(i) are able to be received by commonly available equipment; and
(ii) are made available free to the general public; and
(d) comply with any determinations or clarifications under section 19 in relation to community broadcasting services.
16 Subscription broadcasting services
Subscription broadcasting services are broadcasting services that:
(a) provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and
(b) are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and
(c) comply with any determinations or clarifications under section 19 in relation to subscription broadcasting services.
17 Subscription narrowcasting services
Subscription narrowcasting services are broadcasting services:
(a) whose reception is limited:
(i) by being targeted to special interest groups; or
(ii) by being intended only for limited locations, for example, arenas or business premises; or
(iii) by being provided during a limited period or to cover a special event; or
(iv) because they provide programs of limited appeal; or
(v) for some other reason; and
(b) that are made available only on payment of subscription fees (whether periodical or otherwise); and
(c) that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.
18 Open narrowcasting services
(1) Open narrowcasting services are broadcasting services:
(a) whose reception is limited:
(i) by being targeted to special interest groups; or
(ii) by being intended only for limited locations, for example, arenas or business premises; or
(iii) by being provided during a limited period or to cover a special event; or
(iv) because they provide programs of limited appeal; or
(v) for some other reason; and
(b) that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.
(1A) A HDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1AA) A SDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1B) A HDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(2) A SDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(3) A digital commercial radio broadcasting service is not an open narrowcasting service.
(4) A digital community radio broadcasting service is not an open narrowcasting service.
(5) A digital national radio broadcasting service is not an open narrowcasting service.
18A International broadcasting services
(1) International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:
(a) the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and
(b) the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.
(2) A broadcasting service is not an international broadcasting service if the broadcasting service is:
(a) provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b) provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c) an exempt broadcasting service (as defined by subsection (3)).
(3) For the purposes of this section, a broadcasting service is an exempt broadcasting service if:
(a) the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and
(b) all relevant programming decisions are made outside Australia; and
(c) the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re‑transmitted to a satellite; and
(d) the satellite is a means of delivering the service (whether alone or in combination with any other means).
(4) The references in this section to localities do not, by implication, affect the application of paragraph 21(1)(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.
(5) In this section:
Australia includes the external Territories.
radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.
19 ACMA may determine additional criteria or clarify existing criteria
(1) The ACMA may, by legislative instrument:
(a) determine additional criteria to those specified in sections 14 to 18A; or
(b) clarify the criteria specified in sections 14 to 18A;
for the purpose of distinguishing between categories of broadcasting services.
(2) Different criteria or clarifications may be determined or made for radio services and television services.
(3) The Minister may give specific directions to the ACMA as to the making of determinations and clarifications, and the ACMA must observe those directions.
21 Requests to ACMA to decide which category a broadcasting service falls into
(1) A person who is providing, or who proposes to provide, a broadcasting service may apply to the ACMA for an opinion as to which category, or categories, of broadcasting services the service falls into.
(2) An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to which category, or categories, of broadcasting services the service falls into.
(3) If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) The ACMA must, as soon as practicable after:
(a) receiving the application; or
(b) if the ACMA has requested further information—receiving that further information;
give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into.
(5) If the ACMA has given an opinion under this section to the provider of a broadcasting service, neither the ACMA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ACMA in relation to the application for the opinion:
(a) take any action against the provider of the service during the period of 5 years commencing on the day on which the opinion is given on the basis that the service falls into a different category, or different categories, of broadcasting services than that advised in the opinion; or
(b) unless the ACMA has made a determination or clarification under section 19 after that opinion was given that places the broadcasting service in a different category or different categories—take any action against the provider of the service after the end of that period on the basis that the service falls into a different category, or different categories, of broadcasting services.
(6) If the ACMA does not, within 45 days after:
(a) receiving the application; or
(b) if the ACMA has requested further information—receiving that further information;
give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into, the ACMA is taken to have given an opinion at the end of that period that accords with the applicant’s opinion.
(7) The ACMA may charge a fee for providing an opinion under this section.
(8) The ACMA must not give an opinion under this section that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.
(9) A person must not, in an application under this section, state an opinion that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.
22 Matters to be considered by ACMA
In making determinations or clarifications under section 19 in relation to broadcasting services, and in giving opinions under section 21 in relation to broadcasting services, the ACMA is to have regard to:
(a) the geographic coverage of those services; and
(b) the number of persons who receive or are able to receive those services; and
(c) the accessibility of those services, including:
(i) whether those services are encrypted; and
(ii) whether their availability is otherwise restricted, whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and
(iii) whether their comprehensibility is otherwise restricted; and
(d) the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and
(e) the nature of the audience to which those services are targeted; and
(f) the nature of the programs being provided by those services, including:
(i) the level of interest in the subject matter of those programs; and
(ii) whether those programs are directed at a specialised audience; and
(iii) the social and cultural impact of those programs; and
(g) such other matters as the ACMA thinks fit.
