{"id":"F2019L01248","name":"Broadcasting Services (Transmitter Access) Regulations 2019","slug":"broadcasting-services-transmitter-access-regulations-2019","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":440254,"registerId":"F2019L01248-fast-fetch-1775955951926","compilationNumber":null,"startDate":"2026-04-12","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Broadcasting Services (Transmitter Access) Regulations 2019","content":"---\nmeta-content-style-type: text/css\nmeta-content-type: application/xhtml+xml; charset=utf-8\nmeta-generator: Aspose.Words for .NET 22.10.0\n---\n\n?xml version=\"1.0\" encoding=\"utf-8\" standalone=\"no\"?>\n\n![Commonwealth Coat of Arms of Australia](image.001.jpeg)\n\n \n\nBroadcasting Services (Transmitter Access) Regulations 2019\n\nI, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.\n\nDated 19 September 2019\n\nDavid Hurley\n\nGovernor‑General\n\nBy His Excellency’s Command\n\nPaul Fletcher\n\nMinister for Communications, Cyber Safety and the Arts\n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\nContents\n\nPart 1—Preliminary\n\n1 Name\n\n2 Commencement\n\n3 Authority\n\n4 Schedule 2\n\n5 Definitions\n\nPart 2—Access to designated associated facilities\n\n6 Exemptions from obligation to give access\n\nPart 3—Arbitration\n\nDivision 1—General\n\n7 Purpose and application of this Part\n\n8 Notification of disputes\n\n9 Determination by ACCC\n\n10 Matters to be taken into account\n\n11 Withdrawal of notifications\n\n12 When ACCC may terminate arbitration\n\nDivision 2—Conduct of arbitration\n\n13 Conduct of arbitration\n\n14 Constitution of ACCC for arbitration\n\n15 Reconstitution of ACCC for arbitration\n\n16 Determination of matters\n\nDivision 3—Powers of ACCC in conducting arbitration\n\n17 Power to refer matters and give directions\n\n18 Power to require person to give information or produce documents\n\n19 Power to summon person to give evidence and produce documents\n\nDivision 4—Arbitration hearings\n\n20 Conduct of arbitration hearings\n\n21 Arbitration hearings to be in private\n\n22 Right to representation\n\n23 Evidence on oath or affirmation\n\nDivision 5—Joint arbitration of disputes\n\n24 When joint arbitration may be conducted\n\n25 Procedure in joint arbitration\n\n26 Determination of disputes\n\nDivision 6—Offences\n\n27 Contravention of a direction\n\n28 Failure to comply with notice to give information or produce documents\n\n29 Offences by witnesses\n\n30 Intimidation etc.\n\n31 Disturbing an arbitration hearing etc.\n\nDivision 7—Miscellaneous\n\n32 Parties may request ACCC to treat material as confidential\n\n33 Parties to pay costs of arbitration\n\nPart 4—Application, saving and transitional provisions\n\n34 Definitions\n\n35 Transitional—disputes notified before commencement\n\nSchedule 1—Form of summons\n\nSchedule 2—Repeals\n\nBroadcasting Services (Transmitter Access) Regulations 2001\n\nPart 1—Preliminary\n\n \n\n1  Name\n\n  This instrument is the Broadcasting Services (Transmitter Access) Regulations 2019.\n\n2  Commencement\n\n (1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n \n\n- Commencement information\n- Column 1 Column 2 Column 3\n- Provisions Commencement Date/Details\n- 1. The whole of this instrument The day after this instrument is registered. 24 September 2019\n\n\nNote: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.\n\n (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.\n\n3  Authority\n\n  This instrument is made under the Broadcasting Services Act 1992.\n\n4  Schedule 2\n\n  Each instrument that is specified in Schedule 2 to this instrument is amended or repealed as set out in the applicable items in that Schedule, and any other item in that Schedule has effect according to its terms.\n\n5  Definitions\n\nNote: A number of expressions used in this instrument are defined in the Act, including the following:\n\n(a) ACCC;\n\n(b) broadcasting service;\n\n(c) broadcasting transmission tower;\n\n(d) designated associated facility;\n\n(e) facility;\n\n(f) giving access.\n\n  In this instrument:\n\naccess provider means the owner or operator of:\n\n (a) a broadcasting transmission tower; or\n\n (b) a designated associated facility.\n\naccess seeker, in relation to access that is described in clause 45, 45A or 46 of Schedule 4 to the Act, means a person described as an access seeker in that clause.\n\nAct means the Broadcasting Services Act 1992.\n\ndetermination means a written determination made by the ACCC under subsection 9(1).\n\ndispute means a dispute notified under subsection 8(1).\n\ntelecommunications network has the meaning given by section 7 of the Telecommunications Act 1997.\n\nPart 2—Access to designated associated facilities\n\n \n\n6  Exemptions from obligation to give access\n\nExemptions\n\n (1) For the purposes of subclause 45A(9) of Schedule 4 to the Act, the owner or operator of a designated associated facility is not required to give an access seeker access to the designated associated facility if subsection (2) or (4) applies.\n\nNote: For the obligation to give access, see subclauses 45A(2) and (4) of Schedule 4 to the Act.\n\nGiving access would have certain effects\n\n (2) This subsection applies if giving access would:\n\n (a) prevent a person covered by subsection (3) from obtaining a sufficient amount of a service provided by means of the designated associated facility to be able to meet the person’s reasonably anticipated requirements, measured at the time the request for access was made; or\n\n (b) prevent any person from obtaining, by the exercise of a right under a contract or determination in force at the time the request for access is made, a sufficient level of access to a service provided by means of the designated associated facility to be able to meet the person’s actual requirements; or\n\n (c) deprive any person of a right under a contract that was in force on 10 May 2000.