(a) more than 30% of the licence area population of a specified licence area is attributable to a specified overlap area; or
(b) a specified licence area is entirely within another specified licence area;
this section applies as if the 2 licence areas were one.
(14A) If a determination is made under subsection (14) for 2 licence areas that are remote licence areas (within the meaning of Schedule 4) because of paragraph (14)(b), this section applies as if the single licence area referred to in subsection (14) were the licence area that is entirely within the other licence area.
(15) A determination under subsection (14) has effect accordingly.
Fee for additional licence
(17) On allocation of the additional licence under subsection (5), (7), (8) or (9), 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
(24) This section has effect subject to section 37.
Jointly owned company
(25) For the purposes of this section, a company (the first company) is jointly owned by 2 other companies if, and only if, each share in the first company is beneficially owned by either or both of those other companies.
38C Commercial television broadcasting licences—services provided with the use of a satellite
(1) The following table has effect:
Licence areas and eligible joint venturers
Column 1 Column 2 Column 3
Item Licence area for a commercial television broadcasting licence allocated, or to be allocated, under this section Description of the licence area Eligible joint venturers for the licence area
1 South Eastern Australia TV3 The area consisting of New South Wales, Victoria, South Australia, Tasmania, the Australian Capital Territory, Norfolk Island and the Jervis Bay Territory. The commercial television broadcasting licensees for the following licence areas:(a) Remote Central and Eastern Australia TV1;
(b) Remote Central and Eastern Australia TV2;(c) Mt Isa TV1.
2 Northern Australia TV3 The area consisting of Queensland, the Northern Territory and the Coral Sea Islands Territory. The commercial television broadcasting licensees for the following licence areas:(a) Remote Central and Eastern Australia TV1;(b) Remote Central and Eastern Australia TV2;(c) Mt Isa TV1.
3 Western Australia TV3 The area consisting of Western Australia, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. The commercial television broadcasting licensees for the following licence areas:(a) Remote and Regional WA TV1;(b) Western Zone TV1;(c) Kalgoorlie TV1;(d) Geraldton TV1;(e) South West and Great Southern TV1.
Allocation of licence
(2) A commercial television broadcasting licence that was allocated under this section before the commencement of Schedule 2 to the Broadcasting and Other Legislation Amendment (Deregulation) Act 2015 continues in force unless it is cancelled.
Cancellation of licence—services not provided
(15) If:
(a) the licensee of a licence allocated under this section is contravening a licence condition set out in:
(i) clause 7B of Schedule 2; or
(ii) clause 7C of Schedule 2; and
(b) the ACMA is satisfied that the contravention is not due to:
(i) technical circumstances that are beyond the licensee’s control; or
(ii) unforeseen circumstances that are beyond the licensee’s control; or
(iii) circumstances specified in the regulations; and
(c) the ACMA gives the licensee a written notice warning the licensee that, if the contravention continues for 30 days, the licence may be cancelled; and
(d) 30 days pass after the notice is given, and the contravention continues;
the ACMA must, by written notice given to the licensee, cancel the licence.
(16) The cancellation takes effect:
(a) when the notice of cancellation is given to the licensee; or
(b) if a later time is specified in the notice of cancellation—at that later time.
Allocation of licence after cancellation etc.
(17) If the ACMA gives a notice under subsection (15) to a licensee, cancelling the licence for a licence area, the ACMA must, within 45 days after the giving of the notice, advertise, in a manner determined by the ACMA, for applications for a licence to be allocated under subsection (23) for the licence area.
(18) Before commencing to advertise under subsection (17), the ACMA must, by legislative instrument, determine the eligibility requirements that must be met by persons applying for a licence in response to such an advertisement.
(19) The eligibility requirements determined under subsection (18) must include that the applicant has the capacity to provide the services that the licensee will be required to provide under clauses 7B, 7C and 7D of Schedule 2. This subsection does not limit other eligibility requirements that may be determined under subsection (18).
