Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

BROADCASTING SERVICES ACT 1992 - SCHEDULE 4

Digital television broadcasting

Note:       See section 216A.

Part 1 -- Introduction

   

1   Simplified outline of this Schedule

National broadcasters who operate a transmitter are subject to restrictions regarding the services that may be transmitted in digital mode using the transmitter.

Commercial television licensees and national broadcasters who provide SDTV or HDTV multi-channelled television broadcasting services are subject to restrictions regarding the televising of anti-siphoning events and parts of anti-siphoning events.

Owners and operators of broadcasting transmission towers must give digital broadcasters and datacasters access to the towers for the purposes of installing or maintaining digital transmitters. Applications to the AAT for review of a decision regarding access may be made by the person seeking access, or by the owner or operator of the facility to which access is sought.

An ACMA determination determines when charge imposed by the Datacasting Charge (Imposition Act) 1998 is due and payable. The ACMA may also impose a late payment penalty.

2   Definitions

                   In this Schedule, unless the contrary intention appears:

"AAT " means the Administrative Appeals Tribunal.

"broadcasting transmission tower " means:

                     (a)  a tower; or

                     (b)  a pole; or

                     (c)  a mast; or

                     (d)  a similar structure;

used to supply:

                     (e)  a broadcasting service by means of radiocommunications using the broadcasting services bands; or

                      (f)  a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.

"coverage area " means:

                     (a)  a metropolitan coverage area; or

                     (b)  a regional coverage area.

"HDTV digital mode " has the meaning given by clause 4A.

"HDTV multi-channelled commercial television broadcasting service " has the meaning given by clause 5B.

"HDTV multi-channelled national television broadcasting service " has the meaning given by clause 5D.

"licence area " means a licence area for a commercial television broadcasting licence.

"metropolitan coverage area " means an area that corresponds to 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;

but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.

"national broadcasting service " does not include a broadcasting service provided under the Parliamentary Proceedings Broadcasting Act 1946 .

"national television broadcasting service " means a national broadcasting service that provides television programs.

"news or current affairs program " means any of the following:

                     (a)  a news bulletin;

                     (b)  a sports news bulletin;

                     (c)  a program (whether presenter-based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.

"primary commercial television broadcasting service " , in relation to a commercial television broadcasting licence, has the meaning given by clause 41G.

"primary national television broadcasting service " , in relation to a national broadcaster, has the meaning given by clause 41M.

"primary satellite national television broadcasting service " , in relation to a national broadcaster, has the meaning given by clause 41N.

"radiocommunication " has the same meaning as in the Radiocommunications Act 1992 .

"regional coverage area " means an area that corresponds to a regional licence area.

"regional licence area " means a licence area that is not a metropolitan licence area, but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.

"remote coverage area " means an area that corresponds to a remote licence area.

"remote licence area " has the meaning given by clause 5.

"satellite delivery area " means an area that corresponds to the licence area of a commercial television broadcasting licence allocated under section 38C.

"SDTV digital mode " has the meaning given by clause 4B.

"SDTV multi-channelled commercial television broadcasting service " has the meaning given by clause 5A.

"SDTV multi-channelled national television broadcasting service " has the meaning given by clause 5C.

"television broadcasting service " means:

                     (a)  a commercial television broadcasting service; or

                     (b)  a national television broadcasting service.

"transmitter licence " has the same meaning as in the Radiocommunications Act 1992 .

4   Digital mode

                   For the purposes of this Schedule, a program or service is broadcast or transmitted in digital mode if the program or service is broadcast or transmitted using a digital modulation technique.

4A   HDTV digital mode

                   For the purposes of this Schedule, a television program or a television broadcasting service is broadcast or transmitted in HDTV digital mode if the program or service is broadcast or transmitted in digital mode in a high definition format.

4B   SDTV digital mode

                   For the purposes of this Schedule, a program or a television broadcasting service is broadcast or transmitted in SDTV digital mode if the program or service is broadcast or transmitted in digital mode in a standard definition format.

5   Remote licence area

             (1)  The ACMA may, by legislative instrument, determine that a specified licence area is a remote licence area for the purposes of this Schedule.

          (1A)  Subclause (1) does not apply to the licence area of a commercial television broadcasting licence allocated under section 38C.

             (2)  A determination under this clause has effect accordingly.

5A   SDTV multi-channelled commercial television broadcasting service

                   For the purposes of this Schedule, a commercial television broadcasting service is a SDTV multi-channelled commercial television broadcasting service if:

                     (a)  the service is provided by a commercial television broadcasting licensee; and

                     (b)  the service is transmitted in SDTV digital mode:

                              (i)  using multi-channelling transmission capacity; or

                             (ii)  with the use of a satellite; and

                     (c)  the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee.

5B   HDTV multi-channelled commercial television broadcasting service

                   For the purposes of this Schedule, a commercial television broadcasting service is a HDTV multi-channelled commercial television broadcasting service if:

                     (a)  the service is provided by a commercial television broadcasting licensee; and

                     (b)  the service is transmitted in HDTV digital mode:

                              (i)  using multi-channelling transmission capacity; or

                             (ii)  with the use of a satellite; and

                     (c)  the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee.

5C   SDTV multi-channelled national television broadcasting service

             (1)  For the purposes of this Schedule, a national television broadcasting service is a SDTV multi-channelled national television broadcasting service if:

                     (a)  the service is provided by:

                              (i)  the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983 ; or

                             (ii)  the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991 ; and

                     (b)  the service is transmitted in SDTV digital mode:

                              (i)  using multi-channelling transmission capacity; or

                             (ii)  with the use of a satellite; and

                     (c)  the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned; and

                     (d)  the Corporation concerned has given the Minister a written notice electing that this subclause apply to the service.

             (4)  Paragraph (1)(d) does not apply to a national television broadcasting service provided with the use of a satellite.

5D   HDTV multi-channelled national television broadcasting service

                   For the purposes of this Schedule, a national television broadcasting service is a HDTV multi-channelled national television broadcasting service if:

                     (a)  the service is provided by:

                              (i)  the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983 ; or

                             (ii)  the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991 ; and

                     (b)  the service is transmitted in HDTV digital mode:

                              (i)  using multi-channelling transmission capacity; or

                             (ii)  with the use of a satellite; and

                     (c)  the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned.

Part 3 -- ABC/SBS television

   

36   Digital transmitter not to be used to provide a subscription television broadcasting service etc.

                   If a national broadcaster holds a transmitter licence that authorises the operation of a transmitter for transmitting national television broadcasting services in digital mode, the national broadcaster must not operate, or permit the operation of, that transmitter to transmit in digital mode:

                     (a)  a commercial broadcasting service that provides radio programs; or

                     (b)  a subscription radio broadcasting service; or

                     (c)  a subscription television broadcasting service; or

                     (d)  a subscription radio narrowcasting service; or

                     (e)  a subscription television narrowcasting service; or

                      (f)  an open narrowcasting radio service; or

                     (g)  an open narrowcasting television service.

Part 4A -- Restrictions on televising anti-siphoning events

Division 1 -- Commercial television broadcasting services

41E   Multi-channelled commercial television broadcasting service--restrictions on televising anti-siphoning events

Scope

             (1)  This clause applies to a commercial television broadcasting licensee  if the licensee provides:

                     (a)  a multi-channelled commercial television broadcasting service that is the licensee's primary commercial television broadcasting service in the licence area of the licence; and

                     (b)  one or more other multi-channelled commercial television broadcasting services (the secondary commercial television broadcasting services ) in that licence area.

Televising the whole of an anti-siphoning event

             (2)  The licensee must not televise on a secondary commercial television broadcasting service in the licence area the whole of an anti-siphoning event unless:

                     (a)  the licensee has previously televised in the licence area the whole of the event on the licensee's primary commercial television broadcasting service; or

                     (b)  the licensee will televise simultaneously in the licence area the whole of the event on both:

                              (i)  the licensee's primary commercial television broadcasting service; and

                             (ii)  the secondary commercial television broadcasting service.

Televising a part of an anti-siphoning event

             (3)  The licensee must not televise on a secondary commercial television broadcasting service in the licence area a part of an anti-siphoning event unless:

                     (a)  the licensee has previously televised in the licence area the part of the event on the licensee's primary commercial television broadcasting service; or

                     (b)  the licensee will televise simultaneously in the licence area the part of the event on both:

                              (i)  the licensee's primary commercial television broadcasting service; and

                             (ii)  the secondary commercial television broadcasting service; or

                     (c)  the licensee televises the part of the event in a news or current affairs program broadcast on the secondary commercial television broadcasting service.

Note 1:       For primary commercial television broadcasting service , see subclause 41G(2).

Note 2:       For anti-siphoning event , see subsection 6(1).

Licences allocated under section 38C

             (4)  This clause does not apply in relation to a licence allocated under section 38C.

41FA   Multi-channelled commercial television broadcasting service provided under a section 38C licence--restrictions on televising anti-siphoning events

Scope

             (1)  This clause applies to a commercial television broadcasting licensee if:

                     (a)  the licence was allocated under section 38C; and

                     (b)  the licensee provides:

                              (i)  a multi-channelled commercial television broadcasting service that is one of the licensee's primary commercial television broadcasting services in the licence area; and

                             (ii)  one or more multi-channelled commercial television broadcasting services that are not the licensee's primary commercial television broadcasting services (the secondary commercial television broadcasting services ) in the licence area.

Televising the whole of an anti-siphoning event

             (2)  The licensee must not televise on a secondary commercial television broadcasting service in the licence area the whole of an anti-siphoning event unless:

                     (a)  the licensee has previously televised in the licence area the whole of the event on one or more of the licensee's primary commercial television broadcasting services; or

                     (b)  the licensee will televise simultaneously in the licence area the whole of the event on:

                              (i)  one or more of the licensee's primary commercial television broadcasting services; and

                             (ii)  the secondary commercial television broadcasting service.

Televising a part of an anti-siphoning event

             (3)  The licensee must not televise on a secondary commercial television broadcasting service in the licence area a part of an anti-siphoning event unless:

                     (a)  the licensee has previously televised in the licence area the part of the event on one or more of the licensee's primary commercial television broadcasting services; or

                     (b)  the licensee will televise simultaneously in the licence area the part of the event on:

                              (i)  one or more of the licensee's primary commercial television broadcasting service; and

                             (ii)  the secondary commercial television broadcasting service; or

                     (c)  the licensee televises the part of the event in a news or current affairs program broadcast on the secondary commercial television broadcasting service.

Note 1:       For primary commercial television broadcasting service , see subclause 41G(3).

Note 2:       For anti-siphoning event , see subsection 6(1).

41G   Primary commercial television broadcasting service

             (2)  The ACMA may, by legislative instrument, declare that a specified multi-channelled commercial television broadcasting service provided by a commercial television broadcasting licensee for the licence area of the licence is the licensee's primary commercial television broadcasting service in the licence area.

             (3)  The ACMA must ensure that a declaration under subclause (2) is in force at all times after the licensee commences to provide a multi-channelled commercial television broadcasting service in the licence area.

Service provided under a section 38C licence

             (4)  The ACMA may, by legislative instrument, declare that one or more specified multi-channelled commercial television broadcasting services provided by a commercial television broadcasting licensee whose licence was allocated under section 38C are the licensee's primary commercial television broadcasting services in the licence area.

             (5)  The number of services declared under subclause (4) in relation to a particular licensee must not exceed 3.

             (6)  The ACMA must ensure that a declaration under subclause (4) is in force at all times for the licence area concerned.

Division 2 -- National television broadcasting services

41K   Multi-channelled national television broadcasting service--restrictions on televising anti-siphoning events

Scope

             (1)  This clause applies to a national broadcaster if the national broadcaster provides:

                     (a)  a multi-channelled national television broadcasting service that is the broadcaster's primary national television broadcasting service in a coverage area; and

                     (b)  one or more other multi-channelled national television broadcasting services (the secondary national television broadcasting services ) in that coverage area.

Televising the whole of an anti-siphoning event

             (2)  The national broadcaster must not televise on a secondary national television broadcasting service in the coverage area the whole of an anti-siphoning event unless:

                     (a)  the national broadcaster has previously televised in the coverage area the whole of the event on the broadcaster's primary national television broadcasting service; or

                     (b)  the national broadcaster will televise simultaneously in the coverage area the whole of the event on both:

                              (i)  the broadcaster's primary national television broadcasting service; and

                             (ii)  the secondary national television broadcasting service.

Televising a part of an anti-siphoning event

             (3)  The national broadcaster must not televise on a secondary national television broadcasting service in the coverage area a part of an anti-siphoning event unless:

                     (a)  the national broadcaster has previously televised in the coverage area the part of the event on the broadcaster's primary national television broadcasting service; or

                     (b)  the national broadcaster will televise simultaneously in the coverage area the part of the event on both:

                              (i)  the broadcaster's primary national television broadcasting service; and

                             (ii)  the secondary national television broadcasting service; or

                     (c)  the national broadcaster televises the part of the event in a news or current affairs program broadcast on the secondary national television broadcasting service.

Note 1:       For primary national television broadcasting service , see clause 41M.

Note 2:       For anti-siphoning event , see subsection 6(1).

National television broadcasting services provided with the use of a satellite

             (4)  This clause does not apply in relation to national television broadcasting services provided with the use of a satellite.

41LA   Multi-channelled national television broadcasting service provided with the use of a satellite--restrictions on televising anti-siphoning events

Scope

             (1)  This clause applies to a national broadcaster if the national broadcaster provides, with the use of a satellite:

                     (a)  a multi-channelled national television broadcasting service that is the broadcaster's primary satellite national television broadcasting service in a satellite delivery area; and

                     (b)  one or more other multi-channelled national television broadcasting services (the secondary national television broadcasting services ) in the satellite delivery area.

Televising the whole of an anti-siphoning event

             (2)  The national broadcaster must not televise on a secondary national television broadcasting service in the satellite delivery area the whole of an anti-siphoning event unless:

                     (a)  the national broadcaster has previously televised in the satellite delivery area the whole of the event on the broadcaster's primary satellite national television broadcasting service; or

                     (b)  the national broadcaster will televise simultaneously in the satellite delivery area the whole of the event on both:

                              (i)  the broadcaster's primary satellite national television broadcasting service; and

                             (ii)  the secondary national television broadcasting service.

Televising a part of an anti-siphoning event

             (3)  The national broadcaster must not televise on a secondary national television broadcasting service in the satellite delivery area a part of an anti-siphoning event unless:

                     (a)  the national broadcaster has previously televised in the satellite delivery area the part of the event on the broadcaster's primary satellite national television broadcasting service; or

                     (b)  the national broadcaster will televise simultaneously in the satellite delivery area the part of the event on both:

                              (i)  the broadcaster's primary satellite national television broadcasting service; and

                             (ii)  the secondary national television broadcasting service; or

                     (c)  the national broadcaster televises the part of the event in a news or current affairs program broadcast on the secondary national television broadcasting service.

Note 1:       For primary satellite national television broadcasting service , see clause 41N.

Note 2:       For anti-siphoning event , see subsection 6(1).

41M   Primary national television broadcasting service

             (1)  A national broadcaster must, by written notice given to the Minister, declare that a specified multi-channelled national television broadcasting service provided by the national broadcaster in a specified coverage area is the broadcaster's primary national television broadcasting service in the coverage area.

             (2)  The national broadcaster must ensure that a declaration under subclause (1) is in force at all times, for the coverage area concerned.

41N   Primary satellite national television broadcasting service

Primary national television broadcasting service

             (1)  A national broadcaster must, by written notice given to the Minister, declare that a specified multi-channelled national television broadcasting service provided by the national broadcaster, with the use of a satellite, in a specified satellite delivery area is the broadcaster's primary satellite national television broadcasting service in the satellite delivery area.

             (2)  The national broadcaster must ensure that a declaration under subclause (1):

                     (a)  comes into force as soon as practicable after the national broadcaster commences to provide a multi-channelled national television broadcasting service, with the use of a satellite, in the satellite delivery area; and

                     (b)  is in force at all times after that commencement.

Part 5 -- Transmitter access regime

   

42   Simplified outline

                   The following is a simplified outline of this Part:

•       The owner or operator of a broadcasting transmission tower or a designated associated facility must provide:

               (a)     the holder of a commercial television broadcasting licence; or

              (b)     a national broadcaster;

       with access to the tower or facility.

•       The owner or operator of a broadcasting transmission tower or a designated associated facility must provide a datacaster with access to the tower or facility.

•       The owner or operator of a broadcasting transmission tower must provide:

               (a)     the holder of a commercial television broadcasting licence; or

              (b)     a national broadcaster;

       with access to the site of the tower.

•       The owner or operator of a broadcasting transmission tower must pr ovide a datacaster with access to the site of the tower.

43   Definitions

                   In this Part:

"ACCC " means the Australian Competition and Consumer Commission.

"commercial television broadcasting licence " does not include a commercial television broadcasting licence allocated under section 38C.

"datacaster " means a person who holds a datacasting transmitter licence.

"datacasting transmitter licence " does not include an authorisation under section 114 of the Radiocommunications Act 1992 .

"designated associated facility " has the meaning given by clause 43A.

"facility " includes apparatus, equipment, a structure, a line or an electricity cable or wire.

"site " means:

                     (a)  land; or

                     (b)  a building on land; or

                     (c)  a structure on land.

43A   Designated associated facilities

                   For the purposes of this Part, a designated associated facility means any of the following facilities:

                     (a)  an antenna;

                     (b)  a combiner;

                     (c)  a feeder system;

                     (d)  a facility of a kind specified in the regulations;

where:

                     (e)  the facility is, or is to be, associated with a transmitter; and

                      (f)  the facility is used, or capable of being used, in connection with:

                              (i)  the transmission of a television broadcasting service in digital mode; or

                             (ii)  the provision of datacasting services in digital mode.

44   Extended meaning of access

             (1)  For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.

             (2)  For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.

             (3)  For the purposes of this Part, giving access to a designated associated facility includes:

                     (a)  replacing the facility with another facility located on the same site and giving access to the replacement facility; or

                     (b)  giving access to a service provided by means of the designated associated facility.

45   Access to broadcasting transmission towers

Television broadcasting services in digital mode

             (1)  The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker ), or a national broadcaster (also the access seeker ), give the access seeker access to the tower.

             (2)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker's television broadcasting service or services in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Datacasting services in digital mode

             (3)  The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker ), give the access seeker access to the tower.

             (4)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

             (5)  The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.

             (6)  In determining whether compliance with subclause (1) or (3) in relation to a tower is technically feasible, the ACMA must have regard to:

                     (a)  whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and

                     (c)  if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the tower; and

                             (ii)  making alterations to the tower; and

                     (d)  such other matters (if any) as the ACMA considers relevant.

Issue of certificate

             (7)  If the ACMA receives a request to make a decision about the issue of a certificate under subclause (5), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

45A   Access to designated associated facilities

             (1)  This clause applies to a designated associated facility if the facility is situated on, at, in or under:

                     (a)  a broadcasting transmission tower; or

                     (b)  the site on which a broadcasting transmission tower is situated.

Television broadcasting services in digital mode

             (2)  The owner or operator of the designated associated facility must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker ), or a national broadcaster (also called the access seeker ), give the access seeker access to the facility.

             (3)  The owner or operator of the designated associated facility is not required to comply with subclause (2) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the transmission of the access seeker's television broadcasting service or services in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Datacasting services in digital mode

             (4)  The owner or operator of the designated associated facility must, if requested to do so by a datacaster (the access seeker ), give the access seeker access to the facility.

             (5)  The owner or operator of the designated associated facility is not required to comply with subclause (4) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the provision of datacasting services in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

             (6)  The owner or operator of a designated associated facility is not required to comply with subclause (2) or (4) if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subclause (2) or (4), as the case may be, in relation to that facility is not technically feasible.

             (7)  In determining whether compliance with subclause (2) or (4) in relation to a facility is technically feasible, the ACMA must have regard to:

                     (a)  whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and

                     (c)  if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the site; and

                             (ii)  making alterations to a facility situated on the site; and

                     (d)  such other matters (if any) as the ACMA considers relevant.

Issue of certificate

             (8)  If the ACMA receives a request to make a decision about the issue of a certificate under subclause (6), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

Exemptions

             (9)  The regulations may provide for exemptions from subclauses (2) and (4).

           (10)  Regulations made for the purposes of subclause (9) may make provision with respect to a matter by conferring on the ACCC a power to make a decision of an administrative character.

46   Access to sites of broadcasting transmission towers

Television broadcasting services in digital mode

             (1)  The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker ), or a national broadcaster (also the access seeker ), give the access seeker access to a site if:

                     (a)  the tower is situated on the site; and

                     (b)  either:

                              (i)  the site is owned, occupied or controlled by the owner or operator of the tower; or

                             (ii)  the owner or operator of the tower has a right (either conditional or unconditional) to use the site.

             (2)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker's television broadcasting service or services in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Datacasting services in digital mode

             (3)  The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker ), give the access seeker access to a site if the tower is situated on the site.

             (4)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

             (5)  The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.

             (6)  In determining whether compliance with subclause (1) or (3) in relation to a site is technically feasible, the ACMA must have regard to:

                     (a)  whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and

                     (c)  if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the site; and

                             (ii)  making alterations to a facility situated on the site; and

                     (d)  such other matters (if any) as the ACMA considers relevant.

Issue of certificate

             (7)  If the ACMA receives a request to make a decision about the issue of a certificate under subclause (5), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

47   Terms and conditions of access

Access to towers

             (1)  The owner or operator of a broadcasting transmission tower must comply with subclause 45(1) or (3) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subclause); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Access to designated associated facilities

          (1A)  The owner or operator of a designated associated facility must comply with subclause 45A(2) or (4) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subclause); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Access to sites

             (2)  The owner or operator of a broadcasting transmission tower must comply with subclause 46(1) or (3) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subclause); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Conduct of arbitration

             (3)  The regulations may make provision for and in relation to the conduct of an arbitration under this clause.

             (4)  The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chair of the ACCC.

             (5)  Subclause (4) does not, by implication, limit subclause (3).

48   Code relating to access

             (1)  The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.

             (2)  Before making an instrument under subclause (1), the ACCC must consult:

                     (a)  commercial television broadcasting licensees; and

                     (b)  national broadcasters; and

                     (c)  owners and operators of broadcasting transmission towers.

             (3)  An access seeker must comply with the Code.

             (4)  The owner or operator of a broadcasting transmission tower must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45 or 46.

          (4A)  The owner or operator of a designated associated facility must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45A.

49   Arbitration--acquisition of property

             (1)  This clause applies to a provision of this Part that authorises the conduct of an arbitration (whether by the ACCC or another person).

             (2)  The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:

                     (a)  is otherwise than on just terms; and

                     (b)  would be invalid because of paragraph 51(xxxi) of the Constitution.

             (3)  In this clause:

"acquisition of property " has the same meaning as in paragraph 51(xxxi) of the Constitution.

"just terms " has the same meaning as in paragraph 51(xxxi) of the Constitution.

50   Relationship between this Part and the National Transmission Network Sale Act 1998

                   Part 3 of the National Transmission Network Sale Act 1998 does not apply in relation to an access seeker seeking access to a broadcasting transmission tower or a site to the extent to which this Part applies in relation to the access seeker seeking access to that tower or site.

Part 6 -- Collection of datacasting charge

   

51   Collection of datacasting charge

Definitions

             (1)  In this clause:

"charge " means charge imposed by the Datacasting Charge (Imposition) Act 1998 .

"late payment penalty " means an amount that is payable by way of penalty in accordance with a determination under subclause (3).

When charge due and payable

             (2)  Charge is due and payable at the time ascertained in accordance with a determination under subclause (2A).

          (2A)  The ACMA may, by legislative instrument, make a determination for the purposes of subclause (2).

Late payment penalty

             (3)  The ACMA may, by legislative instrument, determine that, if any charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay to the Commonwealth, by way of penalty, an amount calculated at the rate of:

                     (a)  20% per annum; or

                     (b)  if the determination specifies a lower percentage--that lower percentage per annum;

on the amount unpaid, computed from that time.

Determination has effect

             (4)  A determination under subclause (3) has effect accordingly.

Remission of penalty

             (5)  A determination under subclause (3) may authorise the ACMA to make decisions about the remission of the whole or a part of an amount of late payment penalty.

Payment of charge and late payment penalty

             (6)  Charge and late payment penalty are payable to the ACMA on behalf of the Commonwealth.

Recovery of charge and penalty

             (7)  Charge and late payment penalty may be recovered by the ACMA, on behalf of the Commonwealth, as debts due to the Commonwealth.

Payments to the Commonwealth

             (8)  Amounts received by way of charge or late payment penalty must be paid to the Commonwealth.

52   Cancellation of certain exemptions from datacasting charge

             (1)  This clause cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay charge imposed by the Datacasting Charge (Imposition) Act 1998 .

             (2)  The cancellation does not apply if the provision of the other Act is enacted after the commencement of this clause and refers specifically to charge imposed by the Datacasting Charge (Imposition) Act 1998 .

Part 10 -- Review of decisions

   

62   Review by the AAT

Transmitter access regime

             (5)  An application may be made to the AAT for a review of a decision of the ACMA to issue a certificate under subclause 45(5), 45A(6) or 46(5).

             (6)  An application under subclause (5) may only be made by the access seeker concerned.

             (7)  An application may be made to the AAT for a review of a decision of the ACMA to refuse to issue a certificate under subclause 45(5) or 46(5).

             (8)  An application under subclause (7) may only be made by the owner or operator of the broadcasting transmission tower concerned.

             (9)  An application may be made to the AAT for a review of a decision of the ACMA to refuse to issue a certificate under subclause 45A(6).

           (10)  An application under subclause (9) may only be made by the owner or operator of the designated associated facility concerned.

63   Notification of decisions to include notification of reasons and appeal rights

                   If the ACMA makes a decision that is reviewable under clause 62, the ACMA is to include in the document by which the decision is notified:

                     (a)  a statement setting out the reasons for the decision; and

                     (b)  a statement to the effect that an application may be made to the AAT for a review of the decision.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback