multiplex transmitter;
(m) a condition that the licensee, and any person so authorised, must not operate, or permit operation of, a multiplex transmitter under the licence otherwise than in accordance with any relevant technical specifications determined by the relevant digital radio channel plan;
(n) a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ACMA under section 33 of the Broadcasting Services Act 1992 ;
(o) a condition that the licensee, and any person so authorised, will comply with any standards under section 130AB of the Broadcasting Services Act 1992 (which deals with technical standards relating to the operation of multiplex transmitters);
(p) a condition that the licensee, or a person so authorised, will comply with subsection 130V(1) of the Broadcasting Services Act 1992 (which deals with industry standards);
(q) a condition that the licensee will, if requested to do so by the ACMA, submit to the ACMA, within a specified period of at least 30 days, an implementation plan that complies with any relevant determinations under subsection ( 2);
(r) a condition that the licensee, and any person so authorised, must comply with an implementation plan submitted to the ACMA by the licensee;
(s) if the licence is a category 3 digital radio multiplex transmitter licence--such other conditions as are specified in the regulations;
(t) such other conditions as are specified in the licence.
Implementation plans
(2) The ACMA may, by legislative instrument, determine requirements to be complied with by implementation plans.
(3) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection ( 2).
(4) The ACMA must comply with a direction under subsection ( 3).
Licences allocated under subsection 40(1) of the Broadcasting Services Act 1992
(5) Subparagraphs ( 1)(f)(i) and (g)(i) do not apply in relation to a commercial radio broadcasting licence allocated under subsection 40(1) of the Broadcasting Services Act 1992.
Continuity of transmission
(6) The ACMA may, by legislative instrument, specify circumstances in which a digital radio multiplex transmitter licensee, or a person authorised by such a licensee, is taken, for the purposes of subparagraph ( 1)(i)(ii), to be transmitting a service covered by subparagraph ( 1)(f)(i) or (ii).
(7) The ACMA may, by legislative instrument, specify circumstances in which a digital radio multiplex transmitter licensee, or a person authorised by such a licensee, is taken, for the purposes of subparagraph ( 1)(j)(ii), to be transmitting a service covered by subparagraph ( 1)(g)(i), (ii) or (iii).
(8) A copy of a declaration under subsection ( 6) or (7) must be made available on the ACMA's Internet site.
Ministerial directions
(9) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by paragraph ( 1)(t) to specify conditions in a digital radio multiplex transmitter licence.
(10) The ACMA must comply with a direction under subsection ( 9).
Compliance with access regime etc.
(1) A category 1 digital radio multiplex transmitter licence and a category 2 digital radio multiplex transmitter licence are subject to the following conditions:
(a) a condition that the licensee, and each person authorised by the licensee to operate a multiplex transmitter under the licence, will comply with any applicable obligations under Division 4B;
(b) a condition that the licensee, and any person so authorised, will comply with an access undertaking in force under Division 4B in relation to the licence;
(c) a condition that the licensee, and any person so authorised, will not give access to multiplex capacity under the licence otherwise than in compliance with:
(i) the standard access obligations (if any) that are applicable to the licence; or
(ii) the excess - capacity access obligations (if any) that are applicable to the licence; or
(iii) the distributed - capacity access obligations (if any) that are applicable to the licence.
Proceeds of auctions
(2) If:
(a) a foundation digital radio multiplex transmitter licence was issued otherwise than in accordance with a price - based allocation system determined under section 106; and
(b) the licensee receives the net proceeds of an auction mentioned in subsection 118NT (6);
the licence is subject to the following conditions:
(c) the licensee will set aside the net proceeds of the auction in a separate account with an ADI (within the meaning of the Banking Act 1959 );
(d) the licensee will not apply those net proceeds except for the purpose of:
(i) promoting the digital radio broadcasting platform in Australia; or
(ii) discharging a liability of the licensee to pay a fee or charge in relation to the maintenance or operation of the account; or
(iii) discharging a liability incurred by the licensee in connection with the auction (other than a liability to comply with an obligation under Division 4B).
Definition
(3) In this section:
"multiplex capacity" has the same meaning as in Division 4B.
(1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area if:
(a) the licence was issued otherwise than in accordance with a price - based allocation system determined under section 106; and
(b) the digital radio moratorium period for the designated BSA radio area has not ended.
(2) The licence is subject to the condition that the licensee must take all reasonable steps to ensure that a person does not hold shares in the licensee unless the person is:
(a) in any case--an incumbent digital commercial radio broadcasting licensee for the designated BSA radio area; or
(b) in any case--the digital community radio broadcasting representative company for the designated BSA radio area; or
(c) in any case--the holder of a digital commercial radio broadcasting licence allocated in accordance with subsection 35D(3) of the Broadcasting Services Act 1992 ; or
(d) in the case of a foundation category 2 digital radio multiplex transmitter licence--a national broadcaster.
167 Section 110
Omit "or 109A(1)(k)", substitute ", 109A(1)(k) or 109B(1)(t)".
168 Paragraph 111(1)(c)
Omit "or 109A(1)(k)", substitute ", 109A(1)(k) or 109B(1)(t)".
169 At the end of section 111
Add:
Ministerial directions
(6) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of a power conferred by paragraph ( 1)(a), (b) or (c) to impose, vary or revoke conditions of a digital radio multiplex transmitter licence.
(7) The ACMA must comply with a direction under subsection ( 6).
170 Subsection 114(1)
After "(3),", insert "(3AA),".
171 After subsection 114(3)
Insert:
(3AA) The licensee must not authorise a person if:
(a) the licence is a digital radio multiplex transmitter licence; and
(b) the person is not a qualified company.
172 After Division 4A of Part 3.3 of Chapter 3
Insert:
Division 4B -- Access to digital radio multiplex transmitter licences
The following is a simplified outline of this Division:
• This Division sets out an access regime for digital radio multiplex transmitter licences.
• A digital radio multiplex transmitter licensee is required to comply with access obligations in relation to multiplex capacity under the licence.
• The access obligations facilitate the provision of access to multiplex capacity by content service providers in order that the content service providers can provide content services.
• The terms and conditions on which a digital radio multiplex transmitter licensee is required to comply with the access obligations are as set out in an access undertaking in force in relation to the licence.
This Division applies in relation to a digital radio multiplex transmitter licence if the licence is:
(a) a category 1 digital radio multiplex transmitter licence; or
(b) a category 2 digital radio multiplex transmitter licence.
In this Division:
"access undertaking" means an undertaking under section 118ND .
"content service" means:
(a) for the purposes of the application of this Division to a category 1 digital radio multiplex transmitter licence--a service covered by subparagraph 109B(1)(f)(i), (ii) or (iii); or
(b) for the purposes of the application of this Division to a category 2 digital radio multiplex transmitter licence--a service covered by subparagraph 109B(1)(g)(i), (ii), (iii) or (iv).
"content service provider" means a company who provides, or proposes to provide, a content service.
"distributed-capacity access entitlement" has the meaning given by section 118NU .
"distributed-capacity access obligations" has the meaning given by section 118NN .
"excess-capacity access entitlement" has the meaning given by section 118NT .
"excess-capacity access obligations" has the meaning given by section 118NM .
"external auditor" means a person authorised under section 118PD to be an external auditor for the purposes of this Division.
"multiplex capacity" , in relation to a digital radio multiplex transmitter licence, means:
(a) if the licence is for a single multiplex transmitter--so much of the gross transmission capacity of the multiplex transmitter as is available for the transmission of content services; or
(b) if the licence is for a main multiplex transmitter and one or more repeater multiplex transmitters--both:
(i) so much of the gross transmission capacity of the main multiplex transmitter as is available for the transmission of content services; and
(ii) so much of the gross transmission capacity of each of the repeater multiplex transmitters as is available for the transmission of content services.
For the purposes of this definition, in working out so much of the gross transmission capacity of a multiplex transmitter as is available for the transmission of content services, include transmission capacity used to provide error protection for those content services.
"Procedural Rules" means Procedural Rules made under section 118PO .
"standard access entitlement" has the meaning given by whichever of section 118NQ , 118NR or 118NS is applicable.
"standard access obligations" has the meaning given by section 118NL .
For the purpose of this Division, a national broadcaster is taken to be entitled to provide digital national radio broadcasting services in each designated BSA radio area.
Subdivision B -- Access undertakings
118ND Digital radio multiplex transmitter licensees must give the ACCC access undertakings
(1) A digital radio multiplex transmitter licensee must, within 3 months after the issue of the licence, give the ACCC a written undertaking that each of the following persons:
(a) the first holder of the licence;
(b) any person authorised by the first holder of the licence to operate a multiplex transmitter under the licence;
(c) any future holder of the licence;
(d) any person authorised by a future holder of the licence to operate a multiplex transmitter under the licence;
will comply with such terms and conditions as are ascertained in accordance with the undertaking in relation to:
(e) the standard access obligations (if any) that are, or may become, applicable to the licence; and
(f) the excess - capacity access obligations (if any) that are, or may become, applicable to the licence; and
(g) the distributed - capacity access obligations (if any) that are, or may become, applicable to the licence.
