The ACMA may make whatever inquiries it thinks necessary or desirable in order to determine whether a return given to it under this Subdivision contains correct information.
103ZD Nominations to be attached to annual returns
Licensee
(1) A nomination that:
(a) is made by a licensee; and
(b) relates to the application of a provision of this Division in respect of a financial year;
must:
(c) be in writing; and
(d) accompany the return given by the licensee under section 103ZA for that financial year.
Channel provider and part‑channel provider
(2) A nomination that:
(a) is made by a person who 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) relates to the application of a provision of this Division in respect of that financial year;
must:
(c) be in writing; and
(d) accompany the relevant return given by the channel provider or the part‑channel provider, as the case may be, under section 103ZB for that financial year.
Subdivision J—Miscellaneous
103ZG Anti‑avoidance—transactions between persons not at arm’s length
(1) If:
(a) a person has incurred expenditure in connection with a transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and
(b) apart from this section, the expenditure is counted for the purposes of the application of this Division; and
(c) the amount of the expenditure is greater or less than is reasonable;
the ACMA may, by writing, determine that the amount of the expenditure is taken, for the purposes of the application of this Division in relation to the parties to the transaction, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.
(2) A determination under subsection (1) has effect accordingly.
103ZH Expenditure to be expressed in Australian currency
(1) For the purposes of this Division, expenditure is to be expressed in Australian currency.
(2) For the purposes of this Division, if expenditure is incurred otherwise than in Australian currency, the expenditure is to be expressed in Australian currency at a rate equal to whichever of the following is applicable:
(a) if the expenditure is incurred in connection with a transaction and the parties to the transaction have agreed on the exchange rate that is applicable to the expenditure—that exchange rate; or
(b) in any other case—the exchange rate applicable at the time when the expenditure is incurred.
Division 6—Miscellaneous
113 Transfer of subscription television broadcasting licence
A subscription television broadcasting licensee may transfer the subscription television broadcasting licence to another person.
114 Surrender of subscription television broadcasting licence
A subscription television broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.
116 Certain arrangements not to result in control or in persons being associates
(1) A person who is in a position to exercise control of a satellite subscription television broadcasting licence is not taken to be in a position to exercise control of another satellite subscription television broadcasting licence only because of a provision of a contract, arrangement or understanding under which all or any of the following things are done:
(a) a subscriber management system is provided for subscribing to either or both of the subscription television broadcasting services being provided under those licences;
(b) the subscription television broadcasting services being provided under those licences are marketed on a joint basis;
(c) joint use is made of facilities for:
(i) transmitting programs; or
(ii) the operation of disabling devices for restricting access to certain programs;
(d) such other things as are prescribed.
(2) Subsection (1) does not apply to a contract, arrangement or understanding under which, or as a result of which, a person who is in a position to exercise control of a satellite subscription television broadcasting service comes to be in a position to exercise control (whether directly or indirectly) of the selection or provision of a significant proportion of the programs broadcast by another satellite subscription television broadcasting licensee.
116A Use of additional capacity
Services under a satellite subscription television broadcasting licence may use capacity other than high performance beams on a subscription television satellite for the purpose of ensuring that as much of Australia as possible is covered by those services.
116B Application of section 51 of the Competition and Consumer Act
Nothing in this Part is to be taken as specifically authorising any act or thing for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
Part 8—Subscription broadcasting and narrowcasting class licences
117 Determination of class licences
The ACMA may, by legislative instrument, determine a class licence for the provision of:
(a) subscription radio broadcasting services; or
(b) subscription radio narrowcasting services; or
(c) subscription television narrowcasting services; or
(d) open narrowcasting radio services; or
(e) open narrowcasting television services.
118 Conditions of class licences
(1) The ACMA may include in a class licence conditions that, having regard to:
(a) the objects of this Act and the regulatory policy set out in section 4; and
(b) the matters referred to in section 22;
it considers should be imposed on the provision of services under that licence.
(2) Different conditions may be specified for:
(a) different categories of broadcasting services; and
(b) services providing radio programs and services providing television programs.
(3) Each class licence is subject to the conditions set out in Part 7 of Schedule 2.