\n\n (3) A person is covered by this subsection if the person is:\n\n (a) the owner or operator of the designated associated facility; or\n\n (b) a customer of the owner or operator who, at the time the request is made, has access to, or a right to access, the designated associated facility.\n\nAccess seeker would fail in certain respects\n\n (4) This subsection applies if there are reasonable grounds to believe that, if access were given, the access seeker:\n\n (a) would fail, to a material extent, to comply with the terms and conditions on which the owner or operator complies, or is reasonably likely to comply, with the obligation to give access; or\n\n (b) would fail to protect:\n\n (i) the integrity of a telecommunications network; or\n\n (ii) the continuity of a broadcasting service; or\n\n (iii) the safety of individuals working on, or using services supplied by means of, a telecommunications network or facility.\n\n (5) Examples of reasonable grounds for believing the matter mentioned in paragraph (4)(a) include:\n\n (a) evidence that the access seeker is not creditworthy; and\n\n (b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the owner or operator).\n\nPart 3—Arbitration\n\nDivision 1—General\n\n7  Purpose and application of this Part\n\n  This Part:\n\n (a) is made for the purposes of subclause 47(3) of Schedule 4 to the Act; and\n\n (b) provides for and in relation to the conduct of an arbitration by the ACCC under clause 47 of that Schedule.\n\n8  Notification of disputes\n\nNotification requirements\n\n (1) An access seeker or access provider may notify the ACCC in writing that a dispute exists if the access seeker and access provider are unable to agree about the terms and conditions on which access is, or is to be, given to:\n\n (a) a broadcasting transmission tower; or\n\n (b) a site of a broadcasting transmission tower; or\n\n (c) a designated associated facility situated on, at, in or under:\n\n (i) a broadcasting transmission tower; or\n\n (ii) the site on which a broadcasting transmission tower is situated.\n\nExample: An access seeker and access provider are unable to agree about:\n\n(a) the price, or the method establishing the price, at which access is to be provided; or\n\n(b) whether a previous determination should be varied.\n\n (2) The notification must include the following information:\n\n (a) the name of the person notifying the dispute (the notifier) and, if the notifier is not an individual, the name and address of an individual who represents the notifier;\n\n (b) the notifier’s address for the delivery of documents in relation to the notification;\n\n (c) whether the notifier is the access seeker or access provider;\n\n (d) if the notifier is the access seeker—the name and address of the access provider;\n\n (e) if the notifier is the access provider—the name and address of the access seeker;\n\n (f) the provision of the Act that requires the access to be given;\n\n (g) a description of the dispute, including:\n\n (i) whether the dispute is about varying existing terms and conditions of access and, if it is, a description of the existing terms and conditions; and\n\n (ii) each aspect of the terms and conditions on which the access seeker and access provider are able to agree; and\n\n (iii) each aspect of the terms and conditions on which the access seeker and access provider are unable to agree;\n\n (h) a description of any effort that has been made to resolve the dispute, including efforts to appoint an arbitrator in accordance with paragraph 47(1)(b), 47(1A)(b) or 47(2)(b) of Schedule 4 to the Act;\n\n (i) if the parties have failed to agree on the appointment of an arbitrator—confirmation of the failure to agree;\n\n (j) any other information that the notifier considers relevant (such as the name and address of a person that the notifier considers may have an interest in the dispute).\n\n (3) A contravention of subsection (2) does not affect the validity of a notification.\n\nParties to the arbitration\n\n (4) When the ACCC receives the notification, it must give written notice of the dispute as follows:\n\n (a) if the access seeker notified the dispute—to the access provider;\n\n (b) if the access provider notified the dispute—to the access seeker;\n\n (c) if the ACCC considers that the determination of the dispute may affect another person (whether or not the determination would require the other person to do something)—to the other person;\n\n (d) to any other person whom the ACCC considers may wish to become a party to the arbitration of the dispute.\n\n (5) Each of the following is a party to the arbitration of the dispute:\n\n (a) the access seeker;\n\n (b) the access provider;\n\n (c) a person to whom paragraph (4)(c) applies;\n\n (d) any other person who applies in writing to be made a party to the arbitration and is accepted by the ACCC as having a sufficient interest.\n\n9  Determination by ACCC\n\nPower to make determination\n\n (1) The ACCC must make a written determination of the terms and conditions of access.\n\n (2) The determination may deal with any matter relating to access, including matters that were not the basis for the notification of the dispute.\n\n (3) Without limiting subsection (2), the determination may:\n\n (a) require the access provider to give the access seeker access to a broadcasting transmission tower, designated associated facility or site;\n\n (b) require the access seeker to accept, and pay for, access to a broadcasting transmission tower, designated associated facility or site;\n\n (c) specify the terms and conditions on which the access provider is to comply with any or all of the obligations under clauses 45, 45A and 46 of Schedule 4 to the Act that are applicable to the access provider;\n\n (d) specify any other terms and conditions on which the access seeker is given access;\n\n (e) require a party to the arbitration of the dispute to extend or enhance the capability of a broadcasting transmission tower, designated associated facility or site;\n\n (f) specify the extent to which the determination varies an earlier determination made under this section.\n\nLimits on power\n\n (4) The determination must not require the access provider to give access if the requirement is already imposed by Part 5 of Schedule 4 to the Act or any other law of the Commonwealth.\n\n (5) If the arbitration relates to a designated associated facility—the determination must not:\n\n (a) be inconsistent with an exemption mentioned in section 6; or\n\n (b) result in the access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility; or\n\n (c) require a party to the arbitration of the dispute (other than the access seeker) to bear some or all of the costs of:\n\n (i) extending or enhancing the capability of a facility; or\n\n (ii) maintaining extensions to or enhancements of the capability of a facility.\n\nInforming parties\n\n (6) Before making the determination, the ACCC must give a draft of the determination to each party to the arbitration of the dispute.\n\n (7) When the ACCC makes the determination, it must:\n\n (a) give a copy of the determination to each party to the arbitration of the dispute; and\n\n (b) include the reasons for the determination.\n\nWithdrawal of notification or termination of arbitration\n\n (8) To avoid doubt, the ACCC is not required to make a written determination of the terms and conditions of access if:\n\n (a) notification of the dispute is withdrawn under section 11; or\n\n (b) the ACCC terminates the arbitration of the dispute under section 12.\n\n10  Matters to be taken into account\n\n (1) The ACCC must take the following matters into account in making the determination:\n\n (a) the legitimate business interests of the parties, and the parties’ investment in facilities used in giving access to a broadcasting transmission tower, designated associated facility or site to which the arbitration relates;\n\n (b) the interests of all persons who have been given access to a broadcasting transmission tower, designated associated facility or site to which the arbitration relates;\n\n (c) the direct costs of giving access to a broadcasting transmission tower, designated associated facility or site to which the arbitration relates;\n\n (d) the operational and technical requirements for the safe and reliable operation of:\n\n (i) a broadcasting transmission tower, designated associated facility or site to which the arbitration relates; or\n\n (ii) another facility located at, on, in or under that broadcasting transmission tower, designated associated facility or site;\n\n (e) the economically efficient operation of a broadcasting transmission tower, designated associated facility or site to which the arbitration relates;\n\n (f) the value to a party to the arbitration of the dispute of:\n\n (i) an extension of property that is or would be paid for by a person other than the party; or\n\n (ii) an enhancement of capability, that is or would be paid for by a person other than the party;\n\n (g) whether the determination will promote the objects set out in paragraphs 3(1)(a), (aa), (b) and (ba) of the Act.\n\n (2) The ACCC may take into account any other matters that it considers relevant.\n\n11  Withdrawal of notifications\n\n (1) A notification of the dispute under subsection 8(1) may only be withdrawn:\n\n (a) by the person who notified the dispute; and\n\n (b) before the ACCC makes its determination on the dispute.\n\n (2) The withdrawal of the notification must:\n\n (a) be given in writing to the ACCC; and\n\n (b) include the following information:\n\n (i) the name of the person withdrawing the notification;\n\n (ii) whether the person is the access seeker or access provider;\n\n (iii) a short description of the dispute.\n\n (3) The person withdrawing the notification must give a copy of the withdrawal to:\n\n (a) if the person is the access seeker—the access provider; or\n\n (b) if the person is the access provider—the access seeker.\n\n (4) The withdrawal of the notification takes effect when the withdrawal is received by the ACCC.\n\n (5) The ACCC must give a copy of the withdrawal to:\n\n (a) each person to whom the ACCC gave notice of the dispute under subsection 8(4); and\n\n (b) if any person who is a party to the arbitration of the dispute (other than the person withdrawing the notification) was not given notice under that subsection—each such person.\n\n12  When ACCC may terminate arbitration\n\n (1) The ACCC may terminate an arbitration of a dispute (without making a determination) if it considers that:\n\n (a) the notification of the dispute was vexatious; or\n\n (b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or\n\n (c) a party to the arbitration has not engaged in negotiations in relation to the dispute in good faith; or\n\n (d) the access that is the subject of the dispute should continue to be provided under an existing arrangement between the access seeker and access provider.\n\n (2) In addition, if the dispute is about varying an earlier determination, the ACCC may terminate the arbitration if it considers that there is no sufficient reason why that determination should not continue to have effect.\n\nDivision 2—Conduct of arbitration\n\n13  Conduct of arbitration\n\n (1) The ACCC may conduct an arbitration of a dispute:\n\n (a) on the papers; or\n\n (b) by holding an arbitration hearing; or\n\n (c) in part on the papers and in part by holding an arbitration hearing.\n\nNote: See section 24 for when the ACCC may conduct a joint arbitration.\n\n (2) In conducting an arbitration of a dispute, the ACCC:\n\n (a) is not bound by technicalities, legal forms or rules of evidence; and\n\n (b) must act as speedily as a proper consideration of the dispute allows, having regard to the need to inquire into and investigate carefully and quickly the dispute and all matters affecting the merits, and a fair settlement, of the dispute; and\n\n (c) may inform itself of any matter relevant to the dispute in any way it considers appropriate.