100Issuing apparatus licences

#### 100 Issuing apparatus licences (1) Subject to sections 102, 102C, 102D, 102E and 102F, upon such application being made, the ACMA may issue to the applicant an apparatus licence. (1A) The ACMA must not issue a temporary community transmitter licence except under section 101A. For the purposes of this subsection, a temporary community transmitter licence is an apparatus licence that authorises operation of one or more radiocommunications transmitters for transmitting a community broadcasting service in accordance with a temporary community broadcasting licence. (2) The ACMA must not issue an apparatus licence authorising operation of a radiocommunications transmitter within a part of the spectrum designated under subsection 31(1) or (1A) unless: (a) the issue of the licence is in accordance with a decision of the ACMA under subsection 34(1) or (3) of the Broadcasting Services Act 1992; or (b) the issue of the licence is in accordance with a determination under subsection 31(2) of this Act; or (c) the licence is a digital radio multiplex transmitter licence. (3) Subsection (2) does not prevent the ACMA from issuing an apparatus licence authorising operation of a radiocommunications transmitter for transmitting a broadcasting service if: (a) the licence authorises operation of the transmitter only within a part of the spectrum that constitutes capacity reserved under paragraph 31(1)(a) of the Broadcasting Services Act 1992; and (b) the broadcasting service in question is a broadcasting service of a kind for which the capacity has been so reserved. (3A) An NBS transmitter licence cannot be issued to any person other than: (a) the Australian Broadcasting Corporation; or (b) the Special Broadcasting Service Corporation; or (c) the Commonwealth. (3AA) Subsection (2) does not prevent the ACMA from issuing an NBS transmitter licence that authorises the operation of one or more transmitters for transmitting one or more national broadcasting services that are covered by a licence area plan in force under section 26 of the Broadcasting Services Act 1992. (3B) The ACMA must not issue a transmitter licence authorising operation of a radiocommunications transmitter for transmitting an international broadcasting service unless there is in force an international broadcasting licence that authorises the provision of that service. (3BA) The ACMA must not issue a transmitter licence authorising operation of a radiocommunications transmitter for transmitting or re‑transmitting a commercial broadcasting service if: (a) the ACMA has reasonable grounds to believe that the application for the licence is part of a scheme: (i) entered into; or (ii) being carried out; or (iii) that has been carried out; for the sole or dominant purpose of avoiding the application of any provision of the Commercial Broadcasting (Tax) Act 2017 (other than section 14 of that Act); and (b) the applicant has not satisfied the ACMA that the application for the licence is not part of such a scheme. (3BB) For the purposes of subsection (3BA), scheme means: (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or (b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise. (3C) If: (a) a provisional international broadcasting certificate is in force in relation to an application for a transmitter licence; and (b) the application for the licence is made by the holder of the certificate; and (c) the conditions set out in the certificate are satisfied; the ACMA must not refuse to issue the transmitter licence unless the ACMA is satisfied that there are exceptional circumstances that warrant the refusal. (4) In deciding whether to issue an apparatus licence, the ACMA must have regard to: (a) all matters that it considers relevant; and (b) without limiting paragraph (a), the effect on radiocommunications of the proposed operation of the radiocommunications devices that would be authorised under the licence. (4A) The ACMA, in deciding whether to issue an apparatus licence, may have regard to a frequency assignment certificate issued by a person who holds an accreditation of a kind specified in the legislative rules, stating that the operation of a device under the licence: (a) on a specified frequency or frequencies, or on a specified frequency channel; and (b) at a specified constancy; and (c) at a specified location; and (d) subject to specified technical conditions; will satisfy any conditions that are required to be satisfied, in relation to the issue of such a certificate, under a determination made under section 266A. (4B) The legislative rules may authorise a person who holds a kind of accreditation mentioned in subsection (4A) to charge fees in relation to the issue of frequency assignment certificates under subsection (4A). A fee must not be such as to amount to taxation. (4C) In deciding whether to issue an apparatus licence, the ACMA may also have regard to the aggregate of the parts of the spectrum that, under transmitter licences or spectrum licences, may be used by the applicant. (5) In deciding whether to issue an apparatus licence, the ACMA may also have regard to whether, in the 2 years before the application, the applicant has been the holder of an apparatus licence that has been cancelled otherwise than under section 153H. (5A) In deciding whether to issue a transmitter licence authorising operation of a radiocommunications transmitter: (a) within a part of the spectrum designated under subsection 31(1) or (1A); and (b) at a particular location (the relevant location); for transmitting or re‑transmitting a commercial broadcasting service, the ACMA must also have regard to: (c) whether: (i) the commercial television broadcasting licensee; or (ii) the commercial radio broadcasting licensee; who provides the commercial broadcasting service has previously held a transmitter licence authorising operation of a radiocommunications transmitter for transmitting or re‑transmitting the commercial broadcasting service at a location that is the same as, or substantially similar to, the relevant location; and (d) whether there is a commercial arrangement between: (i) the applicant for the transmitter licence; and (ii) the commercial television broadcasting licensee or the commercial radio broadcasting licensee who provides the commercial broadcasting service; in relation to: (iii) the application; or (iv) the transmission of the commercial broadcasting service at a location that is the same as, or substantially similar to, the relevant location. (6) Without limiting subsection (4), in deciding whether to issue a transmitter licence, the ACMA must have regard to the following additional matters: (a) if a licence that the ACMA may issue as a result of the application would be a licence in respect of which persons operating the transmitters are required under section 119 to be qualified operators in relation to the licence—whether: (i) the applicant; or (ii) each person specified by the applicant as a person whom the applicant proposes to authorise under the licence to operate the transmitters; is a qualified operator in relation to such a licence; (b) whether the ACMA is satisfied that the proposed operation of the transmitters is not reasonably likely to cause: (i) death of, or injury to, persons; or (ii) loss of, or damage to, property. (7) If the ACMA refuses to issue the licence, it must give the applicant a written notice of the refusal, together with a statement of its reasons. > Note: Refusals to issue apparatus licences are reviewable under Part 5.6. (8) Nothing in this Act prevents 2 or more apparatus licences (whether transmitter licences or receiver licences or both) from being contained in the same instrument.