43DSpecial licence conditions relating to digital radio commercial broadcasting services

43D  Special licence conditions relating to digital radio commercial broadcasting services  (1) This section applies to a commercial radio broadcasting licence (the first licence) if:  (a) the first licence authorises the licensee to provide one or more digital commercial radio broadcasting services; and  (b) the first licence was not allocated under subsection 40(1). Transmission by multiplex transmitter  (2) The first licence is subject to the condition that the licensee must not provide a digital commercial radio broadcasting service under the first licence unless:  (a) the service is transmitted using a multiplex transmitter; and  (b) the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence. Use of more than one‑ninth of multiplex capacity  (3) If there is only one digital radio multiplex transmitter licence for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:  (a) the first licence; or  (b) another commercial radio broadcasting licence that has the same licence area as the first licence.  (4) If there are 2 or more digital radio multiplex transmitter licences for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:  (a) the first licence; or  (b) another commercial radio broadcasting licence that has the same licence area as the first licence.  (5) For the purposes of subsection (4), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:  Shared content test  (6) For the purposes of subsections (3) and (4), a digital commercial radio broadcasting service passes the shared content test at a particular time in relation to an analog commercial radio broadcasting service if:  (a) the program content of at least 50% of the total number of hours of programs broadcast by the first‑mentioned service during daytime/evening hours during the 6‑month period ending at that time; were the same as:  (b) the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.  (7) For the purposes of subsection (6), ignore the following:  (a) advertising or sponsorship material (whether or not of a commercial kind);  (b) a promotion for a radio program or a radio broadcasting service;  (c) any digital program enhancement content in relation to a radio program;  (d) community information material or community promotional material;  (e) a news break or weather bulletin;  (f) any other similar material. category 1 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992. category 2 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992. daytime/evening hours means the hours: digital radio multiplex transmitter licence means:  (a) a category 1 digital radio multiplex transmitter licence; or  (b) a category 2 digital radio multiplex transmitter licence.