(a) the digital commercial radio broadcasting services; and
(b) the digital community radio broadcasting services; and
(c) the digital national radio broadcasting services;
that, from time to time, are, or are to be, transmitted under the digital radio multiplex transmitter licence or licences issued, or to be issued, in relation to the area concerned.
29 Designation of licence areas
(1) Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in whichever of subsection 26(1) or (1B) is applicable as the licence area of the licence.
(2) If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.
(3) This section does not apply to a licence allocated under section 38C.
30 ACMA may determine population figures
(1) The ACMA may, by notice in writing, determine the licence area population of a licence area.
(2) The ACMA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.
(3) In making a determination, the ACMA is to have regard to the most recently published census count prepared by the Australian Statistician.
(4) The ACMA is to make a new determination of the licence area population of a licence area if the licence area is changed.
(5) The ACMA is to specify, in a determination of the licence area population of a licence area:
(a) the percentage of the population of Australia constituted by that licence area population; and
(b) the percentage of that licence area population that is attributable to an overlap area.
31 Minister may reserve capacity for national broadcasters or community broadcasters
(1) The Minister may, by legislative instrument, notify the ACMA that capacity in the broadcasting services bands is to be reserved for a specified number of:
(a) national broadcasting services; or
(b) community broadcasting services (other than services provided by temporary community broadcasting licensees);
but such a notice must not affect the provision of services in accordance with a licence already allocated by the ACMA under this Act or in accordance with a class licence.
(2) The ACMA must not, except in accordance with section 34, allocate a licence or determine a class licence that would allow the provision of broadcasting services (other than services provided by national broadcasters or community broadcasting licensees) which would make use of reserved capacity in the broadcasting services bands.
33 Development of technical planning guidelines
The ACMA is to develop in writing guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery.
34 Alternative uses of broadcasting services bands
(1) If:
(a) the ACMA has advertised under section 38 for applications for the allocation of one or more commercial television broadcasting licences or commercial radio broadcasting licences that are broadcasting services bands licences and that licence is not allocated or not all of those licences are allocated; or
(b) broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or
(c) broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purpose for which it was reserved; or
(d) broadcasting services bands spectrum is available but the ACMA has not commenced or completed planning and allocation processes in relation to that spectrum;
the ACMA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ACMA:
(e) for the temporary transmission or the re‑transmission of programs; or
(ea) to temporary community broadcasting licensees; or
(f) to providers of subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; or
(fa) for the transmission of datacasting services on a temporary basis; or
(g) for other purposes.
(2) In making a determination under subsection (1), the ACMA is to have regard to:
(a) the possible future demand for the use of that part of the radiofrequency spectrum; and
(b) such other matters as the ACMA considers relevant.
(2A) If a determination made under subsection (1) determines that a part or parts of the radiofrequency spectrum concerned is or are available for allocation to temporary broadcasting licensees for a period, the ACMA may also specify, in the determination, the maximum number of temporary community broadcasting licences that may be allocated to part or parts of the spectrum for the period.
(3) The ACMA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.
(4) In making a determination under subsection (3), the ACMA is to have regard to:
(a) the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and
(b) such other matters as the ACMA considers relevant.
(4A) Each part determined under subsection (3) must be 7 MHz. However, this rule does not prevent a particular part from being determined even if it adjoins:
(a) another part that is also specified in the determination; or
(b) 2 other parts that are also specified in the determination.
Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences
Division 1—Allocation of licences
36 ACMA to determine system for allocating licences
(1) The ACMA is to determine in writing a price‑based system for allocating:
(a) commercial television broadcasting licences that are broadcasting services bands licences; and
(b) commercial radio broadcasting licences that are broadcasting services bands licences.
(2) The Minister may give specific directions to the ACMA for the purpose of a determination.
(3) Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.
(4) If a commercial television broadcasting licence or a commercial radio broadcasting licence referred to in subsection (1) is allocated, the ACMA must, unless the allocation system adopted was public, publish in the Gazette the name of the successful applicant and the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.
36A Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services
Licences in force immediately before the commencement of this section
(1) If a commercial radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service.
Licences allocated before the digital radio start‑up day for the licence area
(2) If the ACMA allocates a commercial radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog commercial radio broadcasting service.
Licences allocated on or after digital radio start‑up day for the licence area
(3) If the ACMA allocates a commercial radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:
(a) a licence to provide an analog commercial radio broadcasting service; or
(b) a licence to provide digital commercial radio broadcasting services.
Licence conditions
(4) Subject to subsection (5), if a commercial radio broadcasting licence is or was allocated as a licence to provide an analog commercial radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.
(5) 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 authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;
subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.
(6) If a commercial radio broadcasting licence is allocated as a licence to provide digital commercial radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital commercial radio broadcasting services under the licence.
Subsection 40(1) licences
(8) This section does not apply to a commercial radio broadcasting licence that is or was allocated under subsection 40(1).
37 When licences must not be allocated
(1) A licence is not to be allocated to an applicant if:
(a) the applicant is not a company that is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or
(b) the ACMA decides that subsection 41(2) applies to the applicant.