\n\n (3) The ACCC may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties, and may require that their cases be presented within those periods.\n\n14  Constitution of ACCC for arbitration\n\n (1) For the purposes of an arbitration of a dispute, the ACCC may be constituted by one or more members of the ACCC nominated in writing by the Chairperson of the ACCC.\n\n (2) If the Chairperson nominates 2 or more members under subsection (1), the Chairperson must nominate one of the members to preside at the arbitration.\n\n (3) A member of the ACCC is not disqualified from constituting the ACCC (alone or with other members) for the purposes of an arbitration of a dispute about a particular matter merely because the member has performed functions, or exercised powers, in relation to the matter or a related matter.\n\n15  Reconstitution of ACCC for arbitration\n\n (1) This section applies if a member constituting, or who is one of the members constituting, the ACCC for the purposes of an arbitration of a dispute:\n\n (a) stops being a member of the ACCC; or\n\n (b) is not available for the purposes of the arbitration for any reason.\n\n (2) The Chairperson must, for the purposes of the arbitration, direct that:\n\n (a) if only one member constituted the ACCC—another member is to constitute the ACCC; or\n\n (b) if more than one member constituted the ACCC—the ACCC is to be constituted by:\n\n (i) the remaining member or members; or\n\n (ii) one or more other members, together with the remaining member or members.\n\n (3) The ACCC must continue and finish the arbitration in accordance with the direction.\n\n (4) In conducting the arbitration, the ACCC may have regard to any record of the proceedings of the arbitration made by the ACCC as previously constituted.\n\n16  Determination of matters\n\n  If the ACCC is constituted by 2 or more members for the purposes of an arbitration of a dispute, a matter must be decided:\n\n (a) according to the opinion of the majority of those members; or\n\n (b) if the members are evenly divided on the question—according to the opinion of the member who is presiding.\n\nDivision 3—Powers of ACCC in conducting arbitration\n\n17  Power to refer matters and give directions\n\n  The ACCC may do any of the following for the purposes of an arbitration of a dispute:\n\n (a) refer any matter to an expert and accept the expert’s report as evidence;\n\n (b) direct a party to the arbitration to conduct research or investigations to obtain relevant information;\n\n (c) direct a person who is, or was, a party to the arbitration to give relevant information to one or more other parties;\n\n (d) direct a person not to divulge, or communicate to anyone else, stated information that was given to the person for the purposes of the arbitration unless the person is permitted to do so by the ACCC;\n\n (e) give any other such direction, and do any such thing, as is necessary or expedient to make a determination.\n\nNote: A person may commit an offence if the person does an act, or omits to do an act, that contravenes a direction under any of paragraphs (b) to (e) (see section 27).\n\n18  Power to require person to give information or produce documents\n\n (1) The ACCC may give a notice to a person under subsection (2) if the ACCC has reason to believe that the person has information, or a document, relevant to an arbitration of a dispute.\n\n (2) The ACCC may, by written notice given to the person, require the person:\n\n (a) to give any such information to the ACCC; or\n\n (b) to produce any such document to the ACCC;\n\nfor the purposes of the arbitration.\n\n (3) The notice must:\n\n (a) specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and\n\n (b) specify the manner in which the person is required to comply with the notice; and\n\n (c) state the effect of section 28 (offence for failure to comply with a notice).\n\nNote: A person may commit an offence if the person fails to comply with a notice (see section 28).\n\n19  Power to summon person to give evidence and produce documents\n\n (1) The member of the ACCC who is presiding at an arbitration of a dispute may, for the purposes of the arbitration, summon a person to:\n\n (a) attend before the ACCC to give evidence; and\n\n (b) produce such documents (if any) as are referred to in the summons.\n\n (2) A summons must be in the form set out in Schedule 1.\n\n (3) A summons must be served on a person by:\n\n (a) delivering a copy of the summons to the person personally; and\n\n (b) showing the original of the summons to the person when the copy is delivered to the person.\n\nNote: A person may commit an offence if the person fails to comply with a summons (see section 29).\n\nDivision 4—Arbitration hearings\n\n20  Conduct of arbitration hearings\n\n (1) The ACCC may do any of the following things for the purposes of an arbitration hearing:\n\n (a) require evidence or argument to be presented in writing;\n\n (b) decide the matters on which it will hear oral evidence or argument;\n\n (c) hear and determine the dispute in the absence of a person who has been summoned to attend before the ACCC;\n\n (d) sit at any place;\n\n (e) adjourn to any time and place.\n\n (2) The ACCC may determine that an arbitration hearing is to be conducted by:\n\n (a) telephone; or\n\n (b) closed‑circuit television; or\n\n (c) any other means of communication.\n\n21  Arbitration hearings to be in private\n\n (1) Subject to subsection (2), an arbitration hearing is to be conducted in private.\n\n (2) If the parties to an arbitration of a dispute agree, an arbitration hearing, or part of an arbitration hearing, may be conducted in public.\n\n (3) The member of the ACCC who is presiding at an arbitration hearing conducted in private may give written directions about the persons who may be present at the hearing.\n\n (4) In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties to the arbitration and the need for commercial confidentiality.