(20) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers under subsection (18).
(21) The ACMA must include in an advertisement under subsection (17):
(a) a description of the matter mentioned in the applicable paragraph of subsection (17); and
(b) the date on or before which applications must be received by the ACMA (the applications closing date); and
(c) a statement specifying how details of:
(i) the licence area for the licence; and
(ii) the eligibility requirements; and
(iii) the conditions that will apply to the licence;
may be obtained.
(22) The applications closing date must be the 90th day after the day of publication of the first advertisement under subsection (17) that describes the contravention or cancellation concerned.
(23) If:
(a) in response to an advertisement under subsection (17), the ACMA receives one or more applications for a licence; and
(b) the applications were received on or before the applications closing date specified in the advertisement; and
(c) the ACMA is satisfied that one or more of the applicants meets the eligibility requirements;
the ACMA must:
(d) allocate the licence to one of the applicants referred to in paragraph (c); and
(e) do so within 90 days after the applications closing date.
(24) Subsection (23) has effect subject to section 37.
Restrictions on transfer of licences
(25) During the period of 2 years after the date of allocation of a licence under this section, any attempt by any person to transfer the licence is of no effect.
Definitions
(26) In this section:
wholly‑owned subsidiary has the same meaning as in the Corporations Act 2001.
39 Additional commercial radio licences in single markets
Conditions for allocation of additional licence
(1) If:
(a) a particular licence area is the licence area of only one commercial radio broadcasting licence (the parent licence) that is in force; and
(b) a service is being provided under the parent licence; and
(c) the licence area for the parent licence does not have an excessive overlap area, as determined under subsection (5); and
(d) the licensee requests the ACMA, in writing, to allocate to the licensee, for the same licence area, another commercial radio broadcasting licence that is a broadcasting services bands licence; and
(e) in the opinion of the ACMA, suitable broadcasting services bands spectrum is available for providing another commercial radio broadcasting service in the same licence area;
the ACMA must allocate an additional licence to the applicant for the same licence area as soon as practicable.
Time limit for applications
(2) An application under subsection (1) must be made within 60 days after:
(a) the commencement of this section; or
(b) the time when paragraphs (1)(a), (b) and (c) are first satisfied in relation to the parent licence;
whichever is later.
(3) If the conditions in paragraphs (1)(a), (b), (c) and (e) are not all satisfied at the time when the application is made, but at a later time they are all satisfied, then the ACMA is under an obligation at that later time to allocate the additional licence (unless the application has been withdrawn).
Matters that ACMA must take into account
(4) The matters that the ACMA must take into account in forming an opinion for the purposes of paragraph (1)(e) include the following:
(b) any relevant plan under section 26;
(c) any relevant capacity that has been reserved under section 31.
Excessive overlap area
(5) The licence area for the parent licence has an excessive overlap area if:
(a) more than 30% of the licence area population of the licence area of the parent licence is attributable to an area that overlaps with the licence area of another commercial radio broadcasting licence; and
(b) at least one of the following situations exists:
(i) more than 30% of the licence area population of the licence area of that other licence is also attributable to the area that overlaps with the licence area of the parent licence;
(ii) more than one commercial radio broadcasting licence is in force with the same licence area as that other licence.
Technical specifications for additional licence
(6) The ACMA must make a determination in writing setting out the technical specifications that apply to the additional licence. The ACMA is not required to make the determination if a plan under section 26 applies to the licence area of the additional licence.
(7) For the purposes of this Act and section 109 of the Radiocommunications Act 1992, the technical specifications are taken to have been determined under section 26 of this Act.
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.
Licence conditions
(9) On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide services under those licences for at least 2 years after the date of allocation of the additional licence.
Restrictions on transfer of licences
(10) During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.
Section 37 restrictions apply
(11) This section has effect subject to section 37.
Section 29 does not apply in some cases
(12) If the licence area of the parent licence is not provided for under a licence area plan under section 26, then section 29 does not apply to the allocation of the additional licence.
40 Allocation of other licences
(1) The ACMA may allocate to a person, on application in writing by the person, a commercial television broadcasting licence or a commercial radio broadcasting licence that is not a licence referred to in subsection 36(1).
(1A) Licences under subsection (1) are to be allocated on the basis of one licence per service.
(2) Before allocating a licence referred to in subsection (1), the ACMA is to designate a particular area in Australia as the licence area of the licence.
(3) 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.
(4) If the ACMA makes a decision under subsection (1) or (2), the ACMA must publish in the Gazette details of the allocation or the designation of a licence area.
Referral of application to the Minister
(5) Before allocating a commercial television broadcasting licence under subsection (1), the ACMA must refer the application to the Minister.
(6) If an application for a commercial television broadcasting licence is referred to the Minister under subsection (5), the ACMA must not make a decision about the application until the Minister:
(a) gives a direction under subsection (7) in relation to the application; or
(b) gives a notice under subsection (9) in relation to the application.
(7) If:
(a) an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and
(b) the Minister is of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;
the Minister must, by written notice given to the ACMA, direct the ACMA not to allocate the licence to the applicant.
(8) The ACMA must comply with a direction under subsection (7).
(9) If:
(a) an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and
(b) the Minister is not of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;
the Minister must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of the licence to the applicant.
Minister may request additional information
(10) If an application is referred to the Minister under subsection (5), and the Minister considers that additional information is required before the Minister can decide whether to:
(a) give a direction under subsection (7) in relation to the application; or
(b) give a notice under subsection (9) in relation to the application;
the Minister may, by written notice given to the applicant within 30 days after the day on which the application is referred to the Minister, request the applicant to provide that information.
(11) If the Minister requests additional information under subsection (10), the Minister must give the ACMA a copy of the request.
Decision to be made within 60 days
(12) If the Minister does not, within 60 days after the day on which:
(a) an application is referred to the Minister under subsection (5); or
(b) if the Minister requests additional information under subsection (10)—that additional information is received;
do either of the following:
(c) give a direction under subsection (7) in relation to the application;
(d) give a notice under subsection (9) in relation to the application;
then the Minister is taken to have given a notice under subsection (9) in relation to the application.
Licence condition
(13) If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).
41 When persons are regarded as suitable
(1) For the purposes of this Part, a company is a suitable licensee or a suitable applicant for a licence if the ACMA has not decided that subsection (2) applies to the company.
(2) The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide commercial broadcasting services under a licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(aa) a breach of a civil penalty provision occurring; or
(b) a breach of the conditions of the licence occurring;
decide that this subsection applies to the company.
(3) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the company; and
(b) the company’s record in situations requiring trust and candour; and
(c) the business record of each person who is, or would be, if a licence were allocated to the applicant, in a position to control the licence; and
(d) the record in situations requiring trust and candour of each such person; and
(e) whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and
(f) whether a civil penalty order has been made against:
(i) the company; or
(ii) a person referred to in paragraph (c) or (d).
(4) This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
Division 2—Services authorised by licences
41C Services authorised by commercial television broadcasting licences
(1) A commercial television broadcasting licence for a licence area authorises the licensee to provide the following services in the licence area:
(a) one or more HDTV multi‑channelled commercial television broadcasting services;
(b) one or more SDTV multi‑channelled commercial television broadcasting services.
Licences allocated under section 38C or subsection 40(1)
(2) This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
Definitions
(3) In this section:
HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
41CA Services authorised by commercial television broadcasting licences allocated under section 38C
Authorised services
(1) A licence allocated under section 38C authorises the licensee to provide the following commercial television broadcasting services in the licence area:
(b) if:
(i) a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a SDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and
(ii) the service is not the primary commercial television broadcasting service provided by the related terrestrial licensee;