Australian Communications and Media Authority v Phaze Broadcasting Pty Ltd

INTRODUCTION 1 On 26 April 2024, I made declarations that the respondent, Phaze Broadcasting Pty Ltd, contravened ss 46(3) and 47(3) of the Radiocommunications Act 1992 (Cth) by operating radiocommunications devices from an unlicensed premises between 1 December 2021 and 8 May 2023. 2 I also made orders for consequential relief restraining Phaze from operating any radiocommunications device at the unlicensed premises for a period of three years, and requiring Phaze to pay a pecuniary penalty of $8000 and to forfeit to the Commonwealth the radiocommunications devices used in the contraventions. 3 The declarations and orders were jointly sought by Phaze and the applicant, the Australian Communications and Media Authority. 4 For the following reasons, I considered that it was appropriate to make the declarations and consequential orders. My reasons are informed by the statement of agreed facts and detailed joint submissions filed by the parties, as well as the helpful oral submissions of counsel for the ACMA, Mr M Peckham. 5 Pursuant to rule 1.34 of the Federal Court Rules 2011 (Cth), Phaze's sole director, Mr M Matters, was given leave to appear on behalf of the company for the purposes of the hearing.

THE FACTS 6 Section 3 of the Radiocommunications Act provides that its object is to promote the long-term public interest derived from the use of the radiofrequency spectrum by providing for the management of the spectrum in a manner that: (a) facilitates the efficient planning, allocation and use of the spectrum; and (b) facilitates the use of the spectrum for: (i) commercial purposes; and (ii) defence purposes, national security purposes and other non-commercial purposes (including public safety and community purposes); and (c) supports the communications policy objectives of the Commonwealth Government. 7 The ACMA is a Commonwealth regulator, and is responsible for the civil enforcement of the Radiocommunications Act. 8 Chapter 3 of the Radiocommunications Act provides a regime for the licensing of radiocommunications devices in Australia. A radiocommunications transmitter is a kind of radiocommunications device as defined under s 7(1) of the Radiocommunications Act. 9 Phaze is a private company registered in Victoria. Phaze's sole director is and was at all material times Mr Matthew Peter Neil Matters. 10 At all relevant times, Phaze held five apparatus licences (licences) which authorised it to operate radiocommunications transmitters to provide low power "open narrowcasting services", within the meaning of s 18 of the Broadcasting Services Act 1992 (Cth), in the Ballarat area. An open narrowcasting service is broadcasting service with a limited reception, for example by interest or location. The provision of an open narrowcasting service is authorised under the Broadcasting Services (Class Licence) Determination 2017. 11 Each of Phaze's licences was originally issued under s 100(1) of the Radiocommunications Act. Phaze acquired the licences by way of a transfer from the previous licensee pursuant to s 131AB of the Radiocommunications Act on 8 September 2021. 12 Pursuant to s 107(1)(g) of the Radiocommunications Act, each of Phaze's licences was subject to special conditions, specified in the "technical characteristics" that were stated on the licence when issued. Those conditions specified certain operating parameters of the radiocommunications transmitter authorised by the licence, and also the antenna specifications, site address and coordinates at which the radiocommunications transmitter was to be operated. Such conditions will generally be included so as to minimise interference with radiocommunications. 13 The site addresses specified for each of Phaze's licences were as follows: Licence numbers Specified Site Address 11274664/2 613 Learmonth Street, Buningyong Victoria 11274665/2 11274666/2 Holiday Park, 56 Remembrance Drive, Cardigan Victoria 11274667/2 11274668/2 Vertel Tower, Lot 2045 Mt Warrenhelp Road, Dunnstown Victoria

14 Pursuant to s 46(3) of the Radiocommunications Act, and subject to certain exceptions in ss 46(4) and 49, a person must not operate a radiocommunications device otherwise than as authorised by a spectrum licence, an apparatus licence, or a class licence. Section 46(3) is a civil penalty provision. 15 Pursuant to s 47(3) of the Act, and subject to certain exceptions in ss 47(4) and 49, a person must not have a radiocommunications device in his or her possession for the purpose of operating the device otherwise than as authorised by a spectrum licence, an apparatus licence, or a class licence. Section 47(3) is similarly a civil penalty provision. 16 On 25 October 2021, Phaze requested that the ACMA vary the licence conditions of licences 11274664/2 and 11274665/2, to permit Phaze to operate the relevant radiocommunications transmitters from 35 Peel Street South, Bakery Hill, Ballarat in Victoria (the unlicensed premises). 17 On or about 2 November 2021, the ACMA received a complaint alleging that Phaze was in breach of its licence conditions by operating radiocommunications transmitters from the unlicensed premises. 18 ACMA staff attended the unlicensed premises on or about 1 December 2021, and confirmed that radiocommunications transmitters were transmitting from the unlicensed premises. 19 ACMA attended the unlicensed premises again on or about 8 February 2022 and confirmed that Phaze was operating radiocommunications transmitters. On that occasion, ACMA staff spoke to Mr Matters, who confirmed that he was aware that Phaze was operating radiocommunications transmitters from premises other than those specified in its licences. 20 On or about 21 February 2022, the ACMA sent a letter to Phaze indicating the ACMA's preliminary view that Phaze was in breach of s 46 of the Radiocommunications Act in respect of its use of radiocommunications transmitters at the unlicensed premises. 21 Phaze was invited to provide reasons why the ACMA should not take further action in relation to the alleged contraventions. Phaze provided its response on 22 and 24 February and 24 March 2022. 22 On or about 1 September 2022, the ACMA gave a warning notice to Phaze in respect of the alleged contraventions. The warning notice requested that Phaze, within 14 days, cease operating radiocommunications transmitters from the unlicensed premises; otherwise, the ACMA would consider further compliance and enforcement action. 23 On 5 April 2022 a delegate of the ACMA wrote to Phaze to advise of their decision not to vary the conditions of licences 11274664/2 and 11274665/2, and the reasons for that decision. Phaze applied to the ACMA for internal reconsideration of the decision under s 288 of the Radiocommunications Act on 13 September 2022. 24 On 12 September 2022, Phaze also applied to the Administrative Appeals Tribunal for review of the ACMA's decision to issue the warning notice dated 1 September 2022. 25 The ACMA received a further complaint that Phaze was unlawfully operating radiocommunications transmitters on 16 September 2022. ACMA staff attended the unlicensed premises on or about 19 September 2022 and again confirmed that Phaze was operating radiocommunications transmitters. 26 The AAT dismissed Phaze's application for review of the ACMA's decision to issue the warning notice on 17 November 2022. The ACMA then reissued the warning notice on 24 November 2022 and requested Phaze's compliance with the Radiocommunications Act within a further 5 days. 27 On 12 December 2022, the ACMA delegate conducting the internal reconsideration affirmed the decision to refuse variation of the conditions of licences 11274664/2 and 11274665/2. Phaze applied to the AAT for review of this decision on 13 December 2022. The AAT dismissed the application on 17 April 2023. 28 On or about 3 May 2023, staff of the ACMA again attended the unlicensed premises and confirmed that Phaze was operating radiocommunications transmitters from the unlicensed premises. 29 Pursuant to an investigation warrant issued under Division 6 of Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), on 8 May 2023 the ACMA seized the following radiocommunication transmitters from the unlicensed premises: (a) two PCS electronic "Cybermax+" FM transmitters (Devices 1 and 2); and (b) RVR FM transmitter (Device 3). (together, the Devices). 30 At the time of seizure: (a) Devices 1 and 2 were being operated by Phaze on frequencies 87.6 MHz and 88.0 MHz at the unlicensed premises. (b) Device 3 was in Phaze's possession for the purposes of operating Device 3 at the unlicensed premises. 31 Pursuant to s 284D of the Radiocommunications Act, the ACMA retains possession of the Devices, the total value of which is approximately $9000. 32 Until the Devices were seized, Phaze was authorised to operate radiocommunications transmitters under the licences to provide open radio narrowcasting services in the Ballarat area. Phaze did not receive significant revenue associated with its open radio narrowcasting services, although it did promote (by way of advertising) other businesses associated with its director, Mr Matters. 33 Phaze used Devices 1 and 2 to provide the following broadcasting services: (i) DFR (Dance Floor Radio) - provided on 88.0 MHz, DFR was a dance music service with some limited advertising timeslots and periodic news bulletins; and (ii) Phaze FM Country - provided on 87.6 MHz, Phaze FM Country was a country music service with some limited advertising timeslots and periodic news bulletins. 34 Phaze does not have any significant assets other than its apparatus licences and the transmission equipment.