(2) Paragraph (1)(b) does not require the ACMA to consider the application of section 41 in relation to an applicant before allocating a licence to the applicant.
37A Limitation on number of commercial television broadcasting licences
The ACMA must ensure that the number of commercial television broadcasting licences that:
(a) have the same licence area; and
(b) are broadcasting services bands licences;
does not exceed 3.
38 ACMA to advertise for applications for certain licences
(1) Where the ACMA is going to allocate one or more commercial television broadcasting licences or commercial radio broadcasting licences referred to in subsection 36(1), the ACMA is to advertise, in a manner determined by the ACMA, for applications for licences of that kind, and is to include in the advertisements:
(a) the date before which applications must be received by the ACMA; and
(b) a statement specifying how details of:
(i) the system determined under section 36; and
(ii) the conditions that are to apply to the licence; and
(iii) the licence area of the licence, the licence area population of the licence and any areas of overlap with other licence areas;
can be obtained.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ACMA; and
(b) be accompanied by the application fee determined in writing by the ACMA.
38A Additional commercial television licences in single markets
Circumstances in which existing licensee may apply for additional licence
(1) If:
(a) a particular licence area is the licence area of only one commercial television broadcasting licence (the parent licence) that is in force; and
(aa) the parent licence is not a licence allocated under section 38C; and
(b) additional commercial television broadcasting licences can be allocated for the licence area;
the existing licensee may apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
ACMA must grant additional licence
(2) As soon as practicable, the ACMA must allocate an additional commercial television broadcasting licence to the existing licensee for the licence area, so long as:
(a) all of the following conditions are satisfied:
(i) no licence for the licence area previously allocated under this section to the existing licensee has been cancelled because of a breach of the condition set out in paragraph 7(1)(i) of Schedule 2;
(iii) no licence for the licence area previously held by the existing licensee has been surrendered; or
(b) both:
(i) paragraph (a) does not apply; and
(ii) the ACMA is satisfied that there are exceptional circumstances.
Amalgamation of licence areas in some cases
(7) If:
(a) more than 30% of the licence area population of a licence area is attributable to an overlap area; or
(b) a licence area is entirely within another licence area;
this section applies as if the 2 licence areas were one.
Fee for additional licence
(8) On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.
Section 37 restrictions apply
(11) This section has effect subject to section 37.
38B Additional commercial television licences in 2‑station markets
(1) If:
(a) a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences) that are in force; and
(c) an additional commercial television broadcasting licence can be allocated for the licence area; and
(ca) the ACMA, by notice published in the Gazette, invites:
(i) the existing licensees to give the ACMA a joint written notice under paragraph (d); and
(ii) each existing licensee to give the ACMA a written notice under paragraph (e);
during the period specified in the notice;
then, within the period specified in the paragraph (ca) notice:
(d) the existing licensees may give the ACMA a joint written notice stating that:
(i) a company specified in the notice (the joint‑venture company) will apply for an additional commercial television broadcasting licence for the licence area; and
(ii) the joint‑venture company is jointly owned by the existing licensees; and
(iii) the joint‑venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or
(e) each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.
(1A) A notice under paragraph (1)(ca) is not a legislative instrument.
Application by joint‑venture company
(2) If a notice is given under paragraph (1)(d), the joint‑venture company may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
Separate applications by existing licensees
(3) If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
Allocation of additional licence to joint‑venture company
(5) As soon as practicable after receiving an application under subsection (2), the ACMA must allocate an additional commercial television broadcasting licence to the joint‑venture company for the licence area, so long as the ACMA is satisfied that the joint‑venture company is jointly owned by the existing licensees.
Allocation of additional licence to existing licensee
(6) If the ACMA has received applications from both of the existing licensees under subsection (3), the ACMA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price‑based system determined under subsection (10).
(7) If:
(a) each existing licensee gives a notice under paragraph (1)(e); and
(b) by the end of the 12‑month period beginning at the time when the notice is given:
(i) the ACMA has received an application from only one existing licensee (the first licensee) under subsection (3); and
(ii) the ACMA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);
the ACMA must, as soon as practicable after the end of that 12‑month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.
(8) If:
(a) each existing licensee gives a notice under paragraph (1)(e); and
(b) before the end of the 12‑month period beginning at the time when the notice is given, the ACMA receives:
(i) an application from one existing licensee (the first licensee) under subsection (3); and
(ii) a notice from the other existing licensee stating that it will not be applying under subsection (3);
the ACMA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.
(9) If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ACMA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.
Price‑based system for allocating licences where separate applications have been received
(10) The ACMA may determine in writing a price‑based system for allocating commercial television broadcasting licences under subsection (6).
(11) The Minister may give specific directions to the ACMA for the purpose of a determination.
(12) Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.
(13) If a commercial television broadcasting licence is allocated under subsection (6), the ACMA must, unless the allocation system adopted was public, publish in the Gazette:
(a) the name of the successful applicant; and
(b) the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.
Amalgamation of licence areas in some cases
(14) The ACMA may, by legislative instrument, determine that, if: