Australian Communications Authority (LPON Transmitter Licences) Direction No. 2 of 2000

This instrument is a ministerial direction given by the Minister for Communications, Information Technology and the Arts to the Australian Communications Authority (ACA, now ACMA) under subsection 12(1) of the Australian Communications Authority Act 1997. It compels the ACA to impose specific conditions on all apparatus licences for low power open narrowcasting (LPON) services that authorise transmitters operating in the 87.5 to 88.0 MHz frequency band at a maximum power of 1 watt in residential areas or 10 watts in non-residential areas. The direction applies to licences issued before its commencement on 1 March 2001, licences issued after that date, and licences renewed within six months of commencement (clauses 5, 6, 7). The core mechanical effect is to impose a use-it-or-lose-it regime. Licensees must commence providing a service using the authorised transmitter within six months of the condition being imposed (or licence issue, or renewal), continue providing that service with “reasonable regularity” throughout the licence term, and maintain records of commencement, hours of operation and service provision. For licences renewed more than six months after commencement (clause 9), the six-month start-up condition is removed, but the ongoing service and record-keeping obligations remain. The ACA may extend the six-month start-up period if it considers there is a “valid reason” for delay, but the direction expressly excludes three categories from being valid reasons: the licence was obtained by transfer to a relative or associate within the six-month period, financial reasons, or the licence is subject to an arrangement contingent on disposal of another licence held by the licensee (clause 8(2)). This list is not exhaustive, and the ACA may treat other reasons as invalid. The direction also creates a complaint-driven cancellation mechanism. Any person may lodge a written complaint on an approved form, accompanied by a statutory declaration, alleging a breach of the conditions. The ACA must give the licensee 30 days’ notice and an opportunity to respond before considering cancellation. In deciding whether to cancel, the ACA must have regard to specific factors: site access arrangements, ownership or hire of the transmitter, program procurement arrangements, regularity and continuity of broadcasts, the nature of the service, maintenance of records, and any other relevant matters (clause 10(4)). For the continued-service condition, the ACA must consider the period of non-service, whether circumstances beyond the licensee’s control caused the failure, the number of other LPON licences held by that licensee, and other relevant matters (clause 10(5)). Additionally, while a complaint is being assessed, the ACA must not grant a new LPON licence on similar terms to anyone (clause 11). This effectively freezes the spectrum for that frequency and technical parameters until the complaint is resolved. The direction binds the ACA to not exercise its powers under the Radiocommunications Act 1992 inconsistently with the direction or the conditions imposed because of it (clause 12).

The central concept is a “low power open narrowcasting service”. This is defined in clause 3 as an open narrowcasting service operated under a transmitter licence that authorises operation at a carrier frequency within 87.5 to 88.0 MHz inclusive and at a maximum power not exceeding 1 watt (residential area) or 10 watts (non-residential area). “Open narrowcasting service” itself is imported from the Broadcasting Services Act 1992. Narrowcasting services are generally defined in that Act as services whose reception is limited by the nature of the content or the technology; open narrowcasting is a subset that is not subscription-based but still limited in target audience. In practice, LPON licences are used for community information, tourist radio, ethnic broadcasting, or other niche services that do not require wide coverage. The direction creates a distinction between “reasonable excuse” for failing to commence a service (relevant to the original condition imposed by the ACA) and “valid reason” for the ACA to grant an extension (clause 8). A licensee may have a reasonable excuse for not starting within six months, which would avoid a breach of condition; but if they seek an extension of time, the ACA will only grant it for valid reasons. The definition of “associate” in clause 3 is broad. For a body corporate, it includes directors, secretaries, related bodies corporate, their directors and secretaries, business partners, and anyone controlling 15% or more of voting power or shares. For an individual, it includes business partners, companies where the individual controls 15% or more of voting power or shares, companies of which the individual is a director or secretary, and related bodies corporate. “Relative” covers spouse (including de facto), parents, grandparents, siblings, uncles, aunts, nephews, nieces, lineal descendants, adopted children, and the spouses of those relatives. These definitions matter because a transfer of a licence to a relative or associate within the six-month start-up period is explicitly excluded as a valid reason for delay. The direction uses the phrase “inter alia” in clause 8(2), indicating the list of invalid reasons is non-exhaustive. The concept of “reasonable regularity” in the continuing service condition is not defined, leaving the ACA’s discretion room. The device used is not directly enforceable against licensees; the direction compels the ACA to include conditions in the licences. The actual enforceable obligations arise from those licence conditions, and breach can lead to cancellation. The complaint mechanism requires a statutory declaration, which carries penalties for false statements under the (Cth). The form is to be approved by the ACA. The direction also creates a standstill obligation: while a complaint is being assessed, the ACA must not grant “an apparatus licence for a low power open narrowcasting service on similar terms or including similar details to that of an existing licence” (clause 11). This prevents a licensee from simply surrendering and having a new licensee obtain the same frequency during the complaint process.