(2) The undertaking must be in a form approved in writing by the ACCC.
(3) The undertaking must be accompanied by the fee (if any) specified in the Procedural Rules. The amount of the fee must not be such as to amount to taxation.
(4) The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.
118NE Further information about access undertakings
(1) This section applies if a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC.
(2) The ACCC may request the licensee to give the ACCC further information about the access undertaking.
(3) If:
(a) the Procedural Rules make provision for, or in relation to, a time limit for giving the information; and
(b) the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;
the ACCC may, by written notice given to the licensee, reject the access undertaking.
(4) If the Procedural Rules do not make provision for, or in relation to, a time limit for giving the information, the ACCC may refuse to consider the access undertaking until the licensee gives the ACCC the information.
(5) The ACCC may withdraw its request for further information, in whole or in part.
(6) Information obtained by the ACCC under this section is taken to be protected Part XIB or XIC information for the purposes of section 155AB of the Trade Practices Act 1974 .
118NF ACCC to accept or reject access undertakings
(1) This section applies if a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC.
Decision to accept or reject access undertaking
(2) After considering the access undertaking, the ACCC must:
(a) accept the access undertaking; or
(b) reject the access undertaking.
(3) Before accepting the access undertaking, the ACCC must:
(a) publish a copy of the access undertaking on the ACCC's Internet site; and
(b) invite members of the public to make submissions to the ACCC about the access undertaking within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
(4) If the ACCC rejects the access undertaking, the ACCC may give the licensee a written notice advising the licensee that, if the licensee:
(a) makes such alterations to the access undertaking as are specified in the notice; and
(b) gives the altered access undertaking to the ACCC within the time limit allowed by the Procedural Rules;
the ACCC will accept the altered access undertaking.
(5) If the ACCC rejects the access undertaking, the ACCC may, by written notice given to the licensee, determine that an undertaking in the terms specified in the determination is the access undertaking in relation to the licence.
(6) Before giving a notice under subsection ( 5), the ACCC must:
(a) publish a copy of the notice on the ACCC's Internet site; and
(b) invite members of the public to make submissions to the ACCC about the notice within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
Notice of decision
(7) If the ACCC accepts the access undertaking, the ACCC must give the licensee a written notice stating that the access undertaking has been accepted.
(8) If the ACCC rejects the access undertaking, the ACCC must give the licensee a written notice:
(a) stating that the access undertaking has been rejected; and
(b) setting out the reasons for the rejection; and
(c) if the ACCC gives a notice under subsection ( 5)--stating that the notice has been given.
118NG Duration of access undertakings etc.
Duration of access undertaking accepted by ACCC
(1) If:
(a) a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC; and
(b) the ACCC accepts the access undertaking;
the access undertaking:
(c) comes into force at the time of acceptance; and
(d) remains in force while the licence is in force; and
(e) is suspended while the licence is suspended.
Duration of access undertaking determined by ACCC
(2) If, under subsection 118NF (5), the ACCC determines that an undertaking is the access undertaking in relation to a digital radio multiplex transmitter licence, the access undertaking:
(a) comes into force when the determination is made; and
(b) remains in force while the licence is in force; and
(c) is suspended while the licence is suspended.
Transfer of digital radio multiplex transmitter licence
(3) To avoid doubt, if:
(a) an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and
(b) the licence is transferred;
then:
(c) the transfer does not result in the lapse of the access undertaking; and
(d) the transferee, and any person authorised by the transferee to operate a multiplex transmitter under the licence, is bound by the access undertaking.
(4) Subsection ( 3) does not prevent the variation of an access undertaking.
Renewal of digital radio multiplex transmitter licence
(5) If:
(a) a digital radio multiplex transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, an access undertaking was in force in relation to the original licence;
the access undertaking:
(c) remains in force while the new licence is in force, as if:
(i) it were an access undertaking in relation to the new licence; and
(ii) each reference in the access undertaking to a holder of the original licence were a reference to a holder of the new licence; and
(d) is suspended while the new licence is suspended.
(6) Subsection ( 5) does not prevent the variation of an access undertaking.
118NH Variation of access undertakings
(1) This section applies if an access undertaking is in force in relation to a digital radio multiplex transmitter licence.
(2) The licensee:
(a) may give the ACCC a variation of the access undertaking; and
(b) must give the ACCC a variation of the access undertaking if required to do so by the ACCC.
Decision to accept or reject variation
(3) After considering the variation, the ACCC must:
(a) accept the variation; or
(b) reject the variation.
(4) Before accepting the variation, the ACCC must:
(a) publish a copy of the variation on the ACCC's Internet site; and
(b) invite members of the public to make submissions to the ACCC about the variation within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
(5) If the ACCC rejects the variation, the ACCC may give the licensee a written notice advising the licensee that, if the licensee:
(a) makes such alterations to the variation as are specified in the notice; and
(b) gives the altered variation to the ACCC within the time limit allowed by the Procedural Rules;
the ACCC will accept the altered variation.
(6) If the ACCC rejects the variation, the ACCC may, by written notice given to the licensee, vary the access undertaking.
(7) Before giving a notice under subsection ( 6), the ACCC must:
(a) publish a copy of the notice on the ACCC's Internet site; and
(b) invite members of the public to make submissions to the ACCC about the notice within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
Notice of decision
(8) If the ACCC accepts the variation, the ACCC must give the licensee a written notice:
(a) stating that the variation has been accepted; and
(b) setting out the terms of the variation.
(9) If the ACCC rejects the variation, the ACCC must give the licensee a written notice:
(a) stating that the variation has been rejected; and
(b) setting out the reasons for the rejection; and
(c) if ACCC gives a notice under subsection ( 6)--stating that the notice has been given.
Requirement to give variation
(10) The ACCC must not, under paragraph ( 2)(b), impose a requirement (the current requirement ) on the licensee to give the ACCC a variation of the access undertaking unless:
(a) the current requirement is imposed by a written notice given to the licensee on or after 1 January 2015; and
(b) the ACCC is satisfied that the access undertaking would be rejected if it were given to the ACCC when the current requirement is imposed; and
(c) no previous requirement was imposed on the licensee under paragraph ( 2)(b) during the 5 - year period ending immediately before the current requirement was imposed.
(11) If the licensee does not give the ACCC a variation of the access undertaking when required to do so by the ACCC under paragraph ( 2)(b), the ACCC may, by written notice given to the licensee, vary the access undertaking.
(12) Before giving a notice under subsection ( 11), the ACCC must:
(a) publish a copy of the notice on the ACCC's Internet site; and
(b) invite members of the public to make submissions to the ACCC about the notice within a specified period; and
(c) consider any submissions the ACCC receives from members of the public within that period.
118NI Further information about variation of access undertakings
(1) This section applies if:
(a) an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and
(b) the licensee gives the ACCC a variation of the access undertaking.
(2) The ACCC may request the licensee to give the ACCC further information about the variation.
(3) If:
(a) the Procedural Rules make provision for, or in relation to, a time limit for giving the information; and
(b) the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;
the ACCC may, by written notice given to the licensee, reject the variation.
(4) If the Procedural Rules do not make provision for, or in relation to, a time limit for giving the information, the ACCC may refuse to consider the variation until the licensee gives the ACCC the information.
(5) The ACCC may withdraw its request for further information, in whole or in part.
(6) Information obtained by the ACCC under this section is taken to be protected Part XIB or XIC information for the purposes of section 155AB of the Trade Practices Act 1974 .
118NJ Decision - making criteria
Acceptance of access undertaking
(1) The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept access undertakings.
(2) In deciding whether to accept access undertakings, the ACCC must:
(a) apply criteria determined under subsection ( 1); and
(b) have regard to such other matters (if any) as the ACCC considers relevant.
Acceptance of variation of access undertaking
(3) The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept variations of access undertakings.
(4) In deciding whether to accept variations of access undertakings, the ACCC must:
(a) apply criteria determined under subsection ( 3); and
(b) have regard to such other matters (if any) as the ACCC considers relevant.
118NK Register of access undertakings
(1) The ACCC is to maintain a Register in which the ACCC includes all access undertakings that are in force.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Internet.
118NL Standard access obligations
(1) This section sets out the standard access obligations .
(2) If:
(a) a content service provider has a standard access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the content service provider may use that entitlement for a particular purpose;
the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:
(c) access to that fraction of multiplex capacity for that purpose; and
(d) access to services that facilitate the use of that fraction of multiplex capacity for that purpose.