\n\n22  Right to representation\n\n  A party to an arbitration of a dispute may appear in person at an arbitration hearing, or be represented by someone else.\n\n23  Evidence on oath or affirmation\n\n  The ACCC may take evidence on oath or affirmation at an arbitration hearing and, for that purpose, a member of the ACCC may administer the oath or affirmation.\n\nDivision 5—Joint arbitration of disputes\n\n24  When joint arbitration may be conducted\n\n (1) If:\n\n (a) the ACCC is arbitrating 2 or more disputes at a particular time; and\n\n (b) one or more matters are common to those disputes;\n\nthe Chairperson of the ACCC may, by notice in writing, decide that the ACCC must conduct a joint arbitration of such of those disputes (the nominated disputes) as are specified in the notice.\n\n (2) The Chairperson may decide that the ACCC must conduct a joint arbitration of the nominated disputes only if the Chairperson considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner.\n\n (3) Before deciding that the ACCC must conduct a joint arbitration of the nominated disputes, the Chairperson must give each party to the arbitration of each nominated dispute a notice in writing:\n\n (a) specifying what the Chairperson is proposing to do; and\n\n (b) inviting the party to make a written submission on the proposal to the Chairperson within 14 days after the notice is given.\n\n (4) The Chairperson must have regard to any submission so made in deciding whether the ACCC must conduct a joint arbitration of the nominated disputes. The Chairperson may have regard to any other matter the Chairperson considers relevant.\n\n25  Procedure in joint arbitration\n\n (1) Sections 13 to 23 and 27 to 33 apply to the joint arbitration in a corresponding way to the way in which they apply to a particular arbitration.\n\n (2) The Chairperson of the ACCC may, for the purposes of the conduct of the joint arbitration, give written directions to the member of the ACCC presiding at the arbitration.\n\n (3) The ACCC as constituted for the purposes of the joint arbitration of 2 or more disputes may have regard to any record of the proceedings of the arbitration of any of those disputes.\n\n26  Determination of disputes\n\n (1) The ACCC as constituted for the purposes of the joint arbitration of 2 or more disputes may make a single determination that covers all of the disputes.\n\n (2) If the ACCC does not make a single determination that covers all of the disputes, the ACCC as constituted for the purposes of the arbitration of each dispute may, for the purposes of making a determination of the dispute:\n\n (a) have regard to any record of the proceedings of the joint arbitration; and\n\n (b) adopt any findings of fact made by the ACCC as constituted for the purposes of the joint arbitration.\n\nNote: See also sections 9 and 10 in relation to the making of determinations.\n\nDivision 6—Offences\n\n27  Contravention of a direction\n\n  A person commits an offence of strict liability if:\n\n (a) the person is given a direction under any of paragraphs 17(b) to (e); and\n\n (b) the person contravenes the direction.\n\nPenalty: 10 penalty units.\n\n28  Failure to comply with notice to give information or produce documents\n\n  A person commits an offence of strict liability if:\n\n (a) the person is given a notice under section 18; and\n\n (b) the person fails to comply with the notice.\n\nPenalty: 10 penalty units.\n\n29  Offences by witnesses\n\nFailure to appear\n\n (1) A person commits an offence of strict liability if:\n\n (a) the person is served with a summons under section 19 to attend before the ACCC to give evidence; and\n\n (b) the person has not been excused, or released from further attendance, by a member of the ACCC; and\n\n (c) the person fails to attend as required by the summons.\n\nPenalty: 10 penalty units.\n\nFailure to answer questions etc.\n\n (2) A person commits an offence of strict liability if:\n\n (a) the person is served with a summons under section 19 to attend before the ACCC to give evidence; and\n\n (b) either:\n\n (i) the person fails to be sworn or to make an affirmation; or\n\n (ii) the person fails to answer a question that the person is required to answer by the ACCC.\n\nPenalty: 10 penalty units.\n\nFailure to produce document\n\n (3) A person commits an offence of strict liability if:\n\n (a) the person is served with a summons under section 19 to produce a document; and\n\n (b) the person fails to produce the document as required by the summons.\n\nPenalty: 10 penalty units.\n\n30  Intimidation etc.\n\n (1) A person (the first person) commits an offence if:\n\n (a) the first person engages in conduct that:\n\n (i) threatens, intimidates or coerces another person; or\n\n (ii) causes damage, disadvantage or loss to another person; and\n\n (b) the first person does so because the other person:\n\n (i) has attended, or proposes to attend, before the ACCC to give evidence at an arbitration hearing; or\n\n (ii) has produced, or proposes to produce, a document to the ACCC.\n\nPenalty: 30 penalty units.\n\n (2) Strict liability applies to the physical element in paragraph (1)(b) that the other person:\n\n (a) has attended, or proposes to attend, before the ACCC to give evidence at an arbitration hearing; or\n\n (b) has produced, or proposes to produce, a document to the ACCC.\n\n31  Disturbing an arbitration hearing etc.\n\n  A person commits an offence if the person:\n\n (a) insults, disturbs or uses insulting language towards a member of the ACCC who is exercising powers, or performing functions or duties, as a member of the ACCC for the purposes of an arbitration hearing; or\n\n (b) interrupts an arbitration hearing; or\n\n (c) creates a disturbance, or participates in creating or continuing a disturbance, in a place where an arbitration hearing is being conducted.\n\nPenalty: 30 penalty units.