119 Matters to which conditions may relate
(1) Conditions of class licences must be relevant to the broadcasting services to which those licences relate.
(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a class licence:
(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach of a condition by the licensee does not recur; or
(c) designed to ensure compliance with the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995.
120 Variation of class licences
(1) The ACMA may, by legislative instrument:
(a) vary or revoke conditions specified in a class licence; or
(b) specify additional conditions of the licence.
(2) Action taken under subsection (1) must not be inconsistent with:
(a) determinations and clarifications under section 19; or
(b) conditions set out in Part 7 of Schedule 2.
Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.
121A Simplified outline
The following is a simplified outline of this Part:
• Unless the ACMA gives permission, a subscription television broadcasting licensee, or a related body corporate, must not provide a television service in a regional area if 3 or more consecutive program items transmitted on that service are identical to any 3 or more consecutive program items transmitted by a metropolitan commercial television broadcasting licensee during prime viewing hours.
121B Definitions
In this Part:
licence area means a licence area of a commercial television broadcasting licence.
metropolitan commercial television broadcasting licensee means a commercial television broadcasting licensee whose licence area is a metropolitan licence area.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia.
prime viewing hours means the hours:
(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
program item means a television program, but does not include:
(a) advertising or sponsorship matter (whether or not of a commercial kind); or
(b) a news program that:
(i) is not a regularly scheduled news program; and
(ii) is solely or principally about a matter of national significance; or
(c) a program that covers an Olympic Games that is being held at the time the program is transmitted; or
(d) a program that covers a Paralympic Games that is being held at the time the program is transmitted; or
(e) a program that covers a Commonwealth Games that is being held at the time the program is transmitted.
regional area means an area that is not part of a metropolitan licence area.
related body corporate has the same meaning as in the Corporations Act 2001.
121C Identical program items
For the purposes of this Part, in determining whether a program item is identical to another program item, disregard any differences between the techniques used to transmit the program items.
121D Continuity of program items
(1) For the purposes of this Part, any break during the transmission of a program item for the purposes of the transmission of other matter:
(a) is taken not to affect the continuity of the program item; and
(b) is to be counted in working out the length of the program item; and
(c) despite paragraph (b), is to be ignored in working out whether the program item is identical to another program item.
(2) For the purposes of this Part, any break between program items for the purposes of the transmission of other matter:
(a) is taken not to affect the consecutiveness of the program items; and
(b) is to be counted in working out the total length of the program items.
121E ACMA permission is required to provide certain television services in regional areas
(1) A subscription television broadcasting licensee, or a related body corporate of a subscription television broadcasting licensee, engages in conduct to which this subsection applies if, without the written permission of the ACMA, the subscription television broadcasting licensee or the related body corporate, as the case may be, provides:
(a) a subscription television broadcasting service; or
(b) a subscription television narrowcasting service; or
(c) an open narrowcasting television service;
in a regional area, where, to the knowledge of the subscription television broadcasting licensee or the related body corporate, as the case may be, 3 or more consecutive program items transmitted on that service during a particular period:
(d) the total length of which is the same as, or shorter than, the length of prime viewing hours; and
(e) that occurs within the 24 hour period beginning at the start of prime viewing hours;
are identical to any 3 or more consecutive program items transmitted by a metropolitan commercial television broadcasting licensee during those prime viewing hours.
(2) A subscription television broadcasting licensee, or a related body corporate of a subscription television broadcasting licensee, must take all reasonable steps to ensure that the subscription television broadcasting licensee or the related body corporate, as the case may be, does not engage in conduct to which subsection (1) applies.
Part 8B—International broadcasting licences
Division 1—Introduction
121F Simplified outline
The following is a simplified outline of this Part:
• Applications may be made to the ACMA for the allocation of international broadcasting licences.
• The ACMA may only reject an application for the allocation of an international broadcasting licence to a person if:
(a) the ACMA is not satisfied that the person is an Australian company; or
(b) the ACMA is not satisfied that the person is a suitable applicant; or
(c) the Minister for Foreign Affairs is of the opinion that the international broadcasting service is likely to be contrary to Australia’s national interest.
• A licensee must keep records of broadcasts for 90 days.
