(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and
(b) a person is a part‑channel provider in relation to the first subscription TV drama service because the person supplies a package of programs (the first package of programs); and
(c) the part‑channel provider supplies the same or a substantially similar package of programs to one or more other licensees (the additional licensees) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar package of programs supplied by the part‑channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services); and
(d) the sum of:
(i) the part‑channel provider’s new eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the part‑channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for the shortfall year;
is less than 10% of the part‑channel provider’s total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s licence that, for the next financial year (the make‑up year):
(a) the part‑channel provider’s make‑up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make‑up expenditure is equal to the first licensee’s subscriber percentage of the shortfall amount; or
(c) if the part‑channel provider’s make‑up expenditure is less than the shortfall amount—the first licensee’s make‑up expenditure is equal to the first licensee’s subscriber percentage of the difference between the shortfall amount and the part‑channel provider’s make‑up expenditure.
Definitions
(3) In this section:
first licensee’s make‑up expenditure means so much of the total expenditure incurred by the first licensee during the make‑up year on new eligible drama programs not included, or available to be included, in the first package of programs as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
first licensee’s subscriber percentage means the percentage worked out using the following formula:
Start formula start fraction Subscribers of first licensee over Subscribers of first licensee plus Subscribers of additional licensees end fraction times 100 end formula
monthly subscriber number, for a subscription TV drama service for a particular month, means the number worked out using the following formula:
Start formula start fraction Number of subscribers to the subscription TV drama service on the first day of the month plus Number of subscribers to the subscription TV drama service on the last day of the month over 2 end fraction end formula
part‑channel provider’s make‑up expenditure means so much of the total expenditure incurred by the part‑channel provider during the make‑up year on new eligible drama programs as the part‑channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
shortfall amount means the amount by which the sum of:
(a) the part‑channel provider’s new eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for the shortfall year; and
(b) the part‑channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103U) in relation to the first TV drama service for the shortfall year;
fell short of 10% of the part‑channel provider’s total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.
subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.
subscribers of first licensee means the sum of the monthly subscriber numbers for the first subscription TV drama service for each month of operation during the shortfall year.
Subdivision F—Part‑pass‑through provider supplies package of programs
103X 10% minimum eligible drama expenditure—part‑pass‑through provider supplies package of programs
(1) If:
(a) a licensee provides a subscription TV drama service; and
(b) a person is a part‑pass‑through provider in relation to the subscription TV drama service because the person supplies a package of programs;
it is a condition of the licence that, for each financial year of operation, the sum of:
(c) the licensee’s new eligible drama expenditure in relation to the subscription TV drama service; and
(d) the licensee’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program expenditure in relation to the package of programs.
(2) In this section:
licensee’s carry‑forward eligible drama expenditure, in relation to the subscription TV drama service, means the licensee’s carry‑forward eligible drama expenditure (within the meaning of subsection 103XA(2)) for the financial year.
licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service; and
(b) so much of the total expenditure incurred by the part‑pass‑through provider during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
licensee’s total program expenditure, in relation to the package of programs, means the total expenditure incurred by the licensee during the financial year in respect of the supply by the part‑pass‑through provider of the package of programs.
(2A) The licensee is not entitled to nominate, under the definition of licensee’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the licensee and/or the part‑pass‑through provider during the financial year as exceeds 10% of the licensee’s new eligible drama expenditure in relation to the subscription TV drama service.
(3) If:
(a) the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee’s new eligible drama expenditure in subsection (2); and
(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the part‑pass‑through provider;
that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.
(4) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).
Note: If the sum of the licensee’s new eligible drama expenditure and the licensee’s carry‑forward eligible drama expenditure is less than 10% of the licensee’s total program expenditure, the shortfall will have to be made up in the next financial year—see section 103Y.
103XA Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription TV drama service; and
(b) a person is a part‑pass‑through provider in relation to the subscription TV drama service because the person supplies a package of programs; and
(c) the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for a financial year exceeds 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the financial year.
(2) For the purposes of section 103X, the licensee’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the licensee nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to so much of the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service as was incurred before 1 January 2006.
103Y Shortfall of eligible drama expenditure—part‑pass‑through provider supplies package of programs
(1) This section applies if:
(a) a licensee provides a subscription TV drama service; and
(b) a person is a part‑pass‑through provider in relation to the subscription TV drama service because the person supplies a package of programs; and
(c) the sum of
(i) the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the licensee’s carry‑forward eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the shortfall year;
is less than 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the licensee’s licence that, for the next financial year (the make‑up year), the licensee’s make‑up expenditure is equal to the shortfall amount.
Definitions
(3) In this section:
licensee’s make‑up expenditure, in relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure incurred by the licensee during the make‑up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service; and
(b) so much of the total expenditure incurred by the part‑pass‑through provider during the make‑up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.
shortfall amount means the amount by which the sum of:
(a) the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the shortfall year; and
(b) the licensee’s carry‑forward eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the shortfall year;
fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the shortfall year.
Double counting
(4) If:
(a) the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee’s make‑up expenditure in subsection (3); and
(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the part‑pass‑through provider;
that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.
Subdivision G—Licensee supplies part of program material
103Z 10% minimum eligible drama expenditure—licensee supplies part of program material
(1) If:
(a) a licensee provides a subscription TV drama service; and
(b) some, but not all, of the program material that is televised by the licensee on the subscription TV drama service consists of program material included in a package of programs supplied to the licensee by:
(i) a part‑channel provider; or
(ii) a part‑pass‑through provider;
in relation to the subscription TV drama service; and
(c) the remainder of the program material that is televised by the licensee on the subscription TV drama service consists predominantly of drama programs;
it is a condition of the licence that, for each financial year of operation, the sum of:
(d) the licensee’s new eligible drama expenditure in relation to the subscription TV drama service; and
(e) the licensee’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program expenditure in relation to the subscription TV drama service.
(2) In this section:
licensee’s carry‑forward eligible drama expenditure, in relation to the subscription TV drama service, means the licensee’s carry‑forward eligible drama expenditure (within the meaning of subsection 103ZAA(2)) for the financial year.
licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs not included in that package as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
licensee’s total program expenditure, in relation to the subscription TV drama service, means the total expenditure incurred by the licensee during the financial year on program material that is:
(a) not included in that package; and
(b) for televising, or available for televising, by the licensee on the subscription TV drama service.
(3) The licensee is not entitled to nominate, under the definition of licensee’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the licensee during the financial year as exceeds 10% of the licensee’s new eligible drama expenditure in relation to the subscription TV drama service.
103ZAA Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription TV drama service; and
(b) some, but not all, of the program material that is televised by the licensee on the subscription TV drama service consists of program material included in a package of programs supplied to the licensee by:
(i) a part‑channel provider; or
(ii) a part‑pass‑through provider;
in relation to the subscription TV drama service; and
(c) the remainder of the program material that is televised by the licensee on the subscription TV drama service consists predominantly of drama programs; and
(d) the licensee’s new eligible drama expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for a financial year exceeds 10% of the licensee’s total program expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the financial year.
(2) For the purposes of section 103Z, the licensee’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the licensee nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to so much of the licensee’s new eligible drama expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service as was incurred before 1 January 2006.
Subdivision H—Annual returns
103ZA Licensee to lodge annual return
(1) A licensee who provides one or more subscription TV drama services must, within 60 days after the end of each financial year of operation, give to the ACMA a return, in the approved form, containing such information as is required by that form in relation to the application of this Division in connection with those services.
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person intentionally contravenes that requirement.
Penalty: 1,000 penalty units.
(3) A reference in this section to an approved form is a reference to a form approved, in writing, by the ACMA for the purposes of the provision in which the expression appears.
103ZB Channel provider and part‑channel provider to lodge annual return
(1) If a person is a channel provider or a part‑channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year, the person must, within 60 days after the end of that financial year, give to the ACMA a return, in the approved form, containing such information as is required by that form in relation to the application of this Division in connection with those services.
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person intentionally contravenes that requirement.
Penalty: 1,000 penalty units.
(3) If:
(a) a person is a channel provider or a part‑channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year; and
(b) the person contravenes subsection (1) in relation to the financial year;
the ACMA must inform the licensee, in writing, of that contravention as soon as practicable after the ACMA becomes aware of that contravention.
(4) A reference in this section to an approved form is a reference to a form approved, in writing, by the ACMA for the purposes of the provision in which the expression appears.
103ZC ACMA may inquire into the correctness of an annual return