102DCategory 2 digital radio multiplex transmitter licences

#### 102D Category 2 digital radio multiplex transmitter licences (1) The ACMA must not issue a category 2 digital radio multiplex transmitter licence to a person unless the person is a qualified company. (2) The ACMA must not issue a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106 unless: (a) the licensee is an eligible joint venture company; and (b) the application for the licence is accompanied by the fee determined by the ACMA by legislative instrument. (3) The ACMA must not issue a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area in accordance with a price‑based allocation system determined under section 106 unless: (a) the ACMA has, by notice published on its website at least 120 days before the issue of the licence, invited applications from eligible joint venture companies for the issue of the licence otherwise than in accordance with a price‑based allocation system determined under section 106; and (b) either: (i) no applications were received from eligible joint venture companies after the publication of the notice; or (ii) one or more applications were received from eligible joint venture companies after the publication of the notice, but the ACMA refused, under section 100, to issue the licence to any of the applicants. (4) The ACMA must not issue a category 2 digital radio multiplex transmitter licence (other than a foundation category 2 digital radio multiplex transmitter licence) for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106. Eligible joint venture company (5) For the purposes of the application of this section to a particular designated BSA radio area, a company is an eligible joint venture company if: (a) before the company was formed, the promoters of the company initially invited: (i) each incumbent digital commercial radio broadcasting licensee for the designated BSA radio area; and (ii) if there is a digital community radio broadcasting representative company for the designated BSA radio area—the digital community radio broadcasting representative company; and (iii) each national broadcaster; to subscribe for shares in the first‑mentioned company on the basis that: (iv) the incumbent digital commercial radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and (v) the only persons entitled to subscribe for shares in the first‑mentioned company are the incumbent digital commercial radio broadcasting licensees, the digital community radio broadcasting representative company and the national broadcasters; and (vi) assuming that the invitation were to be accepted by each invitee—the incumbent digital commercial radio broadcasting licensees would, in aggregate, hold five‑ninths of the shares in the first‑mentioned company; and (vii) assuming that the invitation were to be accepted by each invitee—the digital community radio broadcasting representative company would hold two‑ninths of the shares in the first‑mentioned company; and (viii) assuming that the invitation were to be accepted by each invitee—each national broadcaster would hold one‑ninth of the shares in the first‑mentioned company; and (b) in a case where not all of the invitations referred to in paragraph (a) were accepted—before the company was formed, the promoters of the first‑mentioned company invited each person who had accepted an invitation referred to in paragraph (a) to subscribe for the remaining shares in the first‑mentioned company; and (c) the invitations referred to in paragraph (a) were published on the ACMA’s website; and (ca) the invitations referred to in paragraph (a) were open for whichever of the following periods is applicable: (i) a period of at least 80 days; (ii) if all the invitees responded to the invitations within the period mentioned in subparagraph (i)—the period that began at the start of the period mentioned in subparagraph (i) and ended on the last occasion on which the promoters received such a response; and (d) there was no discrimination between subscribers for shares in the first‑mentioned company in relation to the consideration payable for the issue of the shares concerned; and (e) the total amount of money payable as consideration for the issue of the shares in the first‑mentioned company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph (a) are published, would be required for the commercially viable operation of the first‑mentioned company if it were assumed that a foundation category 2 digital radio multiplex transmitter licence had been issued to the first‑mentioned company at that time; and (f) none of the recipients of an invitation referred to in paragraph (a) or (b) were subject to duress as to whether the invitation should be accepted. (6) The promoters of a company may request the ACMA to publish on its website the invitations referred to in paragraph (5)(a). (7) The ACMA must comply with a request under subsection (6) if the ACMA is satisfied that the request was made in good faith. Copies of responses to invitations to subscribe for shares (7A) If: (a) an application is made for a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area; and (b) the applicant is an eligible joint venture company; the ACMA may, by written notice given to the applicant, require the applicant to: (c) give the ACMA a copy of each of the responses to the invitations referred to in paragraph (5)(a), so far as that paragraph applies to the promoters of the applicant; and (d) do so within the period specified in the notice. (7B) If the applicant breaches the requirement set out in the subsection (7A) notice, the ACMA may, by written notice given to the applicant: (a) refuse to consider the application; or (b) refuse to take any action, or any further action, in relation to the application. (7C) If: (a) an application is made for a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area; and (b) the application includes a statement to the effect that a particular company is a digital community radio broadcasting representative company for the area; then: (c) the ACMA may, by written notice given to the company, require the company to: (i) give the ACMA a copy of each of the responses to the invitations referred to in paragraph 9C(1)(c), so far as that paragraph applies to the promoters of the company; and (ii) do so within the period specified in the notice; and (d) if the ACMA gives a notice to the company—the ACMA must give a copy of the notice to the applicant. (7D) If the company breaches the requirement set out in the subsection (7C) notice, the ACMA may, by written notice given to the applicant: (a) refuse to consider the application; or (b) refuse to take any action, or any further action, in relation to the application. National broadcasters (8) A national broadcaster may hold shares in a company that: (a) is the holder of a category 2 digital radio multiplex transmitter licence; or (b) is an applicant for the issue of a category 2 digital radio multiplex transmitter licence; or (c) proposes to apply for the issue of a category 2 digital radio multiplex transmitter licence. Fee (9) A fee determined under paragraph (2)(b) must not be such as to amount to taxation.