The primary targets are holders of LPON transmitter licences issued by the ACA. Any person who holds such a licence, whether an individual, a company, or a community organisation, must comply with the use-it-or-lose-it conditions imposed under clauses 5, 6, 7, or 9. Those who have not yet commenced a service must do so within six months; those already operating must continue with reasonable regularity. “Authorised persons” under section 114 of the Radiocommunications Act 1992 - persons authorised by the licensee to operate the radiocommunications devices - are also covered by the direction’s requirements (clause 4), meaning that the licensee cannot shift operational responsibility to an authorised person to avoid the conditions. The direction affects new applicants for LPON licences: they will receive a licence with the start-up and ongoing conditions from the outset. It also affects persons who acquire licences by transfer, particularly transfers to relatives or associates, because such transfers do not constitute a valid reason for delaying commencement. The extended definitions of “relative” and “associate” catch a wide circle of family and corporate connections, making it difficult to use related-party transfers to reset the six-month clock. Complainants are affected individuals or entities. “Any person” can file a complaint alleging a breach (clause 10(1)). This gives standing to competitors, local residents, listeners, or even rival broadcasters. The complainant must provide their name and contact details, their interest in the matter, evidence of the breach, and a statutory declaration. They must use an ACA-approved form. This creates a low barrier to triggering an enforcement inquiry. The ACA itself is the direct addressee of the direction. It must act consistently with the direction, must impose the specified conditions, must follow the complaint assessment process, and must not grant similar licences during a complaint assessment. Other potential applicants for LPON licences may be indirectly affected if a complaint is lodged against an existing licence on the same frequency: clause 11 blocks the ACA from granting a new licence on similar terms during that period, effectively freezing that particular spectrum slot. This could delay or prevent new entrants from obtaining a licence if a complaint is pending. The Minister’s office is not directly affected, but the direction reflects policy on spectrum utilisation and anti-hoarding. Finally, the definitions incorporate concepts from the Corporations Law (now Corporations Act 2001), so corporate licensees and their officers are affected through those definitions. The direction does not explicitly impose obligations on directors personally (unlike the associate definition which identifies them for the purpose of invalid reasons), but a breach of a licence condition could have flow-on consequences for the corporate licensee’s compliance record.