DECLARATIONS 35 By reason of the agreed facts outlined above, the parties jointly submitted, and Phaze has admitted, that: (a) contrary to s 46(3) of the Act, in the period between 1 December 2021 and 8 May 2023 (Contravening Period), Phaze operated a radiocommunications device otherwise than as authorised by any spectrum licence, apparatus licence or class licence, by operating Devices 1 and 2 from the unlicensed premises; and (b) contrary to s 47(3) of the Radiocommunications Act, in the Contravening Period, Phaze had each of Device 1, Device 2 and Device 3 in its possession for the purposes of operating the Devices at the unlicensed premises, otherwise than as authorised by any spectrum licence, apparatus licence or class licence. 36 The parties sought declarations in respect of these contraventions. 37 Section 21 of the Federal Court of Australia Act 1976 (Cth) gives the court a wide discretionary power to make declarations. See, by way of example only, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 87 [92] (Dowsett, Greenwood and Wigney JJ). 38 Declaratory relief can be granted on the basis of agreed facts and admissions. See, by way of example only, Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 (Marshall, Lander and Jessup JJ) and Hadgkiss v Aldin (2007) 164 FCR 394 at 396 [10], 415 [114]-[116] (Gilmour J). 39 Before making a declaration, the court should be satisfied that: (a) the question is a real and not hypothetical one; (b) the applicant has a real interest in raising it; and (c) there is a proper contradictor. 40 I am satisfied that each of these requirements has been met in this case. 41 First, the declarations relate to conduct in contravention of the Radiocommunications Act, properly established by the agreed facts, and the parties have particularised the matters in issue with precision. 42 Secondly, as the regulator responsible for civil enforcement of the Radiocommunications Act, the ACMA has a genuine interest in the declarations being made. 43 Thirdly, as the respondent and subject of the declarations, Phaze is the proper contradictor who has an interest in opposing them. See Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 (Greenwood, Logan and Yates JJ) and Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [74]-[80] (Gordon J). 44 In addition, the declarations I made are appropriate because they: (a) record the court's disapproval of the contravening conduct; (b) serve the public interest in defining and publicising the type of conduct that constitutes a contravention of the Radiocommunications Act, and will thereby serve a deterrent function; and (c) inform the public more generally about the nature of the contravening conduct.

Injunction 45 Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce certain statutory provisions. Under s 272 of the Radiocommunications Act, ss 46(3) and 47(3) are deemed enforceable by way of injunctions under Part 7 of the Regulatory Powers Act. 46 Under s 121(1)(a) of the Regulatory Powers Act, if a person has engaged in contravention of a provision enforceable under Part 7, the court may, on application by an "authorised person", grant an injunction restraining the person from engaging in the conduct. The ACMA is an "authorised person" in the relevant sense: see Radiocommunications Act s 272(2). 47 The parties sought an order for injunctive relief in the following terms: Phaze be restrained, whether by itself, its officers, employees, agents or howsoever otherwise, for a period of three years from the date of this order, from operating any radiocommunications device at the unlicensed premises (unless operation at the unlicensed premises is specifically authorised by a licence subsequently issued under the Radiocommunications Act or any successors to that Act), or at any address other than the site address(es) specified in any spectrum licence or apparatus licence issued to it, or class licence issued, under the Radiocommunications Act. 48 Pursuant to s 124(1)(a) of the Regulatory Powers Act, the power of the court to grant such an injunction may be exercised 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. 49 As a matter of principle, however, if an injunction is to be granted when there is no threatened or intended contravening conduct, such an injunction ought to be limited precisely to preventing a repetition of the contravening conduct that has occurred. See, for example, Australian Competition and Consumer Commission v G.O. Drew Pty Ltd [2007] FCA 1246 at [40] (Gray J). 50 I am satisfied that the injunction granted is closely tied to the contraventions and clearly designed to deter any repetition of the contravening conduct.

Pecuniary penalty 51 Section 269(1) of the Radiocommunications Act provides that civil penalty provisions (which include ss 46(3) and 47(3)) are enforceable under Part 4 of the Regulatory Powers Act. 52 Section 82 in Part 4 of the Regulatory Powers Act provides that an "authorised applicant" may apply to a "relevant court" for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. The ACMA is an "authorised applicant" and the Federal Court is a "relevant court" for the purposes of Part 4 Regulatory Powers Act: see Radiocommunications Act ss 269(2) and (3). 53 The parties jointly sought an order imposing a total pecuniary penalty of $8000 in respect of Phaze's contraventions of ss 46(3) and 47(3) of the Radiocommunications Act. For the following reasons, I considered that $8000 was the appropriate penalty amount in all the circumstances and made the order accordingly.