(3) The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.
118NM Excess - capacity access obligations
(1) This section sets out the excess - capacity access obligations .
(2) If:
(a) a content service provider has an excess - capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the content service provider may use that entitlement for a particular purpose;
the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:
(c) access to that fraction of multiplex capacity for that purpose; and
(d) access to services that facilitate the use of that fraction of multiplex capacity for that purpose.
(3) The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.
118NN Distributed - capacity access obligations
(1) This section sets out the distributed - capacity access obligations .
(2) If:
(a) a content service provider has a distributed - capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the content service provider may use that entitlement for a particular purpose;
the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:
(c) access to that fraction of multiplex capacity for that purpose; and
(d) access to services that facilitate the use of that fraction of multiplex capacity for that purpose.
(3) The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.
118NO Compliance with access obligations
(1) This section applies if a digital radio multiplex transmitter licensee, or a person authorised by the licensee to operate a multiplex transmitter under the licence, is required to comply with:
(a) the standard access obligations (if any) that are applicable to the licence; or
(b) the excess - capacity access obligations (if any) that are applicable to the licence; or
(c) the distributed - capacity access obligations (if any) that are applicable to the licence.
(2) The digital radio multiplex transmitter licensee, or the person so authorised, must comply with the obligations on such terms and conditions as are ascertained in accordance with an access undertaking in force in relation to the licence.
The licensee of a digital radio multiplex transmitter licence, and each person authorised by the licensee to operate a multiplex transmitter under the licence, must not discriminate, as between content service providers who have access to multiplex capacity under the licence, in relation to:
(a) the technical and operational quality of the services supplied to the content service providers; and
(b) the technical and operational quality and timing of the fault detection, handling and rectification supplied to the content service providers;
for the purposes of facilitating the use of that multiplex capacity.
118NQ Standard access entitlements of commercial broadcasters
Scope
(1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area.
Standard access entitlements
(2) If:
(a) an incumbent digital commercial radio broadcasting licensee for the designated BSA radio area, by written notice given to the digital radio multiplex transmitter licensee, claims access to one - ninth of multiplex capacity under the digital radio multiplex transmitter licence; and
(b) the notice is given within 30 days after the issue of the digital radio multiplex transmitter licence;
the incumbent digital commercial radio broadcasting licensee:
(c) is entitled to access to one - ninth of multiplex capacity under the digital radio multiplex transmitter licence (which entitlement is called a standard access entitlement ); and
(d) may only use that standard access entitlement for the purpose of providing, under the digital commercial radio broadcasting licence, one or more digital commercial radio broadcasting services in the designated BSA radio area; and
(e) is not entitled to transfer the digital commercial radio broadcasting licensee's standard access entitlement.
(3) Subsection ( 2) has effect subject to subsections ( 5), (6) and (7).
(4) If the digital radio multiplex transmitter licensee receives a subsection ( 2) notice, the licensee must, within 7 days after receiving the notice, give a copy of the notice to the ACCC.
(5) An incumbent digital commercial radio broadcasting licensee for the designated BSA radio area must not give a subsection ( 2) notice to the digital radio multiplex transmitter licensee if:
(a) the incumbent digital radio broadcasting licensee has given another subsection ( 2) notice to the digital radio multiplex transmitter licensee; or
(b) the incumbent digital commercial radio broadcasting licensee has given a subsection ( 2) notice to the licensee of another digital radio multiplex transmitter licence for the designated BSA radio area.
(6) If subsection ( 2) notices would result in demand from incumbent digital commercial radio broadcasting licensees for access to multiplex capacity under the first - mentioned digital radio multiplex transmitter licence being greater than so much of the multiplex capacity under the first - mentioned digital radio multiplex transmitter licence as is neither:
(a) reserved under subsection 118NR (2) (which deals with community broadcasters); nor
(b) covered by a standard access entitlement arising under subsection 118NS (2) (which deals with national broadcasters);
the ACCC may, by written notice given to a particular incumbent digital commercial radio broadcasting licensee before the digital radio start - up day for the designated BSA radio area:
(c) cancel the licensee's subsection ( 2) notice; and
(d) determine that this section has effect as if the licensee's subsection ( 2) notice had never been given; and
(e) determine that this section has effect as if the licensee had given a notice under subsection ( 2) in relation to another foundation digital radio multiplex transmitter licence for the designated BSA radio area.
Transfer of standard access entitlements--notice under subsection 35D(2) of the Broadcasting Services Act 1992
(7) If:
(a) a digital commercial radio broadcasting licensee for the designated BSA radio area holds a standard access entitlement; and
(b) the digital commercial radio broadcasting licensee is given a notice under subsection 35D(2) of the Broadcasting Services Act 1992 ;
then:
(c) the standard access entitlement is transferred to the ACMA when the notice is given; and
(d) if, as a result of the giving of the notice, the ACMA allocates a digital commercial radio broadcasting licence (the new licence ) in accordance with subsection 35D(3) of the Broadcasting Services Act 1992 :
(i) the standard access entitlement is transferred to the licensee of the new licence; and
(ii) the licensee of the new licence may only use that standard access entitlement for the purpose of providing, under the new licence, one or more digital commercial radio broadcasting services in the designated BSA radio area.
(8) Subsection ( 7) has effect subject to section 118NV .
(9) If a standard access entitlement is transferred to the ACMA under paragraph ( 7)(c), the ACMA must not use the standard access entitlement.
118NR Standard access entitlements of community broadcasters
Scope
(1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area.
Reservation of multiplex capacity
(2) Two - ninths of multiplex capacity under the digital radio multiplex transmitter licence is reserved for digital community radio broadcasting licensees who are or may be nominated in accordance with subsection ( 3), (7) or (10).
Standard access entitlements--applicable fraction of multiplex capacity
(3) If:
(a) the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence:
(i) nominates 2 or more digital community radio broadcasting licensees for the purposes of this subsection; and
(ii) for each nominated digital community radio broadcasting licensee, determines an applicable fraction; and
(b) the notice is in force;
each nominated digital community radio broadcasting licensee:
(c) is entitled to access to the digital community radio broadcasting licensee's applicable fraction of the multiplex capacity reserved under subsection ( 2) (which entitlement is called a standard access entitlement ); and
(d) may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and
(e) is not entitled to transfer the digital community radio broadcasting licensee's standard access entitlement.
(4) The sum of the applicable fractions determined in a notice under subsection ( 3) must not be greater than 1.
(5) The applicable fractions determined in a notice under subsection ( 3) may be the same or different for each nominated digital community radio broadcasting licensee.
(6) A notice given by a digital community radio broadcasting representative company cannot be in force under subsection ( 3) at the same time as:
(a) another notice given by the company is in force under subsection ( 3); or
(b) a notice given by the company is in force under subsection ( 7) or (10).
Standard access entitlements--designated fraction of multiplex capacity
(7) If:
(a) the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence, nominates 2 or more digital community radio broadcasting licensees for the purposes of this subsection; and
(b) the notice is in force;
each nominated digital community radio broadcasting licensee:
(c) is entitled to access to the designated fraction of the multiplex capacity reserved under subsection ( 2) (which entitlement is called a standard access entitlement ); and
(d) may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and
(e) is not entitled to transfer the digital community radio broadcasting licensee's standard access entitlement.
(8) For the purposes of subsection ( 7), the designated fraction is as follows:
(9) A notice given by a digital community radio broadcasting representative company cannot be in force under subsection ( 7) at the same time as:
(a) another notice given by the company is in force under subsection ( 7); or
(b) a notice given by the company is in force under subsection ( 3) or (10).
Standard access entitlements--half of multiplex capacity
(10) If:
(a) the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence, nominates a single digital community radio broadcasting licensee for the purposes of this subsection; and
(b) the notice is in force;
the nominated digital community radio broadcasting licensee:
(c) is entitled to access to half of the multiplex capacity reserved under subsection ( 2) (which entitlement is called a standard access entitlement ); and
(d) may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and
(e) is not entitled to transfer the digital community radio broadcasting licensee's standard access entitlement.
(11) A notice given by a digital community radio broadcasting representative company cannot be in force under subsection (10) at the same time as:
(a) another notice given by the company is in force under subsection (10); or
(b) a notice given by the company is in force under subsection (3) or (7).
Subsequent notices
(12) If:
(a) a digital community radio broadcasting representative company gives a notice (the first notice ) under subsection ( 3); and
(b) the first notice is in force;
the company must not give another notice under subsection ( 3) or a notice under subsection ( 7) or (10) unless the other notice under subsection ( 3) or the notice under subsection ( 7) or (10), as the case may be:
(c) is accompanied by a notice under subsection ( 1 5 ) revoking the first notice; and
(d) is expressed to take effect immediately after the revocation of the first notice.