\n\nDivision 7—Miscellaneous\n\n32  Parties may request ACCC to treat material as confidential\n\n (1) A party to an arbitration of a dispute may:\n\n (a) inform the ACCC that, in the opinion of the party, a stated part of a document contains confidential commercial information; and\n\n (b) request the ACCC not to give a copy of that part of the document to another party to the arbitration.\n\n (2) On receiving the request, the ACCC must:\n\n (a) inform the other party that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and\n\n (b) ask the other party whether that party objects to the ACCC complying with the request.\n\n (3) If the other party objects, that party may inform the ACCC of its objection and of the reasons for it.\n\n (4) The ACCC may decide not to give to the other party a copy of so much of the document as contains confidential commercial information that the ACCC considers should not be given after considering:\n\n (a) the request; and\n\n (b) any objection; and\n\n (c) any further submissions that any party has made in relation to the request.\n\n33  Parties to pay costs of arbitration\n\n  The ACCC may:\n\n (a) charge the persons who are, or were, parties to an arbitration of a dispute for the ACCC’s costs in conducting the arbitration; and\n\n (b) apportion the amount of the charge between those persons.\n\nPart 4—Application, saving and transitional provisions\n\n \n\n34  Definitions\n\n  In this Part:\n\ncommencement means the day this instrument commences.\n\nold law means the Broadcasting Services (Transmitter Access) Regulations 2001, as in force immediately before commencement.\n\n35  Transitional—disputes notified before commencement\n\n  Despite the repeal of the old law by Schedule 2 to this instrument, the old law continues to apply in relation to a dispute if, immediately before commencement:\n\n (a) notification of the dispute had been given to the ACCC; and\n\n (b) a withdrawal of the notification of the dispute had not been received by the ACCC; and\n\n (c) the arbitration of the dispute had not been terminated by the ACCC; and\n\n (d) a determination of the dispute had not been made.\n\nSchedule 1—Form of summons\n\nNote: See subsection 19(2).\n\n  \n\nCommonwealth of Australia\n\nBroadcasting Services Act 1992\n\nSummons\n\n \n\n[Title of matter]\n\n \n\nTo: [name and address of witness]\n\n \n\n1. You are summoned to attend before the Australian Competition and Consumer Commission, [insert address], for an arbitration hearing in this matter on [insert date] at [insert time] and then from day to day until the hearing is completed or until you are released from further attendance.\n\n \n\n2. You are required to attend before the Commission to give evidence at the hearing.\n\n \n\n*3. You are required to bring with you and produce the following documents: [set out the documents required]\n\n \n\nDate:\n\n \n\n \n\n \n\nPresiding Member\n\nAustralian Competition and Consumer Commission\n\n \n\n*omit, if inapplicable\n\nSchedule 2—Repeals\n\n \n\nBroadcasting Services (Transmitter Access) Regulations 2001\n\n1  The whole of the instrument\n\nRepeal the instrument.\n\n \n","sortOrder":0}],"analysis":{"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"This instrument repeals the Broadcasting Services (Transmitter Access) Regulations 2001 (Schedule 2) and replaces them with the 2019 text setting out exemptions, ACCC arbitration procedures, powers, offences and transitional provisions. The instrument therefore effects a replacement of the earlier regulatory instrument; disputes notified before commencement continue to be governed by the old law until resolved (clause 35)."},"complexity_factors":["Cross‑references to the Broadcasting Services Act 1992 and specific Schedule 4 provisions (clauses 3, 5, 8(2)(f))","Detailed procedural regime for arbitration with multiple optional paths (on the papers, hearings, hybrid) and joint arbitration (clauses 13, 24–26)","Wide ACCC discretion to take into account unspecified relevant matters and to determine procedure and timelines (clauses 10(2), 13(2)–(3))","Multiple compliance mechanisms and enforcement tools (notices, summonses, penalties — clauses 17–19, 27–31) creating legal risk and operational burdens","Confidentiality rules that require case‑by‑case ACCC decisions (clause 32), affecting evidence disclosure and procedural strategy","Interplay between exemptions from access (clause 6) and limits on ACCC powers (clause 9(4)–(5)), which requires fact‑specific legal assessment","Cost recovery and apportionment powers (clause 33) that create direct financial consequences for parties","Transitional preservation of the old law for previously notified disputes (clause 35), adding transitional legal complexity"],"plain_english_summary":"What this instrument does (mechanically)\n\n- Replaces the earlier 2001 transmitter‑access regulations and sets rules for access to broadcasting transmission towers, related sites and \"designated associated facilities\" (see Schedule 2; clause 1).\n- Establishes who can be an access provider (the owner/operator of a tower or designated associated facility) and who can be an access seeker (see clause 5).\n- Specifies limited circumstances in which an access provider need not allow access to a designated associated facility (clause 6).\n- Creates a formal arbitration procedure, conducted by the Australian Competition and Consumer Commission (ACCC), for disputes about the terms and conditions of access (Part 3, especially clauses 7–9).\n- Sets out how disputes are notified, who becomes a party, how the ACCC must make and communicate determinations, what matters the ACCC must consider, and when the ACCC may refuse or terminate arbitration (clauses 8–12).\n- Gives the ACCC procedural powers for arbitration: to run hearings, summon witnesses and documents, require information, refer matters to experts, and hold hearings in private or by communications technology (clauses 13–23 and 17–19).\n- Creates criminal penalties (expressed in penalty units) for failing to comply with ACCC directions, notices or summonses, for intimidation, and for disturbing hearings (clauses 27–31).\n- Allows parties to request that parts of documents be treated as confidential and gives the ACCC discretion to refuse disclosure (clause 32).\n- Allows the ACCC to charge parties for the costs of conducting an arbitration and to apportion those costs between parties (clause 33).\n- Contains transitional rules preserving the old regulations for disputes notified before this instrument commenced (clause 35).\n\nWho this affects\n\n- Access providers: owners or operators of broadcasting transmission towers and designated associated facilities (clause 5).\n- Access seekers: persons seeking access to towers, sites or designated associated facilities under the specified provisions of Schedule 4 to the Broadcasting Services Act 1992 (clause 5; clause 8 describes the scope of disputes).\n- Other persons who may be affected by determinations and who may be notified or join an arbitration (clause 8(4)–(5)).\n- Parties to an arbitration who may be charged for ACCC costs or subject to penalties if they do not comply with directions, notices or summonses (clauses 27–33).\n\nWhy it matters (official purpose and the mechanical consequences)\n\n- The instrument is made for the purposes of subclause 47(3) of Schedule 4 to the Broadcasting Services Act 1992 and provides the rules for ACCC arbitration of access disputes (clause 7). The practical effect is to create a clear administrative path for resolving disputes about access to transmission infrastructure and associated facilities.\n\nKey mechanics that change incentives, costs and decision‑making\n\n- Access providers face a statutory duty (subject to the stated exemptions) to give access if ordered by the ACCC; the ACCC can require provision of access, specify terms, and require enhancements or extensions (clause 9(3)(a), (d)–(e)).\n- Access seekers may be required to accept and pay for access under an ACCC determination (clause 9(3)(b)). This directly affects prices and contracting outcomes: the ACCC can impose terms when parties cannot agree (clause 9(1)–(3)).\n- The instrument limits the ACCC from ordering access where another Commonwealth law already imposes the same requirement (clause 9(4)), and it protects certain contractual rights and ownership interests in the case of designated associated facilities (clause 9(5)(a)–(b)).\n- The access provider can refuse access in defined circumstances: where access would prevent the provider or existing customers from meeting reasonably anticipated or contracted service levels, or would deprive a person of a contractual right existing on 10 May 2000, or where there are reasonable grounds to believe the access seeker would not comply with terms or would jeopardise network integrity, continuity of broadcasting or safety (clause 6(1)–(5)). The examples of reasonable grounds include creditworthiness and repeated non‑compliance (clause 6(5)).\n- The ACCC has broad procedural discretion in arbitration: it is not bound by strict rules of evidence, may act \"as speedily as proper consideration allows,\" may take into account any relevant matter, and may conduct hearings on the papers, by hearing, or hybrid (clause 13(2)–(3); clause 10(2)). These give the ACCC flexibility but also create administrative discretion about process and factual emphasis.\n- The ACCC can require documents or information with at least a 14‑day compliance period (clause 18(2)–(3)), may summon witnesses under the prescribed form (clause 19; Schedule 1), and may order parties to do research or to share information with other parties (clause 17(b)–(c)). Non‑compliance carries penalties expressed in penalty units (clauses 27–29). These provisions create concrete compliance costs (time, data assembly, legal representation) for businesses and individuals.\n- Parties can ask the ACCC to treat parts of submissions as commercially confidential; the ACCC must consult before deciding (clause 32). This affects how much commercially sensitive information has to be disclosed in arbitration.\n- The ACCC may charge the parties for the costs of arbitration and apportion those costs between them (clause 33). This assigns a direct monetary cost to using the statutory arbitration route.\n\nTrade‑offs, implementation risks and operational constraints (source‑grounded)\n\n- Trade‑off between speed and procedural formality: the ACCC is required to act promptly (clause 13(2)(b)) and is not bound by strict evidence rules (clause 13(2)(a)), which can reduce time and transaction costs but increases ACCC procedural discretion (clause 10(2)).\n- Allocation of costs and investment incentives: the ACCC may order a party to extend or enhance capability but generally cannot require other parties (other than the access seeker) to bear costs of extensions or enhancements to a facility (clause 9(3)(e); clause 9(5)(c)). That limits forcing incumbent owners to finance upgrades for the benefit of others.\n- Protection of existing contractual and ownership rights: the instrument preserves some contractual rights and forbids transferring ownership of parts of a facility without owner consent (clause 6(2)(c); clause 9(5)(b)). This constrains how far arbitration can alter the legal ownership and pre‑existing contractual allocations.\n- Compliance burden and enforcement risk: parties may be required to produce documents, attend and give evidence under oath, and face strict‑liability offences and financial penalties for failures to comply (clauses 18–19; clauses 27–29). There is also a 30‑penalty‑unit offence for intimidation or disturbing hearings (clauses 30–31). Those provisions impose both direct monetary risk and enforcement exposure.\n- Bureaucratic discretion and unpredictability: multiple clauses give the ACCC discretion (e.g. whether to join parties under clause 8(4), whether to terminate arbitration under clause 12, what additional matters to take into account under clause 10(2), confidentiality decisions under clause 32, and whether to conduct joint arbitration under clause 24). Discretion can improve case‑by‑case tailoring but increases uncertainty about outcomes for private actors.\n- Interaction with other laws and prior arrangements: the ACCC cannot order access where another Commonwealth law already imposes that requirement (clause 9(4)), and an existing arrangement may justify terminating arbitration (clause 12(1)(d)). Parties therefore must consider other legal frameworks and commercial contracts alongside this regime.\n\nConcrete points about who pays, who decides, and likely behavioural effects\n\n- Who pays: an access seeker may be ordered to pay for access (clause 9(3)(b)); parties may be charged for ACCC arbitration costs (clause 33); failure to comply with ACCC directions/notices/summonses may attract penalties in penalty units (clauses 27–31).\n- Who decides: the ACCC makes written determinations (clause 9(1)); the Chairperson of the ACCC nominates the member(s) to constitute the ACCC for arbitration (clause 14); the ACCC has power to summon, require information and run hearings (clauses 17–19, 20).\n- Behaviour changes likely to follow from the instrument: owners/operators may more carefully manage capacity allocations and contracts because the ACCC can order access or enhancements (clauses 6 and 9); access seekers may be incentivised to demonstrate creditworthiness and compliance history to avoid rejection under clause 6(4)–(5); parties may factor in potential ACCC cost‑recovery charges and penalties when deciding whether to pursue arbitration (clauses 33 and 27–31).\n\nSource references: clauses and schedules cited above are from the Broadcasting Services (Transmitter Access) Regulations 2019 (as set out in this instrument). The instrument is made under the Broadcasting Services Act 1992 (clause 3)."},"kimi_summary":{"content_quality":"ok","complexity_score":5,"scope_assessment":{"changed":false,"description":"The regulations appear to maintain the original scope of governing access to broadcasting transmission infrastructure and arbitration procedures. The 2019 version is a rewrite/replacement of the 2001 regulations rather than an expansion into new areas. The structure and coverage remain consistent with the original intent of implementing Schedule 4 of the Broadcasting Services Act 1992."},"complexity_factors":["Moderate cross-referencing to the Broadcasting Services Act 1992 (Schedule 4, clauses 45, 45A, 46, 47) and Telecommunications Act 1997","Nested conditional logic in exemption provisions (section 6) with multiple sub-paragraphs and cumulative conditions","Detailed procedural requirements for notifications (section 8) with 10 specific information requirements","Multiple divisions and sub-divisions creating layered structure (4 Parts, 7 Divisions in Part 3)","Interaction between individual and joint arbitration procedures requiring cross-application of provisions","Strict liability offence provisions with specific mental state exceptions (sections 27-31)","Transitional provisions preserving old law for existing disputes (section 35) with four cumulative conditions"],"plain_english_summary":"**What this legislation does:**\n\nThese regulations set out the rules for resolving disputes about access to broadcasting transmission towers and related facilities (like power supplies, cooling systems, or transmission equipment). They replace the 2001 regulations with updated procedures.\n\n**Who it affects:**\n\n- **Access seekers**: Companies wanting to use broadcasting towers or facilities to deliver TV, radio, or telecommunications services\n- **Access providers**: Owners or operators of broadcasting transmission towers and associated facilities\n- **The ACCC (Australian Competition and Consumer Commission)**: The regulator that arbitrates disputes when parties can't agree on terms\n\n**Key things the regulations cover:**\n\n- **When owners can refuse access**: The regulations list specific exemptions where tower owners don't have to give access—such as when it would interfere with existing customers, breach old contracts (from before May 2000), or if the seeker has poor credit history or poses safety risks to networks.\n\n- **Arbitration process**: If parties can't agree on price, terms, or conditions, either side can ask the ACCC to step in. The ACCC can:\n  - Hold private hearings or decide \"on the papers\" (without a hearing)\n  - Summon witnesses and demand documents\n  - Make binding determinations on access terms, prices, and technical requirements\n  - Join related disputes together for efficiency\n\n- **Protections and offences**: The rules include penalties (up to 30 penalty units) for intimidating witnesses, disrupting hearings, or failing to comply with ACCC directions.\n\n- **Confidentiality**: Parties can request commercial information be kept confidential, with the ACCC balancing transparency against commercial sensitivity.\n\n**Why it matters:**\n\nThese regulations ensure that new broadcasters and telecom companies can get fair access to essential infrastructure (towers and facilities) owned by others, while protecting the interests of existing users and infrastructure owners. It's about preventing monopolies over physical broadcasting infrastructure and keeping the market competitive."}},"importantCases":[],"_links":{"self":"/api/acts/broadcasting-services-transmitter-access-regulations-2019","history":"/api/acts/broadcasting-services-transmitter-access-regulations-2019/history","analysis":"/api/acts/broadcasting-services-transmitter-access-regulations-2019/analysis","conflicts":"/api/acts/broadcasting-services-transmitter-access-regulations-2019/conflicts","importantCases":"/api/acts/broadcasting-services-transmitter-access-regulations-2019/important-cases","documents":"/api/acts/broadcasting-services-transmitter-access-regulations-2019/documents"}}