• An international broadcasting licence may only be cancelled if:
(a) the licensee does not commence to provide an international broadcasting service within 2 years; or
(b) the Minister for Foreign Affairs is of the opinion that the international broadcasting service is likely to be contrary to Australia’s national interest.
• The ACMA may make declarations (nominated broadcaster declarations) that allow international broadcasting licences and related transmitter licences to be held by different persons, so long as the transmitter licence is held by an Australian company.
• If a nominated broadcaster declaration is in force:
(a) the international broadcasting licence may be issued to a company that is not an Australian company; and
(b) the holder of the transmitter licence must keep records of broadcasts for 90 days; and
(c) the holder of the transmitter licence may receive notices on behalf of the holder of the international broadcasting licence.
121FAA Definitions
In this Part:
company means a body corporate.
holder, in relation to a nominated broadcaster declaration, means the person who applied for the declaration.
nominated broadcaster declaration means a declaration under section 121FLC.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
Division 2—Allocation of international broadcasting licences
121FA Application for international broadcasting licence
(1) A person may apply to the ACMA for a licence to provide an international broadcasting service if no nominated broadcaster declaration is in force in relation to that service.
(1A) If a person is the holder of a nominated broadcaster declaration in relation to an international broadcasting service proposed to be provided by another person (the content provider):
(a) the holder of the declaration may, on behalf of the content provider, apply to the ACMA for a licence authorising the content provider to provide the international broadcasting service; and
(b) if an application is made under paragraph (a)—the content provider is taken to be the applicant for the licence.
(1B) An application under this section may only be made on the basis of one licence per service.
(2) An application under this section 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.
121FB Corporate status and suitability
(1) If the ACMA:
(a) is satisfied that an applicant under subsection 121FA(1) for an international broadcasting licence is registered as a company under Part 2A.2 of the Corporations Act 2001; and
(b) does not decide that subsection 121FC(1) applies to the applicant;
the ACMA must:
(c) refer the application to the Minister for Foreign Affairs; and
(d) give the Minister for Foreign Affairs a report about whether the proposed international broadcasting service concerned complies with the international broadcasting guidelines.
(2) If the ACMA:
(a) is not satisfied that an applicant under subsection 121FA(1) for an international broadcasting licence is registered as a company under Part 2A.2 of the Corporations Act 2001; or
(b) decides that subsection 121FC(1) applies to an applicant under subsection 121FA(1) for an international broadcasting licence;
the ACMA must refuse to allocate an international broadcasting licence to the applicant.
(3) If, under subsection (2), the ACMA refuses to allocate an international broadcasting licence to an applicant, the ACMA must give written notice of the refusal to the applicant.
(4) If an application for an international broadcasting licence is made under subsection 121FA(1), the ACMA must make reasonable efforts to either:
(a) take action under subsection (1) of this section; or
(b) refuse to allocate the licence;
within 30 days after the application was made.
(5) If the ACMA:
(a) is satisfied that an applicant under subsection 121FA(1A) for an international broadcasting licence is a company; and
(b) does not decide that subsection 121FC(1) applies to the applicant;
the ACMA must:
(c) refer the application to the Minister for Foreign Affairs; and
(d) give the Minister for Foreign Affairs a report about whether the proposed international broadcasting service concerned complies with the international broadcasting guidelines.
(6) If the ACMA:
(a) is not satisfied that an applicant under subsection 121FA(1A) for an international broadcasting licence is a company; or
(b) decides that subsection 121FC(1) applies to an applicant under subsection 121FA(1A) for an international broadcasting licence;
the ACMA must refuse to allocate an international broadcasting licence to the applicant.
(7) If, under subsection (6), the ACMA refuses to allocate an international broadcasting licence to an applicant, the ACMA must give written notice of the refusal to:
(a) the applicant; and
(b) the holder of the nominated broadcaster declaration concerned.
(8) If an application for an international broadcasting licence is made under subsection 121FA(1A), the ACMA must make reasonable efforts to either:
(a) take action under subsection (5) of this section; or
(b) refuse to allocate the licence;
within 30 days after the application was made.
121FC Unsuitable applicant
(1) The ACMA may, if it is satisfied that allowing a particular company to provide an international broadcasting service under an international broadcasting 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;