Licensees have three core duties under the conditions the ACA must impose. First, they must commence providing a service using a transmitter authorised under the licence within six months of the condition being imposed (for existing licences), the issue of the licence (for new licences), or the renewal (for renewals within six months of commencement). The only escape is if the licensee has a “reasonable excuse” for not doing so. That phrase is not defined, so it depends on circumstances - but it is not the same as the “valid reason” that the ACA uses when deciding whether to grant an extension under clause 8. Second, they must continue to provide a service throughout the term of the licence with “reasonable regularity”. This is an ongoing obligation that requires active broadcasting, not merely holding the licence. Third, they must maintain records of the commencement, hours of operation, and provision of the service. The direction does not specify the form or detail of those records, but they must be sufficient to demonstrate compliance if investigated. Licensees have rights under the complaint process. If a complaint is lodged, the ACA must give the licensee written notice of the complaint and details that give a “clear understanding of the substance of the complaint” (clause 10(3)). The licensee then has 30 days from the date of being advised to respond. This is a procedural fairness right. Licensees also have the right to apply for an extension of the six-month start-up period under clause 8(1). The ACA may grant an extension if, in its opinion, there is a valid reason for delay. However, three reasons are expressly not valid: a transfer to a relative or associate, financial reasons, or an arrangement contingent on disposal of another licence. The list is non-exhaustive, so the ACA can deem other reasons invalid as well. Licenses have the right to have the ACA consider the mandatory factors listed in clause 10 before cancelling a licence, including site access, transmitter arrangements, program procurement, regularity of broadcasts, nature of the service, and record-keeping. For the continuity obligation, the ACA must also consider the period of non-service, whether circumstances beyond the licensee’s control caused the failure, and the number of other LPON licences held by that licensee. Complainants have the right to file a complaint using an approved form with a statutory declaration. The ACA must then consider the complaint; there is no guarantee of cancellation, but the ACA must undergo the process. The ACA has the duty to impose the conditions exactly as directed. It also has the duty to refrain from granting a new licence on similar terms to an existing licence while a complaint about that existing licence is being assessed. This is a prohibition, not a discretion. The ACA must also exercise its powers under the consistently with the direction (clause 12). That means the ACA cannot do anything under that Act (such as varying or cancelling licences, issuing new licences, etc.) in a way that would undermine the conditions imposed because of this direction. There is no explicit right of appeal in the direction itself. Any judicial review would be under the or through the original jurisdiction of the Federal Court.

The direction does not create its own penalty provisions. Instead, it operates through the licence conditions that the ACA must impose. Breach of a licence condition can lead to cancellation of the licence under the Radiocommunications Act 1992. The direction provides a specific framework for the ACA to consider cancellation when a complaint is received. The process begins with a written statement from any person (the complainant) specifying their name and contact details, their interest in the matter, the purported breach and supporting evidence (clause 10(1)). The statement must be on an ACA-approved form and be accompanied by a statutory declaration attesting to the truth of its contents (clause 10(2)). This raises the barrier somewhat - a mere letter is not enough; a statutory declaration makes the complainant potentially liable for penalties if the statement is false. The ACA must notify the licensee in writing and provide details giving a clear understanding of the substance of the complaint. The licensee has 30 days from notification to respond. This is a mandatory procedural step before the ACA decides whether to cancel. In deciding whether to cancel, the ACA must have regard to the factors in clause 10(4): arrangements for site access and use, ownership or hire of the transmitter, arrangements to obtain programs, regularity and continuity of programs, the nature of the service, maintenance of records, and other relevant matters. For the continued-service condition, the ACA must also consider the period of non-service, circumstances beyond the licensee’s control, and the number of other LPON licences held (clause 10(5)). Cancellation is not automatic; it is discretionary, but the ACA must consider these factors. The direction does not address other enforcement tools like monetary penalties or infringement notices. It is likely that the Radiocommunications Act 1992 provides for other enforcement mechanisms (such as directions to comply, suspension, or court action), but this direction does not mention them. The direction also creates a negative duty on the ACA: during the period a complaint is being assessed, the ACA must not grant a new LPON licence on similar terms to anyone (clause 11). This is a de facto freeze order. The complainant may use this tactically - by lodging a complaint, they can prevent anyone else from obtaining that licence while the complaint is pending. There is no time limit on how long the assessment may take, so this could be used to block competition. The direction does not provide any penalty for the ACA if it fails to comply, but that would be a matter of administrative law (possibly a direction from the Minister). The licensee who breaches conditions may also face other consequences under the , such as the ACA refusing renewal or varying licence conditions. The direction’s main enforcement mechanism is the threat of cancellation after a complaint-driven process. There is no mention of automatic cancellation or self-executing penalties. The ACA must actively decide.