Part 3—Planning of the broadcasting services bands
23 Planning criteria
In performing functions under this Part, the ACMA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:
(a) demographics; and
(b) social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and
(c) the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and
(d) developments in technology; and
(e) technical restraints relating to the delivery or reception of broadcasting services; and
(f) the demand for radiofrequency spectrum for services other than broadcasting services; and
(g) such other matters as the ACMA considers relevant.
26 Preparation of licence area plans
(1) The ACMA must, by legislative instrument, prepare licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands.
(1A) To the extent to which a licence area plan prepared under subsection (1) deals with:
(a) digital commercial radio broadcasting services; or
(b) digital community radio broadcasting services; or
(c) digital national radio broadcasting services;
the licence area plan is not required to determine the technical specifications of those services.
Television licence area plans
(1B) The ACMA may, by legislative instrument, prepare licence area plans that:
(a) specify the channels that are to be available in particular areas of Australia to provide the following services:
(i) commercial television broadcasting services;
(ii) national television broadcasting services;
(iii) other television broadcasting services;
with the use of the broadcasting services bands; and
(b) allot, or empower the ACMA to allot, those channels to:
(i) particular commercial television broadcasting licensees; or
(ii) particular national broadcasters; or
(iii) particular providers of television broadcasting services (other than commercial television broadcasting licensees or national broadcasters);
as the case requires; and
(c) determine the characteristics, including technical specifications, of the transmission of each of the following services:
(i) commercial television broadcasting services;
(ii) national television broadcasting services;
(iii) other television broadcasting services;
using those channels; and
(d) determine, or empower the ACMA to determine, any technical limitations on the use of a particular channel that the ACMA considers should be applicable; and
(e) determine, or empower the ACMA to determine, whether the use of a particular channel depends on any event or circumstances that the ACMA considers should be applicable.
(1C) A licence area plan prepared under subsection (1B) is to be known as a television licence area plan.
(1D) A television licence area plan may allot, or empower the ACMA to allot, different channels to:
(a) a particular commercial television broadcasting licensee; or
(b) a particular national broadcaster; or
(c) a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster);
for different periods.
(1E) A television licence area plan may allot, or empower the ACMA to allot, 2 or more channels to:
(a) a particular commercial television broadcasting licensee; or
(b) a particular national broadcaster; or
(c) a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster).
(1F) To avoid doubt, and without limiting the operation of this section, a television licence area plan may allot, or empower the ACMA to allot, a channel to 2 or more particular commercial television broadcasting licensees.
(1G) A television licence area plan does not need to identify a particular television broadcasting service by name.
(1M) Section 23 has effect as if a function or power conferred on the ACMA by a television licence area plan were a function conferred on the ACMA by this section.
Variation
(2) The ACMA may, by legislative instrument, vary a licence area plan.
Ministerial direction
(8) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers to make or vary a licence area plan for a particular area.
(9) The ACMA must comply with a direction under subsection (8).
Legislative instruments
(11) If a determination made by the ACMA under a television licence area plan is in writing, the determination is not a legislative instrument.
Definitions
(13) In this section:
national television broadcasting service has the same meaning as in Schedule 4.
television broadcasting service means a broadcasting service that provides television programs.
Note: For designation of licence areas, see section 29.
26AA Compliance with television licence area plan
(1) If:
(a) a television licence area plan is applicable to the transmission of one or more commercial television broadcasting services in a particular area; and
(b) those services are provided under a particular commercial television broadcasting licence;
the licensee must not transmit any of those commercial television broadcasting services in that area otherwise than in accordance with the television licence area plan.
(2) If:
(a) a television licence area plan is applicable to the transmission of one or more national television broadcasting services in a particular area; and
(b) those services are provided by a particular national broadcaster;
the national broadcaster must not transmit any of those national television broadcasting services in that area otherwise than in accordance with the television licence area plan.
(3) If:
(a) a television licence area plan is applicable to the transmission of one or more television broadcasting services in a particular area; and
(b) those services are not provided:
(i) under a commercial television broadcasting licence; or
(ii) by a national broadcaster;
the provider of those television broadcasting services must not transmit any of those services in that area otherwise than in accordance with the television licence area plan.
(4) In this section:
national television broadcasting service has the same meaning as in Schedule 4.
television broadcasting service means a broadcasting service that provides television programs.
26C Licence area plans not required to deal with certain digital radio broadcasting services
Commercial radio broadcasting services
(1) If:
(a) a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and
(b) the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;
the relevant licence area plan is not required to deal with those services.
Community radio broadcasting services
(3) If:
(a) a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence; and
(b) the licence authorises the licensee to provide digital community radio broadcasting services in the licence area;
the relevant licence area plan is not required to deal with those services.
26D Licence area plans—how digital radio broadcasting services may be dealt with
(1) This section applies if a licence area plan deals with:
(a) digital commercial radio broadcasting services; or
(b) digital community radio broadcasting services; or
(c) digital national radio broadcasting services.
(2) The licence area plan is not required to identify:
(a) individual digital commercial radio broadcasting services; or
(b) individual digital community radio broadcasting services; or
(c) individual digital national radio broadcasting services.
(3) It is sufficient if the licence area plan deals collectively with: