Commonwealth Consolidated Acts

BROADCASTING SERVICES ACT 1992 - SECT 38B

             (1)  If:

                     (a)  a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences ) that are in force; and

                     (b)  neither of those licences was allocated under section 38A; and

                     (c)  an additional commercial television broadcasting licence can be allocated for the licence area;

then, within 90 days after the designated time for the licence area:

                     (d)  the existing licensees may give the ACMA a joint written notice stating that:

                              (i)  a company specified in the notice (the joint‑venture company ) will apply for an additional commercial television broadcasting licence for the licence area; and

                             (ii)  the joint‑venture company is jointly owned by the existing licensees; and

                            (iii)  the joint‑venture company is formed in Australia or an external Territory and has a share capital; or

                     (e)  each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.

Application by joint‑venture company

             (2)  If a notice is given under paragraph (1)(d), the joint‑venture company may, within 12 months after the designated time for the licence area, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Separate applications by existing licensees

             (3)  If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the designated time for the licence area, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Allocation of additional licence to joint‑venture company

             (5)  As soon as practicable after receiving an application under subsection (2), the ACMA must allocate an additional commercial television broadcasting licence to the joint‑venture company for the licence area, so long as the ACMA is satisfied that the joint‑venture company is jointly owned by the existing licensees.

Allocation of additional licence to existing licensee

             (6)  If the ACMA has received applications from both of the existing licensees under subsection (3), the ACMA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price‑based system determined under subsection (10).

             (7)  If:

                     (a)  each existing licensee gives a notice under paragraph (1)(e); and

                     (b)  by the end of the 12‑month period beginning at the designated time for the licence area:

                              (i)  the ACMA has received an application from only one existing licensee (the first licensee ) under subsection (3); and

                             (ii)  the ACMA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after the end of that 12‑month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

             (8)  If:

                     (a)  each existing licensee gives a notice under paragraph (1)(e); and

                     (b)  before the end of the 12‑month period beginning at the designated time for the licence area, the ACMA receives:

                              (i)  an application from one existing licensee (the first licensee ) under subsection (3); and

                             (ii)  a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

             (9)  If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ACMA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.

Price‑based system for allocating licences where separate applications have been received

           (10)  The ACMA may determine in writing a price‑based system for allocating commercial television broadcasting licences under subsection (6).

           (11)  The Minister may give specific directions to the ACMA for the purpose of a determination.

           (12)  Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

           (13)  If a commercial television broadcasting licence is allocated under subsection (6), the ACMA must, unless the allocation system adopted was public, publish in the Gazette :

                     (a)  the name of the successful applicant; and

                     (b)  the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

Amalgamation of licence areas in some cases

           (14)  The ACMA may, by writing, determine that, if:

                     (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.

           (16)  A determination under subsection (14) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

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.

Licence conditions

           (18)  Each additional licence allocated under this section is subject to the following conditions:

                     (a)  the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4); and

                     (b)  if the licence area for the licence is wholly outside a remote licence area (within the meaning of Schedule 4)--the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) by whichever is the earlier of the following times:

                              (i)  the time that is notified in writing to the licensee by the ACMA;

                             (ii)  the start of 1 January 2004; and

                     (c)  if the licence area for the licence is not of the kind mentioned in paragraph (b)--the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) within 1 year of being allocated the licence or within such longer period as is notified in writing by the ACMA.

           (19)  Paragraphs 7(1)(i), 7(1)(l) and 7(1)(m) of Schedule 2 do not apply to an additional licence allocated under this section.

           (20)  On the allocation of an additional licence under subsection (5), it becomes a condition of:

                     (a)  the additional licence; and

                     (b)  each parent licence;

that the licensee concerned will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.

           (21)  On the allocation of an additional licence under subsection (6), (7), (8) or (9), it becomes a condition of:

                     (a)  the additional licence; and

                     (b)  the parent licence concerned;

that the licensee will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.

        (21A)  The condition specified in subsection (21B) applies if:

                     (a)  a commercial television broadcasting licence is allocated to a joint‑venture company under subsection (5); and

                     (b)  the licence is transferred to another company (the transferee company ); and

                     (c)  an election is in force under subclause 6(7B) of Schedule 4 in relation to any or all of the commercial television broadcasting services provided under the licences referred to in subsection (1) as the parent licences.

         (21B)  The licence held by the transferee company is subject to the condition that the transferee company will continue to transmit at least one commercial television broadcasting service provided under a parent licence in relation to which that election is in force.

Restrictions on transfer of licences

           (22)  During the period of 2 years after the date of allocation of an additional licence under subsection (5), any attempt by any person to transfer the additional licence is of no effect.

           (23)  During the period of 2 years after the date of allocation of an additional licence under subsection (6), (7), (8) or (9), any attempt by any person to transfer either:

                     (a)  the additional licence; or

                     (b)  the parent licence concerned;

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

           (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.

Designated time

           (26)  In this section:

"designated time" , in relation to a licence area, means:

                     (a)  if the licence area is wholly outside a remote licence area (within the meaning of Schedule 4)--the commencement of this section; or

                     (b)  in any other case--the time determined by the ACMA in relation to the licence area under subsection (27).

           (27)  The ACMA may, by writing, determine a time in relation to a licence area for the purposes of the definition of designated time in paragraph (26)(b).

           (28)  For a licence area that is not a remote licence area (within the meaning of Schedule 4), the time determined under subsection (27) must be no later than 1 January 2006.