This direction is made under the Australian Communications Authority Act 1997, specifically subsection 12(1), which empowers the Minister to give written directions to the ACA about the performance of its functions. It is a legislative instrument subject to disallowance and registration under the Legislative Instruments Act 2003 (now Legislation Act 2003), though that Act did not exist at the time of making. The direction operates within the framework of the Radiocommunications Act 1992. Key terms are imported: “apparatus licence”, “licensee”, “transmitter”, “transmitter licence” are all defined by reference to that Act. Section 114 of the Radiocommunications Act 1992 defines “authorised person”. The direction’s conditions become part of the licence, which is issued under Part 3.3 of the Radiocommunications Act. That Act also contains its own provisions on variation, suspension, and cancellation of licences. The direction does not displace those; it adds mandatory considerations for the ACA when exercising cancellation powers. The direction interacts with the Broadcasting Services Act 1992 through the definition of “open narrowcasting service”. That Act also has provisions about licence categories and compliance with broadcasting codes. However, this direction does not refer to the Broadcasting Services Act beyond the definition. LPON licences are radiocommunications licences, not broadcasting licences; the service is a broadcasting service, but the licence for the transmitter is under the Radiocommunications Act. The direction thus bridges the two regimes. The Corporations Law (now Corporations Act 2001) is referenced for the definition of “related body corporate”. That means corporate structures matter for the associate definition. The direction does not interact with state or territory laws, except perhaps planning or local council regulations regarding transmitter sites, but those are not mentioned. The direction also references the Statutory Declarations Act 1959 (Cth) implicitly by requiring that complaints be accompanied by a statutory declaration. A false declaration is an offence under that Act. The direction does not override the Radiocommunications Act 1992; it merely restricts how the ACA may exercise its powers under that Act (clause 12). The ACA must not act inconsistently with the direction or the conditions imposed because of it. So if the gives the ACA a discretion to cancel a licence for breach of a condition, this direction channels that discretion by requiring the ACA to consider certain factors before doing so. It does not remove the discretion entirely. The direction is silent on any interaction with the or review rights. A licensee affected by a cancellation decision could seek merits review in the AAT under the if that Act provides for review. The direction itself is not reviewable as a legislative instrument, but decisions made under it (like refusing an extension or cancelling a licence) would be. The direction pre-dates the , which renamed the ACA to ACMA. The direction continues to bind ACMA as the successor body.

The instrument is titled “Australian Communications Authority (LPON Transmitter Licences) Direction No. 2 of 2000”. The “No. 2” indicates that there was at least a No. 1 of 2000, but that earlier direction is not provided or referenced in the source text. This direction was made on 20 December 2000 by the then Minister Richard Alston and commences on 1 March 2001. There is no amendment history recorded in the source text. The instrument does not include any provision for its own amendment or sunset. It is a standing direction that continues in effect unless revoked by a later ministerial direction. Given its nature as a legislative instrument, it would have been registered on the Federal Register of Legislation (which did not exist at the time but retrospectively includes historical instruments). No subsequent amending instruments are referred to in the source. It is possible that Direction No. 2 revoked or replaced Direction No. 1, but the text does not say so. The commencement date is over two months after the date of making, allowing time for the ACA to prepare to impose conditions on existing licences. The direction does not include a transitional provision; it simply applies to licences issued before, on or after commencement, with different treatment for licences renewed within six months vs after six months. There is no sunset clause. The direction remains in force as at the date of this analysis unless later revoked. It is not time-limited. The Legislation Act 2003 introduced automatic repeal of old legislative instruments after 10 years, but this direction may have been exempted or re-registered. Users should check the current status on the Federal Register of Legislation. Within the source text itself, there is no indication of any amendment or variation of this direction at any point. The direction is self-contained: clauses 1-12, no schedules.