(13) If:
(a) a digital community radio broadcasting representative company gives a notice (the first notice ) under subsection ( 7); and
(b) the first notice is in force;
the company must not give another notice under subsection ( 7) or a notice under subsection ( 3) or (10) unless the other notice under subsection ( 7) or the notice under subsection ( 3) or (10), as the case may be:
(c) is accompanied by a notice under subsection (15 ) revoking the first notice; and
(d) is expressed to take effect immediately after the revocation of the first notice.
(14) If:
(a) a digital community radio broadcasting representative company gives a notice (the first notice ) under subsection ( 10); and
(b) the first notice is in force;
the company must not give another notice under subsection ( 10) or a notice under subsection ( 3) or (7) unless the other notice under subsection ( 10) or the notice under subsection ( 3) or (7), as the case may be:
(c) is accompanied by a notice under subsection (15 ) revoking the first notice; and
(d) is expressed to take effect immediately after the revocation of the first notice.
Revocation of notices
(15) If a notice given by a digital community radio broadcasting representative company under subsection ( 3), (7) or (10) is in force:
(a) the company may, by written notice given to the licensee of the digital radio multiplex transmitter licence, revoke the notice given under subsection ( 3), (7) or (10), as the case may be; and
(b) the revocation takes effect at the start of the 30th day after the day on which the notice of revocation is given.
(16) A notice of revocation under subsection (15 ) has no effect unless the digital community radio broadcasting representative company also gives the licensee of the digital radio multiplex transmitter licence:
(a) if the notice of revocation relates to a notice (the original notice ) given under subsection ( 3)--either:
(i) a fresh notice under subsection ( 3) that is expressed to take effect immediately after the revocation of the original notice; or
(ii) a notice under subsection ( 7) or (10) that is expressed to take effect immediately after the revocation of the original notice; and
(b) if the notice of revocation relates to a notice (the original notice ) given under subsection ( 7)--either:
(i) a fresh notice under subsection ( 7) that is expressed to take effect immediately after the revocation of the original notice; or
(ii) a notice under subsection ( 3) or (10) that is expressed to take effect immediately after the revocation of the original notice; and
(c) if the notice of revocation relates to a notice (the original notice ) given under subsection ( 10)--either:
(i) a fresh notice under subsection ( 10) that is expressed to take effect immediately after the revocation of the original notice; or
(ii) a notice under subsection ( 3) or (7) that is expressed to take effect immediately after the revocation of the original notice.
(17) If:
(a) a digital community radio broadcasting licensee is nominated in a notice under subsection ( 3), (7) or (10); and
(b) the notice is revoked under subsection (15 );
this section does not prevent that digital community radio broadcasting licensee from being nominated in:
(c) in the case of the revocation of a notice given under subsection ( 3):
(i) a fresh notice under subsection ( 3); or
(ii) a notice under subsection ( 7) or (10); and
(d) in the case of the revocation of a notice given under subsection ( 7):
(i) a fresh notice under subsection ( 7); or
(ii) a notice under subsection ( 3) or (10); and
(e) in the case of the revocation of a notice given under subsection ( 10):
(i) a fresh notice under subsection ( 10); or
(ii) a notice under subsection ( 3) or (7).
No variation of notices
(18) A notice under subsection ( 3), (7) or (10) cannot be varied.
Limit on nomination
(19) The nomination of a digital community radio broadcasting licensee for the purposes of subsection ( 3), (7) or (10) has no effect if the licensee has already been nominated for the purposes of any of those subsections in the subsection's application to another digital radio multiplex transmitter licence for the designated BSA radio area.
Transitional
(20) For the purposes of the application of this section before the digital radio start - up day for the designated BSA radio area, digital community radio broadcasting licensee includes an incumbent digital community radio broadcasting licensee.
118NS Standard access entitlements of national broadcasters
Scope
(1) This section applies to a foundation category 2 digital radio multiplex transmitter licence for a designated BSA radio area.
Standard access entitlements
(2) Each national broadcaster:
(a) is entitled to access to one - ninth of multiplex capacity under the digital radio multiplex transmitter licence (which entitlement is called a standard access entitlement ); and
(b) may only use that standard access entitlement for the purpose of providing one or more digital national radio broadcasting services in the designated BSA radio area; and
(c) may transfer the national broadcaster's standard access entitlement to the other national broadcaster.
(3) If a standard access entitlement is transferred as mentioned in paragraph ( 2)(c):
(a) the standard access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the standard access entitlement is a national broadcaster; and
(b) the holder for the time being of the standard access entitlement is entitled to access to one - ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more digital national radio broadcasting services in the designated BSA radio area.
118NT Excess - capacity access entitlements etc.
Scope
(1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area if:
(a) on the digital start - up day for the area, the multiplex capacity available under the digital radio multiplex transmitter licence exceeds the aggregate of:
(i) the fractions of multiplex capacity relating to standard access entitlements that have come into existence under subsections 118NQ (2) and 118NS (2); and
(ii) the fractions of multiplex capacity reserved under subsection 118NR (2); or
(b) at any time after the 12 - month period beginning on the digital start - up day for the area, the multiplex capacity available under the digital radio multiplex transmitter licence exceeds the aggregate of:
(i) the fractions of multiplex capacity relating to standard access entitlements that have come into existence under subsections 118NQ (2) and 118NS (2); and
(ii) the fractions of multiplex capacity reserved under subsection 118NR (2);
and an access undertaking is in force in relation to the licence.
Initial level of demand for access to excess multiplex capacity must be ascertained
(2) If paragraph ( 1)(a) applies, the digital radio multiplex transmitter licensee must:
(a) within 90 days after the digital radio start - up day for the designated BSA radio area, ascertain the level of demand for access to that excess multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and
(b) by notice published on the licensee's Internet site:
(i) give at least 30 days notice of the licensee's intention to ascertain the level of demand as mentioned in paragraph ( a); and
(ii) invite content service providers to express an interest in having access to that excess multiplex capacity.
Subsequent level of demand for access to excess multiplex capacity may be ascertained
(3) If paragraph ( 1)(b) applies, the following provisions have effect:
(a) the digital radio multiplex transmitter licensee may ascertain the level of demand for access to that excess multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and
(b) if the licensee proposes to ascertain the level of demand as mentioned in paragraph ( a)--the digital radio multiplex transmitter licensee must, by notice published on the licensee's Internet site:
(i) give at least 30 days notice of the licensee's intention to ascertain the level of demand as mentioned in paragraph ( a); and
(ii) invite content service providers to express an interest in having access to that excess multiplex capacity.
Demand falls short of excess multiplex capacity
(4) If the demand from interested content service providers for access to that excess multiplex capacity, as ascertained under whichever of subsection ( 2) or (3) is applicable, falls short of that excess multiplex capacity--each interested content service provider:
(a) is entitled to access to the fraction of multiplex capacity sought by the interested content service provider (which entitlement is called an excess - capacity access entitlement ); and
(b) may only use that excess - capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and
(c) may transfer that excess - capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.
(5) The excess - capacity access entitlement referred to in paragraph ( 4)(a) commences:
(a) at the end of the 30 - day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection ( 2) or (3) is applicable; or
(b) if the digital radio multiplex transmitter licensee agrees to an earlier time--at that earlier time.
Demand is greater than excess multiplex capacity
(6) If the demand from interested content service providers for access to that excess multiplex capacity, as ascertained under whichever of subsection ( 2) or (3) is applicable, is greater than that excess multiplex capacity, the digital radio multiplex transmitter licensee must:
(a) use an open and transparent auction process to determine which content service providers are to have access to which fractions of multiplex capacity for the purpose of providing one or more content services in the designated BSA radio area; and
(b) do so before the end of the 60 - day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection ( 2) or (3) is applicable.
(7) If, as a result of an auction process mentioned in subsection ( 6), a content service provider is to have access to a particular fraction of multiplex capacity, the content service provider:
(a) is entitled to access to that fraction of multiplex capacity (which entitlement is called an excess - capacity access entitlement ); and
(b) may only use that excess - capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and
(c) may transfer that excess - capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.
(8) The excess - capacity access entitlement referred to in paragraph ( 7)(a) commences:
(a) at the end of the 30 - day period beginning on the day on which the auction process mentioned in subsection ( 6) is completed; or
(b) if the digital radio multiplex transmitter licensee agrees to an earlier time--at that earlier time.
(9) For the purposes of the application of paragraph ( 8)(a) to a content service provider, the auction process mentioned in subsection ( 6) is completed when the content service provider makes the relevant auction payment.
(10) If an excess - capacity access entitlement is transferred as mentioned in paragraph ( 4)(c) or (7)(c):
(a) the excess - capacity access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the excess - capacity access entitlement is a content service provider who is entitled to provide content services in the designated BSA radio area; and
(b) the holder for the time being of the excess - capacity access entitlement is entitled to access to the relevant fraction of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more content services in the designated BSA radio area.
(11) This section has effect subject to section 118NV .
118NU Distributed - capacity access entitlements etc.
Scope
(1) This section applies to a non - foundation digital radio multiplex transmitter licence for a designated BSA radio area if an access undertaking is in force for the licence.
Initial level of demand for access to multiplex capacity must be ascertained
(2) The following provisions have effect:
(a) the digital radio multiplex transmitter licensee must, before commencing to transmit a content service, ascertain the level of demand for access to multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and
(b) if the licensee proposes to ascertain the level of demand as mentioned in paragraph ( a)--the digital radio multiplex transmitter licensee must, by notice published on the licensee's Internet site:
(i) give at least 30 days notice of the licensee's intention to ascertain the level of demand as mentioned in paragraph ( a); and
(ii) invite content service providers to express an interest in having access to that multiplex capacity.
Subsequent level of demand for access to multiplex capacity may be ascertained
(3) The following provisions have effect:
(a) the digital radio multiplex transmitter licensee may, at any time after commencing to transmit a content service, ascertain the level of demand for access to multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and
(b) if the licensee proposes to ascertain the level of demand as mentioned in paragraph ( a)--the digital radio multiplex transmitter licensee must, by notice published on the licensee's Internet site:
(i) give at least 30 days notice of the licensee's intention to ascertain the level of demand as mentioned in paragraph ( a); and
(ii) invite content service providers to express an interest in having access to that multiplex capacity.
Demand falls short of multiplex capacity
(4) If the demand from interested content service providers for access to multiplex capacity, as ascertained under whichever of subsection ( 2) or (3) is applicable, falls short of the multiplex capacity--each interested content service provider:
(a) is entitled to access to the fraction of multiplex capacity sought by the interested content service provider (which entitlement is called a distributed - capacity access entitlement ); and
(b) may only use that distributed - capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and
(c) may transfer that distributed - capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.
(5) The distributed - capacity access entitlement referred to in paragraph ( 4)(a) commences:
(a) at the end of the 30 - day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection ( 2) or (3) is applicable; or
(b) if the digital radio multiplex transmitter licensee agrees to an earlier time--at that earlier time.
Demand is greater than multiplex capacity
(6) If the demand from interested content service providers for access to multiplex capacity, as ascertained under whichever of subsection ( 2) or (3) is applicable, is greater than the multiplex capacity, the digital radio multiplex transmitter licensee must:
(a) use an open and transparent auction process to determine which content service providers are to have access to which fractions of multiplex capacity for the purpose of providing one or more content services in the designated BSA radio area; and
(b) do so before the end of the 60 - day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection ( 2) or (3) is applicable.
(7) If, as a result of an auction process mentioned in subsection ( 6), a content service provider is to have access to a particular fraction of multiplex capacity, the content service provider:
(a) is entitled to access to that fraction of multiplex capacity (which entitlement is called a distributed - capacity access entitlement ); and
(b) may only use that distributed - capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and
(c) may transfer that distributed - capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.
(8) The distributed - capacity access entitlement referred to in paragraph ( 7)(a) commences:
(a) at the end of the 30 - day period beginning on the day on which the auction process mentioned in subsection ( 6) is completed; or
(b) if the digital radio multiplex transmitter licensee agrees to an earlier time--at that earlier time.
(9) For the purposes of the application of paragraph ( 8)(a) to a content service provider, the auction process mentioned in subsection ( 6) is completed when the content service provider makes the relevant auction payment.
(10) If a distributed - capacity access entitlement is transferred as mentioned in paragraph ( 4)(c) or (7)(c):
(a) the distributed - capacity access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the distributed - capacity access entitlement is a content service provider who is entitled to provide content services in the designated BSA radio area; and
(b) the holder for the time being of the distributed - capacity access entitlement is entitled to access to the relevant fraction of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more content services in the designated BSA radio area.
(11) This section has effect subject to section 118NV .
118NV Capacity cap--digital commercial radio broadcasting licensees
(1) If there is only one digital radio multiplex transmitter licence for a designated BSA radio area, a digital commercial radio broadcasting licensee is not entitled to access to more than two - ninths of multiplex capacity under the digital radio multiplex transmitter licence for the purposes of providing, under the digital commercial radio broadcasting licence, one or more digital commercial digital radio broadcasting services in the designated BSA radio area.
(2) If there are 2 or more digital radio multiplex transmitter licences for a designated BSA radio area, a digital commercial radio broadcasting licensee is not entitled to access to more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purposes of providing, under the digital commercial radio broadcasting licence, one or more digital commercial digital radio broadcasting services in the designated BSA radio area.
(3) For the purposes of subsection ( 2), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:
118NW Suspension of access entitlements
(1) A standard access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.
(2) An excess - capacity access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.
(3) A distributed - capacity access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.
118NX Transfer of digital radio multiplex transmitter licence
Standard access entitlement
(1) To avoid doubt, if:
(a) a content service provider has a standard access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the licence is transferred;
the transfer does not affect the continuity of the standard access entitlement.
(2) Subsection ( 1) does not prevent:
(a) the transfer of a standard access entitlement under subsection 118NQ (7) or 118NS (2) or (3); or
(b) the revocation of a notice given under subsection 118NR (3), (7) or (10).
Excess - capacity access entitlement
(3) To avoid doubt, if:
(a) a content service provider has an excess - capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the licence is transferred;
the transfer does not affect the continuity of the excess - capacity access entitlement.
(4) Subsection ( 3) does not prevent the transfer of an excess - capacity access entitlement.
Distributed - capacity access entitlement
(5) To avoid doubt, if:
(a) a content service provider has a distributed - capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and
(b) the licence is transferred;
the transfer does not affect the continuity of the distributed - capacity access entitlement.
(6) Subsection ( 5) does not prevent the transfer of a distributed - capacity access entitlement.
118NY Renewal of digital radio multiplex transmitter licence
Standard access entitlement
(1) If:
(a) a digital radio multiplex transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, a content service provider held a standard access entitlement in relation to a fraction of multiplex capacity under the licence;
the entitlement remains in existence while the new licence is in force, as if it were a standard access entitlement in relation to the new licence.
(2) Subsection ( 1) does not prevent:
(a) the transfer of a standard access entitlement under subsection 118NQ (7) or 118NS (2) or (3); or
(b) the revocation of a notice given under subsection 118NR (3), (7) or (10).
Excess - capacity access entitlement
(3) If:
(a) a digital radio multiplex transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, a content service provider held an excess - capacity access entitlement in relation to a fraction of multiplex capacity under the licence;
the entitlement remains in existence while the new licence is in force, as if it were an excess - capacity access entitlement in relation to the new licence.
(4) Subsection ( 3) does not prevent the transfer of an excess - capacity access entitlement.
Distributed - capacity access entitlement
(5) If:
(a) a digital radio multiplex transmitter licence is renewed; and
(b) immediately before the expiry of the original licence, a content service provider held a distributed - capacity access entitlement in relation to a fraction of multiplex capacity under the licence;
the entitlement remains in existence while the new licence is in force, as if it were a distributed - capacity access entitlement in relation to the new licence.
(6) Subsection ( 5) does not prevent the transfer of a distributed - capacity access entitlement.
118NZ Judicial enforcement of access obligations etc.
(1) If the Federal Court is satisfied that a digital radio multiplex transmitter licensee, or a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence, has contravened any of the following obligations:
(a) the standard access obligations (if any) that are applicable to the licence;
(b) the excess - capacity access obligations (if any) that are applicable to the licence;
(c) the distributed - capacity access obligations (if any) that are applicable to the licence;
(d) the obligations that are applicable to the licence under section 118NP ;
the Court may, on the application of:
(e) the ACCC; or
(f) any person whose interests are affected by the contravention;
make all or any of the following orders:
(g) an order directing the licensee or the person so authorised to comply with the obligation;
(h) an order directing the licensee or the person so authorised to compensate any other person who had suffered loss or damage as a result of the contravention;
(i) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under this section.
118P Enforcement of access undertakings
(1) This section applies if an access undertaking is in force in relation to a digital radio multiplex transmitter licence.
(2) If:
(a) the ACCC; or
(b) a person (the affected person ) whose interests are affected by the access undertaking;
thinks that another person (the third person ) has breached the access undertaking, the ACCC or the affected person may apply to the Federal Court for an order under subsection ( 3).
(3) If the Federal Court is satisfied that the third person has breached the access undertaking, the Court may make all or any of the following orders:
(a) an order directing the third person to comply with the access undertaking;
(b) an order directing the third person to compensate any other person who has suffered loss or damage as a result of the breach;
(c) any other order that the Court thinks appropriate.
(4) The Federal Court may discharge or vary an order granted under this section.
Subdivision E -- External audits
Scope
(1) This section applies if:
(a) an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and
(b) a person is:
(i) the licensee of the licence; or
(ii) a person authorised by the licensee to operate a multiplex transmitter under the licence; and
(c) the ACCC has reasonable grounds to suspect that the person has breached, is breaching, or is proposing to breach:
(i) the access undertaking; or
(ii) any of the standard access obligations (if any) that are applicable to the licence; or
(iii) any of the excess - capacity access obligations (if any) that are applicable to the licence; or
(iv) any of the distributed - capacity access obligations (if any) that are applicable to the licence; or
(v) the obligations that are applicable to the licence under section 118NP .
Requirement
(2) The ACCC may, by written notice given to the person, require the person to:
(a) appoint an external auditor; and
(b) arrange for the external auditor to carry out an external audit of whichever of the following is specified in the notice:
(i) the person's compliance with the access undertaking; or
(ii) one or more specified aspects of the person's compliance with the access undertaking; or
(iii) the person's compliance with the standard access obligations (if any) that are applicable to the licence; or
(iv) one or more specified aspects of the person's compliance with the standard access obligations (if any) that are applicable to the licence; or
(v) the person's compliance with the excess - capacity access obligations (if any) that are applicable to the licence; or
(vi) one or more specified aspects of the person's compliance with the excess - capacity access obligations (if any) that are applicable to the licence; or
(vii) the person's compliance with the distributed - capacity access obligations (if any) that are applicable to the licence; or
(viii) one or more specified aspects of the person's compliance with the distributed - capacity access obligations (if any) that are applicable to the licence; or
(ix) the person's compliance with the obligations that are applicable to the licence under section 118NP ; or
(x) one or more specified aspects of the person's compliance with the obligations that are applicable to the licence under section 118NP ; and
(c) arrange for the external auditor to give the person a written report (the audit report ) setting out the results of the audit; and
(d) give the ACCC a copy of the audit report within:
(i) the period specified in the notice; or
(ii) if the ACCC allows a longer period--that longer period.
(3) The notice must specify:
(a) the matters to be covered by the audit; and
(b) the form of the audit report and the kinds of details it is to contain.
(4) The matters that may be specified under paragraph ( 3)(a) may include any or all of the following:
(a) an assessment of the person's existing capacity to comply with the access undertaking;
(b) an assessment of what the person will need to do, or continue to do, to comply with the access undertaking;
(c) an assessment of the person's existing capacity to comply with the standard access obligations (if any) that are applicable to the licence;
(d) an assessment of what the person will need to do, or continue to do, to comply with the standard access obligations (if any) that are applicable to the licence;
(e) an assessment of the person's existing capacity to comply with the excess - capacity obligations (if any) that are applicable to the licence;
(f) an assessment of what the person will need to do, or continue to do, to comply with the excess - capacity obligations (if any) that are applicable to the licence;
(g) an assessment of the person's existing capacity to comply with the distributed - capacity obligations (if any) that are applicable to the licence;
(h) an assessment of what the person will need to do, or continue to do, to comply with the distributed - capacity obligations (if any) that are applicable to the licence;
(i) an assessment of the person's existing capacity to comply with the obligations that are applicable to the licence under section 118NP ;
(j) an assessment of what the person will need to do, or continue to do, to comply with the obligations that are applicable to the licence under section 118NP .
(5) Subsection ( 4) does not limit paragraph ( 3)(a).
Compliance
(6) The person must comply with a notice under subsection ( 2).
118PB Eligibility for appointment
(1) An individual is not eligible to be appointed by a person (the first person ) in accordance with a requirement covered by paragraph 118PA (2)(a) if the individual is an officer, employee or agent of:
(a) the first person; or
(b) another person who is in a position to exercise control of the digital radio multiplex transmitter licence concerned; or
(c) a company, where another person is in a position to exercise control of the company and the digital radio multiplex transmitter licence concerned.
Application of control rules
(2) Schedule 1 to the Broadcasting Services Act 1992 applies for the purposes of paragraphs ( 1)(b) and (c) in a corresponding way to the way in which it applies for the purposes of Part 5 of that Act.
118PC External auditor may have regard to the results of previous audit
In carrying out an external audit in accordance with a notice under section 118PA , an external auditor may, if:
(a) an external audit was completed under that section within the last preceding 2 years; and
(b) the external auditor is satisfied that the previous audit is still relevant;
have regard to the results of the previous audit.
(1) The ACCC may, by writing, authorise a specified individual to be an external auditor for the purposes of this Division.
Note 1: For specification by class, see subsection 46(3) of the Acts Interpretation Act 1901 .
Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901 .
(2) An authorisation under subsection ( 1) is not a legislative instrument.
Subdivision F -- Review of decisions
118PE Review by Australian Competition Tribunal
(1) A person whose interests are affected by a decision of the ACCC under subsection 118NF (2) or (5) or 118NH (3), (6) or (11) may apply in writing to the Australian Competition Tribunal for a review of the decision.
(2) The application must be made within 21 days after the ACCC made the decision.
(3) The Australian Competition Tribunal must review the decision.
118PF Functions and powers of Australian Competition Tribunal
Decision on review
(1) On a review of a decision of the ACCC under subsection 118NF (2) or (5) or 118NH (3), (6) or (11), the Australian Competition Tribunal may make a decision:
(a) in any case--affirming the ACCC's decision; or
(b) in the case of a review of a decision of the ACCC under subsection 118NF (2) to accept an access undertaking--setting aside the ACCC's decision; or
(c) in the case of a review of a decision of the ACCC under subsection 118NF (2) to reject an access undertaking--both:
(i) setting aside the ACCC's decision; and
(ii) in substitution for the decision so set aside, to accept the undertaking; or
(d) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF (5)--setting aside the ACCC's decision; or
(e) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF (5)--both:
(i) setting aside the ACCC's decision; and
(ii) in substitution for the decision so set aside, to make a determination under that subsection; or
(f) in the case of a review of a decision of the ACCC under subsection 118NH (3) to accept a variation of an access undertaking--setting aside the ACCC's decision; or
(g) in the case of a review of a decision of the ACCC under subsection 118NH (3) to reject a variation of an access undertaking--both:
(i) setting aside the ACCC's decision; and
(ii) in substitution for the decision so set aside, to accept the variation; or
(h) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH (6) or (11)--setting aside the ACCC's decision; or
(i) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH (6) or (11)--both:
(i) setting aside the ACCC's decision; and
(ii) in substitution for the decision so set aside, to make a determination under that subsection;
and, for the purposes of the review, the Australian Competition Tribunal may perform all the functions and exercise all the powers of the ACCC.
(2) A decision by the Australian Competition Tribunal:
(a) affirming a decision of the ACCC; or
(b) setting aside a decision of the ACCC; or
(c) made in substitution for a decision of the ACCC;
is taken, for the purposes of this Act (other than section 118PE or this section), to be a decision of the ACCC.
Conduct of review
(3) For the purposes of a review by the Australian Competition Tribunal, the member of the Australian Competition Tribunal presiding at the review may require the ACCC to give such information, make such reports and provide such other assistance to the Australian Competition Tribunal as the member specifies.
(4) For the purposes of a review, the Australian Competition Tribunal may have regard only to:
(a) any information given, documents produced or evidence given to the ACCC in connection with the making of the decision to which the review relates; and
(b) any other information that was referred to in the ACCC's reasons for making the decision to which the review relates.
Australian Competition Tribunal to make decision within 6 months
(5) If:
(a) a person applies to the Australian Competition Tribunal for a review of a decision of the ACCC under subsection 118NF (2) or (5) or 118NH (3), (6) or (11); and
(b) the Australian Competition Tribunal does not make a decision under subsection ( 1) of this section on the review within 6 months after receiving the application for review;
the Australian Competition Tribunal is taken to have made, at the end of that 6 - month period, whichever of the following decisions is applicable:
(c) in the case of a review of a decision of the ACCC under subsection 118NF (2) to accept an access undertaking--a decision setting aside the ACCC's decision;
(d) in the case of a review of a decision of the ACCC under subsection 118NF (2) to reject an access undertaking:
(i) a decision setting aside the ACCC's decision; and
(ii) in substitution for the decision so set aside, a decision to accept the undertaking;
(e) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF (5)--a decision setting aside the ACCC's decision; or
(f) in the case of a review of a decision of the ACCC under subsection 118NH (3) to accept a variation of an access undertaking--a decision setting aside the ACCC's decision;
(g) in the case of a review of a decision of the ACCC under subsection 118NH (3) to reject a variation of an access undertaking:
(i) a decision setting aside the ACCC's decision; and
(ii) in substitution for the decision so set aside, a decision to accept the variation;
(h) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH (6) or (11)--a decision setting aside the ACCC's decision.
Extension of decision - making period
(6) The Australian Competition Tribunal may, by written notice given to the applicant for review, extend or further extend the 6 - month period referred to in subsection ( 5), so long as:
(a) the extension or further extension is for a period of not more than 3 months; and
(b) the notice includes a statement explaining why the Australian Competition Tribunal has been unable to make a decision on the review within that 6 - month period or that 6 - month period as previously extended, as the case may be.
(7) As soon as practicable after the Australian Competition Tribunal gives a notice under subsection ( 6), the Australian Competition Tribunal must cause a copy of the notice to be made available on the Internet.
Time of acceptance of undertaking
(8) To avoid doubt, if the Australian Competition Tribunal makes a decision to accept an access undertaking, the time of acceptance of the undertaking is the time when the Australian Competition Tribunal made its decision.
Note: Division 2 of Part IX of the Trade Practices Act 1974 applies to proceedings before the Australian Competition Tribunal.
118PG Provisions that do not apply in relation to a Australian Competition Tribunal review
Division 1 of Part IX of the Trade Practices Act 1974 does not apply in relation to a review by the Australian Competition Tribunal of a decision made by the ACCC under subsection 118NF (2) or (5) or 118NH (3), (6) or (11).
118PH Statement of reasons for reviewable decision--specification of documents
(1) If the ACCC:
(a) makes a decision referred to in section 118PE ; and
(b) gives a person a written statement setting out the reasons for the decision;
the statement must specify the documents that the ACCC examined in the course of making the decision.
(2) If a document is specified under subsection ( 1), information in the document is taken, for the purposes of paragraph 118PF (4)(b), to be referred to in the ACCC's reasons for making the decision.
Restraining injunctions
(1) If:
(a) a person is:
(i) a digital radio multiplex transmitter licensee; or
(ii) a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence; and
(b) the person has engaged, is engaging or is proposing to engage, in any conduct in contravention of this Division;
the Federal Court may, on the application of the ACCC, grant an injunction:
(c) restraining the person from engaging in the conduct; and
(d) if, in the court's opinion, it is desirable to do so--requiring the person to do something.
Performance injunctions
(2) If:
(a) a person is:
(i) a digital radio multiplex transmitter licensee; or
(ii) a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence; and
(b) the person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(c) the refusal or failure was, is or would be a contravention of this Division;
the Federal Court may, on the application of the ACCC, grant an injunction requiring the person to do that act or thing.
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under section 118PI against a person who is:
(a) a digital radio multiplex transmitter licensee; or
(b) a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence;
the court may, before considering the application, grant an interim injunction restraining the person from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction under section 118PI , as a condition of granting an interim injunction, to give any undertakings as to damages.
118PK Discharge or variation of injunctions
The Federal Court may discharge or vary an injunction granted under this Subdivision.
118PL Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of the Federal Court under this Subdivision to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind--whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind--whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
Performance injunctions
(2) The power of the Federal Court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do that act or thing--whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing--whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
118PM Other powers of the Federal Court unaffected
The powers conferred on the Federal Court under this Subdivision are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
Subdivision H -- Miscellaneous
(1) This section applies if an access undertaking in relation to a digital radio multiplex transmitter licence was in force during the whole or a part of a financial year.
(2) The licensee must, within 60 days after the end of the financial year, give the ACCC a report about such matters as:
(a) are specified in the Procedural Rules; and
(b) relate to:
(i) compliance during that financial year with the access undertaking; or
(ii) compliance during that financial year with the standard access obligations (if any) applicable to the licence; or
(iii) compliance during that financial year with the excess - capacity access obligations (if any) applicable to the licence; or
(iv) compliance during that financial year with the distributed - capacity access obligations (if any) applicable to the licence; or
(v) compliance during that financial year with the obligations that are applicable to the licence under section 118NP .
(1) The ACCC may, by legislative instrument, make rules:
(a) making provision for, or in relation to, the practice and procedure to be followed by the ACCC in performing functions, or exercising powers, under this Division; or
(b) making provision for, or in relation to, all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the ACCC under this Division; or
(c) prescribing matters required or permitted by any other provision of this Division to be prescribed by the Procedural Rules.
(2) Rules under subsection ( 1) are to be known as Procedural Rules.
(3) The Procedural Rules may make provision for, or in relation to, any or all of the following:
(a) the confidentiality of information or documents given to the ACCC by a person who gave the ACCC an access undertaking or a variation of an access undertaking;
(b) the form and content of access undertakings, variations or other documents given to the ACCC under this Division;
(c) requiring the ACCC to give information to the ACMA about the operation of this Division;
(d) requiring the ACMA to give information to the ACCC that is relevant to the operation of this Division.
(4) The Procedural Rules may make provision for, or in relation to, a matter by empowering the ACCC to make decisions of an administrative character.
(5) The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking if:
(a) the ACCC is satisfied that the access undertaking:
(i) is frivolous; or
(ii) is vexatious; or
(iii) was not given in good faith; or
(b) the ACCC has reason to believe that the access undertaking was given for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Division.
(6) Subsections ( 3), (4) and (5) do not limit subsection ( 1).
118PP Constitutional safety net
(1) If the operation of this Division or section 109C would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
"acquisition of property" has the same meaning as in paragraph 51(xxxi) of the Constitution.
"just terms" has the same meaning as in paragraph 51(xxxi) of the Constitution.
The following is a simplified outline of this Division:
• The owner or operator of a broadcasting transmission tower must provide the following persons with access to the tower:
(a) digital radio multiplex transmitter licensees;
(b) persons authorised by digital radio multiplex transmitter licensees under section 114.
• The owner or operator of a designated associated facility must provide the following persons with access to the facility:
(a) digital radio multiplex transmitter licensees;
(b) persons authorised by digital radio multiplex transmitter licensees under section 114.
• The owner or operator of a broadcasting transmission tower must provide the following persons with access to the site of the tower:
(a) digital radio multiplex transmitter licensees;
(b) persons authorised by digital radio multiplex transmitter licensees under section 114.
In this Division:
"broadcasting transmission tower" has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .
"business day" means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.
"designated associated facility" has the meaning given by section 118QB .
"designated content service" means a service mentioned in paragraph 109B(1)(f), (g) or (h).
"facility" includes apparatus, equipment, a structure, a line or an electricity cable or wire.
"site" means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
118QB Designated associated facilities
For the purposes of this Division, a designated associated facility means any of the following facilities:
(a) an antenna;
(b) a combiner;
(c) a feeder system;
(d) a facility of a kind specified in the regulations;
where:
(e) the facility is, or is to be, associated with a radiocommunications transmitter; and
(f) the facility is used, or capable of being used, in connection with the transmission of one or more designated content services.
118QC Extended meaning of access
(1) For the purposes of this Division, giving access to a broadcasting transmission tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.
(2) For the purposes of this Division, giving access to a designated associated facility includes:
(a) replacing the facility with another facility located on the same site and giving access to the replacement facility; or
(b) giving access to a service provided by means of the designated associated facility.
(3) For the purposes of this Division, giving access to a site on which is situated a broadcasting transmission tower includes replacing the tower with another tower located on the site.
118QD Access to broadcasting transmission towers
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by a person (the access seeker ) who is:
(a) a digital radio multiplex transmitter licensee; or
(b) a person authorised by a digital radio multiplex transmitter licensee under section 114;
give the access seeker access to the tower.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subsection ( 1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain either or both of the following:
(i) a multiplex transmitter;
(ii) associated facilities;
used, or for use, wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned ; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(3) The owner or operator of a broadcasting transmission tower is not required to comply with subsection ( 1) if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subsection ( 1) in relation to that tower is not technically feasible.
(4) In determining whether compliance with subsection ( 1) in relation to a tower is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and
(c) if compliance is likely to have a result referred to in paragraph ( a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the tower; and
(ii) making alterations to the tower; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(5) If the ACMA receives a request to make a decision about the issue of a certificate under subsection ( 3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
118QE Access to designated associated facilities
Scope
(1) This section applies to a designated associated facility if the facility is situated on, at, in or under:
(a) a broadcasting transmission tower; or
(b) the site on which a broadcasting transmission tower is situated.
Access to designated associated facilities
(2) The owner or operator of the designated associated facility must, if requested to do so by a person (the access seeker ) who is:
(a) a digital radio multiplex transmitter licensee; or
(b) a person authorised by a digital radio multiplex transmitter licensee under section 114;
give the access seeker access to the facility.
(3) The owner or operator of the designated associated facility is not required to comply with subsection ( 2) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to use:
(i) the facility; or
(ii) a service provided by means of the facility;
wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned ; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(4) The owner or operator of a designated associated facility is not required to comply with subsection ( 2) if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subsection ( 2) in relation to that facility is not technically feasible.