Applicable principles 54 The applicable legal principles are well-established. 55 Deterrence, both specific and general, is the primary, if not sole, objective for imposing pecuniary penalties. See Australian Building and Construction Commission v Pattinson (2022) 274 CLR 450 at 457 [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). A penalty must be fixed at a level that ensures that neither the contravener, nor would-be contraveners, would regard it as "an acceptable cost of doing business". 56 In determining the amount of the pecuniary penalty, s 82(6) of the Regulatory Powers Act provides that the court must take into account all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered because of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found a court (including a court in a foreign country) to have engaged in any similar conduct. 57 Assessment of the appropriate penalty is a discretionary judgment synthesising all factors relevant to a particular case while paying due regard to the maximum penalty for each contravening act and the totality principle. See, for example, Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 at [54] (Keane CJ, Finn and Gilmour JJ), citing Australian Competition and Consumer Commission v Telstra Corporation Ltd (2010) 188 FCR 238 at 282 [250]-[251] (Middleton J). 58 The prescribed maximum penalty is one yardstick that ordinarily must be applied and treated as one of a number of relevant factors. 59 Other commonly relevant factors to consider in determining a penalty were articulated by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; [1990] FCA 521 at [42]. While keeping in mind that these factors must not be considered a rigid catalogue of matters for attention, they include: (1) the size of the contravening company; (2) the degree of power it has in the market, as evidenced by its market share and the ease of entry into the market; (3) the deliberateness of the contravention and the period over which it extended; (4) whether the contravention arose out of the conduct of senior management or at a lower level; (5) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (6) whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention. 60 I now turn to deal with the various considerations relevant to the penalty to be imposed in this case.

Maximum penalty 61 For contraventions of both ss 46(3) and 47(3), the maximum civil penalty where the device in question is a radiocommunications transmitter is 300 penalty units. During the contravening period, a Commonwealth penalty unit was $222 between 1 December 2021 and 31 December 2022, and $275 between 1 January 2023 and 8 May 2023. 62 Pursuant to s 82(5)(a) of the Regulatory Powers Act, where the contravening party is a body corporate, the maximum penalty is five times the penalty specified in the relevant civil penalty provision. 63 Accordingly, the maximum penalty for a single contravention in this case is $333,000 (during the earlier part of the Contravening Period) or $412,500 (during the latter part of the Contravening Period).

Nature and extent of the contraventions 64 The parties submitted, and I accept, that the following matters regarding the nature and extent of Phaze's contraventions are relevant when considering the appropriate penalty: (a) The radiofrequency spectrum is a resource that needs to be carefully managed. It is subject to a carefully coordinated planning regime. There is a community of licensees who comply with that regime, and depend on others to do the same. The orderly management of the spectrum is important for commercial purposes, but also for defence, national security, and other non-commercial purposes. It is important to the Australian community, and local communities, who rely on the use of the spectrum. (b) Non compliance with licence conditions, including the location from which a person is authorised to operate a radiocommunications transmitter, increases interference risk to other users of the spectrum, thereby effectively denying them access to the spectrum, degrading services provided using the spectrum, and undermining the efficient allocation and use of the spectrum. (c) A failure to comply with the licensing regime is harmful: (i) first, to the community of licensees who rely on and abide by the proper regulation of the spectrum for commercial purposes, as well as for defence, national security and other non-commercial purposes; and; (ii) second, to the Australian community who rely on, and enjoy the benefits of, a well managed spectrum. (d) Although it is not uncommon for the ACMA to identify licensees that are non-compliant, in some respects, with their licence conditions, the ACMA's usual first approach is to issue a warning, so to enable their compliance. In this case, despite warnings from the ACMA, Phaze operated radiocommunications transmitters from premises that were not authorised by its licence, for a period of some 17 months.

Nature and extent of any loss or damage suffered 65 It is not possible on the evidence before me to determine whether any loss or damage was suffered as a result of Phaze's contraventions. 66 What is established, however, is that during the Contravening Period, the ACMA received complaints that Phaze was operating radiocommunications transmitters at the unlicensed premises. 67 As Mr Peckham explained during the hearing: … the radiofrequency spectrum is a resource that needs to be managed. I mean, if you think of it in the same way as we have rules that regulate the traffic of vehicles, we also have rules which regulate the traffic of radio transmissions. For very similar reasons, there's a planning regime which sets out where people can transmit. Essentially, if you don't comply with that regime, it can lead to interference with other users. So it will affect the clean transmission or the clear transmission by other users who are authorised to transmit in those areas, and there have been some complaints by other users in this case; it's referred to in the statement of agreed facts. Essentially, it degrades the quality of transmission that can occur in that area. So, you can't have interference between transmission. And the submissions also set out there briefly why that's important. You know, it's important for the community of licensees, obviously, but also for the public. And the radio spectrum is used for commercial purposes, but also for, you know, public purposes, defence purposes, security purposes, and matters like that. 68 For those reasons, it seems likely that other licensees or users of the radiofrequency spectrum in the Ballarat area would have experienced interference or a degradation in transmission quality because of Phaze's contraventions. I do not, however, make any finding as to the existence, nature or extent of any such loss.