The source text does not mention any litigation relating to this direction. As a legislative instrument of relatively narrow application (LPON licences only) and made by the Minister under the Australian Communications Authority Act 1997, it has likely attracted little public litigation. The direction concerns specific technical conditions on a small class of licences. Potential areas of litigation could include: a challenge to the validity of the direction on the grounds that it exceeds the Minister’s power under subsection 12(1) (e.g., if it is inconsistent with the Radiocommunications Act 1992 or if it is not a direction about the performance of functions). However, subsection 12(1) of the ACA Act is broad: “the Minister may give written directions to the Authority with respect to the performance of its functions.” This direction is clearly about the ACA’s function of issuing and managing apparatus licences. Another possible ground is that the direction imposes conditions that are beyond the scope of the Radiocommunications Act 1992’s provisions on licence conditions. However, the direction directs the ACA to include conditions that are about use and record-keeping, which are within the ACA’s general power to impose conditions. Complainants might challenge an ACA decision to not cancel a licence after a complaint, seeking judicial review for failure to consider mandatory factors. Licensees might challenge a cancellation decision on procedural fairness grounds (e.g., inadequate notice) or on the basis that the ACA failed to consider the clause 10 factors properly. The direction itself does not provide for merits review, but the Administrative Decisions (Judicial Review) Act 1977 would apply. It is possible that the Federal Court has considered a case involving this direction, but the source text does not reference any. The direction’s definitions of “associate” and “relative” could be litigated in the context of whether a transfer was in fact to an associate, thereby invalidating the excuse for delay. No cases are reported in the source. Given the direction is over two decades old and the LPON service class is a small niche, litigation is likely rare. The direction is more relevant in administrative compliance than in courtroom disputes. Any litigation would probably be against the ACA/ACMA for a decision made under or in relation to the direction, not against the direction itself. The direction itself is a legislative instrument and would be reviewable under the Legislation Act 2003 for disallowance. The source text does not indicate any disallowance motion or court proceeding.

Several traps lie in the detail. First, the “reasonable excuse” exception in clauses 5(a), 6(a), and 7(a) is not the same as the “valid reason” for an extension under clause 8(1). A licensee may have a reasonable excuse not to have commenced within six months, which would mean no breach of condition. But if they seek a formal extension beyond the six months, the ACA will only grant it for “valid reasons”, and clause 8(2) specifically excludes financial reasons, transfers to relatives or associates, or contingent arrangements. So a licensee who has a genuine financial problem cannot get an extension; they must rely on the “reasonable excuse” defence if challenged. But that defence only works if the licence conditions are enforced; a proactive extension request is blocked. Second, the transfer trap: if a licence is transferred to a relative or associate within the six-month start-up period, that transfer itself is not a valid reason for delay. The new licensee still must start within the original six-month window (from when the condition was imposed, not from the transfer). The ACA may treat the transfer as irrelevant. This discourages using related-party transfers to preserve an idle licence. Third, the complaint mechanism is open to any person. A competitor or even a disgruntled listener can file a complaint with a statutory declaration. Once a complaint is lodged and being assessed, the ACA cannot grant a new LPON licence on similar terms to anyone (clause 11). That can block a genuine new entrant from obtaining the same frequency while the complaint drags on. There is no time limit on how long the assessment can take. This could be weaponised. Fourth, “reasonable regularity” is not defined. A licensee who broadcasts sporadically, say once a month, might be found to lack reasonable regularity. The ACA’s discretion is wide, and the factors in clause 10(5) include the period of non-service and whether circumstances were beyond control. But a licensee cannot rely on financial reasons as an excuse for gaps because financial reasons are not a valid reason for extension of start-up, and while not explicitly excluded for continuity, they would likely not be considered beyond the licensee’s control. Fifth, the record-keeping requirement is vague. Licensees must maintain records of commencement, hours of operation, and provision of the service. Failure to keep adequate records could itself be a breach of condition, independent of any failure to broadcast. The record-keeping obligation applies even if the service is operating perfectly. Sixth, the direction applies to authorised persons as well (clause 4). If a licensee authorises someone to operate the transmitter, that authorised person is also bound. If the authorised person fails to broadcast, the licensee bears responsibility. Seventh, for licences renewed after six months from commencement (clause 9), the start-up condition is removed only if the licence is renewed after that date. But if a licensee had a pre-commencement licence that had not yet started service, and the renewal happens within the first six months of the direction, they still must start within six months of renewal. Eighth, the phrase “on similar terms or including similar details” in clause 11 could be ambiguous. Does “similar terms” mean same frequency, same power, same service type? It likely means the same technical parameters, but it is not defined. Ninth, the direction does not provide for delegation of the ACA’s functions under it; presumably the ACA can delegate under its enabling Act, but the direction itself is silent. Tenth, the direction does not state what happens if a licence is cancelled - can the licensee reapply? Clause 11 only blocks a new licence during complaint assessment, not after cancellation. But a licensee whose licence is cancelled for breach might be considered a less suitable applicant under the .

Any person holding an LPON transmitter licence must treat the licence as an active operational right, not a passive holding. The first priority is to ensure that a service is being provided using the transmitter within six months of the licence being issued (or the condition imposed, or renewal). This requires concrete steps: secure a site for the transmitter, obtain the transmitter equipment (through ownership, lease, or hire), arrange a program supply, and commence broadcasting. If there is any foreseeable delay, apply to the ACA for an extension under clause 8 before the six-month deadline. Note that financial reasons, a transfer to a relative/associate, or a contingent arrangement to dispose of another licence will not be accepted as valid reasons. So if the delay is due to funding, do not expect an extension; instead, the licensee must either start within six months or risk being in breach and have to rely on a “reasonable excuse” defence later. A reasonable excuse might include factors beyond control like natural disasters, equipment unavailability through no fault of the licensee, or government regulatory delays, but not mere financial shortfalls. Once the service is commenced, the licensee must maintain “reasonable regularity” of broadcasting. There is no fixed formula, but the ACA will consider the period of non-service relative to the period of operation, and whether circumstances beyond the licensee’s control caused interruptions. The licensee should document all programming and transmission logs to demonstrate regularity. Ideally, broadcast daily or at least on a predictable schedule. Gaps of more than a few weeks should be explained with supporting evidence (e.g., equipment failure reports, evidence of repairs). The licensee must also maintain records of the commencement date, hours of operation, and provision of the service. These records should be kept in a format that can be produced if a complaint is lodged. The records need not be elaborate, but they should be contemporaneous and accurate. Digital logs are fine. The licensee should also keep evidence of site access rights, transmitter ownership or lease, and program acquisition arrangements. These will be relevant if the ACA considers cancellation under clause 10(4). If a complaint is received, the ACA will notify the licensee and provide substance. The licensee then has 30 days to respond. The response should address each of the factors in clause 10(4) and (5) as applicable. Provide evidence of site access, transmitter arrangements, program procurement, actual broadcast logs, and records. If the breach alleged is failure to continue with reasonable regularity, provide evidence of the circumstances that caused any interruption and show they were beyond the licensee’s control (e.g., storm damage, third-party vandalism, supply chain issues). If the complaint is malicious, the licensee may point to the mandatory factors and argue that no cancellation is warranted. It may also be worth contacting the ACA early to discuss compliance if there is a risk of breach. The direction does not prevent the ACA from taking proactive compliance action, but the complaint mechanism is the only one mentioned. Licensees should also be aware of the prohibition on transferring the licence to a relative or associate as a way to reset the start-up clock. If the licensee is selling the licence, the buyer should be aware that the six-month period runs from the original imposition, not from the transfer. The buyer must start immediately. Finally, corporate licensees should ensure that directors, secretaries, and shareholders with 15% or more control understand the associate definition, because any transfer to them will not be a valid reason for delay. For ongoing compliance after the start-up period, maintain the service and records, and respond quickly to any complaints. If the licence is due for renewal after more than six months from commencement, the start-up condition drops away, but the continuing service and record-keeping conditions remain. So the licensee must show the service has been provided with reasonable regularity throughout the term.