(5) In determining whether compliance with subsection ( 2) in relation to a facility is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph ( a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(6) If the ACMA receives a request to make a decision about the issue of a certificate under subsection ( 4), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
Exemptions
(7) The regulations may provide for exemptions from subsection ( 2).
(8) Regulations made for the purposes of subsection ( 7) may make provision with respect to a matter by conferring on the ACCC a power to make a decision of an administrative character.
118QF Access to sites of broadcasting transmission towers
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by a person (the access seeker ) who is:
(a) a digital radio multiplex transmitter licensee; or
(b) a person authorised by a digital radio multiplex transmitter licensee under section 114;
give the access seeker access to a site if:
(c) the tower is situated on the site; and
(d) either:
(i) the site is owned, occupied or controlled by the owner or operator of the tower; or
(ii) the owner or operator of the tower has a right (either conditional or unconditional) to use the site.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subsection ( 1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain either or both of the following:
(i) a multiplex transmitter;
(ii) associated facilities;
used, or for use, wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned ; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(3) The owner or operator of a broadcasting transmission tower is not required to comply with subsection ( 1) if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subsection ( 1) in relation to that tower is not technically feasible.
(4) In determining whether compliance with subsection ( 1) in relation to a site is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph ( a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(5) If the ACMA receives a request to make a decision about the issue of a certificate under subsection ( 3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
118QG Terms and conditions of access
Access to broadcasting transmission towers
(1) The owner or operator of a broadcasting transmission tower must comply with subsection 118QD (1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subsection); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Access to designated associated facilities
(2) The owner or operator of a designated associated facility must comply with subsection 118QE (2) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subsection); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Access to sites of broadcasting transmission towers
(3) The owner or operator of a broadcasting transmission tower must comply with subsection 118QF (1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subsection); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Conduct of arbitration
(4) The regulations may make provision for and in relation to the conduct of an arbitration under this section.
(5) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chair of the ACCC.
(6) Subsection ( 5) does not limit subsection ( 4).
(1) The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Division.
(2) Before making an instrument under subsection ( 1), the ACCC must consult:
(a) digital radio multiplex transmitter licensees; and
(b) owners and operators of broadcasting transmission towers; and
(c) owners and operators of designated associated facilities.
(3) An access seeker (within the meaning of subsection 118QD (1), 118QE (2) or 118QF (1)) must comply with the Code.
(4) The owner or operator of a broadcasting transmission tower must comply with the Code, to the extent to which the Code relates to the provision of access under section 118QD or 118QF .
(5) The owner or operator of a designated associated facility must comply with the Code, to the extent to which the Code relates to the provision of access under section 118QE .
Subdivision C -- Miscellaneous
118QI Arbitration--acquisition of property
(1) This section applies to a provision of this Division that authorises the conduct of an arbitration (whether by the ACCC or another person).
(2) The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and
(b) would be invalid because of paragraph 51(xxxi) of the Constitution.
(3) In this section:
"acquisition of property" has the same meaning as in paragraph 51(xxxi) of the Constitution.
"just terms" has the same meaning as in paragraph 51(xxxi) of the Constitution.
118QJ Relationship between this Division and the National Transmission Network Sale Act 1998
Part 3 of the National Transmission Network Sale Act 1998 does not apply in relation to an access seeker seeking access to:
(a) a broadcasting transmission tower; or
(b) a site;
to the extent to which this Division applies in relation to the access seeker seeking access to that tower or site.
173 Subsection 129(1)
After "102A", insert "or a non - foundation digital radio multiplex transmitter licence".
174 Subsection 131(1)
Omit "and (3)", substitute ", (3) and (6)".
175 At the end of section 131AA
Add:
(5) A category 1 digital radio multiplex transmitter licence must not be transferred to a person unless:
(a) the person is a qualified company; and
(b) an access undertaking is in force under Division 4B in relation to the licence.
(6) A category 2 digital radio multiplex transmitter licence must not be transferred to a person unless:
(a) the person is a qualified company; and
(b) an access undertaking is in force under Division 4B in relation to the licence.
(7) A category 3 digital radio multiplex transmitter licence must not be transferred to a person unless the person is a qualified company, and:
(a) both:
(i) each national broadcaster beneficially owns shares in the company; and
(ii) there are no other beneficial owners of shares in the company; or
(b) both:
(i) a single national broadcaster beneficially owns all the shares in the company; and
(ii) the other national broadcaster has consented to that beneficial ownership.
(8) If a foundation digital radio multiplex transmitter licence was issued otherwise than in accordance with a price - based allocation system determined under section 106, the licence must not be transferred to a person unless the digital radio moratorium period for the designated BSA radio area concerned has ended.
176 Paragraph 285(f)
Omit "or 109A(1)(k)", substitute ", 109A(1)(k) or 109B(1)(t)".
177 After section 313A
Insert:
(1) Before 1 January 2014, the Minister must cause to be conducted a review of the following matters:
(a) the use of spectrum for the transmission of:
(i) digital radio broadcasting services; and
(ii) restricted datacasting services;
in Australia;
(b) the availability of additional frequency channels for the transmission of:
(i) digital radio broadcasting services; and
(ii) restricted datacasting services;
in Australia;
(c) the operation of this Act in so far as it deals with licensing and regulation in relation to the transmission of:
(i) digital radio broadcasting services; and
(ii) restricted datacasting services;
(d) the operation of the following provisions:
(i) section 109C;
(ii) Division 4A of Part 3.3;
(iii) Division 4B of Part 3.3;
(e) whether any of the provisions mentioned in paragraph ( d) should be amended or repealed.
(2) The Minister must cause to be prepared a report of a review under subsection ( 1).
(3) The Minister must cause copies of a report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.
(4) In this section:
"digital radio broadcasting service" means:
(a) a digital commercial radio broadcasting service; or
(b) a digital community radio broadcasting service; or
(c) a digital national radio broadcasting service.
178 Subsection 155(1)
After "this Act", insert "or Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992 ".
179 Subsection 155(1)
Omit "telecommunications", substitute "communications".
180 Paragraph 155(7)(b)
Omit "other than proceedings under this Act.", substitute:
other than:
(i) proceedings under this Act; or
(ii) proceedings under section 113 of the Radiocommunications Act 1992 that relate to a condition set out in paragraph 109A(1)(ij) or 109C(1)(a), (b) or (c) of that Act.
181 Subsection 155(9)
Omit " telecommunications ", substitute " communications ".
182 At the end of subsection 155(9)
Add:
; or (d) Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992 .
Part 2 -- Transitional provisions
183 Frequency allotment plan prepared under section 25 of the Broadcasting Services Act 1992
(1) This item applies to a frequency allotment plan that:
(a) was in force immediately before the commencement of this item; and
(b) was prepared under subsection 25(1) of the Broadcasting Services Act 1992 .
(2) The amendments of:
(a) section 25 of the Broadcasting Services Act 1992 ; and
(b) section 31 of the Radiocommunications Act 1992 ;
made by this Schedule do not affect the continuity of the frequency allotment plan.
184 Instrument made under subsection 31(1) of the Radiocommunications Act 1992
(1) This item applies to an instrument that:
(a) was in force immediately before the commencement of this item; and
(b) was made under subsection 31(1) of the Radiocommunications Act 1992 .
(2) The amendments of:
(a) section 31 of the Radiocommunications Act 1992 ; and
(b) section 25 of the Broadcasting Services Act 1992 ;
made by this Schedule do not affect the continuity of the instrument.
185 Modification of Ministerial direction given under repealed section 162 of the Broadcasting Services Act 1992
(1) This item applies to the direction that:
(a) was given by the Minister on 10 April 2003 under repealed section 162 of the Broadcasting Services Act 1992 ; and
(b) is known as Australian Broadcasting Authority (Revisiting Radio LAPs) Direction No. 1 of 2003 .
(2) The direction has effect, after the commencement of this item, as if:
(a) the reference in paragraph ( b) of the direction to the service provided under the licence were, by express provision, confined to an analog commercial radio broadcasting service provided under the licence; and
(b) the reference in the direction to one or more additional commercial radio broadcasting licences were, by express provision, confined to one or more additional commercial radio broadcasting licences to provide analog commercial radio broadcasting services.
186 Pre - commencement transmitter licences issued under the Radiocommunications Act 1992
(1) This item applies to a transmitter licence that:
(a) was in force immediately before the commencement of this item; and
(b) authorises operation of a radiocommunications transmitter within a part of the spectrum designated under subsection 31(1A) of the Radiocommunications Act 1992 .
(2) The amendments of section 31 of the Radiocommunications Act 1992 made by this Schedule do not affect:
(a) the continuity of the licence; or
(b) the operations authorised by the licence; or
(c) the renewal of the licence.