Circumstances of the contraventions 69 The relevant circumstances of the contraventions have largely been canvassed above. Namely, for a lengthy period of time, and despite warnings from the ACMA, Phaze engaged in the contravening conduct which put the efficient and effective use of the radiofrequency spectrum at risk.

Previous similar conduct 70 Phaze has not previously been found to have engaged in any similar contraventions.

The size of the contravening company 71 Phaze provided open narrowcasting radio services in the Ballarat area only. It did not receive significant direct revenue from its broadcast, but did promote by way of advertising other businesses associated with its sole director, Mr Matters. Phaze's only significant assets are its licence and its broadcasting equipment. 72 Plainly, Phaze is a very small company with limited revenue and resources.

Deliberateness of the contraventions and cooperation with regulator 73 It is significant that as far back as February 2022, Mr Matters acknowledged that Phaze was operating radiocommunications transmitters from premises other than those specified in its licences and continued to do so in the face of warnings from the ACMA. 74 Phaze's contravening conduct therefore demonstrates a lack of cooperation with the regulator. However, Phaze has engaged in significant cooperation with the ACMA since the commencement of the proceeding, including by making substantial admissions and consenting to the joint submissions.

Conclusion on appropriate penalty 75 In light of the matters set out above, and the orders I made for the forfeiture of Devices 1, 2 and 3 (addressed below), I consider that an overall penalty in the amount of $8000 is appropriate. While this amount may be modest when regard is had to the maximum penalty available, it reflects Phaze's limited scope of operations and financial position, the deterrent value of the proposed injunction and forfeiture orders (including the value of the goods to be forfeited - agreed to be approximately $9,000), and Phaze's cooperation in admitting the contraventions and agreeing to joint relief. In that context, a penalty of $8000 is a meaningful and appropriate deterrent.

Forfeiture 76 The applicant sought, and the respondent consented to, an order for the forfeiture of Devices 1, 2 and 3, which were seized by staff of the ACMA on 8 May 2023. 77 Under s 284L(2) of the Radiocommunications Act, if a court makes a civil penalty order under s 82 of the Regulatory Powers Act in relation to a contravention of a civil penalty provision of the Radiocommunications Act, the court may order the forfeiture to the Commonwealth of anything used, or otherwise involved, in the contravention of the civil penalty provision. 78 In this case, Phaze has admitted that, during the Contravening Period: (a) it operated Devices 1 and 2 otherwise than as authorised by its apparatus licences, in contravention of s 46(3) of the Radiocommunications Act; and (b) it had each of Devices 1, 2 and 3 in its possession for the purposes of operating the Devices at the unlicensed premises, otherwise than as authorised by its apparatus licences, in contravention of s 47(3) of the Radiocommunications Act. 79 Accordingly, as the items are presently in the ACMA's possession, they may be forfeited permanently under s 284L(2). Where Phaze is presently practically unable to operate radiocommunications transmitters from any premises at which it is licensed to do so, the forfeiture of its broadcasting equipment supports the purpose of specific deterrence. Phaze will be unable to operate radiocommunications transmitters from the unlicensed premises, at least with the transmitters it had previously used to do so. 80 Further, where Phaze has limited financial assets, the forfeiture of its transmitters serves as a de facto penalty which, in the present circumstances, is preferable to imposing a larger pecuniary penalty that Phaze would unlikely be capable of paying. As the parties submitted, the use of forfeiture as an additional or alternative deterrent was specifically contemplated in the Explanatory Memorandum to the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020. It states, at pages 91-92, that: Forfeiture alone, in some circumstances, can serve as a sufficient regulatory deterrent towards the person who has allegedly contravened the [Radiocommunications] Act whilst reducing the risk of further breaches of the legislation or interference to radiocommunications. 81 Given the relatively modest amount of the pecuniary penalty, and for the reasons outlined, I considered that it was appropriate to make the agreed forfeiture orders.

COSTS 82 The parties sought an order that each party was to bear its own costs. I considered that such an order was appropriate in this case. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.